SB384: Bill Text

Analysis by the Legislative Reference Bureau

This bill reconciles the reauthorization of the federal special education law (the Individuals With Disabilities Education Act amendments of 1997) and Wisconsin's special education law, as embodied in the statutes and the administrative code.

Current law requires each school board to ensure that appropriate special education services and related services are available to children with exceptional educational needs (EEN) who have attained the age of 3, who have not graduated from high school and who reside in the school district or in a state or county residential facility located in the school district. Each school board must ensure that, to the maximum extent appropriate, a child with EEN is educated with children who are not children with EEN and that a continuum of alternative placements is available to meet the needs of children with EEN. In addition, a county board of supervisors may establish a handicapped children's education board to create and administer special education programs in the county.

This bill renames a child with EEN a child with a disability and changes the name of the county handicapped children's education board to the county children with disabilities education board (CWDEB). The bill requires each child with a disability to be provided a "free appropriate public education" (FAPE) by the local educational agency (LEA), which is defined as the school district in which the child with a disability resides, or the department of health and family services or the department of corrections, if the department is responsible for FAPE. In addition, the LEA must do all of the following:

1. Identify, locate and evaluate all children with disabilities who need special education and related services, including children who are not yet 3 years of age.

2. Include children with disabilities in statewide and LEA-wide assessments, or in alternative assessments for those children who cannot participate in statewide or LEA-wide assessments.

3. Ensure that children participating in early intervention programs who will participate in special education, preschool programs, move smoothly into those programs and ensure that, by the time the children reach the age of 3, an individualized education program (IEP) has been developed and implemented for them.

4. Ensure, to the extent consistent with the number and location of children with disabilities residing in the LEA who are enrolled in private schools, that the children receive special education and related services and that the amounts expended for those services are equal to a proportionate amount of federal, special education funds.

5. Make available to the public, upon request, all documents relating to the LEA's eligibility for special education funds and regularly publicize information regarding the special education procedures and services of the LEA.

6. Ensure that children with disabilities who are enrolled in private schools and facilities are provided free special education and related services, in accordance with an IEP, if an LEA places or refers the children to private schools or facilities.

7. Develop a plan, including a program narrative, for the provision of special education and related services.

8. Annually provide a special education performance report to all parents of children enrolled in the LEA.

9. Serve children with disabilities who are attending a charter school under contract with the LEA in the same manner as it serves children with disabilities attending schools of the LEA and provide special education funds to the charter schools in the same manner as it provides those funds to schools of the LEA.

10. Comply with federal law concerning alternative educational placement.

Current law requires the division for learning support, equity and advocacy (the division) in the department of public instruction (DPI) to, among other things, coordinate the development of special education programs in the state, approve special education programs, develop a training program for special education personnel and make available to the public information about special education programs in the state. This bill requires the division to assume the additional responsibility of determining whether significant discrepancies are occurring among LEAs in the rate of long-term suspension and expulsions of children with disabilities compared to rates for nondisabled children.

Current law requires a parent or a physician, nurse or teacher at a state or county residential facility or a psychologist, social worker or administrator of a social agency who has reasonable cause to believe that a child has EEN to report the name of the child and any other information required to the school board for the district, the governing body of the state or county residential facility in which the child resides or to the division. In addition, each school board is responsible for screening each child who resides in the school district and has not graduated from high school to determine if there is reasonable cause to believe that the child is a child with EEN. The school board must appoint a multidisciplinary team (M-team) to evaluate the child. If the M-team reports that the child is a child with EEN and the report is approved by the director of the M-team, the M-team must recommend the child to the school board for special education. In addition, if a child who is placed in a child caring institution is suspected of being disabled, the M-team must evaluate the child.

Once a child has been recommended to the school board for special education, the school board must appoint staff to develop an IEP for the child. After the IEP has been completed, the director of special education in the school district develops a placement offer for the child that is based upon and designed to carry out the child's IEP. The placement offer must specify the way in which and the level at which special education and related services are to be delivered and the location at which services will be provided. The school board must send a copy of the child's placement offer to the parent within 90 days of the date on which the school board received a referral for an evaluation or initiated a reevaluation for the child. The school board may ask the parent to agree in writing to a specific extension of time beyond the 90-day period or, if the parent refuses, ask the division for an extension if the school board demonstrates that it has acted in good faith and that there is good cause to grant the extension. The director of special education must then place the child in an appropriate placement as near as possible to the place where the child resides.

Under this bill, the LEA must appoint an IEP team that is responsible for evaluating a child with a disability to determine the child's eligibility or continued eligibility for special education and related services, to develop the IEP for the child and to determine the educational placement for the child. The IEP team is also required to evaluate a child in a child caring institution who is suspected of being disabled. If the parents of the child or the LEA determines at any point during the evaluation, development of the IEP or placement of the child that additional time is needed for meaningful parental participation, the LEA must provide it. The bill does not affect the required parental notification of placement within the 90-day period.

This bill also provides that, if the parents of a child with a disability who previously received special education and related services under the authority of a LEA enroll the child in a private elementary or secondary school without the consent of or referral by the LEA, a court or a hearing officer may require the LEA to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the LEA had not made FAPE available to the child in a timely manner before the enrollment. The cost of this reimbursement, however, may be reduced or denied if any of the following applies: 1) at the most recent IEP meeting that the parents attended before removal of the child from the LEA, the parents did not inform the IEP team of their concerns, their rejection of the placement proposed by the LEA to provide FAPE to their child and their intent to enroll the child in a private school at public expense; 2) at least 10 business days before the removal of the child from the LEA, the parents did not give written notice to the LEA of their concerns, their rejection of the placement and their intent to enroll the child in a private school at public expense; 3) before the parents' removal of the child from the LEA, the LEA notified the parents of its intent to evaluate the child, but the parents did not make the child available for the evaluation; or 4) a court finds that the parents' actions are unreasonable. The reimbursement may not be reduced, however, if the parent is illiterate and cannot write in English, if doing so would likely result in physical or serious emotional harm to the child, if the LEA prevented the parent from providing notice or if the parents had not received notice of their responsibility to notify the LEA of their intentions.

Under current law, a parent of a child with EEN may file a written request with DPI whenever the school board proposes or refuses to initiate or change the child's M-team evaluation, IEP or educational placement or to contest the payment of an independent evaluation. The school board may also file a written request to override a parent's refusal to or revocation of consent for a M-team evaluation, IEP or educational placement or to contest payment of an independent evaluation. Upon receipt of the written request for a hearing, DPI must appoint an impartial hearing officer to conduct the hearing. Within 45 days after the decision of the hearing officer, either party may appeal the decision to the circuit court for the county in which the child resides.

Under this bill, the parent or an attorney representing the child may file a written request for a hearing with the division. At least five business days before the hearing, each party must 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. Within 45 days after the decision of the hearing officer, either party may appeal the decision in the circuit court for the county in which the child resides or in a U.S. district court. With some exceptions, a circuit court may award reasonable attorney fees and actual costs to the parent of a child with a disability who is the prevailing party.

The parties may also request a qualified mediator to resolve a dispute concerning the proposal or refusal to initiate or change the evaluation, IEP, or educational placement of a child with a disability, or the provision of FAPE. Once engaged in mediation, either party may withdraw at any time, and no adverse inference may be drawn from the fact that a party did not consent to mediation, that a party withdrew from mediation or that mediation did not result in settlement of the dispute. If, however, the parties resolve the dispute through mediation, the resolution is legally binding.

The bill also requires the LEA to establish and maintain procedures to ensure: 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 FAPE to the child, and may obtain an independent educational evaluation of the child; 2) that the rights of the child are protected by the assignment of an individual, who may not be an employe of DPI, the LEA or any other agency that is involved in the education or care of the child, to act as a surrogate for the parents whenever the parents of the child are not known, the LEA cannot, after reasonable efforts, locate the parents, or the child is a ward of the state; 3) that the parents of the child receive written notice whenever the LEA proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of FAPE to the child; and 4) that the parents are offered an opportunity to use mediation to resolve disputes concerning the evaluation, IEP or placement of the child.

This bill requires the state superintendent of public instruction to resolve interagency disputes concerning the placement of a child in a nonresidential educational program or in a child caring institution. Finally, the bill provides that a school board, cooperative education service agency (CESA) and a CWDEB may enter into an agreement with a county administrative service agency to allow employes of the school board, CESA or CWDEB to evaluate a child to determine eligibility for early intervention services and to develop a written plan for providing early intervention services to an eligible child and the child's family.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB384, s. 1 Section 1. 15.377 (1) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

SB384,6,13 15.377 (1) Council on the education of the blind. There is created in the department of public instruction a council on the education of the blind consisting of 3 members, who shall be visually handicapped have a visual impairment and shall have a recognized interest in and a demonstrated knowledge of the problems of the visually handicapped children who have visual impairments, appointed by the state superintendent of public instruction for staggered 6-year terms. "Visually handicapped" "Visual impairment" means having a) a visual acuity equal to or less than 20/70 in the better eye with correcting lenses, or b) a visual acuity greater than 20/70 in the better eye with correcting lenses, but accompanied by a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.

SB384, s. 2 Section 2. 15.377 (4) of the statutes, as affected by 1997 Wisconsin Act 27, is repealed and recreated to read:

SB384,7,14 15.377 (4) Council on special education. There is created in the department of public instruction a council on special education to advise the state superintendent of public instruction about the unmet educational needs of children with disabilities, in developing evaluations and reporting on data to the federal department of education, in developing plans to address findings identified in federal monitoring reports, in developing and implementing policies relating to the coordination of services for children with disabilities and on any other matters upon which the state superintendent wishes the council's opinion; and to comment publicly on any rules proposed by the department of public instruction regarding the education of children with disabilities. The state superintendent of public instruction shall appoint the members of the council for 3-year terms, and shall ensure that a majority of the members are individuals with disabilities or parents of children with disabilities and that the council is representative of the state population, as determined by the state superintendent. The council shall be composed of individuals who are involved in, or concerned with, the education of children with disabilities, including all of the following:

SB384,7,15 (a) Teachers of regular education and teachers of special education.

SB384,7,17 (b) Representatives of institutions of higher education that train special education and related services personnel.

SB384,7,18 (c) State and local education officials.

SB384,7,19 (d) Administrators of programs for children with disabilities.

SB384,7,21 (e) Representatives of agencies other than the department of public instruction involved in the financing or delivery of related services to children with disabilities.

SB384,7,22 (f) Representatives of private schools and charter schools.

SB384,7,24 (g) At least one representative of a vocational, community or business organization that provides transition services for children with disabilities.

SB384,7,25 (h) Representatives from the department of corrections.

SB384,8,1 (i) Parents of children with disabilities.

SB384,8,2 (j) Individuals with disabilities.

SB384, s. 3 Section 3. 20.255 (1) (d) of the statutes is amended to read:

SB384,8,9 20.255 (1) (d) Principal repayment and interest. A sum sufficient to reimburse s. 20.866 (1) (u) for the payment of principal and interest costs incurred in financing the acquisition, construction, development, enlargement or improvement of institutional facilities for the individuals with hearing impaired impairments and visually handicapped visual impairments under s. 115.52 and reference and loan library facilities under s. 43.05 (11).

SB384, s. 4 Section 4. 20.255 (2) (b) (title) of the statutes is amended to read:

SB384,8,11 20.255 (2) (b) (title) Aids for handicapped special education.

SB384, s. 5 Section 5. 20.255 (2) (bh) of the statutes is amended to read:

SB384,8,15 20.255 (2) (bh) (title) Aid to county handicapped children's children with disabilities education boards. The amounts in the schedule for aid to county handicapped children's children with disabilities education boards under s. 121.135.

SB384, s. 6 Section 6. 20.255 (2) (br) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

SB384,8,23 20.255 (2) (br) (title) Aid for handicapped special education transportation. The amounts in the schedule for the payment of handicapped special education transportation aid under s. 115.88 (2). If the amount appropriated under this paragraph is insufficient to pay the full amount of aid under s. 115.88 (2), the balance shall be paid from the appropriation under par. (b). No moneys may be encumbered from the appropriation under this paragraph after June 30, 1993.

SB384, s. 7 Section 7. 20.866 (2) (zh) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

SB384,9,7 20.866 (2) (zh) Public instruction; state schools and library facilities. From the capital improvement fund, a sum sufficient for the department of public instruction to acquire, construct, develop, enlarge or improve institutional facilities for the individuals with hearing impaired impairments and the visually handicapped individuals with visual impairments and reference and loan library facilities. The state may contract public debt in an amount not to exceed $7,367,700 for this purpose.

SB384, s. 8 Section 8. 36.25 (19) of the statutes is amended to read:

SB384,9,13 36.25 (19) Model school special education program. (a) The board may establish at the University of Wisconsin-Madison a model school for children with exceptional educational needs disabilities, as defined in s. 115.76 (3) (5). The school shall utilize practical demonstration techniques to train teachers and other support personnel under s. 115.28 (7) (c).

SB384,9,19 (b) The board may enter into an agreement with the school board of any school district to provide special education and other related services through the model school to children with exceptional educational needs disabilities. The board may charge tuition for children served in the model school. Tuition charges made under such agreements shall be based on the net cost of providing the special education and other related services.

SB384, s. 9 Section 9. 46.21 (1) (d) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

SB384,9,25 46.21 (1) (d) "Human services" means the total range of services to people, including mental illness treatment, developmental disabilities services, physical disabilities services, relief funded by a relief block grant under ch. 49, income maintenance, youth probation and parole services, alcohol and drug abuse services, services to children, youth and families, family counseling, exceptional educational early intervention services for children from birth to the age of 3 and manpower services. "Human services" does not include child welfare services under s. 48.48 (17) administered by the department in a county having a population of 500,000 or more.

SB384, s. 10 Section 10. 46.23 (2) (a) of the statutes is amended to read:

SB384,10,11 46.23 (2) (a) "Human services" means the total range of services to people including, but not limited to, health care, mental illness treatment, developmental disabilities services, relief funded by a block grant under ch. 49, income maintenance, probation and parole services, alcohol and drug abuse services, services to children, youth and aging, family counseling, exceptional educational special education services and manpower services.

SB384, s. 11 Section 11. 46.56 (1) (m) of the statutes is amended to read:

SB384,10,18 46.56 (1) (m) "Service coordination agency" means a county department, agency, school district, cooperative educational service agency or county handicapped children's children with disabilities education board designated in an interagency agreement by a coordinating committee to provide intake and service coordination for one or more target groups of eligible children with severe disabilities and their families.

SB384, s. 12 Section 12. 46.56 (3) (a) 6. of the statutes is amended to read:

SB384,10,24 46.56 (3) (a) 6. The largest school district in the county and any cooperative educational service agency, if it provides special education in the county, or any county handicapped children's children with disabilities education board in the county, and any other school district in the county that is willing to participate in the program, at the discretion of the administering agency.

SB384, s. 13 Section 13. 46.56 (3) (d) 1. d. of the statutes is amended to read:

SB384,11,6 46.56 (3) (d) 1. d. Review determinations by the service coordination agency regarding eligibility, assessment, appropriate services, or funding of services at the request of any applicant, recipient, parent or participating county department, agency, school district, cooperative educational service agencies or county handicapped children's children with disabilities education boards. The committee shall adopt written procedures for conducting reviews.

SB384, s. 14 Section 14. 46.56 (5) (a) of the statutes is amended to read:

SB384,11,11 46.56 (5) (a) The identity of every county department, agency, school district, cooperative educational service agency or county handicapped children's children with disabilities education board, technical college district or other organization that will participate in the program.

SB384, s. 15 Section 15. 46.56 (8) (a) of the statutes is amended to read:

SB384,11,18 46.56 (8) (a) Referrals to the program may come from any county departments, agencies, school districts, cooperative educational service agencies, county handicapped children's children with disabilities education boards, technical college districts, courts assigned to exercise jurisdiction under chs. 48 and 938 or any other organization or the child with severe disabilities or his or her family may contact the administering agency or service coordination agency to request services.

SB384, s. 16 Section 16. 46.56 (8) (g) of the statutes is amended to read:

SB384,12,2 46.56 (8) (g) The service coordinator shall assemble the results of all prior relevant assessments and evaluations documenting the service needs of the child with severe disabilities and the child's family, including multidisciplinary individualized education program team evaluations under s. 115.80 (3) 115.782 or independent educational evaluations, court-ordered evaluations under s. 48.295 or 938.295, family support program evaluations, community integration program or community options program assessments, and any other available medical, psychiatric, psychological, vocational or developmental evaluations.

SB384, s. 17 Section 17. 46.56 (15) (d) of the statutes is amended to read:

SB384,12,7 46.56 (15) (d) In order to apply for funding, at least one school district, cooperative educational service agency or county handicapped children's children with disabilities education board serving children with severe disabilities in the county must participate in the program.

SB384, s. 18 Section 18. 48.14 (7) of the statutes is amended to read:

SB384,12,9 48.14 (7) Appeals under s. 115.81 115.80 (7).

SB384, s. 19 Section 19. 48.345 (intro.) of the statutes is amended to read:

SB384,12,18 48.345 Disposition of child adjudged in need of protection or services. (intro.) If the judge finds that the child is in need of protection or services, the judge shall enter an order deciding one or more of the dispositions of the case as provided in this section under a care and treatment plan, except that the order may not place any child not specifically found under chs. 46, 49, 51, 115 and 880 to be developmentally disabled, mentally ill or to have exceptional educational needs a disability specified in s. 115.76 (5) in facilities which exclusively treat those categories of children. The dispositions under this section are as follows:

SB384, s. 20 Section 20. 48.345 (12) (d) of the statutes is amended to read:

SB384,12,21 48.345 (12) (d) This subsection does not apply to a child with exceptional educational needs a disability, as defined under s. 115.76 (3) (5).

SB384, s. 21 Section 21. 48.428 (3) (e) of the statutes is amended to read:

SB384,12,24 48.428 (3) (e) The authority to act as the child's parent under ss. 115.80, 115.81 subch. V of ch. 115 and s. 118.125.

SB384, s. 22 Section 22. 48.60 (4) of the statutes is amended to read:

SB384,13,2 48.60 (4) (a) In this subsection, "child with exceptional educational needs a disability" has the meaning given in s. 115.76 (3) (5).

SB384,13,8 (b) Notwithstanding ss. 115.85 (2), 121.78 (3) (a) and 121.79 (1) (a), a child welfare agency shall pay for the costs incurred by a school district in providing special education and related services to a child with exceptional educational needs a disability who is a resident of the child welfare agency, if the child was placed in the child welfare agency pursuant to the interstate compact on the placement of children under s. 48.988.

SB384, s. 23 Section 23. 51.05 (5) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

SB384,13,20 51.05 (5) School activities. If an individual over the age of 2 and under the age of 22 and eligible for schooling special education and related services under ss. 115.76 (2) and 115.85 subch. V of ch. 115 is committed, admitted or transferred to or is a resident of the Mendota mental health institute or Winnebago mental health institute, the individual shall attend a school program operated by the applicable mental health institute or a school outside the applicable mental health institute which is approved by the department of public instruction. A school program operated by the Mendota mental health institute or Winnebago mental health institute shall be under the supervision of the department of public instruction and shall meet standards prescribed by that agency.

SB384, s. 24 Section 24. 51.06 (2) of the statutes, as affected by 1997 Wisconsin Act 27, is amended to read:

SB384,14,5 51.06 (2) School activities. If an individual over the age of 2 years and under the age of 22 years and eligible for schooling special education and related services under ss. 115.76 (2) and 115.85 subch. V of ch. 115 is admitted to, is placed in or is a resident of a center, the individual shall attend a school program operated by the center or a school outside the center which is approved by the department of public instruction. A school program operated by the center shall be under the supervision of the department of public instruction and shall meet standards prescribed by that agency.

SB384, s. 25 Section 25. 51.42 (3) (ar) 7. of the statutes is amended to read:

SB384,14,8 51.42 (3) (ar) 7. Acknowledge receipt of the notification received under s. 115.85 (4) 115.812 (2).