On May 23, 2025 (letter dated May 14, 2025), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). This is the department’s decision regarding that complaint. #### (Student A) and #### (Student B), who are the subject of this complaint, are siblings. The issues for each student are identified below.
Student A
The issues identified for Student A are whether the district, during the 2024-25 school year, improperly utilized seclusion and/or physical restraint with a student with a disability, properly developed and implemented the student’s individualized education program (IEP) regarding the student’s behavioral needs, properly measured and provided the parent with reports on the student’s progress toward meeting their annual goals, and properly provided special education services using appropriately licensed and trained staff.
Whether the district improperly utilized seclusion and/or physical restraint with one student with a disability.
State law prohibits the use of seclusion and physical restraint by school staff unless a student's behavior presents a clear, present, and imminent risk to the physical safety of the student or others and is the least restrictive intervention feasible. Seclusion means the involuntary confinement of a student, apart from other students, in a room or area from which the student is physically prevented from leaving. Wis. Stats. §§ 118.305(2); 118.305(3). Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move their torso, arms, legs, or head. If physical restraint is used, the degree of force and the duration of the physical restraint may not exceed the degree and duration that are reasonable and necessary to resolve the clear, present, and imminent risk to the physical safety of the student or others. Physical restraint may only be used if there are no medical contraindications to its use. Wis. Stats. §§ 118.305(3). After each instance of seclusion or restraint, all individuals involved must meet to discuss the events preceding, during, and following the use of the seclusion or physical restraint. They must also discuss how to prevent the need for seclusion or physical restraint, including factors that may have contributed to the escalation of the student's behaviors; alternatives to physical restraint, such as de-escalation techniques and possible interventions; and other strategies that the school principal or designee determines are appropriate. Wis. Stat. § 118.305(4). After each instance of seclusion or restraint, no later than one business day after the incident, the district must notify the student's parent of the incident and, within three business days of the incident, send a written report to the student's parent containing the student's name, the date, time, and duration of the use of seclusion or physical restraint, a description of the incident, including a description of the actions of the pupil before, during, and after the incident, and the names and titles of the covered individuals and any law enforcement officers present during the incident. Wis. Stat. § 118.305(4). The second time that seclusion or physical restraint is used on a student with a disability within the same school year, the student's IEP team is required to convene as soon as possible after the incident but no later than ten school days after the incident. The IEP team must review the IEP and, as needed, revise it to ensure it includes appropriate positive behavioral interventions and supports and other strategies to address the behavior of concern based on a functional behavioral assessment of that behavior. Wis. Stat. § 118.305(5).
In the present complaint, district staff used physical restraint with Student A once during the 2024-25 school year, on November 14, 2024. District staff did not utilize seclusion with Student A during the 2024-25 school year. Within a timely manner, the district alerted the complainant, who is the student’s parent, conducted a meeting of involved staff to debrief, and completed and shared with the parent a written report of the incident. The department’s interviews with staff and documentation submitted by the district demonstrated that Student A engaged in the behavior that created a risk to the physical safety of the student and/or others. The restraint was brief in duration and ended immediately upon the resolution of the safety risk. The staff member involved in the restraint was properly trained to do so. The district did not improperly utilize physical restraint with Student A.
Whether the district properly developed and implemented the student’s IEP regarding the student’s behavioral needs.
School districts must provide each student with a disability a free appropriate public education (FAPE) in the least restrictive environment. School districts meet their obligation to provide FAPE to each student with a disability, in part, by developing and implementing each student's IEP as it is written. 34 CFR §§ 300.323(c)(2) & 300.324. In the case of a student whose behavior impedes the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324 (a)(2)(i). If a student displays inappropriate behavior despite having an IEP that includes behavioral supports, this may indicate that the behavioral supports in the IEP are not being appropriately implemented or the behavioral supports in the IEP are not appropriate for the student. It is critical that services and supports are designed to support each student’s unique needs and are appropriately implemented to avoid an overreliance on or misuse of exclusionary discipline in response to a child’s behavior. In these situations, the IEP team would need to meet to review whether the supports and services are being implemented or whether the supports and services are effective and revise the IEP accordingly. The IEP team should also consider whether a functional behavioral assessment is necessary to better understand the function of the student's behavior. Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA's Discipline Provisions, U.S. Department of Education Office of Special Education and Rehabilitative Services, July 19, 2022. Any time an IEP team determines a student’s behavior impedes the student’s learning or that of others, the IEP must include positive behavioral interventions and supports to address the student’s behavior. These supports may include specially designed instruction, related services, or supplementary aids and services. 34 CFR § 300.324(a)(2)(i); Wis. Stat. § 115.787(3)(b)(1).
The parent raised concerns that district staff were not properly following Student A’s behavior plan regarding when to call home. The parent indicates that according to Student A’s behavior support plan, staff should call home whenever Student A begins to show dysregulation but that they often only call home as a last resort. During the timeframe of this complaint, the student had two behavior support plans and two regulations plans in place. Staff explained that a behavior support plan focuses on staff responses and supports for students, while a regulation plan is put in place for students who have evidenced conduct that may be unsafe to themselves or others. In reviewing the submitted documentation, only the regulation plans reference calling the parent. In both cases, it is listed as an option for helping to reduce Student A’s tension. That portion of the regulation plan lists a number of staff actions/interventions to help Student A. A separate column titled, “other actions for staff to consider” lists an additional six options. The third of six options states, “consider calling home” and adds that if the student’s parent is not available staff should consider allowing student A to speak with a trusted adult. The strategies developed by the IEP team included many options for support, and calling home is described as one of the options staff could consider to be used at their discretion. The department finds the district properly developed and implemented Student A’s IEP regarding their behavioral needs.
Whether the district properly measured and provided the parent with reports on the student’s progress toward meeting their annual goals.
Each student’s IEP team must develop a statement of annual goals for the student designed to meet the student’s needs to enable the student to be involved in and make progress in the general education curriculum. Annual goals must be measurable and designed to address the student's disability-related needs. Each goal must contain a baseline from which the student’s progress can be measured and a measurable expected level of attainment. Each annual goal must also include a statement of how the student's progress toward achieving the goal will be measured. 34 CFR §300.320(a), Wis. Stats. § 115.782(2)(b).
School districts must ensure periodic reports are provided to the parents of a student with a disability on the progress the student is making toward meeting each goal as specified in the student's IEP. 34 CFR §§ 300.320 (a)(3)(ii), 300.323(a); Wis. Stat. § 115.787. The report must address progress toward each stated measurable goal or objective that is aligned with and directly related to the goal or objective statement and provide data or other information consistent with the baseline and level of attainment for the corresponding goal or objective. The reports must provide sufficient information so the parent can determine the degree to which the student has made progress toward meeting each goal or objective. The IEP team must revise the IEP, as appropriate, to address any lack of expected student progress toward the annual goals and in the general education curriculum if appropriate. CFR §§ 300.324 (b)(1)(ii).
Each of Student A’s IEPs in effect during the period of time relevant to this complaint contained multiple annual goals designed to address their disability-related needs. Each goal described the procedures by which the student’s progress toward attaining the goals would be measured which included observations, anecdotal notes, and data. While the district provided progress reports in a timely manner, the parent’s concern arises from progress reports in February 2025. Due to staff resignations, Student A’s support came from substitutes and did not have consistent staff during the time period relevant to this progress report. However, based on staff interviews, the staff person who completed the report conducted multiple classroom observations of Student A and gathered the data needed to complete the report in accordance with the student’s IEP. The staff person also consulted with staff who regularly provided support to Student A. The district properly measured and provided the parent with reports on Student A’s progress toward meeting their annual goals.
Whether the district properly provided special education services using appropriately licensed and trained staff.
Each school board must ensure every teacher, aide, or other professional staff holds a valid certificate, license, or permit issued by the department for the position for which the individual is employed. Special education services must be provided by properly licensed special education teachers. 34 CFR § 300.156; Wis. Stats § 118.19. Special education paraprofessionals work under the direct supervision of licensed teachers. A paraprofessional’s responsibilities may include supporting the licensed teacher's lesson plan, providing technical assistance to the teacher, and helping with classroom control or management. Staff responsible for implementing the student’s IEP must be informed of their specific responsibilities. 34 CFR § 300.323; Wis. Stat. § 115.787. School districts meet their responsibility for implementing IEPs, partly by ensuring that services are provided by properly licensed and qualified staff.
The district indicated that Student A’s special education teacher resigned in October 2024 and beginning in November 2024 they had a series of substitute teachers for the remainder of the year. The district is not able to verify the identities of each short-term substitute or how many worked with the student. District staff were able to verify that all short-term substitutes employed by the district were properly licensed and that none worked more than 45 days in Student A’s school.
However, the district was not able to provide assurances that the short-term substitutes were properly licensed to provide specially designed instruction to the student. If a substitute is anticipated to be needed for a long-term assignment, the employee must have a long-term substitute license in the area assigned. The district did not properly provide Student A’s special education services using appropriately licensed and trained staff. However, Student A’s IEP team met on May 7, 2025, and determined compensatory services to be provided as a result of the missed services.
Student B
The issues identified for Student B are whether the district, during the 2024-25 school year, properly provided the parent a copy of the IEP of a student with a disability prior to its implementation and properly implemented the student’s IEP in the proper location regarding specially designed instruction in a special education setting.
Whether the district properly provided the parent a copy of the student’s IEP prior to its implementation.
Prior written notice must be given to the parents of a child with a disability a reasonable time before the district proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the student. Among several required components, this notice must include a description of the action proposed or refused by the district, an explanation of why the district proposes or refuses to take the action and a description of other options that the IEP team considered and the reasons why those options were rejected. 34 CFR § 300.503. Following a change to a student's IEP, district staff may provide proper prior written notice by providing parents with a copy of the finalized IEP and placement page before implementing the changes. The provision of a draft IEP does not provide adequate prior written notice.
Student B’s IEP team met on February 26, 2025. The IEP developed at this meeting had an implementation date of March 2, 2025. However, the parent did not receive a copy of this IEP until requesting it in May 2025. Staff shared that district practice is for case managers to send parents a copy of an IEP within 10 school days of the IEP team meeting. Thus, even if the IEP developed on February 26, 2025, were sent out according to district practice, it still would not have been sent until after the IEP’s implementation date of March 2, 2025. While the district did not properly provide the parent with a copy of the IEP prior to its implementation, given that the parent has since received the IEP in its entirety no student level corrective action is required for this issue.
Whether the district properly implemented the student’s IEP in the proper location regarding specially designed instruction in a special education setting.
In developing each student's IEP, the IEP team must address the student’s needs that result from the student's disability in order to enable the student to be involved and make appropriate progress in the general education curriculum and toward their IEP goals and meet the student's other educational needs that result from the student's disability. Changes to a student's IEP may be made after the annual IEP team meeting by the IEP team at an IEP team meeting or, upon agreement of the parent and the district, the district may develop a written document to amend or modify the child's current IEP without holding an IEP team meeting. 34 CFR § 300.324(a)(4). A change of placement for a student must take place in an IEP team meeting. 34 CFR § 300.116 Wis. Stats. §§ 115.78(2)(c); 115.79. In Wisconsin, placements of students with disabilities must be determined by IEP teams in conformity with least restrictive environment (LRE) requirements. LRE requires that students with disabilities receive their education in the regular classroom environment to the maximum extent appropriate or, to the extent that such placement is not appropriate, in an environment with the least possible amount of segregation from the students' nondisabled peers and community. 34 CFR §§ 300.114 - 300.116.
Student B’s IEPs developed in March 2024 and February 2025 specify that all specially designed instruction (SDI) will be provided in the special education environment. During the IEP team meeting on May 14, 2025, the team discussed that staff sometimes provided Student B’s SDI in the general education environment in contravention with Student B’s IEPs. The parent and district agree that compensatory services were determined at the May 14, 2025, IEP team meeting, in part, to address this issue. According to the IEP, these compensatory services are being provided during the summer of 2025. The district did not properly implement the student’s IEP in the proper location regarding specially designed instruction in a special education setting.
By September 1, 2025, the district must provide documentation to the department that already determined compensatory services were provided to Student A and Student B as documented in their respective IEPs.
Additionally, within 30 days of the date of this decision, the district must develop and submit to the department for approval a corrective action plan. This plan must include the following:
● A plan to review and, if necessary, revise their procedures for tracking which substitute staff work with students who have IEPs, and each substitutes qualifications and training;
● Creation and plans to train and implement a practice across the district ensuring that families receive their student’s IEP prior to the implementation date of that particular IEP, and evidence of that training; and
● Train staff responsible for implementing IEPs to understand the proper location for services, along with a plan to ensure students receive services in the location outlined in their IEP.
All documents related to the above, including evidence the training has been provided, must be submitted to the department.
All noncompliance identified above must be corrected as soon as possible but in no case, more than one year from the date of this decision. This concludes our review of this complaint. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution or contact the special education team at (608) 266-1781.
For questions about this information, contact dpispeddata@dpi.wi.gov (608) 266-1781