"Dispute" means any disagreement between parties concerning the proposal or refusal to initiate or change the evaluation, individualized education program or educational placement of a child with a disability or the provision of a free appropriate public education to such a child. "Dispute" includes any such disagreement between parties that arises before the filing of a request for a hearing under s. 115.80
or in which other processes, including a hearing under s. 115.80
or litigation, have been requested or commenced.
"Party" means a competent adult pupil or the parent of a child or adult pupil adjudicated incompetent who is the subject of a dispute, and the local educational agency.
(2) Request for mediation, consent of parties. 115.797(2)(a)(a)
The division shall establish a program for the mediation of disputes between parties. A party may request the division to arrange for mediation of a dispute at any time. The request shall be in writing, shall briefly describe the dispute and shall identify both parties. Both parties may jointly request mediation.
If only one of the parties requests mediation, within 5 business days after receiving the request the division shall notify the other party in writing of the request for mediation. The notice shall include all of the following:
A statement that participation in mediation is voluntary and that agreement or refusal to participate will not affect the resolution of the dispute in any pending or potential adjudicative process, or the timing of that process, unless the parties agree otherwise.
A request that the party notify the division within 5 business days after receiving the notice regarding the party's consent or refusal to participate in mediation.
If the division does not receive timely response under par. (b) 3.
or if the other party notifies the division under par. (b) 3.
of its refusal to participate in mediation, the division shall so notify the party that requested mediation.
A party that requests mediation may nominate a mediator from the roster under sub. (4)
. If a party nominates a mediator, the division shall include in the notice under sub. (2) (b)
the name of the nominated mediator.
If both parties nominate the same person as mediator, the division shall appoint that person as mediator if he or she is on the roster under sub. (4)
and available to mediate.
If both parties request mediation but neither party nominates a mediator, the division shall propose a mediator from the roster under sub. (4)
If both parties consent to mediation but the party that requests mediation does not nominate a mediator, the nominated mediator is not available or the other party does not consent to the appointment of the nominated mediator, the division shall propose a mediator from the roster under sub. (4)
Whenever the division proposes a mediator under par. (b) 2.
, it shall send information about the mediator's training and experience to both parties. Within 3 business days after receiving the information, either party may request the division to propose a different mediator from the roster under sub. (4)
In consultation with the council on special education, the division shall maintain a roster of mediators qualified to resolve disputes. The division may include a person on the roster if all of the following apply:
The division determines that the person has the appropriate skills and knowledge to act as a mediator under this section.
The person participates in a training program of at least 5 days' duration that has been approved by the division.
The person agrees to mediate, at the rate of compensation established by the division, the number of disputes required by the division each year.
The person consents to be observed by a division representative at any mediation session if the parties consent.
The division may not maintain a person on the roster unless he or she participates in at least one day of additional training approved by the division each year.
Subject to subch. II of ch. 111
, the division may remove from the roster any person whom it believes cannot serve effectively as a mediator.
Unless both parties agree otherwise, mediation shall commence within 21 days after the mediator is appointed and shall not delay hearings or appeals related to the dispute. All mediation sessions shall be held in a location that is convenient to the parties.
The parents of the child or adult pupil and 2 representatives of the local educational agency may participate in mediation. With the consent of both parties, other persons may participate in mediation. With the consent of both parties, a division representative may observe the mediation sessions.
At the commencement of mediation, the mediator shall inform the parties of the information that is required to be reported to the division for the purpose of administering the mediation program. The division may not require a mediator to disclose the substance of any matter discussed or communication made during mediation.
Either party may recess a mediation session to consult advisors, whether or not present, or to consult privately with the mediator. The mediator may recess a mediation session to consult privately with a party. If the mediator does so, he or she shall disclose the general purpose of the consultation but may not reveal other information about the consultation without the consent of the party consulted.
Unless both parties and the mediator agree otherwise, no person may record a mediation session.
Discussions that occur during mediation are confidential and may not be used as evidence in any subsequent hearing or civil proceeding. The mediator may require the parties to sign a confidentiality pledge before the commencement of mediation.
The mediator and either party may withdraw from mediation at any time.
No adverse inference may be drawn by any hearing officer or adjudicative body from the fact that a party did not consent to mediation, that a mediator or party withdrew from mediation or that mediation did not result in settlement of the dispute.
If the parties resolve the dispute or a portion of the dispute, or agree to use another procedure to resolve the dispute, the mediator shall ensure that the resolution or agreement is reduced to writing, that it is signed by the parties and that a copy is given to each party. The written resolution or agreement shall state that all discussions that occurred during mediation are confidential and may not be used as evidence in any hearing or civil proceeding. The resolution or agreement is legally binding upon the parties and is enforceable in the circuit court for the county in which the local educational agency is located.
The division shall establish a schedule for the compensation of mediators and the reimbursement of their expenses. The department shall pay mediators from the appropriation under s. 20.255 (1) (me)
If the parties agree that the amount of compensation paid to a mediator should be greater than the schedule under par. (a)
allows, the additional compensation is the responsibility of the parties.
If the parties have agreed to mediation by a mediator who is not on the roster under sub. (4)
, the mediator's compensation is the responsibility of the parties.
(8) Program evaluation.
The division may require that mediators, and may request that parties, participate in the evaluation of the mediation program. The division shall ensure that mediators and parties may participate in evaluating the program without being required to identify themselves or the other mediation participants. The division may not disclose a party's or mediator's evaluation to any other mediation participant without the party's or mediator's consent.
(9) Contract for services.
The department may contract with a private, nonprofit agency to administer the mediation program under this section or for mediator training or other services, including outreach and promotion, related to the administration of the program.
History: 1997 a. 164
; 2005 a. 258
Due process hearings. 115.80(1)(a)1.1.
A parent, or the attorney representing the child, may file a written request for a hearing within one year after the refusal or proposal of the local educational agency to initiate or change his or her child's evaluation, individualized education program, educational placement, or the provision of a free appropriate public education, except that, if the local educational agency has not previously provided the parent or the attorney representing the child with notice of the right to request a hearing under this subdivision, he or she may file a request under this subdivision within one year after the local educational agency provides the notice. The division shall develop a model form to assist parents in filing a request under this subdivision.
The parent, or the attorney representing the child, shall include in the request under subd. 1.
the name of the child, the address of the residence of the child, the name of the school the child is attending, a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem, and a proposed resolution of the problem to the extent known and available to the parents at the time.
A local educational agency may file a written request for a hearing only to override a parent's refusal to grant consent for an initial evaluation or a reevaluation or to contest the payment of an independent educational evaluation.
A parent, the attorney representing the child or a local educational agency may file a written request for a hearing as provided in 20 USC 1415
A parent or local educational agency, or the attorney representing a parent or local educational agency, shall file a request for a hearing under this subsection by providing the request to the other party and a copy of the request to the division. Upon receiving a request for a hearing, the division shall give to the child's parents a copy of the procedural safeguards available to the parents under s. 115.792
and under federal regulations.
If the parent of a child with a disability files a written request for a hearing, and the local educational agency has not previously sent a written notice to the parent under s. 115.792 (1) (b)
regarding the subject matter of the hearing request, the local educational agency shall, within 10 days of receiving the hearing request, send to the child's parent a written explanation of why the local educational agency proposed or refused to take the action raised in the hearing request, a description of other options that the individualized education program team considered and the reason why those options were rejected, a description of each evaluation procedure, assessment, record, or report that the local educational agency used as the basis for the proposed or refused action, and a description of the factors that are relevant to the local educational agency's proposal or refusal. A response by a local educational agency under this subdivision does not preclude the agency from asserting that the parent's request for a hearing is insufficient under subd. 2.
A hearing may not occur until the party requesting the hearing, or the attorney representing that party, files a request that meets the requirements of par. (a) 2.
The request under par. (a) 2.
shall be considered sufficient unless the party receiving the request notifies the hearing officer and the other party in writing within 15 days of receiving the request that the receiving party believes the request does not meet the requirements of par. (a) 2.
Within 5 days of receiving a notice under this subdivision, the hearing officer shall determine whether the request meets the requirements under par. (a) 2.
and notify the parties.
The party receiving a request for a hearing shall send to the party requesting the hearing a written response that addresses the issues raised in the hearing request within 10 days of receiving the request.
A party filing a written request for a hearing under par. (a)
may amend its request only if the other party consents in writing and is given the opportunity to resolve the issues presented by the request at a meeting under sub. (2m)
, or if the hearing officer grants permission at least 5 days before the hearing is scheduled to occur. The applicable timeline for resolution under sub. (2m)
and for a hearing under sub. (6)
recommences when the party files an amended request for a hearing. Nothing in this paragraph precludes a parent from filing a separate hearing request on an issue separate from the hearing request already filed.
The division shall maintain a list of qualified hearing officers who are not employed by or under contract with the department or the local educational agency, other than being appointed under this subsection, and who do not have a personal or professional interest that conflicts with the person's objectivity in the hearing, to serve as hearing officers in hearings under this section. A hearing officer must possess knowledge of, and the ability to understand, state and federal special education laws, rules, and regulations, and legal interpretations by federal and state courts. A hearing officer also must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice. Upon receipt of a written request for a hearing under sub. (1)
, the division shall appoint a hearing officer from the list.
Except as provided in par. (c)
, within 15 days of receiving a request for a hearing under sub. (1) (a) 1.
and before the hearing is conducted, the local educational agency shall convene a meeting with the child's parents and the relevant members of the individualized education program team who have specific knowledge of the facts identified in the hearing request. At the meeting, the child's parents shall discuss the hearing request and the facts that form the basis of the request and the local educational agency may resolve the issues.
The meeting under par. (a)
shall include a representative of the local educational agency who is authorized to make decisions on behalf of the agency. The meeting may not include an attorney of the local educational agency unless the child's parent is accompanied by an attorney.
The parents and the local educational agency may agree in writing to waive the meeting under par. (a)
or use mediation under s. 115.797
If the child's parents and the local educational agency resolve the subject matter of the hearing request at the meeting under par. (a)
, they shall execute and sign a legally binding agreement that is enforceable in the circuit court for the county in which the local educational agency is located, except that either the parent or the local educational agency may void the agreement within 3 business days of its execution.
If the local educational agency does not resolve the issues presented by the hearing request to the satisfaction of the child's parents within 30 days of receipt of the request, the hearing requested under sub. (1) (a) 1.
Any party to a hearing conducted under this section may be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities and may present evidence and confront, cross-examine and compel the attendance of witnesses. A party shall be provided with written or, at the option of the child's parents, electronic findings of facts and decisions, and, upon request, a written or, at the option of the child's parents, an electronic, verbatim record of the hearing.
At least 5 business days before a hearing is conducted under this section, other than an expedited hearing under 20 USC 1415
(k), each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing. The hearing officer may bar any party that fails to comply with this subsection from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party. The party requesting the hearing may not raise issues at the hearing that were not raised in the notice filed under sub. (1) (a)
unless the other party agrees.
A hearing officer may administer oaths and affirmations, issue subpoenas and enforce subpoenas under ss. 885.01 (4)
, regulate the course of the hearing and hold conferences for the settlement or simplification of the issues. The hearing officer is not bound by common law or statutory rules of evidence. The hearing officer shall admit all testimony having reasonable probative value, but shall exclude immaterial, irrelevant or unduly repetitious testimony. The hearing officer shall give effect to the rules of privilege recognized by law. A hearing officer has the authority to issue an order consistent with this subchapter and 20 USC 1415
(k) and to order whatever remedy is reasonably necessary to bring the parties into compliance with this subchapter.
The hearing officer's decision shall consist of findings of fact and conclusions of law and shall be based upon a preponderance of the evidence. The findings of fact shall be based solely upon the evidence received at the hearing. The decision shall be made on substantive grounds based on a determination of whether the child has received a free appropriate public education.
In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies impeded the child's right to a free appropriate public education, significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the child, or caused a deprivation of educational benefits. Nothing in this paragraph precludes a hearing officer from ordering a local educational agency to comply with procedural requirements.
The hearing officer shall issue a decision within 45 days after the conclusion of the 30-day period specified in sub. (2m) (e)
. The hearing officer may order an independent educational evaluation of the child at local educational agency expense and grant specific extensions of time for cause at the request of either party. If the hearing officer grants an extension of time, he or she shall include that extension and the reason for the extension in the record of the proceedings. The local educational agency shall pay the cost of the hearing.
Any party aggrieved by the decision of the hearing officer may bring a civil action in the circuit court for the county in which the child resides or in a U.S. district court. An action filed in circuit court shall be commenced within 45 days after service of the decision of the hearing officer. In any action brought under this subsection, the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate. Sections 227.52
do not apply to actions under this subsection.
Except as provided in 20 USC 1415
(k), during the pendency of any proceedings under this section, the local educational agency may not change the educational placement of a child unless the child's parents agree to the change. If the child is applying for initial admission to a public school, the child shall, with the consent of the child's parents, be placed in the public school program until all proceedings under this section have been completed. In this subsection, "local educational agency" includes the nonresident school district that a child is attending under s. 118.51
or 121.84 (1) (a)
A circuit court may award reasonable attorney fees and actual costs in any action or proceeding brought in circuit court under this section as provided in 20 USC 1415
(i) (3) (B) to (G).
The "continuing violation" doctrine did not apply to defeat the one-year statute of limitations in sub. (1) (a) 1. for filing a due process hearing request. Vandenberg v. Appleton Area School District, 252 F. Supp. 2d 786
Transfer of parental rights at age of majority.
When a child with a disability, other than a child with a disability who has been adjudicated incompetent in this state, reaches the age of 18, all of the following apply:
The local educational agency shall provide any notice required by this subchapter to both the individual and the individual's parents.
All other rights accorded to the individual's parents under this subchapter transfer to the individual.
The local educational agency shall notify the individual and the individual's parents of the transfer of rights.
History: 1997 a. 164
; 2005 a. 387
Children in residential care centers. 115.81(1)(b)
"Responsible local educational agency" means the local educational agency that was responsible for providing a free, appropriate public education to the child before the placement of the child in a residential care center for children and youth except that if the child resided in an institution or facility operated by the department of health services, a Type 1 juvenile correctional facility, as defined in s. 938.02 (19)
, or a Type 1 prison, as defined in s. 301.01 (5)
, before the placement of the child in a residential care center for children and youth, "responsible local educational agency" means the school district in which the residential care center for children and youth is located.
(2) Establishment of program.
Subject to the approval of the division, a residential care center for children and youth may establish and maintain special education and related services for children with disabilities.