AB674: Bill Text

AB674,48,3 115.792 Procedural safeguards. (1) Safeguards ensured. (a) The local educational agency shall establish and maintain procedures to ensure all of the following:

AB674,48,7 1. That the parents of a child may examine all records relating to the child and may participate in meetings about the identification, evaluation and educational placement of the child, and the provision of a free appropriate public education to the child, and may obtain an independent educational evaluation of the child.

AB674,48,13 2. That a child's rights are protected by the assignment of an individual, who shall not be an employe 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.

AB674,48,15 3. That a child's parents are offered an opportunity to use mediation under s. 115.797.

AB674,48,22 (b) The local educational agency shall establish and maintain procedures to ensure that a child's parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child. In this paragraph, "local educational agency" includes the nonresident school district that a child is attending under s. 118.51.

AB674,48,25 (2) Notice. The notice required under sub. (1) (b) shall be in the native language of the child's parents unless the local educational agency determines that it clearly is not feasible to do so and shall include all of the following:

AB674,49,2 (a) A description of the action proposed or refused by the local educational agency.

AB674,49,4 (b) An explanation of why the local educational agency proposes or refuses to take the action.

AB674,49,6 (c) A description of any other options that the local educational agency considered and the reasons why it rejected those options.

AB674,49,8 (d) A description of each evaluative procedure, test, record or report that the local educational agency used as a basis for the proposed or refused action.

AB674,49,10 (e) If the notice proposes to evaluate or reevaluate the child, the qualifications of the evaluators and their names, if known.

AB674,49,12 (f) A description of any other factors that are relevant to the local educational agency's proposal or refusal.

AB674,49,17 (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).

AB674,49,19 (h) Sources for parents to contact to obtain assistance in understanding this subchapter.

AB674,49,20 (i) The rights specified in s. 115.78 (4).

AB674,49,23 (3) Procedural safeguards notice. (a) In this subsection, "local educational agency" includes the nonresident school district that a child is attending under s. 118.51.

AB674,50,5 (b) The local educational agency shall give to the parents of a child with a disability, upon the child's initial referral for evaluation, upon each notification of an individualized education program meeting and upon reevaluation of the child, a full explanation written so as to be easily understood by the general public, 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:

AB674,50,6 1. Independent educational evaluation.

AB674,50,7 2. Prior written notice.

AB674,50,8 3. Parental consent.

AB674,50,9 4. Access to educational records.

AB674,50,10 5. Opportunity to present complaints.

AB674,50,11 6. The child's placement during pendency of due process proceedings.

AB674,50,13 7. Procedures for pupils who are subject to placement in interim alternative educational settings under 20 USC 1415 (k).

AB674,50,15 8. Requirements for the unilateral placement by parents of pupils in private schools at public expense.

AB674,50,16 9. Mediation.

AB674,50,17 10. Hearings under s. 115.80.

AB674,50,18 11. Civil actions.

AB674,50,19 12. Attorney fees.

AB674,50,20 115.797 Mediation. (1) Definitions. In this section:

AB674,51,2 (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 in which other processes, including a hearing under s. 115.80 or litigation, have been requested or commenced.

AB674,51,3 (b) "Mediation" has the meaning given in s. 802.12 (1) (e).

AB674,51,6 (c) "Party" means a competent adult pupil or the parent of a child or incompetent adult pupil who is the subject of a dispute, and the local educational agency.

AB674,51,11 (2) Request for mediation, consent of parties. (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.

AB674,51,14 (b) 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:

AB674,51,15 1. An explanation of mediation and its advantages.

AB674,51,19 2. 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.

AB674,51,22 3. 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.

AB674,51,25 (c) 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.

AB674,52,4 (3) Appointment of mediator. (a) 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.

AB674,52,7 (b) 1. 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.

AB674,52,9 2. If both parties request mediation but neither party nominates a mediator, the division shall propose a mediator from the roster under sub. (4).

AB674,52,13 3. 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).

AB674,52,17 (c) Whenever the division proposes a mediator under par. (b) 2. or 3., 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).

AB674,52,20 (4) Roster of mediators. (a) 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:

AB674,52,22 1. The division determines that the person has the appropriate skills and knowledge to act as a mediator under this section.

AB674,52,24 2. The person participates in a training program of at least 5 days' duration that has been approved by the division.

AB674,53,2 3. The person agrees to mediate, at the rate of compensation established by the division, the number of disputes required by the division each year.

AB674,53,4 4. The person consents to be observed by a division representative at any mediation session if the parties consent.

AB674,53,7 (b) 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.

AB674,53,9 (c) 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.

AB674,53,13 (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.

AB674,53,17 (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.

AB674,53,22 (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.

AB674,54,2 (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.

AB674,54,4 (e) Unless both parties and the mediator agree otherwise, no person may record a mediation session.

AB674,54,8 (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.

AB674,54,9 (g) The mediator and either party may withdraw from mediation at any time.

AB674,54,13 (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.

AB674,54,18 (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.

AB674,54,21 (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).

AB674,54,24 (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.

AB674,55,2 (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.

AB674,55,8 (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.

AB674,55,12 (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.

AB674,55,18 115.80 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.

AB674,55,24 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.

AB674,56,4 (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.

AB674,56,6 (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).

AB674,56,9 (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.

AB674,56,14 (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.

AB674,56,21 (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.

AB674,57,3 (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.

AB674,57,16 (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.

AB674,57,23 (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.

AB674,58,6 (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.

AB674,58,14 (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.

AB674,58,17 (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.

AB674,58,19 (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:

AB674,58,21 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.

AB674,58,22 b. The offer is not accepted within 10 days.

AB674,58,24 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.

AB674,59,4 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).

AB674,59,7 (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.

AB674,59,9 (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):

AB674,59,11 a. During the course of the action, the parent unreasonably protracted the final resolution of the controversy.

AB674,59,13 b. The attorney representing the parent did not provide to the division the information specified in sub. (1) (a) 2.

AB674,59,16 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.

AB674,59,18 (10) Sections 227.44 to 227.50 do not apply to hearings conducted under this section.