On June 20, 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 this complaint. The issues are outlined below and pertain to the 2024-25 school year.
Whether the district properly developed the Individualized Education Program (IEP) of a student with a disability regarding positive behavioral supports.
School districts must provide a Free Appropriate Public Education (FAPE) to each student with a disability by developing an IEP that meets the student's unique needs and by implementing special education and related services in accordance with the student's IEP. 34 CFR §§ 300.323(c)(2) and 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 are not appropriate for the student. In these situations, the IEP team should 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 (FBA) is necessary to better understand the function of the student's behavior. It is critical that services and supports are designed to support the needs of students with disabilities and ensure FAPE are appropriately implemented to avoid an overreliance of exclusionary discipline in response to a 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.
Behavioral Supports
The student who is the subject of this complaint was in third grade at a district elementary school during the 2024-25 school year. The IEP in effect at the beginning of the school year, which had been developed on December 11, 2023, indicated that the student’s behavior impacts their learning and the learning of others. The student has difficulty regulating their emotions, especially when perceiving a task is too difficult, or when hungry or tired. The student can become verbally and physically aggressive and often leaves the classroom when frustrated. The student’s IEP states that the student does best with structured schedules that include breaks, advance notice and extra time for transitions, and opportunities for movement. The IEP also calls for the student to have adult supervision and cueing to assist with behaviors and safety and requires staff to follow the student’s behavior support plan in all school settings. The student receives specially designed instruction in behavior regulation. The student has an FBA and a Behavior Intervention Plan (BIP) that the team reviewed and updated as part of a reevaluation conducted in April 2025. The district properly developed the student’s IEP regarding positive behavioral supports.
Whether the district properly developed the student’s placement including considering least restrictive environment requirements and whether the district improperly shortened the student’s school day.
To the maximum extent appropriate, school districts must ensure students with disabilities are educated with their nondisabled peers. Special classes, separate schooling, or other removals of students with disabilities from the regular educational environment should occur only if the nature or severity of a student's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR § 300.114(a)(2). Under Wisconsin law, each student's IEP team must determine the student's educational placement, and the placement determination must be made through an IEP team meeting. Wis. Stat. § 115.78(2).
It is only appropriate to shorten the length of the school day for a student with a disability if the student's IEP team determines a shortened day is required to address the student's unique, disability-related needs. This should be a very rare occurrence. Before deciding to shorten the student's day, the IEP team must consider if there are other ways to meet the student's needs. When a student's school day is shortened, the student's IEP must include an explanation of why the student's disability-related needs require a shortened day and a plan for the student's return to school for a full day, including a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time. The student should return to a full school day as soon as they are able, and under most circumstances, a shortened school day should be in place for a limited amount of time. DPI Special Education Information Update Bulletin 14.03.
During the 2024-25 school year, there were several behavioral incidents that resulted in the student receiving disciplinary removals. While in an escalated state, the student often left their classroom or other assigned environment, became physically and verbally aggressive toward staff, including using profane language, and throwing objects such as chairs. Given time and the opportunity to go to one of several pre-identified safe areas within the school, the student would usually deescalate, including occasionally going to sleep on a bean bag chair, and could process what had happened. The student would often verbally process incidents with staff and apologize for their actions.
At an IEP team meeting on March 14, 2025, the team discussed the student’s ability to tolerate the school environment and participate in activities and tasks. The team discussed that the student had difficulty expressing their wants and needs, which creates anxiety and frustration. The IEP notes that the student has low stamina with an ability to participate in activities at school for approximately 10 minutes.
The team properly considered the least restrictive environment concerns when determining the student’s placement at the March 14, 2025, IEP team meeting. The IEP team considered other options and discussed the importance of the student maintaining relationships with staff and peers, and participating in classes like music, recess, and gym, while continuing to receive special education services. District staff came to the IEP team meeting prepared to discuss three options for the student’s continuing placement, including full-time virtual schooling, a shortened in-person school day, a combination of virtual schooling at home and in-person, or an offsite alternative program. The team determined that the student needs to have time in the school to work on relationships with peers and adults, and to receive direct special education services. The IEP team ruled out options of fully virtual school or the alternative program. The team determined that the student would attend virtual school at home in the morning and would attend school from 1:00-3:15 p.m. daily to receive special education services and participate in regular education specials classes and recess. The IEP team determined that the morning virtual instruction combined with the in-school instruction addressed the student’s needs related to the inability to participate in the school environment for an extended period of time, while still working on relationship building and social skills. The IEP documents that the team intended to revisit the placement and review the student’s progress at the student’s upcoming reevaluation meeting in about six weeks. The IEP team, however, did not provide a clear description of the amount of time the student was to participate in the virtual instruction. Further, although the team planned to review the student’s progress at the next IEP team meeting, they did not make a plan about how they would make that decision nor properly document the determination in the student’s IEP. As a result, the student’s day was improperly shortened.
The team met again on April 28, 2025, to conduct the student’s reevaluation and review their IEP. The revised IEP mentions that the student’s stamina “with [their] ability to participate and tolerate the school environment” was approximately 15 minutes. The team agreed to increase the student’s school day so they would arrive at 11:20 a.m. to eat lunch at school, receive special education services, and participate in afternoon specials classes and recess with peers. The team also updated the student’s FBA and BIP at this meeting.
Whether the district properly implemented the student’s IEP regarding providing technology and materials for online learning.
As part of its decision to change the student’s placement at the March 15, 2025, IEP team meeting, it was determined that the student would participate in virtual education at home during the morning when not attending school. The district needed to make arrangements to set the student up to participate in the virtual programming, which would be through a commercial provider of such services. The IEP did not describe the amount and frequency the student was expected to receive the virtual services. The parent and district staff agreed that they would start the process of making arrangements following the district’s spring break the next week.
During the week following spring break, staff communicated with the student’s parents about its progress in making arrangements for the student to participate in the program, getting a required workbook, and configuring a designated Chromebook. On April 4, 2025, the parent and student met with district staff to learn how to log into the system and took the Chromebook home. After a few days of emails between the parent and district staff regarding the difficulty the parent was having with the program and the district’s equipment, the parent brought the Chromebook back to school so it could be repaired. After it was repaired the student’s parent took the Chromebook home. On April 10, 2025, the district contacted the parent to ask how things were going with the program. On April 24, 2025, the student’s parent contacted the district to let them know they had not received the workbook and were continuing to have issues accessing the program including connection issues and the program not allowing the student to upload their assignments. The district responded that they had ordered the workbook, and it was on its way.
The student’s IEP team met on April 28, 2025, to conduct the reevaluation and to review and revise the student’s IEP. Among other concerns, the parent mentioned that their experience with the virtual program was poor and that they had not yet received the workbook to accompany the program. The parent did not receive the workbook until May 30, 2025, a week before school ended for the year.
The district provided evidence from the virtual education provider with the amount of time the student logged in. This evidence demonstrates that the student was able to successfully log in to the system only three times between March 24, 2025, through June 6, 2025. The parent communicated with the district about the difficulty the student was having with the program beginning in early April, and the district was aware the program was not working well with the internet connection in the student’s home. Regardless of the reason for the student’s difficulty using the program, when it became apparent it was not working for the student, the district should have intervened in some way to explore a different option so it could ensure the student was receiving the services the IEP team determined they needed. The district did not properly implement the student’s IEP regarding providing technology and materials for online learning.
Whether the district properly followed special education disciplinary procedures.
After a student has been subjected to 10 days of disciplinary removal in a school year, during subsequent removals, the district must provide each student services to the extent necessary to enable them to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving the student’s IEP goals. 34 CFR § 530(d)(1)(i).
A disciplinary change of placement occurs when the student's removal is for more than 10 consecutive school days or when a series of removals constitutes a pattern because the removals total more than 10 cumulative school days in a school year, the behavior is substantially similar to the behavior in previous incidents, and additional factors such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. 34 CFR §300.536(a). When a student with a disability is subject to a potential disciplinary change of placement, the district must determine whether the student’s conduct is a manifestation of the student’s disability within 10 school days of the decision to change placement. 34 CFR § 300.536.
The student received approximately 15 days of out-of-school suspension during the 2024-25 school year. The student had received 10 days of suspension as of May 5, 2025. The student received an additional five days of out-of-school suspension from May 16, 2025, through May 22, 2025, for a behavior that occurred on May 15, 2025. The district did not provide services to the student during these five days of removal to enable the student to continue to participate in the general education curriculum and make progress toward their IEP goals.
The IEP team conducted a manifestation determination on May 23, 2025, which was within 10 days of the behavior leading to the student’s suspension. The student’s behaviors were described as physical aggression, throwing objects, and leaving their assigned classroom or other environment. The team reviewed information provided by the student’s parents about medical diagnoses the student received. District staff shared information about the strategies they had found successful to assist the student when they start to become dysregulated. The team agreed that based on their information about the student, their behavior was caused by or had a direct and substantial relationship to the student’s disability, therefore was a manifestation of their disability. The IEP team properly conducted the manifestation determination.
The district did not properly follow special education disciplinary procedures regarding the provision of services after the 10th day of removal.
The district is directed to convene the student’s IEP team within 20 days of the date of this decision to review the student’s placement. If the IEP team determines that a shortened school day continues to be required to address the student’s disability related needs, the district must document its consideration of whether there are other ways to meet the student's needs, and its plan for the student's return to school for a full day, including a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time. The district must also ensure any other services, including any virtual services, are described with a clear description of the service, amount, and frequency. The district must also determine the amount of compensatory services required for the failure to implement the student’s IEP regarding virtual instruction, improperly shortening the student’s school day, and failure to provide services during the five day suspension. The district is directed to send a copy of the student’s revised IEP documenting the compensatory services to the department within 10 days of the meeting. The district and the parent have expressed both the necessity and their willingness to schedule an IEP team meeting and are already discussing options for the meeting.
Within 30 days of this decision, the district is also directed to review its policies and procedures around disciplinary protections for students with disabilities, particularly its responsibility to clearly track and document days of removal and to provide services to students who exceed 10 days of removal in a school year.
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.