On July 3, 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 are identified 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 the student’s present levels of functional performance and regarding the student’s behavioral needs.
Each IEP must include a statement of the student's present level of academic achievement and functional performance, including how the student's disability affects their involvement and progress in the general curriculum. 34 CFR §§ 300.320-300.324; Wis. Stat. § 115.78(2). “Functional performance” is not defined under the Individuals with Disabilities Education Act (IDEA) but generally refers to activities and nonacademic skills needed for independence, access to instruction and daily living skills. See the Department of Public Instruction’s (DPI’s) Directions and Standards for Monitoring Compliance. 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).
During the 2024-25 school year, the student was in the third grade. The student receives special education services and was initially identified with a disability under the area of autism. The student’s annual IEP team meeting occurred on September 18, 2024. In October 2024, the student’s IEP team conducted a reevaluation, and as a result, also identified the student as meeting criteria for the category of intellectual disability. The IEP team met again on November 18, 2024, and developed an IEP based on information from the most recent assessments. At that time, the IEP team identified the student as a student with a most significant cognitive disability and their IEP goals are linked to the alternate achievement standards. The IEP team held subsequent meetings on April 11, 2025, May 6, 2025, and May 14, 2025.
The student’s September 2024 IEP included detailed present level information of functional performance that focused on handwriting, social skills, classroom participation and interactions, self-advocacy, and communication skills. The November 2024 IEP updated the present level information to reflect the most recent assessments and included information regarding the student’s processing speed, visual spatial ability, and social emotional skills. The IEPs did not include information about the student’s daily living skills such as washing hands, putting on boots, jackets, and tying shoes. Staff interviewed indicated that based on their observations, this was not an area of need for the student. They observed the student putting on their jacket and washing their hands without reminders. Staff also stated that the student was able to get ready to go outdoors and fully participated in morning and lunch recesses. The district properly developed the student’s present level information of functional performance.
The student’s IEPs identified their behavior as a factor impeding the student’s learning and stated that the student can become dysregulated, resulting in unsafe activity levels. The student’s IEPs contained goals on enhancing social emotional skills and utilizing sensory coping strategies. Supplementary aids and services included preferential seating, a visual schedule, use of sensory devices and verbal cueing. A Behavior Intervention Plan (BIP) was also incorporated into the IEPs by reference and described in the present levels section of the IEP. The BIP included use of social stories, verbal redirection, and designated space. Staff interviewed stated that they were aware of the student’s BIP, were able to access it, and implemented it during the school day. Staff also described the strategies and supports as being effective in addressing the student’s behaviors. The district properly developed the student’s IEP regarding behavioral needs.
Whether the district properly implemented the student’s IEP.
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. Staff responsible for implementing the student's IEP must be informed of their specific responsibilities. 34 CFR §300.323 and Wis. Stat. §115.787.
The student’s IEPs required that weekly progress monitoring data on the IEP’s goals be provided to the parent, and that a daily communication notebook be used to inform the parent on how the student’s day went. The IEPs also required the use of a visual schedule and that the student be given district-wide testing, such as the iReady Reading assessment, in a one-on-one setting. In the IEP that was developed on November 18, 2024, other supplementary aids and services were added, including modifying and reducing assignments and tests whenever they are given.
Both the student’s special education teacher and the special education director during the 2024-25 school year are no longer employees of the district and were unavailable for an interview. However, staff who were interviewed, including those who worked with the student daily, confirmed that the communication notebook was completed each day and sent home with the student, and that the student brought it back to school every morning. Staff also provided an example of the visual schedule that was used with the student. During the interviews, staff described numerous examples of how assignments and tests were modified. Examples given included changing vocabulary words, using smaller numbers in mathematical equations, verbally reading prompts for writing assignments using easily understood language, providing sentence starters, filling in blanks, and using different grading rubrics.
The student was given district-wide assessments in the special education room, with approximately three to four other students present in the room. An aide supported the student during this time, but the assessments were not conducted in a one-on-one setting. Progress monitoring data on the student’s progress toward their IEP goals was also not consistently recorded and provided weekly to the parent. In an email dated October 3, 2024, the parent informed the special education teacher that they did not need a printout of the data every week if the data was recorded in the shared Google document. However, the parent did not always have access to that document. Moreover, progress data regarding the student’s social emotional skills was not documented or provided to the parent until after the April 2025 IEP team meeting. Beginning in May, the parent received a weekly printout of the progress data until the end of the school year.
On October 24, 2024, and March 18, 2025, all students within the district received asynchronous instruction to allow for parent/teacher conferences. In May, the parent sent an email to the former director of special education asking specifically whether the special education services would be made up, and the director did not respond directly to this question. During interviews, the related service providers confirmed that they make up any missed services during asynchronous learning days. However, there is no documentation that the special education teacher provided the missed specially designed instruction.
The district did not properly implement the student’s IEP in the areas noted above. During the 2025-26 school year, the district must provide 80 minutes of compensatory services due to the October asynchronous learning day, which is based on the student’s September IEP, and 120 minutes of compensatory services due to the March asynchronous learning day, which is based on the student’s November IEP, for a total of 200 minutes. Additionally, within 30 days from the date of this decision, the district must develop and submit a corrective action plan to ensure that staff are aware of their responsibilities under students’ IEPs and implement them appropriately.
Whether the district properly responded to the parent’s request for Extended School Year (ESY) services.
ESY services are required special education and related services provided beyond the limits of the school term, in accordance with a student’s IEP, that are necessary to ensure the student receives FAPE. If a student’s parent or any other member of a student’s IEP team raises the issue of ESY eligibility for a student, the IEP team must determine whether the student requires ESY services in order to receive FAPE. ESY services must be provided only if a student's IEP team determines, on an individual basis, that the services are necessary for the provision of FAPE to the student. 34 CFR § 300.106.
IEP teams should engage in a multi-factored determination of eligibility for ESY services, including “the likelihood of regression, slow recoupment, and predictive data based upon the opinion of professionals.” Todd v. Duneland Sch. Corp., 229 F.3d 899, 907 (7th Cir. 2002). While regression and recoupment analysis does not require that children with disabilities actually experience regression in their skills for an IEP team to find them eligible for ESY, there must be a reasonable basis for concluding that regression would occur without the provision of ESY. See Letter to Anonymous (OSEP 1995).
During the May 14, 2025, IEP team meeting, the student’s parent requested ESY services as they did not believe that the student was making sufficient progress. District staff correctly informed the parent that an ESY determination is based primarily on a regression and recoupment analysis. They also told the parent that they would review the data and then meet to determine whether ESY would be provided. On May 16, 2025, the parent asked for clarification as to whether ESY services needed to be determined through an IEP team meeting. The district responded on May 20, 2025, informing the parent that it was an IEP team decision, but they were compiling the data and reviewing it, which they would share with the parent the next day, and then if the parent wanted an IEP team meeting, they could request one. However, district staff did not share the data with the parent. When the parent requested ESY services at the May 20, 2025, IEP meeting, the IEP team should have either made a determination about the student’s eligibility at that meeting, or if the team decided more information was needed, scheduled another IEP team meeting to determine whether ESY services were warranted. The district did not properly respond to the parent’s request for ESY services. Within 30 days from the date of this decision, the district must conduct an IEP team meeting to determine whether the student should have received ESY services during the summer of 2025, and if so, the amount of compensatory services required. No further corrective action is required.
Whether the district Improperly disclosed special education pupil record information.
The IDEA regulations require a school district to obtain prior written parental consent to disclose personally identifiable information related to special education. 34 CFR §300.622. The definition of records and the provisions regarding the disclosure of records are made with reference to the Family Educational Rights and Privacy Act of 1974. 34 CFR 99.30(a). Prior written consent is not required to release information to other school officials, including teachers, within the school district who the school district has determined to have a legitimate educational interest. 34 CFR § 99.31(a)(1)(A).
In March 2025, the parent informed district staff that they were opting the student out of the statewide assessment. District staff and the parent exchanged several emails to determine how the student’s services would be provided while other students were taking the assessment. In an effort to provide the parent some clarification, in early April 2025, a staff member approached the parent in a public place and disclosed the names of the staff members providing the services during the testing. The parent asked the staff member not to discuss it in a public place, and the conversation ended. Another parent overheard the conversation. The parent’s email regarding concerns about bullying and lack of support that the staff member shared in May 2025 with other staff members was not an improper pupil record disclosure because it was shared with staff who had a legitimate educational interest. The district improperly disclosed special education pupil record information during the conversation that occurred in April 2025. After this incident, the staff member spoke to their supervisor and determined that going forward all conversations would be by email, phone call, or in-person in a private area to avoid inadvertent pupil record disclosure. No further corrective action is required.
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