115.797(5)(h)
(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.
115.797(6)
(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.
115.797(7)(a)(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).
115.797(7)(b)
(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.
115.797(7)(c)
(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.
115.797(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.
115.797(9)
(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.
115.797 History
History: 1997 a. 164.
115.80
115.80
Due process hearings. 115.80(1)(a)1.1. 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.
115.80(1)(a)2.
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.
115.80(1)(b)
(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.
115.80(1)(c)
(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).
115.80(1)(d)
(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.
115.80(2)
(2) The division shall maintain a list of qualified hearing officers who are not employed by or under contract with the department or the local educational agency, other than being appointed under this subsection, to serve as hearing officers in hearings under this section. Upon receipt of a written request for a hearing under
sub. (1), the division shall appoint a hearing officer from the list.
115.80(3)
(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.
115.80(4)
(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.
115.80(5)
(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.
115.80(6)
(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.
115.80(7)
(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.
115.80(8)
(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 or
121.84 (1) (a) or
(4).
115.80(9)(a)(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.
115.80(9)(b)1.1. 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:
115.80(9)(b)1.a.
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.
115.80(9)(b)1.c.
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.
115.80(9)(b)2.
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).
115.80(9)(c)
(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.
115.80(9)(d)1.1. 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):
115.80(9)(d)1.a.
a. During the course of the action, the parent unreasonably protracted the final resolution of the controversy.
115.80(9)(d)1.b.
b. The attorney representing the parent did not provide to the division the information specified in
sub. (1) (a) 2.
115.80(9)(d)2.
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.
115.80 History
History: 1997 a. 164,
251;
1999 a. 117.
115.80 Annotation
The "continuing violation" doctrine did not apply to defeat the one-year statute of limitations in sub. (1) (a) 1. for filing a due process hearing request. Vandenberg v. Appleton Area School District,
252 F. Supp. 2d 786 (2003).
115.807
115.807
Transfer of parental rights at age of majority. When a child with a disability, other than a child with a disability who has been determined to be incompetent under
ch. 880, reaches the age of 18, all of the following apply:
115.807(1)
(1) The local educational agency shall provide any notice required by this subchapter to both the individual and the individual's parents.
115.807(2)
(2) All other rights accorded to the individual's parents under this subchapter transfer to the individual.
115.807(3)
(3) The local educational agency shall notify the individual and the individual's parents of the transfer of rights.
115.807 History
History: 1997 a. 164.
115.81
115.81
Children in child caring institutions. 115.81(1)(b)
(b) "Responsible local educational agency" means the local educational agency that was responsible for providing a free, appropriate public education to the child before the placement of the child in a residential care center for children and youth except that if the child resided in an institution or facility operated by the department of health and family services, a Type 1 secured correctional facility, as defined in
s. 938.02 (19), or a Type 1 prison, as defined in
s. 301.01 (5), before the placement of the child in a residential care center for children and youth, "responsible local educational agency" means the school district in which the residential care center for children and youth is located.
115.81(2)
(2) Establishment of program. Subject to the approval of the division, a residential care center for children and youth may establish and maintain special education and related services for children with disabilities.
115.81(3)(a)(a) Whenever a county department recommends to a court that a child be placed in a residential care center for children and youth or whenever a state agency anticipates placing a child in a residential care center for children and youth, the county department or state agency shall notify the responsible local educational agency.
115.81(3)(b)
(b) For each child identified in a notice under
par. (a), the responsible local educational agency shall do all of the following:
115.81(3)(b)1.
1. If the child is a child with a disability, as soon as reasonably possible and after consulting with a county department or a state agency, as appropriate, appoint an individualized education program team to review and revise, if necessary, the child's individualized education program and develop an educational placement offer.
115.81(3)(b)2.
2. If the child has not been identified as a child with a disability:
115.81(3)(b)2.a.
a. Appoint staff to review the child's education records and develop a status report for the child and send a copy of the report to the county department or state agency, as appropriate, within 30 days after receiving the notice under
par. (a).
115.81(3)(b)2.b.
b. If the responsible local educational agency has reasonable cause to believe that the child is a child with a disability, appoint an individualized education program team to conduct an evaluation of the child under
s. 115.782. The responsible local educational agency may include appropriately licensed staff of the residential care center for children and youth in the team if that staff is available. The individualized education program team shall conduct the evaluation. If the individualized education program team determines that the child is a child with a disability, the individualized education program team, in consultation with a county department or a state agency, as appropriate, shall develop an individualized education program and an educational placement offer.
115.81(4)
(4) Responsibility for educational placement. Whenever the responsible local educational agency offers an educational placement in a residential care center for children and youth under
sub. (3) (b) 1. or
2. b., all of the following apply:
115.81(4)(a)
(a) The responsible local educational agency shall do all of the following:
115.81(4)(a)1.
1. Ensure that the child receives a free appropriate public education.
115.81(4)(a)2.
2. Ensure that the child's treatment and security needs are considered when determining the least restrictive environment for the child.
115.81(4)(a)3.
3. While the child resides at a residential care center for children and youth, appoint an individualized education program team to conduct reevaluations of the child in the manner provided under
s. 115.782 (4).
115.81(4)(a)4.
4. While the child resides at a residential care center for children and youth, after consulting with the residential care center for children and youth and a county department or a state agency, as appropriate, refer the child to another local educational agency if the responsible local educational agency determines that the child's special education needs may be appropriately served in a less restrictive setting in the other local educational agency.
115.81(4)(a)5.
5. If the child is leaving the residential care center for children and youth, assign staff or an individualized education program team to develop a reintegration plan for the child in cooperation with a county department and staff of the residential care center for children and youth.
115.81(4)(b)
(b) The county department or state agency, as appropriate, shall do all of the following:
115.81(4)(b)1.
1. Consider the child's educational needs when selecting a residential care center for children and youth for the child.
115.81(4)(b)2.
2. In cooperation with the responsible local educational agency and staff of the residential care center for children and youth, participate in the individualized education program team evaluation of the child and the development of the individualized education program for the child.
115.81(4)(b)3.
3. Notify the local educational agency that will be responsible for providing a free, appropriate public education to the child whenever the county department or state agency anticipates removing the child from the residential care center for children and youth.
115.81(4)(b)4.
4. In cooperation with the responsible local educational agency and staff of the residential care center for children and youth, develop a reintegration plan for the child if the child is leaving the residential care center for children and youth.
115.81(4)(b)5.
5. Pay all of the residential care center for children and youth related costs of educating the child while the child resides in the residential care center for children and youth.
115.81(4)(c)
(c) Whenever a local educational agency receives a referral under
par. (a) 4., the local educational agency shall assign staff to determine whether the child can appropriately receive special education and related services provided in the local educational agency. If the assigned staff determine that the child can appropriately receive special education and related services in the local educational agency, the local educational agency shall provide such services for the child and is eligible for state tuition payments under
s. 121.79 (1) (a). If the assigned staff determine that the child cannot appropriately receive special education and related services in the local educational agency, the local educational agency shall keep a written record of the reasons for that determination.
115.81 History
History: 1997 a. 164,
237,
252;
2001 a. 59.
115.812
115.812
Placement disputes; school board referrals; interagency cooperation. 115.812(1)
(1)
Placement disputes. If a dispute arises between a local educational agency and the department of health and family services, the department of corrections or a county department under
s. 46.215,
46.22 or
46.23, or between local educational agencies under
s. 115.81 (4) (c), over the placement of a child, the state superintendent shall resolve the dispute. This subsection applies only to placements in nonresidential educational programs made under
s. 48.57 (1) (c) and to placements in child caring institutions made under
s. 115.81.
115.812(2)
(2) School board referrals. Annually on or before August 15, each local educational agency shall report to the appropriate county departments under
ss. 51.42 and
51.437 the names of children who reside in the local educational agency, are at least 16 years of age, are not expected to be enrolled in an educational program 2 years from the date of the report and may require services described under
s. 51.42 or
51.437 (1). This subsection does not affect a local educational agency's responsibility to make services available to children with disabilities.
115.812(3)(a)(a) A school board, cooperative educational service agency and county children with disabilities education board may enter into an agreement with a county administrative agency, as defined in
s. HFS 90.03 (10), Wis. adm. code, to allow the employees of the school board, agency or county children with disabilities education board to participate in the performance of evaluations and the development of individualized family service plans under
s. 51.44.
115.812(3)(b)1.1. In this paragraph, "public agency" has the meaning given in
s. 166.20 (1) (i), except that it excludes a local educational agency.
115.812(3)(b)2.
2. If a public agency that is required by federal or state law or by an interagency agreement to provide or pay for the location, identification or evaluation of a child with a disability, including a child with a disability who is not yet 3 years of age, or for assistive technology devices or services, supplementary aids or services, transition services or special education or related services for a child with a disability, and fails to do so, the local educational agency shall provide or pay for the services. The public agency shall reimburse the local educational agency for the cost of providing the services.
115.812 History
History: 1997 a. 164.
115.817
115.817
Children with disabilities education board. 115.817(1)(1)
Definitions. In this section "board" means the county children with disabilities education board.
115.817(2)(a)(a) A county board of supervisors may determine to establish a special education program, including the provision of related services for children with disabilities, for school districts in the county.
115.817(2)(b)
(b) The program may provide for one or more special schools, classes, treatment or instruction centers for children with one or more types of disabilities.
115.817(2)(c)
(c) A school district shall be included under the county program only to the extent approved by formal action of the school board.
