On June 26, 2025 (form dated June 10, 2025), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (parent) against the #### (district). This is the department’s decision regarding that complaint. The issues in the complaint are discussed below and apply to the 2024-25 school year.
The IEP in effect at the beginning of the 2024-25 school year for the student who is the subject of this complaint referenced a Functional Behavioral Assessment (FBA) and Behavioral Intervention Plan (BIP) from a reevaluation and annual Individualized Education Program (IEP) team meeting that had been held on November 17, 2023. The FBA identified some of the student’s off-task behaviors and identified the main function of the behavior as work avoidance. Strategies in the BIP to prevent the behavior included a visual schedule, timer, redirection, proximity to an adult, calm tone of voice, calm environment, emotion cards, breaks, fidgets, movement, and a sensory diet. These strategies were included in the student’s IEP as supplementary aids and services.
The student’s IEP team met to conduct an annual meeting on November 17, 2024. The resulting IEP included all the behavioral supplementary aids and services from the prior IEP but removed any references to the 2023 FBA and BIP from the document. In department interviews, IEP team members did not recall having a specific discussion or agreement to remove the FBA and BIP from the student’s IEP.
In the weeks after the IEP team meeting, district-wide internet interruptions impacted the student’s ability to use a computer during scheduled breaks. The student’s periods of dysregulation and elopement increased.
On Friday, February 7, 2025, a school district employee physically restrained the student. The following Monday, February 10, 2025, the parent met with another staff member present during the incident, a school administrator, and two other staff that worked with the student. During the meeting, the parent requested an IEP team meeting and the restraint incident reports. On February 13, 2025, a parent advocate emailed district staff stating that Wisconsin’s seclusion and restraint law required the district to provide the written incident report. The school administrator replied the same day, explaining there had been miscommunication about which report to provide the parent, and district staff just provided the parents via email an incident report regarding the physical restraint. The report included the student’s name, the date, and time of the incident. The report provided names and titles of staff present at the incident. The report also described the student’s agitation at the end of a scheduled computer break and other actions preceding the restraint and the staff member’s actions during the incident. A school psychologist helped the student return to a calm state following the restraint.
On February 13, 2025, the district also sent an electronic invitation for an IEP team meeting to be held on February 19, 2025. On February 17, 2025, the district sent a paper IEP team meeting invitation home with the student. Both of these invitations identified each expected attendee and explained their roles. The parent’s advocate sent a follow-up email on February 18, 2025, listing concerns they hoped the IEP team would discuss at the meeting. One request was for the occupational therapist to observe the student to help develop sensory strategies. A school administrator responded twice that day. One of the responses informed the team that the occupational therapist would be unable to attend the IEP team meeting and that no regular education teacher had confirmed their ability to attend. The IEP team met as scheduled. The invited regular education teacher attended but the occupational therapist did not. The IEP team discussed the physical restraint incident report, and that discussion alone exceeded the allotted meeting time. On February 21, 2025, the district sent notice of a second IEP meeting to take place on March 6, 2025. On March 5, 2025, the student’s parents met with school administrators to discuss the physical restraint incident, physical restraint training, and the delay in providing the report.
Prior to the IEP team meeting on March 6, 2025, district staff presented the parent a revised restraint incident report. The district explained they had difficulty describing the incident due to conflicting information. The district decided to include all three witness accounts with attribution to explain the conflicting information.
At the March IEP team meeting, discussion focused on the student’s progress since the February staff change, the student’s behavior needs, and sensory needs. The IEP team added a 5-point color coded emotional regulation scale to help the student identify their emotional state throughout the day. The district created a new BIP for the student that integrated aspects of the 2023 BIP along with more current information. During department interviews, district staff reported to the department that the student’s dysregulation and elopement had decreased following the February staff change and March behavior support revisions.
Whether the district improperly utilized seclusion or physical restraint with the student.
Wisconsin law prohibits the use of seclusion or physical restraint with students at school 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. Wis. Stat. § 118.305(3). 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. The room or area in which the student is secluded must be free of objects or fixtures that may injure the student. Wis. Stat. § 118.305(2)(c). If a room is used for seclusion, no door in the room shall be capable of being locked or have a lock on it. Wis. Stat. § 118.305(2)(f).
Physical restraint means a restriction that immobilizes or reduces the ability of a student to freely move the 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. Wisconsin law prohibits the use of maneuvers that do not give adequate attention and care to protect the restrained student’s head, cause chest compression, place pressure on or weight on the student’s neck, throat, artery, the back of the student’s head, otherwise obstruct the student’s circulation or breathing, or place the student in a prone position. The United States. Department of Education has stated that prone (i.e., lying face down) restraints or other restraints that restrict breathing should never be used because they can cause serious injury or death. Restraint and Seclusion: Resource Document, p. 16 (May 2012). No covered individual, such as a school employee, may use physical restraint on a pupil at school unless he or she has received training meeting state requirements. Wis. Stat. § 118.305(6)(a). There is an exception in the case of an emergency only if a covered individual who has received training is not immediately available due to the unforeseen nature of the emergency. Wis. Stat. § 118.305(6)(c).
Whenever a covered individual or a law enforcement officer uses seclusion or physical restraint on a student at school, the school principal or their designee must notify the student’s parent of the incident as soon as practicable, but no later than one business day after the incident. Wis. Stat. § 118.305(4)(a). The principal or their designee must meet with the school staff who participated in the incident to discuss the events preceding, during, and following the use of seclusion or physical restraint. The discussion must include how to prevent the need for seclusion or physical restraint, including the factors that may have contributed to the escalation of behaviors, alternatives to physical restraint, such as de-escalation techniques and possible interventions, and other strategies that the principal determines are appropriate. Within two business days, the principal must complete a written report of the incident including the student’s name, the date, time, and duration of the use of physical restraint or seclusion, a description of the incident including a description of the actions of the student before, during and after the incident, and the names and titles of the school staff and any law enforcement officers present at the time of the incident. The principal must send, or hand deliver the written report to the student’s parent within three business days of the incident. Wis. Stat. § 118.305(4)(b). 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 must meet as soon as practicable after the incident, but no later than 10 school days after the incident. Wis. Stat. § 118.305(5).
Observer statements and department interviews support the conclusion that the student wanted to leave the classroom prior to the physical restraint. At the beginning of the incident, the student’s behavior did not present a clear, present, and imminent risk to the physical safety of the student or others. District staff took actions that contradicted the supports in the student’s IEP and escalated the situation. As the student became more agitated and district staff believed physical restraint was necessary to stop further harm. District interviews demonstrate that a staff member held the student in a manner that was not consistent with Wisconsin law.
The district met with all staff involved in the incident and obtained written statements on the same day as the incident, February 7, 2025. In these staff meetings and two meetings with the student’s parent, the district considered both what happened and how to prevent future incidents. No IEP team meeting was required because this was the only incident of seclusion or physical restraint during the school year. However, after the parent made a request, the IEP team met twice in the month following the incident. The main conclusion from the debriefing meetings, parent meetings, and IEP team meetings was that staff working with the student needed to be trained in physical restraint. While the content of the initial incident report met procedural requirements, the district provided it to the parent four business days after the incident, which was untimely under Wisconsin law. In addition, the staff person was not properly trained in physical restraint at the time of the incident. There was no unforeseen emergency that would justify an untrained person utilizing physical restraint. The district improperly utilized physical restraint with the student.
Whether the district properly responded to requests of the student’s parent for IEP team meetings and properly conducted IEP team meetings including all required participants.
School districts must provide a Free Appropriate Public Education (FAPE) to each student with a disability by developing a program that meets the student's unique disability-related needs, documenting that program in the IEP, and implementing the program as articulated in the IEP. The student’s IEP team must include the student’s parents, at least one regular education teacher of the child, at least one special education teacher of the child, a representative of the local education agency who is qualified to provide or supervise the provision of specially designed instruction and is knowledgeable about the general education curriculum and the availability of resources in the Local Education Agency (LEA), and someone who can interpret evaluation results, who may already be a member of the team. 34 CFR §300.321. A required IEP team participant may be excused from attending an IEP team meeting, in whole or in part, when the meeting involves a modification to, or discussion of, the participant’s area of the curriculum or related services if, in writing, the parent and the district agree to the excusal, and the IEP team participant submits written input into the development of the IEP prior to the meeting. Only required IEP team participants need to be excused in writing. 34 CFR § 300.321.
Parents may request an IEP team meeting at any time. A school district should grant any reasonable parent request for an IEP team meeting. A district must respond to a parent’s request for an IEP team meeting by scheduling the IEP team meeting at a mutually agreed on time and place or must provide written notice to the parent including an explanation of why the district has determined a meeting is not needed. 34 CFR §300.503. Prior to an IEP team meeting, the district must inform the parents of the student who will be present at the meeting. 34 CFR §300.322(b). Most districts document team members’ attendance on the cover page of the IEP. 34 CFR § 300.321; Wis. Stat. § 115.78(1m).
The district properly responded to the parent’s IEP team meeting request on February 10, 2025, by promptly scheduling an IEP team meeting for February 19, 2025. Due to time constraints, the district scheduled a second meeting in March two weeks later to continue discussion. The district did not properly document attendance for the February meeting. Because the parent wished to discuss concerns related to occupational therapy at the first IEP team and the occupational therapist did not attend, the district should have gotten the parent’s written agreement to excuse the therapist. The district did not properly conduct an IEP meeting with all the required members.
Whether the district properly developed the student’s IEP to address their behavioral needs.
LEAs meet their obligation to provide FAPE to each student with a disability, in part, by developing an IEP based on the student’s unique, disability-related needs that is reasonably calculated to enable the student to make progress appropriate in light of the student’s circumstances, documenting that program in the IEP, and implementing the program as articulated in the IEP. For most students, the IEP must be designed to allow the student to progress from grade to grade, but if that is not possible, the IEP should be appropriately ambitious in light of the child’s circumstances. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2); Endrew F. v. Douglas County School District, 137 S.Ct. 988. The IEP team must identify how the student's disability affects the student's involvement and progress in the general curriculum, develop measurable annual goals designed to meet the student's disability-related needs, and align special education services to enable the student to advance appropriately toward attaining the annual goals, make progress in the general curriculum, and be educated with nondisabled students. 34 CFR §§ 300.320 and 300.323. 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). The IEP team should also consider whether an FBA is necessary to better understand the function of the student's behavior. While the IEP team must work toward reaching consensus, the district is ultimately responsible for ensuring IEP teams make decisions in conformity with the requirements of state and federal special education law to ensure the student receives FAPE. Wis. Stat. § 115.79; 34 CFR § 300.116. After the annual IEP team meeting, changes to a student's IEP may be made either 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 a meeting. 34 CFR § 300.324(a)(4).
Removing reference to the 2023 FBA and BIP from the November 2024 IEP without team discussion or parent agreement and prior written notice was noncompliant. The IEP team met more than annually to discuss behavior concerns and develop a new BIP. The new BIP resulting from those discussions was unclear on whether the student needed a crisis plan. The district did not properly develop the student’s IEP to address behavioral needs.
Corrective Action
Within 30 days of this decision, the IEP team shall meet to finalize the student’s BIP, including a determination of whether the BIP requires a crisis plan. The district shall provide the department with documentation within 10 days of the meeting.
Within 30 days of this decision, the district must submit a proposed corrective action plan to the department for approval to ensure district staff understand the circumstances when the use of physical restraint is permitted under state law, what holds are permitted, and how to properly document incidents of seclusion and physical restraint. In addition, the district must develop a corrective action plan to ensure required IEP members are properly excused from IEP team meetings.
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 Individuals with Disabilities Education Act (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