AB674-ASA1,44,87
(c) The local educational agency prevented the parent from providing such
8notice.
AB674-ASA1,44,109
(d) The parents had not received notice, pursuant to s. 115.792, of the notice
10requirement in sub. (2) (a).
AB674-ASA1,44,15
11(4) Subject to s. 115.77 (1m) (d) and (e), this section does not require a local
12educational agency to pay the cost of education, including special education and
13related services, of a child with a disability at a private school or facility if the local
14educational agency made a free appropriate public education available to the child
15and the child's parents elected to place the child in a private school or facility.
AB674-ASA1,44,18
16115.792 Procedural safeguards. (1) Safeguards ensured. (a) The local
17educational agency shall establish and maintain procedures to ensure all of the
18following:
AB674-ASA1,44,2219
1. That the parents of a child may examine all records relating to the child and
20may participate in meetings about the identification, evaluation and educational
21placement of the child, and the provision of a free appropriate public education to the
22child, and may obtain an independent educational evaluation of the child.
AB674-ASA1,45,323
2. That a child's rights are protected by the assignment of an individual, who
24shall not be an employe of the department, the local educational agency or any other
25agency that is involved in the education or care of the child, to act as a surrogate for
1the child's parents whenever the child's parents are not known; the local educational
2agency cannot, after reasonable efforts, locate the child's parents; or the child is a
3ward of the state.
AB674-ASA1,45,54
3. That a child's parents are offered an opportunity to use mediation under s.
5115.797.
AB674-ASA1,45,126
(b) The local educational agency shall establish and maintain procedures to
7ensure that a child's parents are provided prior written notice whenever the local
8educational agency proposes to initiate or change, or refuses to initiate or change, the
9identification, evaluation or educational placement of the child, or the provision of
10a free appropriate public education to the child. In this paragraph, "local educational
11agency" includes the nonresident school district that a child is attending under s.
12118.51.
AB674-ASA1,45,15
13(2) Notice. The notice required under sub. (1) (b) shall be in the native
14language of the child's parents unless the local educational agency determines that
15it clearly is not feasible to do so and shall include all of the following:
AB674-ASA1,45,1716
(a) A description of the action proposed or refused by the local educational
17agency.
AB674-ASA1,45,1918
(b) An explanation of why the local educational agency proposes or refuses to
19take the action.
AB674-ASA1,45,2120
(c) A description of any other options that the local educational agency
21considered and the reasons why it rejected those options.
AB674-ASA1,45,2322
(d) A description of each evaluative procedure, test, record or report that the
23local educational agency used as a basis for the proposed or refused action.
AB674-ASA1,45,2524
(e) If the notice proposes to evaluate or reevaluate the child, the qualifications
25of the evaluators and their names, if known.
AB674-ASA1,46,2
1(f) A description of any other factors that are relevant to the local educational
2agency's proposal or refusal.
AB674-ASA1,46,73
(g) A statement that the parents of a child with a disability have procedural
4safeguards under this section and, if this notice is not an initial referral for
5evaluation, or reevaluation, or a notice of an individualized education program
6meeting, the way in which the parents may obtain a description of the procedural
7safeguards under sub. (3).
AB674-ASA1,46,98
(h) Sources for parents to contact to obtain assistance in understanding this
9subchapter.
AB674-ASA1,46,1010
(i) The rights specified in s. 115.78 (4).
AB674-ASA1,46,13
11(3) Procedural safeguards notice. (a) In this subsection, "local educational
12agency" includes the nonresident school district that a child is attending under s.
13118.51.
AB674-ASA1,46,2014
(b) The local educational agency shall give to the parents of a child with a
15disability, upon the child's initial referral for evaluation, upon each notification of an
16individualized education program meeting and upon reevaluation of the child, a full
17explanation written so as to be easily understood by the general public, and in the
18native language of the child's parents unless it clearly is not feasible to do so, of the
19procedural safeguards available under this section and under applicable federal law
20relating to all of the following:
AB674-ASA1,46,2121
1. Independent educational evaluation.
AB674-ASA1,46,2222
2. Prior written notice.
AB674-ASA1,46,2323
3. Parental consent.
AB674-ASA1,46,2424
4. Access to educational records.
AB674-ASA1,46,2525
5. Opportunity to present complaints.
AB674-ASA1,47,1
16. The child's placement during pendency of due process proceedings.
AB674-ASA1,47,32
7. Procedures for pupils who are subject to placement in interim alternative
3educational settings under
20 USC 1415 (k).
AB674-ASA1,47,54
8. Requirements for the unilateral placement by parents of pupils in private
5schools at public expense.
AB674-ASA1,47,66
9. Mediation.
AB674-ASA1,47,77
10. Hearings under s. 115.80.
AB674-ASA1,47,88
11. Civil actions.
AB674-ASA1,47,99
12. Attorney fees.
AB674-ASA1,47,10
10115.797 Mediation. (1)
Definitions. In this section:
AB674-ASA1,47,1611
(a) "Dispute" means any disagreement between parties concerning the
12proposal or refusal to initiate or change the evaluation, individualized education
13program or educational placement of a child with a disability or the provision of a free
14appropriate public education to such a child. "Dispute" includes any such
15disagreement between parties in which other processes, including a hearing under
16s. 115.80 or litigation, have been requested or commenced.
AB674-ASA1,47,1717
(b) "Mediation" has the meaning given in s. 802.12 (1) (e).
AB674-ASA1,47,2018
(c) "Party" means a competent adult pupil or the parent of a child or
19incompetent adult pupil who is the subject of a dispute, and the local educational
20agency.
AB674-ASA1,47,25
21(2) Request for mediation, consent of parties. (a) The division shall establish
22a program for the mediation of disputes between parties. A party may request the
23division to arrange for mediation of a dispute at any time. The request shall be in
24writing, shall briefly describe the dispute and shall identify both parties. Both
25parties may jointly request mediation.
AB674-ASA1,48,3
1(b) If only one of the parties requests mediation, within 5 business days after
2receiving the request the division shall notify the other party in writing of the request
3for mediation. The notice shall include all of the following:
AB674-ASA1,48,44
1. An explanation of mediation and its advantages.
AB674-ASA1,48,85
2. A statement that participation in mediation is voluntary and that agreement
6or refusal to participate will not affect the resolution of the dispute in any pending
7or potential adjudicative process, or the timing of that process, unless the parties
8agree otherwise.
AB674-ASA1,48,119
3. A request that the party notify the division within 5 business days after
10receiving the notice regarding the party's consent or refusal to participate in
11mediation.
AB674-ASA1,48,1412
(c) If the division does not receive timely response under par. (b) 3. or if the other
13party notifies the division under par. (b) 3. of its refusal to participate in mediation,
14the division shall so notify the party that requested mediation.
AB674-ASA1,48,18
15(3) Appointment of mediator. (a) A party that requests mediation may
16nominate a mediator from the roster under sub. (4). If a party nominates a mediator,
17the division shall include in the notice under sub. (2) (b) the name of the nominated
18mediator.
AB674-ASA1,48,2119
(b) 1. If both parties nominate the same person as mediator, the division shall
20appoint that person as mediator if he or she is on the roster under sub. (4) and
21available to mediate.
AB674-ASA1,48,2322
2. If both parties request mediation but neither party nominates a mediator,
23the division shall propose a mediator from the roster under sub. (4).
AB674-ASA1,49,224
3. If both parties consent to mediation but the party that requests mediation
25does not nominate a mediator, the nominated mediator is not available or the other
1party does not consent to the appointment of the nominated mediator, the division
2shall propose a mediator from the roster under sub. (4).
AB674-ASA1,49,63
(c) Whenever the division proposes a mediator under par. (b) 2. or 3., it shall
4send information about the mediator's training and experience to both parties.
5Within 3 business days after receiving the information, either party may request the
6division to propose a different mediator from the roster under sub. (4).
AB674-ASA1,49,9
7(4) Roster of mediators. (a) In consultation with the council on special
8education, the division shall maintain a roster of mediators qualified to resolve
9disputes. The division may include a person on the roster if all of the following apply:
AB674-ASA1,49,1110
1. The division determines that the person has the appropriate skills and
11knowledge to act as a mediator under this section.
AB674-ASA1,49,1312
2. The person participates in a training program of at least 5 days' duration that
13has been approved by the division.
AB674-ASA1,49,1514
3. The person agrees to mediate, at the rate of compensation established by the
15division, the number of disputes required by the division each year.
AB674-ASA1,49,1716
4. The person consents to be observed by a division representative at any
17mediation session if the parties consent.
AB674-ASA1,49,2018
(b) The division may not maintain a person on the roster unless he or she
19participates in at least one day of additional training approved by the division each
20year.
AB674-ASA1,49,2221
(c) Subject to subch. II of ch. 111, the division may remove from the roster any
22person whom it believes cannot serve effectively as a mediator.
AB674-ASA1,50,2
23(5) Mediation. (a) Unless both parties agree otherwise, mediation shall
24commence within 21 days after the mediator is appointed and shall not delay
1hearings or appeals related to the dispute. All mediation sessions shall be held in
2a location that is convenient to the parties.
AB674-ASA1,50,63
(b) The parents of the child or adult pupil and 2 representatives of the local
4educational agency may participate in mediation. With the consent of both parties,
5other persons may participate in mediation. With the consent of both parties, a
6division representative may observe the mediation sessions.
AB674-ASA1,50,117
(c) At the commencement of mediation, the mediator shall inform the parties
8of the information that is required to be reported to the division for the purpose of
9administering the mediation program. The division may not require a mediator to
10disclose the substance of any matter discussed or communication made during
11mediation.
AB674-ASA1,50,1612
(d) Either party may recess a mediation session to consult advisors, whether
13or not present, or to consult privately with the mediator. The mediator may recess
14a mediation session to consult privately with a party. If the mediator does so, he or
15she shall disclose the general purpose of the consultation but may not reveal other
16information about the consultation without the consent of the party consulted.
AB674-ASA1,50,1817
(e) Unless both parties and the mediator agree otherwise, no person may record
18a mediation session.
AB674-ASA1,50,2219
(f) Discussions that occur during mediation are confidential and may not be
20used as evidence in any subsequent hearing or civil proceeding. The mediator may
21require the parties to sign a confidentiality pledge before the commencement of
22mediation.
AB674-ASA1,50,2323
(g) The mediator and either party may withdraw from mediation at any time.
AB674-ASA1,51,224
(h) No adverse inference may be drawn by any hearing officer or adjudicative
25body from the fact that a party did not consent to mediation, that a mediator or party
1withdrew from mediation or that mediation did not result in settlement of the
2dispute.
AB674-ASA1,51,7
3(6) Agreements. If the parties resolve the dispute or a portion of the dispute,
4or agree to use another procedure to resolve the dispute, the mediator shall ensure
5that the resolution or agreement is reduced to writing, that it is signed by the parties
6and that a copy is given to each party. The resolution or agreement is legally binding
7upon the parties.
AB674-ASA1,51,10
8(7) Mediator compensation. (a) The division shall establish a schedule for the
9compensation of mediators and the reimbursement of their expenses. The
10department shall pay mediators from the appropriation under s. 20.255 (1) (me).
AB674-ASA1,51,1311
(b) If the parties agree that the amount of compensation paid to a mediator
12should be greater than the schedule under par. (a) allows, the additional
13compensation is the responsibility of the parties.
AB674-ASA1,51,1514
(c) If the parties have agreed to mediation by a mediator who is not on the roster
15under sub. (4), the mediator's compensation is the responsibility of the parties.
AB674-ASA1,51,21
16(8) Program evaluation. The division may require that mediators, and may
17request that parties, participate in the evaluation of the mediation program. The
18division shall ensure that mediators and parties may participate in evaluating the
19program without being required to identify themselves or the other mediation
20participants. The division may not disclose a party's or mediator's evaluation to any
21other mediation participant without the party's or mediator's consent.
AB674-ASA1,51,25
22(9) Contract for services. The department may contract with a private,
23nonprofit agency to administer the mediation program under this section or for
24mediator training or other services, including outreach and promotion, related to the
25administration of the program.
AB674-ASA1,52,6
1115.80 Due process hearings. (1) (a) 1. A parent, or the attorney
2representing the child, may file a written request with the division for a hearing
3whenever the local educational agency proposes or refuses to initiate or change his
4or her child's evaluation, individualized education program, educational placement
5or the provision of a free appropriate public education. The division shall develop a
6model form to assist parents in filing a request under this subdivision.
AB674-ASA1,52,127
2. The parent, or the attorney representing the child, shall include in the
8request under subd. 1. the name of the child, the address of the residence of the child,
9the name of the school the child is attending, a description of the nature of the
10problem of the child relating to the proposed or refused initiation or change,
11including facts relating to the problem, and a proposed resolution of the problem to
12the extent known and available to the parents at the time.
AB674-ASA1,52,1613
(b) A local educational agency may file a written request with the division for
14a hearing to override a parent's refusal to grant consent for an initial evaluation, a
15reevaluation or an initial educational placement or to contest the payment of an
16independent educational evaluation.
AB674-ASA1,52,1817
(c) A parent, the attorney representing the child or a local educational agency
18may file a written request for a hearing as provided in
20 USC 1415 (k).
AB674-ASA1,52,2119
(d) Upon receiving a request for a hearing, the division shall give to the child's
20parents a copy of the procedural safeguards available to the parents under s. 115.792
21and under federal regulations.
AB674-ASA1,53,2
22(2) The division shall maintain a list of qualified hearing officers who are not
23employed by or under contract with the department or the local educational agency,
24other than being appointed under this subsection, to serve as hearing officers in
1hearings under this section. Upon receipt of a written request for a hearing under
2sub. (1), the division shall appoint a hearing officer from the list.
AB674-ASA1,53,9
3(3) Any party to a hearing conducted under this section may be accompanied
4and advised by counsel and by individuals with special knowledge or training with
5respect to the problems of children with disabilities and may present evidence and
6confront, cross-examine and compel the attendance of witnesses. A party shall be
7provided with written or, at the option of the child's parents, electronic findings of
8facts and decisions, and, upon request, a written or, at the option of the child's
9parents, an electronic, verbatim record of the hearing.
AB674-ASA1,53,16
10(4) At least 5 business days before a hearing is conducted under this section,
11other than an expedited hearing under
20 USC 1415 (k), each party shall disclose to
12all other parties all evaluations completed by that date and recommendations based
13on the offering party's evaluations that the party intends to use at the hearing. The
14hearing officer may bar any party that fails to comply with this subsection from
15introducing the relevant evaluation or recommendation at the hearing without the
16consent of the other party.
AB674-ASA1,54,4
17(5) A hearing officer may administer oaths and affirmations, issue subpoenas
18and enforce subpoenas under ss. 885.01 (4) and 885.12, regulate the course of the
19hearing and hold conferences for the settlement or simplification of the issues. The
20hearing officer is not bound by common law or statutory rules of evidence. The
21hearing officer shall admit all testimony having reasonable probative value, but
22shall exclude immaterial, irrelevant or unduly repetitious testimony. The hearing
23officer shall give effect to the rules of privilege recognized by law. A hearing officer
24has the authority to issue an order consistent with this subchapter and
20 USC 1415 25(k) and to order whatever remedy is reasonably necessary to bring the parties into
1compliance with this subchapter. The hearing officer's decision shall consist of
2findings of fact and conclusions of law and shall be based upon a preponderance of
3the evidence. The findings of fact shall be based solely upon the evidence received
4at the hearing.
AB674-ASA1,54,11
5(6) The hearing officer shall issue a decision within 45 days after the receipt
6of the request for the hearing under sub. (1). The hearing officer may order an
7independent educational evaluation of the child at local educational agency expense
8and grant specific extensions of time for cause at the request of either party. If the
9hearing officer grants an extension of time, he or she shall include that extension and
10the reason for the extension in the record of the proceedings. The local educational
11agency shall pay the cost of the hearing.
AB674-ASA1,54,19
12(7) Any party aggrieved by the decision of the hearing officer may bring a civil
13action in the circuit court for the county in which the child resides or in a U.S. district
14court. An action filed in circuit court shall be commenced within 45 days after service
15of the decision of the hearing officer. In any action brought under this subsection,
16the court shall receive the records of the administrative proceedings, shall hear
17additional evidence at the request of a party and, basing its decision on the
18preponderance of the evidence, shall grant such relief as the court determines is
19appropriate. Sections 227.52 to 227.58 do not apply to actions under this subsection.
AB674-ASA1,55,2
20(8) Except as provided in
20 USC 1415 (k), during the pendency of any
21proceedings under this section, the local educational agency may not change the
22educational placement of a child unless the child's parents agree to the change. If
23the child is applying for initial admission to a public school, the child shall, with the
24consent of the child's parents, be placed in the public school program until all
25proceedings under this section have been completed. In this subsection, "local
1educational agency" includes the nonresident school district that a child is attending
2under s. 118.51.
AB674-ASA1,55,5
3(9) (a) Subject to par. (b), a circuit court may award reasonable attorney fees
4and actual costs to the parents of a child with a disability who is the prevailing party
5in any action or proceeding brought in circuit court under this section.
AB674-ASA1,55,76
(b) 1. Fees and costs may not be awarded under par. (a) for services performed
7after a written offer of settlement to a parent if all of the following apply:
AB674-ASA1,55,98
a. The offer is made within the time prescribed by s. 807.01 for actions in circuit
9court and at least 11 days before the hearing begins for administrative hearings.
AB674-ASA1,55,1010
b. The offer is not accepted within 10 days.
AB674-ASA1,55,1211
c. The court or hearing officer finds that the relief granted to the parents is not
12more favorable to the parents than the offer of settlement.
AB674-ASA1,55,1613
2. Fees and costs may not be awarded under par. (a) if they relate to any meeting
14of the individualized education program team unless the meeting is convened as a
15result of an administrative hearing or judicial action, or for mediation under s.
16115.797 that is conducted before filing a request for a hearing under sub. (1).
AB674-ASA1,55,1917
(c) Notwithstanding par. (b), fees and costs may be awarded under par. (a) to
18a parent who is the prevailing party and whose rejection of a settlement offer was
19substantially justified.
AB674-ASA1,55,2120
(d) 1. Except as provided in subd. 2., whenever the court finds any of the
21following it shall reduce the amount of the fees awarded under par. (a):
AB674-ASA1,55,2322
a. During the course of the action, the parent unreasonably protracted the final
23resolution of the controversy.