2005 Wisconsin Act 258

258,66 Section 66. 115.787 (3) (b) 4. of the statutes is amended to read:

115.787 (3) (b) 4. Consider the communicative communication needs of the child, and, in the case of a child who is hearing impaired, consider the child's language and communicative communication needs, opportunities for direct communications with peers and professional personnel in the child's language and communicative communication mode, academic level and full range of needs, including opportunities for direct instruction in the child's language and communicative communication mode.

258,67 Section 67. 115.787 (3) (c) of the statutes is amended to read:

115.787 (3) (c) The regular education teacher of the child, as a participant on the individualized education program team, shall, to the extent appropriate, participate in the development of the individualized education program of the child, including the determination of appropriate positive behavioral interventions and supports and other strategies and the determination of supplementary aids and services, program modifications and support for school personnel.

258,68 Section 68. 115.787 (3) (d) of the statutes is repealed.

258,69 Section 69. 115.787 (4) (c) of the statutes is created to read:

115.787 (4) (c) After the annual individualized education program meeting for a school year, the entire individualized education program team may make changes to the child's individualized education program, or the child's parent and the local educational agency may agree not to convene an individualized education program team meeting for the purpose of making changes to the child's individualized education program. If the child's parent and the local educational agency agree not to convene an individualized education program team meeting, they shall instead develop a written document to modify the child's current individualized education program. The local educational agency shall give the child's parent a copy of the child's revised individualized education program.

258,70 Section 70. 115.787 (5) of the statutes is amended to read:

115.787 (5) Failure to meet transition objectives. If a participating agency, other than the local educational agency, fails to provide transition services in accordance with sub. (2) (g) 2., the local educational agency shall reconvene the individualized education program team to identify alternative strategies to meet the transition objectives for the child set out in the individualized education program.

258,71 Section 71. 115.787 (6) (b) of the statutes is amended to read:

115.787 (6) (b) If a child with a disability is convicted of a crime and incarcerated in a state prison, the child's individualized education program team may modify the child's individualized education program or placement notwithstanding the requirements of sub. (1) and s. 115.79 (1) (a) if the department of corrections has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.

258,72 Section 72. 115.787 (7) of the statutes is amended to read:

115.787 (7) Construction. Nothing in this section requires the individualized education program team to include information under one component of a child's individualized education program that is already contained under another component of the individualized education program or requires that additional information be included in a child's individualized education program beyond what is explicitly required by this section.

258,73 Section 73. 115.79 (intro.) of the statutes is renumbered 115.79 (1) (intro.).

258,74 Section 74. 115.79 (2) of the statutes is created to read:

115.79 (2) A local educational agency shall seek to obtain informed consent from the parent of a child with a disability before providing special education and related services to the child. If the parent of a child with a disability denies consent, the local educational agency shall not provide special education and related services to the child. If the parent of a child with a disability denies consent or does not respond to a request for consent, all of the following apply:

(a) The local educational agency is not in violation of the requirement to make available to the child a free appropriate public education.

(b) The local educational agency is not required to convene an individualized education program team meeting or to develop an individualized education program for the child for the special education and related services for which the local educational agency sought consent.

258,75 Section 75. 115.791 (3) (intro.) of the statutes is renumbered 115.791 (3) (a) (intro.).

258,76 Section 76. 115.791 (3) (a) of the statutes is renumbered 115.791 (3) (b) 1.

258,77 Section 77. 115.791 (3) (b) (intro.) and 2. of the statutes are created to read:

115.791 (3) (b) (intro.) Notwithstanding the notice requirement in sub. (2) (a), a court or hearing officer may determine not to reduce or deny the cost of reimbursement for failure to provide such notice if any of the following apply:

2. Compliance with sub. (2) (a) would likely result in serious emotional harm to the child.

258,78 Section 78. 115.791 (3) (b) of the statutes is renumbered 115.791 (3) (a) 2. and amended to read:

115.791 (3) (a) 2. Compliance with sub. (2) (a) would likely result in physical or serious emotional harm to the child.

258,79 Section 79. 115.791 (3) (c) of the statutes is renumbered 115.791 (3) (a) 3.

258,80 Section 80. 115.791 (3) (d) of the statutes is renumbered 115.791 (3) (a) 4.

258,81 Section 81. 115.792 (1) (a) 2. of the statutes is amended to read:

115.792 (1) (a) 2. That a child's rights are protected by the assignment of an individual, who shall not be an employee of the department, the local educational agency, or any other agency that is involved in the education or care of the child, to act as a surrogate for the child's parents whenever the child's parents are not known; the local educational agency cannot, after reasonable efforts, locate the child's parents; or the child is a ward of the state. For a child who is a ward of the state, a judge overseeing the child's care may appoint a surrogate for the child's parents if the surrogate meets the requirements of this subdivision.

258,82 Section 82. 115.792 (2) (d) of the statutes is amended to read:

115.792 (2) (d) A description of each evaluative evaluation procedure, test assessment, record, or report that the local educational agency used as a basis for the proposed or refused action.

258,83 Section 83. 115.792 (2) (e) of the statutes is amended to read:

115.792 (2) (e) If the notice proposes to evaluate or reevaluate the child, the qualifications names of the evaluators and their names, if known.

258,84 Section 84. 115.792 (2) (g) of the statutes is amended to read:

115.792 (2) (g) A statement that the parents of a child with a disability have procedural safeguards under this section and, if this notice is not an initial referral for evaluation, or reevaluation, or a notice of an individualized education program meeting, the way in which the parents may obtain a description of the procedural safeguards under sub. (3).

258,85 Section 85. 115.792 (2) (i) of the statutes is repealed.

258,86 Section 86. 115.792 (3) (b) (intro.) of the statutes is amended to read:

115.792 (3) (b) (intro.) The local educational agency shall give to the parents of a child with a disability, once a year but also upon the child's initial referral or parental request for evaluation, upon each notification of an individualized education program meeting and upon reevaluation of the child the first occurrence of the filing of a request for a hearing under s. 115.80, and upon request by the child's parent, a full explanation written so as to be in an easily understood by the general public understandable manner, and in the native language of the child's parents unless it clearly is not feasible to do so, of the procedural safeguards available under this section and under applicable federal law relating to all of the following:

258,87 Section 87. 115.792 (3) (b) 5. of the statutes is amended to read:

115.792 (3) (b) 5. Opportunity to present and resolve complaints, including the period in which the child's parents may request a hearing and the opportunity for the local educational agency to resolve the issues presented by the request.

258,88 Section 88. 115.792 (3) (b) 11. of the statutes is amended to read:

115.792 (3) (b) 11. Civil actions, including the period in which to file a civil action.

258,89 Section 89. 115.797 (1) (a) of the statutes is amended to read:

115.797 (1) (a) "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.

258,90 Section 90. 115.797 (6) of the statutes is amended to read:

115.797 (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 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.

258,91 Section 91. 115.80 (1) (a) 1. of the statutes is amended to read:

115.80 (1) (a) 1. A parent, or the attorney representing the child, may file a written request with the division 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.

258,92 Section 92. 115.80 (1) (b) of the statutes is amended to read:

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

258,93 Section 93. 115.80 (1) (d) of the statutes is amended to read:

115.80 (1) (d) 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.

258,94 Section 94. 115.80 (1) (e) of the statutes is created to read:

115.80 (1) (e) 1. 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.

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.

258,95 Section 95. 115.80 (1) (f) of the statutes is created to read:

115.80 (1) (f) 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.

258,96 Section 96. 115.80 (1) (g) of the statutes is created to read:

115.80 (1) (g) 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.

258,97 Section 97. 115.80 (2) of the statutes is amended to read:

115.80 (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, 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.

258,98 Section 98. 115.80 (2m) of the statutes is created to read:

115.80 (2m) (a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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. may occur.

258,99 Section 99. 115.80 (4) of the statutes is amended to read:

115.80 (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. 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.

258,100 Section 100. 115.80 (5) of the statutes is renumbered 115.80 (5) (a) and amended to read:

115.80 (5) (a) 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.

(b) 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.

258,101 Section 101. 115.80 (5) (c) of the statutes is created to read:

115.80 (5) (c) 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.

258,102 Section 102. 115.80 (6) of the statutes is amended to read:

115.80 (6) The hearing officer shall issue a decision within 45 days after the receipt of the request for the hearing under sub. (1) 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.

258,103 Section 103. 115.80 (9) of the statutes is repealed and recreated to read:

115.80 (9) 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).

258,104 Section 104. 115.81 (title) of the statutes is amended to read:

115.81 (title) Children in child caring institutions residential care centers.

258,105 Section 105. 115.812 (1) of the statutes is amended to read:

115.812 (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 residential care centers made under s. 115.81.

258,106 Section 106. 118.51 (12) (a) of the statutes is amended to read:

118.51 (12) (a) Unavailable after enrollment. If the individualized education program for a pupil, developed or revised under s. 115.787 after a child begins attending public school in a nonresident school district under this section, requires special education or related services that are not available in the nonresident school district or if there is no space available to provide the special education or related services identified in the child's individualized education program, including any class size limits, pupil-teacher ratios or enrollment projections established by the nonresident school board, the nonresident school board may notify the child's parent and the child's resident school board that the special education or related service is not available in the nonresident school district. If such notice is provided, the child shall be transferred to his or her resident school district, which shall provide an educational placement for the child under s. 115.79 (2) (1) (b).

258,107 Section 107. 118.51 (12) (b) 2. of the statutes is amended to read:

118.51 (12) (b) 2. If the costs of the special education or related services required in an individualized education program for a pupil, developed or revised under s. 115.787 after a child begins attending public school in a nonresident school district under this section, as implemented or proposed to be implemented by the nonresident school district, would impose upon the child's resident school district an undue financial burden in light of the resident school district's total economic circumstances, including its revenue limit under subch. VII of ch. 121, its ability to pay tuition costs for the pupil and the per pupil special education or related services costs for children with disabilities continuing to be served by the resident school district, the child's resident school board may notify the pupil's parent and the nonresident school board that the costs of the special education or related services impose such an undue financial burden on the resident school district. If such notice is provided, the child shall be transferred to his or her resident school district, which shall provide an educational placement for the child under s. 115.79 (2) (1) (b).

258,108 Section 108. Initial applicability.

(1) The treatment of sections 115.80 (1) (a) 1., (b), (d), (e), (f), and (g), (2), (2m), (4), (5), and (9) of the statutes first applies to requests for hearings filed on the effective date of this subsection.

258,109 Section 109. Effective date.