115.79
115.79
Council on exceptional education. 115.79(1)
(1) The secretary shall consult with the council on exceptional education concerning:
Effective date note
NOTE: Sub. (1) (intro.) is shown as amended eff. 1-1-96 by
1995 Wis. Act 27. The treatment by Act 27 was held unconstitutional and declared void by the Supreme Court in Thompson v. Craney, case no.
95-2168-OA. Prior to Act 27 it read:
Effective date text
(1) The state superintendent shall consult with the council on exceptional education concerning:
115.79(1)(a)
(a) All proposed department or division policies and rules relating to the education of children with exceptional educational needs.
115.79(1)(b)
(b) New special education programs, expansions, reductions or terminations of existing special education programs under
s. 115.77 (4) (b) and
(c).
115.79(1)(d)
(d) Any other matters upon which the secretary wishes the council's opinion.
Effective date note
NOTE: Par. (d) is shown as amended eff. 1-1-96 by
1995 Wis. Act 27. The treatment by Act 27 was held unconstitutional and declared void by the Supreme Court in Thompson v. Craney, case no.
95-2168-OA. Prior to Act 27 it read:
Effective date text
(d) Any other matters upon which the state superintendent wishes the council's opinion.
115.79(2)
(2) The council may submit a report biennially to the chief clerk of each house of the legislature, for distribution to the legislature under
s. 13.172 (2), on the progress made by special education programs and planning in the state and any other information it deems desirable.
115.79(3)
(3) The council shall have access to reports and statistics kept by the department relating to matters concerning children with exceptional educational needs.
115.80
115.80
Identifying and providing special education to children with exceptional educational needs. 115.80(1)(a)(a) A parent or a physician, nurse, teacher at a state or county residential facility, psychologist, social worker or administrator of a social agency who has reasonable cause to believe that a child brought to him or her for services has exceptional educational needs shall report the name of the child and any other information required to the school board for the district or governing body of a state or county residential facility in which the child resides or to the division, except as provided in
par. (b).
115.80(1)(b)
(b) A person who is required to be certified or licensed under
s. 115.28 (7), who is employed by the school district in which a child attends public school and who has reasonable cause to believe a child has exceptional educational needs shall report such child and any other information required to the school board.
115.80(1)(c)
(c) Before any report is made under this subsection, the person making the report shall inform the child's parent that the report will be made.
115.80(2)
(2) School district screening. 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 exceptional educational needs.
115.80(3)(a)(a) The school board shall appoint a multidisciplinary team for each child reported to it under
sub. (1) who resides in the school district and has not graduated from high school and for each child identified under
sub. (2). A multidisciplinary team shall be composed of 2 or more persons who are skilled in assessing the exceptional educational needs that a child may have and who are skilled in programming for children with exceptional educational needs. The department shall determine the method of appointing members to the team and may require that there be additional members. The number and specialties of additional members may depend on the exceptional educational needs that the particular child is believed to have. Before a child is sent from a state or county residential facility to a school district, the department may require that the team for the school district to which the child may be sent include or consult with persons appointed by the governing body of the residential facility. For the evaluation of a child who resides and is receiving education only at a state or county residential facility, the multidisciplinary team shall be appointed by and make recommendations under
pars. (c) and
(d) to the governing body of the residential facility in which the child resides.
Effective date note
NOTE: Par. (a) is shown as amended eff. 1-1-96 by
1995 Wis. Act 27. The treatment by Act 27 was held unconstitutional and declared void by the Supreme Court in Thompson v. Craney, case no.
95-2168-OA. Prior to Act 27 it read:
Effective date text
(a) The school board shall appoint a multidisciplinary team for each child reported to it under sub. (1) who resides in the school district and has not graduated from high school and for each child identified under sub. (2). A multidisciplinary team shall be composed of 2 or more persons who are skilled in assessing the exceptional educational needs that a child may have and who are skilled in programming for children with exceptional educational needs. The state superintendent shall determine the method of appointing members to the team and may require that there be additional members. The number and specialties of additional members may depend on the exceptional educational needs that the particular child is believed to have. Before a child is sent from a state or county residential facility to a school district, the state superintendent may require that the team for the school district to which the child may be sent include or consult with persons appointed by the governing body of the residential facility. For the evaluation of a child who resides and is receiving education only at a state or county residential facility, the multidisciplinary team shall be appointed by and make recommendations under pars. (c) and (d) to the governing body of the residential facility in which the child resides.
115.80(3)(b)
(b) Except as provided under
s. 115.81 (1) (b), the multidisciplinary team appointed under
par. (a) shall, upon written parental consent, evaluate each child reported to the school board under
sub. (1) who resides in the school district and has not graduated from high school and each child identified under
sub. (2).
115.80(3)(c)
(c) The multidisciplinary team shall consult with the child's parent prior to recommending a child for a special education program.
115.80(3)(d)
(d) The multidisciplinary team shall recommend a child to the school board for special education if it determines that the child is a child with exceptional educational needs.
115.80(4)
(4) Individualized education program. 115.80(4)(a)(a) A school board shall appoint staff to develop an individualized education program for each child recommended to it for special education under
sub. (3) (d) who is 3 years of age or older. An individualized education program establishes the education program to be provided a child with exceptional educational needs. School board staff shall review each child's individualized education program at least annually.
115.80(4)(b)
(b) The individualized education program of each child with exceptional educational needs as a result of a visual handicap shall indicate whether the child needs to be taught braille. If the individualized education program indicates that the child does not need to be taught braille, it shall also indicate the reason.
115.80(4m)
(4m) Educational placement. A school board shall provide an educational placement under
s. 115.85 (2) for each child with exceptional educational needs to implement the child's individualized education program. Except as provided in
s. 115.81 (1) (b), a school board may not provide an educational placement for a child without the consent of the child's parent.
115.80(5)(a)(a) Each child who is receiving special education shall be reevaluated by a multidisciplinary team at least once every 3 years.
115.80(5)(b)1.1. Upon reevaluation by a multidisciplinary team, the child may not continue to receive special education except upon the recommendation of the multidisciplinary team to the school board.
115.80(5)(b)2.
2. If, upon recommendation of the multidisciplinary team under
subd. 1., the school board determines that a child is no longer in need of special education services, it shall place such child in an appropriate educational program. The board may delegate this responsibility in such manner and to such persons as it deems appropriate, including the multidisciplinary team.
115.80 Annotation
Department of Health and Social Services has no authority to appoint surrogate parent when child's parent cannot be located or refuses EEN services, and must utilize alternative procedures under 48.13 and 880.15.
71 Atty. Gen. 28.
115.81
115.81
Procedural safeguards. 115.81(1)(a)(a) A parent may file a written request with the department for a hearing whenever the school board proposes or refuses to initiate or change his or her child's multidisciplinary team evaluation, individualized education program, educational placement or the provision of an appropriate special education program.
115.81(1)(b)
(b) A school board may file a written request with the department for a hearing to override a parent's refusal to grant consent or a parent's revocation of his or her consent for a multidisciplinary team evaluation or educational placement or to contest the payment of an independent evaluation.
115.81(2)
(2) Notices. A school board shall fully inform the parent of any action it plans to take regarding the parent's child and of all procedural safeguards available to the parent.
115.81(3)
(3) Status during hearing and court proceeding. The school board may not change the educational placement of a child with exceptional educational needs who is the subject of a hearing or court proceeding conducted under this subchapter during the pendency of the hearing or court proceeding unless the change is made with the written consent of the child's parent. If the health or safety of the child or of other persons would be endangered by delaying the change in assignment, the change may be made earlier, upon order of the school board, but without prejudice to any rights that the child or parent may have.
115.81(4)
(4) Rights at hearing. A parent shall have access to any reports, records, clinical evaluations or other materials upon which a decision relating to his or her child was wholly or partially based or which could reasonably have a bearing on the correctness of the decision. At any hearing held under this section, the parent may determine whether the hearing shall be public or private. The parties to a hearing may examine and cross-examine witnesses, introduce evidence, appear in person and be represented by an advocate. The hearing officer shall prepare a full record of the proceedings. A complete record of the proceedings shall be given to the parent, if requested. The hearing officer shall inform the parents of their right to a complete record of the proceedings.
115.81(4m)
(4m) Hearing officers. The department shall maintain a listing of qualified hearing officers who are not employed by or under contract with a school board to serve as hearing officers in hearings under this section.
115.81(5)
(5) Independent evaluation. If a parent believes that a school board's multidisciplinary team evaluation of his or her child as shown in the reports or records made available to the parent under
sub. (4) is in error, he or she may obtain an independent evaluation of the child and have the report considered by the school board and presented as evidence in the hearing. The school board shall pay the costs of the independent evaluation unless the parent refuses to give the school board a copy of the independent evaluation or it is found at a hearing that the school board's multidisciplinary team evaluation is appropriate or that the independent evaluation does not meet standards set by the department.
115.81(6)
(6) Hearing and decision. Upon receipt of a written request for a hearing under
sub. (1), the department shall appoint an impartial hearing officer who is not otherwise employed by the department from the list maintained under
sub. (4m). The hearing officer shall conduct the hearing and shall issue a decision within 45 days of the receipt of the request for the hearing under
sub. (1). The hearing officer may issue subpoenas, order an independent evaluation at school board 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 school board shall pay the cost of the hearing officer.
Sections 227.44 to
227.50 do not apply to hearings conducted under this subsection.
115.81(7m)
(7m) Residents of state or county facility. For a child who resides, and is receiving special education, only in a state or county residential facility, the governing body of the facility shall be considered a school board for the purposes of this section.
115.81(8)
(8) Appeal to court. Within 45 days after the decision of the hearing officer appointed by the department under
sub. (6), either party may appeal the decision to the circuit court for the county in which the child resides.
115.81(9)(a)(a) A school board shall appoint a surrogate parent for a child with exceptional educational needs who resides in the school district if any of the following applies:
115.81(9)(a)3.
3. The child is a ward of or in the legal custody of a public agency, or a child welfare agency, that has the authority to make educational decisions for the child.
115.81(9)(b)
(b) The school board may not appoint as a surrogate parent for a child any employe of a public agency, or a child welfare agency, who is involved in the education or care of the child.
115.81(9)(c)
(c) Notwithstanding
ss. 48.345,
48.363,
48.427 (3),
767.24 (3),
880.12,
880.15,
938.183,
938.34 (4),
(4h),
(4m) and
(4n),
938.345 and
938.363, a surrogate parent has the authority to act as the child's parent in all matters relating to this subchapter.
115.81 Annotation
Enforcement of state and federal special education laws discussed. M. R. v. Milwaukee Public Schools, 495 F Supp. 864 (1980).
115.815
115.815
Children in child caring institutions. 115.815(1)(b)
(b) "Originating school district" means the school district where the child resided prior to the placement of the child in a child caring institution.
115.815(2)
(2) Establishment of program. Subject to
s. 115.77 (4) (b), a child caring institution may establish and maintain a special education program for children with exceptional educational needs.
115.815(3)(a)(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 school board of the originating school district.
115.815(3)(b)
(b) For each child identified in a notice under
par. (a), the school board of the originating school district or state agency, as specified in rules promulgated by the department, shall do all of the following:
115.815(3)(b)1.
1. If the child is a child with exceptional educational needs, as soon as reasonably possible, the school board, after consulting with a county department or a state agency, as appropriate, shall appoint staff to review and revise, if necessary, the child's individualized education program and the school board shall appoint a group to develop an educational placement offer.
115.815(3)(b)2.
2. If the child has not been identified as a child with exceptional educational needs:
115.815(3)(b)2.a.
a. The school board or state agency, as specified in rules promulgated by the department, shall appoint staff to review the child's education records and develop a status report for the child. The school board shall send a copy of the report to the county department within 30 days after receiving the notice under
par. (a) and the state agency shall send a copy of the report to the school board of the originating school district within 30 days after providing the notice under
par. (a).
115.815(3)(b)2.b.
b. If the school board determines that there is reasonable cause to believe that the child is a child with exceptional educational needs, the school board shall appoint a multidisciplinary team to conduct an evaluation of the child under
s. 115.80 (3). The school board may include appropriately licensed staff of the child caring institution in the multidisciplinary team if that staff is available. The multidisciplinary team shall conduct the evaluation. If the multidisciplinary team determines that the child is a child with exceptional educational needs, the school board, after consulting with a county department or a state agency, as appropriate, shall appoint staff to develop an individualized education program and the school board shall appoint a group to develop an educational placement offer.
115.815(4)
(4) Responsibility for educational placement. Whenever the school board of the originating school district offers an educational placement in a child caring institution under
sub. (3) (b) 1. or
2. b., all of the following apply:
115.815(4)(a)
(a) The school board of the originating school district shall do all of the following:
115.815(4)(a)1.
1. Ensure that the child receives a free appropriate public education.
115.815(4)(a)2.
2. Ensure that the child's treatment and security needs are considered when determining the least restrictive environment for the child.
115.815(4)(a)3.
3. While the child resides at a child caring institution, assign staff to conduct reevaluations of the child in the manner provided under
s. 115.80 (5).
115.815(4)(a)4.
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 school district if the school board of the originating school district determines that the child's exceptional educational needs may be appropriately served in a less restrictive setting in the other school district.
115.815(4)(a)5.
5. If the child is leaving the child caring institution, assign a transition team to develop a transition plan for the child in cooperation with a county department and staff of the child caring institution.
115.815(4)(b)
(b) The county department or state agency, as specified in rules promulgated by the department, shall do all of the following:
115.815(4)(b)1.
1. Consider the child's educational needs when selecting a child caring institution for the child.
115.815(4)(b)2.
2. In cooperation with the originating school district and staff of the child caring institution, participate in the multidisciplinary team evaluation of the child and the development of the individualized education program for the child.
115.815(4)(b)3.
3. Notify the school board of the school district in which the child will reside whenever the county department or state agency anticipates removing the child from the child caring institution.
115.815(4)(b)4.
4. In cooperation with the originating school district and staff of the child caring institution, develop a transition plan for the child if the child is leaving the child caring institution.
115.815(4)(b)5.
5. Pay all of the child caring institution related costs of educating the child while the child resides in the child caring institution.
115.815(4)(c)
(c) Whenever a school board receives a referral under
par. (a) 4., the school board shall assign staff to determine whether the child can appropriately be placed in a special education program operated by the school district. If the assigned staff determines that the child can appropriately be placed in a special education program operated by the school district, the school board shall provide an education program for the child and is eligible for state tuition payments under
s. 121.79 (1) (a). If the assigned staff determines that the child cannot appropriately be placed in a special education program operated by the school district, the school board shall keep a written record of the reasons for that determination. If there is a dispute regarding the placement of a child under this paragraph between the school board of the originating school district and the school board receiving the referral, the department shall resolve the dispute under
s. 115.85 (2m).
Effective date note
NOTE: Par. (c) is shown as amended eff. 1-1-96 by
1995 Wis. Act 27. The treatment by Act 27 was held unconstitutional and declared void by the Supreme Court in Thompson v. Craney, case no.
95-2168-OA. Prior to Act 27 it read:
Effective date text
(c) Whenever a school board receives a referral under par. (a) 4., the school board shall assign staff to determine whether the child can appropriately be placed in a special education program operated by the school district. If the assigned staff determines that the child can appropriately be placed in a special education program operated by the school district, the school board shall provide an education program for the child and is eligible for state tuition payments under s. 121.79 (1) (a). If the assigned staff determines that the child cannot appropriately be placed in a special education program operated by the school district, the school board shall keep a written record of the reasons for that determination. If there is a dispute regarding the placement of a child under this paragraph between the school board of the originating school district and the school board receiving the referral, the state superintendent shall resolve the dispute under s. 115.85 (2m).
115.815(5)
(5) Rules. The department shall promulgate rules to implement and administer this section.
Effective date note
NOTE: Sub. (5) is shown as amended eff. 1-1-96 by
1995 Wis. Act 27. The treatment by Act 27 was held unconstitutional and declared void by the Supreme Court in Thompson v. Craney, case no.
95-2168-OA. Prior to Act 27 it read:
