Amendment SSA1-SB384

SB384-SSA1,50,2 (5) Mediation. (a) 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.

SB384-SSA1,50,6 (b) 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.

SB384-SSA1,50,11 (c) 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.

SB384-SSA1,50,16 (d) 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.

SB384-SSA1,50,18 (e) Unless both parties and the mediator agree otherwise, no person may record a mediation session.

SB384-SSA1,50,22 (f) 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.

SB384-SSA1,50,23 (g) The mediator and either party may withdraw from mediation at any time.

SB384-SSA1,51,2 (h) 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.

SB384-SSA1,51,7 (6) Agreements. 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 resolution or agreement is legally binding upon the parties.

SB384-SSA1,51,10 (7) Mediator compensation. (a) 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).

SB384-SSA1,51,13 (b) 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.

SB384-SSA1,51,15 (c) 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.

SB384-SSA1,51,21 (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.

SB384-SSA1,51,25 (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.

SB384-SSA1,52,6 115.80 Due process hearings. (1) (a) 1. A parent, or the attorney representing the child, may file a written request with the division for a hearing whenever the local educational agency proposes or refuses to initiate or change his or her child's evaluation, individualized education program, educational placement or the provision of a free appropriate public education. The division shall develop a model form to assist parents in filing a request under this subdivision.

SB384-SSA1,52,12 2. 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.

SB384-SSA1,52,16 (b) A local educational agency may file a written request with the division for a hearing to override a parent's refusal to grant consent for an initial evaluation, a reevaluation or an initial educational placement or to contest the payment of an independent educational evaluation.

SB384-SSA1,52,18 (c) 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 (k).

SB384-SSA1,52,21 (d) 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.

SB384-SSA1,53,2 (2) 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, to serve as hearing officers in hearings under this section. Upon receipt of a written request for a hearing under sub. (1), the division shall appoint a hearing officer from the list.

SB384-SSA1,53,9 (3) 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.

SB384-SSA1,53,16 (4) 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.

SB384-SSA1,54,4 (5) A hearing officer may administer oaths and affirmations, issue subpoenas and enforce subpoenas under ss. 885.01 (4) and 885.12, 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.

SB384-SSA1,54,11 (6) The hearing officer shall issue a decision within 45 days after the receipt of the request for the hearing under sub. (1). 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.

SB384-SSA1,54,19 (7) 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 to 227.58 do not apply to actions under this subsection.

SB384-SSA1,55,2 (8) 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.

SB384-SSA1,55,5 (9) (a) Subject to par. (b), a circuit court may award reasonable attorney fees and actual costs to the parents of a child with a disability who is the prevailing party in any action or proceeding brought in circuit court under this section.

SB384-SSA1,55,7 (b) 1. Fees and costs may not be awarded under par. (a) for services performed after a written offer of settlement to a parent if all of the following apply:

SB384-SSA1,55,9 a. The offer is made within the time prescribed by s. 807.01 for actions in circuit court and at least 11 days before the hearing begins for administrative hearings.

SB384-SSA1,55,10 b. The offer is not accepted within 10 days.

SB384-SSA1,55,12 c. The court or hearing officer finds that the relief granted to the parents is not more favorable to the parents than the offer of settlement.

SB384-SSA1,55,16 2. Fees and costs may not be awarded under par. (a) if they relate to any meeting of the individualized education program team unless the meeting is convened as a result of an administrative hearing or judicial action, or for mediation under s. 115.797 that is conducted before filing a request for a hearing under sub. (1).

SB384-SSA1,55,19 (c) Notwithstanding par. (b), fees and costs may be awarded under par. (a) to a parent who is the prevailing party and whose rejection of a settlement offer was substantially justified.

SB384-SSA1,55,21 (d) 1. Except as provided in subd. 2., whenever the court finds any of the following it shall reduce the amount of the fees awarded under par. (a):

SB384-SSA1,55,23 a. During the course of the action, the parent unreasonably protracted the final resolution of the controversy.

SB384-SSA1,55,25 b. The attorney representing the parent did not provide to the division the information specified in sub. (1) (a) 2.

SB384-SSA1,56,3 2. A court may not reduce the amount of the fees awarded under par. (a) if it finds that the state or a local educational agency unreasonably protracted the final resolution of the controversy or violated this subchapter.

SB384-SSA1,56,5 (10) Sections 227.44 to 227.50 do not apply to hearings conducted under this section.

SB384-SSA1,56,8 115.807 Transfer of parental rights at age of majority. When a child with a disability, other than a child with a disability who has been determined to be incompetent under ch. 880, reaches the age of 18, all of the following apply:

SB384-SSA1,56,10 (1) The local educational agency shall provide any notice required by this subchapter to both the individual and the individual's parents.

SB384-SSA1,56,12 (2) All other rights accorded to the individual's parents under this subchapter transfer to the individual.

SB384-SSA1,56,14 (3) The local educational agency shall notify the individual and the individual's parents of the transfer of rights.

SB384-SSA1,56,16 115.81 Children in child caring institutions. (1) Definitions. In this section:

SB384-SSA1,56,18 (a) "County department" means a county department under s. 46.215, 46.22 or 46.23.

SB384-SSA1,56,21 (b) "Originating 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 child caring institution.

SB384-SSA1,56,24 (2) Establishment of program. Subject to the approval of the division, a child caring institution may establish and maintain special education and related services for children with disabilities.

SB384-SSA1,57,4 (3) Referral. (a) Whenever a county department recommends to a court that a child be placed in a child caring institution or whenever a state agency anticipates placing a child in a child caring institution, the county department or state agency shall notify the originating local educational agency.

SB384-SSA1,57,6 (b) For each child identified in a notice under par. (a), the originating local educational agency shall do all of the following:

SB384-SSA1,57,10 1. If the child is a child with a disability, as soon as reasonably possible and after consulting with a county department or a state agency, as appropriate, appoint an individualized education program team to review and revise, if necessary, the child's individualized education program and develop an educational placement offer.

SB384-SSA1,57,11 2. If the child has not been identified as a child with a disability:

SB384-SSA1,57,14 a. Appoint staff to review the child's education records and develop a status report for the child and send a copy of the report to the county department or state agency, as appropriate, within 30 days after receiving the notice under par. (a).

SB384-SSA1,57,24 b. If the originating local educational agency has reasonable cause to believe that the child is a child with a disability, appoint an individualized education program team to conduct an evaluation of the child under s. 115.782. The originating local educational agency may include appropriately licensed staff of the child caring institution in the team if that staff is available. The individualized education program team shall conduct the evaluation. If the individualized education program team determines that the child is a child with a disability, the individualized education program team, in consultation with a county department or a state agency, as appropriate, shall develop an individualized education program and an educational placement offer.

SB384-SSA1,58,3 (4) Responsibility for educational placement. Whenever the originating local educational agency offers an educational placement in a child caring institution under sub. (3) (b) 1. or 2. b., all of the following apply:

SB384-SSA1,58,4 (a) The originating local educational agency shall do all of the following:

SB384-SSA1,58,5 1. Ensure that the child receives a free appropriate public education.

SB384-SSA1,58,7 2. Ensure that the child's treatment and security needs are considered when determining the least restrictive environment for the child.

SB384-SSA1,58,10 3. While the child resides at a child caring institution, appoint an individualized education program team to conduct reevaluations of the child in the manner provided under s. 115.782 (4).

SB384-SSA1,58,15 4. While the child resides at a child caring institution, after consulting with the child caring institution and a county department or a state agency, as appropriate, refer the child to another local educational agency if the originating local educational agency determines that the child's special education needs may be appropriately served in a less restrictive setting in the other local educational agency.

SB384-SSA1,58,18 5. If the child is leaving the child caring institution, assign staff or an individualized education program team to develop a reintegration plan for the child in cooperation with a county department and staff of the child caring institution.

SB384-SSA1,58,20 (b) The county department or state agency, as appropriate, shall do all of the following:

SB384-SSA1,58,22 1. Consider the child's educational needs when selecting a child caring institution for the child.

SB384-SSA1,59,2 2. In cooperation with the originating local educational agency and staff of the child caring institution, participate in the individualized education program team evaluation of the child and the development of the individualized education program for the child.

SB384-SSA1,59,5 3. Notify the local educational agency that will be responsible for providing a free, appropriate public education to the child whenever the county department or state agency anticipates removing the child from the child caring institution.

SB384-SSA1,59,8 4. In cooperation with the originating local educational agency and staff of the child caring institution, develop a reintegration plan for the child if the child is leaving the child caring institution.

SB384-SSA1,59,10 5. Pay all of the child caring institution related costs of educating the child while the child resides in the child caring institution.

SB384-SSA1,59,20 (c) Whenever a local educational agency receives a referral under par. (a) 4., the local educational agency shall assign staff to determine whether the child can appropriately receive special education and related services provided in the local educational agency. If the assigned staff determine that the child can appropriately receive special education and related services in the local educational agency, the local educational agency shall provide such services for the child and is eligible for state tuition payments under s. 121.79 (1) (a). If the assigned staff determine that the child cannot appropriately receive special education and related services in the local educational agency, the local educational agency shall keep a written record of the reasons for that determination.

SB384-SSA1,59,22 115.812 Placement disputes; school board referrals; interagency cooperation.

SB384-SSA1,60,4 (1) Placement disputes. If a dispute arises between a local educational agency and the department of health and family services, the department of corrections or a county department under s. 46.215, 46.22 or 46.23, or between local educational agencies under s. 115.81 (4) (c), over the placement of a child, the state superintendent shall resolve the dispute. This subsection applies only to placements in nonresidential educational programs made under s. 48.57 (1) (c) and to placements in child caring institutions made under s. 115.81.

SB384-SSA1,60,11 (2) School board referrals. Annually on or before August 15, each local educational agency shall report to the appropriate county departments under ss. 51.42 and 51.437 the names of children who reside in the local educational agency, are at least 16 years of age, are not expected to be enrolled in an educational program 2 years from the date of the report and may require services described under s. 51.42 or 51.437 (1). This subsection does not affect a local educational agency's responsibility to make services available to children with disabilities.

SB384-SSA1,60,17 (3) Interagency cooperation. (a) A school board, cooperative educational service agency and county children with disabilities education board may enter into an agreement with a county administrative agency, as defined in s. HFS 90.03 (10), Wis. adm. code, to allow the employes of the school board, agency or county children with disabilities education board to participate in the performance of evaluations and the development of individualized family service plans under s. 51.44.

SB384-SSA1,60,19 (b) 1. In this paragraph, "public agency" has the meaning given in s. 166.20 (1) (i), except that it excludes a local educational agency.

SB384-SSA1,61,2 2. If a public agency that is required by federal or state law or by an interagency agreement to provide or pay for the location, identification or evaluation of a child with a disability, including a child with a disability who is not yet 3 years of age, or for assistive technology devices or services, supplementary aids or services, transition services or special education or related services for a child with a disability, and fails to do so, the local educational agency shall provide or pay for the services. The public agency shall reimburse the local educational agency for the cost of providing the services.

SB384-SSA1,61,4 115.817 Children with disabilities education board. (1) Definitions. In this section "board" means the county children with disabilities education board.

SB384-SSA1,61,7 (2) Establishment. (a) A county board of supervisors may determine to establish a special education program, including the provision of related services for children with disabilities, for school districts in the county.

SB384-SSA1,61,9 (b) The program may provide for one or more special schools, classes, treatment or instruction centers for children with one or more types of disabilities.

SB384-SSA1,61,11 (c) A school district shall be included under the county program only to the extent approved by formal action of the school board.

SB384-SSA1,61,22 (3) Organization. (a) The board shall consist of 3 or more persons, as determined by the county board of supervisors, elected by the county board or appointed by the chairperson of the county board, as the rules of the county board direct. Board members shall be electors selected from that part of the county participating in the program and shall be representative of the area the board serves. The board may include school board members, members of the county board of supervisors and other electors. Board members shall hold office for a term of 3 years, except that the terms of office of members of the first board shall be 3 years, 2 years and one year. Board members shall receive compensation and reimbursement for mileage in an amount fixed by the county board of supervisors, but not more than that of county board members.

SB384-SSA1,61,25 (b) The board annually shall select one member as chairperson and one as secretary. The county treasurer shall serve as board treasurer but shall not be a member of the board.

SB384-SSA1,62,2 (c) The board shall appoint an advisory committee whose membership includes school district administrators representative of the area the board serves.

SB384-SSA1,62,7 (4) Application. Upon authorization of the county board, the board shall apply to the division for the establishment of a program or part of a program to provide special education and related services. The application shall state whether the program or part will be available in the county at large or only to certain school districts.

SB384-SSA1,62,15 (5) Board duties. (a) The board shall have charge of all matters pertaining to the organization, equipment, operation and maintenance of such programs and may do all things necessary to perform its functions, including the authority to erect buildings subject to county board approval and employ teachers and other personnel. The board shall prepare an annual budget, which shall be subject to approval of the county board under s. 65.90 unless a resolution is adopted under sub. (9) (c), and shall include funds for the hiring of staff, the purchase of materials, supplies and equipment and the operation and maintenance of buildings or classrooms.

SB384-SSA1,62,18 (b) 1. At the close of each fiscal year, the board shall employ a licensed accountant to audit its accounts and certify the audit. The cost of the audit shall be paid from board funds.

SB384-SSA1,62,20 3. The department shall establish by rule a standard contract and minimum standards for audits performed under this paragraph.

SB384-SSA1,62,25 (c) If the county board of supervisors establishes an integrated service program for children with severe disabilities under s. 59.53 (7), the county children with disabilities education board shall participate in an integrated service program for children with severe disabilities under s. 59.53 (7), and may enter into written interagency agreements or contracts under the program.

SB384-SSA1,63,9 (d) Annually by October 1, the board and the school boards of the school districts participating in the county program shall submit a report to the state superintendent that specifies the portion of each school day that each pupil enrolled in the county program who is also enrolled in the school district of the pupil's residence spent in county program classes in the previous school year and the portion of the school day that the pupil spent in school district classes in the previous school year. The state superintendent shall develop guidelines for a full-time equivalency methodology. The state superintendent is not required to promulgate the guidelines as rules.

SB384-SSA1,63,11 (6) Assignment of functions. (a) The board may not assign by resolution or by contract the full administrative or instructional services of the board.

SB384-SSA1,63,15 (b) The ability of the board to contract with the board of control of a cooperative educational service agency, a school board or other public agency in the county for a portion of administrative or instructional services is not prohibited by par. (a). The board shall be responsible for all programs contracted under this paragraph.

SB384-SSA1,64,2 (7) Withdrawal and dissolution. (a) The school board of any school district that is included under the administration of a board may withdraw from participation in any part of the program only with the approval of the state superintendent after conference with the board and a determination by the state superintendent that such withdrawal is in the interest of the program in the county and the school district affected. Such withdrawal shall be effective only if the school board has the approval of the division to establish an equivalent part of a program. Such withdrawal shall be effective either December 31 or June 30 provided that 12 months' notice has been given to the board. The withdrawing school district shall be liable for its proportionate share of all operating costs until its withdrawal becomes effective, shall continue to be liable for its share of debt incurred while it was a participant and shall receive no share in the assets.

SB384-SSA1,64,7 (b) A program established under this section may be dissolved by action of the county board, but such dissolution shall not take place until the end of the school term in which the action was taken. When a program is dissolved, assets and liabilities shall be distributed under s. 66.03 to all units which participated in the program.