Chapter 115

115.745 History History: 2009 a. 28; 2017 a. 59.

115.745 Cross-reference Cross-reference: See also ch. PI 38, Wis. adm. code.

subch. V of ch. 115 SUBCHAPTER V

CHILDREN WITH DISABILITIES

Subch. V of ch. 115 Cross-reference Cross-reference: See also ch. PI 11, Wis. adm. code.

115.758 115.758 Construction. To the extent possible, this subchapter shall be construed in a manner that is consistent with 20 USC 1400 to 1482 and is consistent with the purposes specified in 20 USC 1400 (d).

115.758 History History: 1997 a. 164; 2005 a. 258.

115.76 115.76 Definitions. In this subchapter:

115.76(1) (1) “Assistive technology device” means any item, piece of equipment or product system that is used to increase, maintain or improve the functional capabilities of a child with a disability other than a medical device that is surgically implanted or the replacement of such a device.

115.76(2) (2) “Assistive technology service” means any service that directly assists a child with a disability in the selection, acquisition or use of an assistive technology device, including all of the following:

115.76(2)(a) (a) The evaluation of the needs of the child, including a functional evaluation of the child in the child’s customary environment.

115.76(2)(b) (b) Purchasing, leasing or otherwise providing for the acquisition of assistive technology devices by the child.

115.76(2)(c) (c) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing or replacing of assistive technology devices.

115.76(2)(d) (d) Coordinating and using other therapies, interventions or services with assistive technology devices, such as those associated with existing education and rehabilitative plans and programs.

115.76(2)(e) (e) Training or technical assistance for the child or, where appropriate, the child’s family.

115.76(2)(f) (f) Training or technical assistance for professionals, including individuals providing education and rehabilitative services, employers or other individuals who provide services to, employ or are otherwise substantially involved in the major life functions of the child.

115.76(3) (3) “Child” means any person who is at least 3 years old but not yet 21 years old and who has not graduated from high school and, for the duration of a school term, any person who becomes 21 years old during that school term and who has not graduated from high school, and includes a child who is homeless, a child who is a ward of the state, county, or child welfare agency, and a child who is attending a private school.

115.76(5) (5) 

115.76(5)(a) (a) “Child with a disability” means a child who, by reason of any of the following, needs special education and related services:

115.76(5)(a)1. 1. Cognitive disabilities.

115.76(5)(a)2. 2. Hearing impairments.

115.76(5)(a)3. 3. Speech or language impairments.

115.76(5)(a)4. 4. Visual impairments.

115.76(5)(a)5. 5. Emotional behavioral disability.

115.76(5)(a)6. 6. Orthopedic impairments.

115.76(5)(a)7. 7. Autism.

115.76(5)(a)8. 8. Traumatic brain injury.

115.76(5)(a)9. 9. Other health impairments.

115.76(5)(a)10. 10. Learning disabilities.

115.76(5)(b) (b) “Child with a disability” may, at the discretion of the local educational agency and consistent with department rules, include a child who, by reason of his or her significant developmental delay, needs special education and related services.

115.76 Cross-reference Cross-reference: See also s. PI 11.36, Wis. adm. code.

115.76(6) (6) “Division” means the division for learning support in the department.

115.76(7) (7) “Free appropriate public education” means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.

115.76(8) (8) “Hearing officer” means an independent examiner appointed to conduct hearings under s. 115.80.

115.76(9) (9) “Individualized education program” means a written statement for a child with a disability that is developed, reviewed and revised in accordance with s. 115.787.

115.76(10) (10) “Local educational agency”, except as otherwise provided, means the school district in which the child with a disability resides, the department of health services if the child with a disability resides in an institution or facility operated by the department of health services, or the department of corrections if the child with a disability resides in a Type 1 juvenile correctional facility, as defined in s. 938.02 (19), or a Type 1 prison, as defined in s. 301.01 (5).

115.76(11) (11) “Native language”, when used with reference to an individual of limited English proficiency, means the language normally used by the individual.

115.76(12) (12) 

115.76(12)(a) (a) “Parent” means any of the following:

115.76(12)(a)1. 1. A biological parent.

115.76(12)(a)2. 2. A husband who has consented to the artificial insemination of his wife under s. 891.40.

115.76(12)(a)3. 3. A male who is presumed to be the child’s father under s. 891.41.

115.76(12)(a)4. 4. A male who has been adjudicated the child’s father under subch. VIII of ch. 48, under subch. IX of ch. 767, by final order or judgment of an Indian tribal court of competent jurisdiction or by final order or judgment of a court of competent jurisdiction in another state.

115.76(12)(a)5. 5. An adoptive parent.

115.76(12)(a)6. 6. A legal guardian.

115.76(12)(a)7. 7. A person acting as a parent of a child.

115.76(12)(a)9. 9. A person assigned as a surrogate parent under s. 115.792 (1) (a) 2.

115.76(12)(a)10. 10. A foster parent, if the right and the responsibility of all of the persons specified in subds. 1. to 5. to make educational decisions concerning a child have been extinguished by termination of parental rights, by transfer of guardianship or legal custody or by other court order, and if the foster parent has an ongoing, long-term parental relationship with the child, is willing to make the educational decisions that are required of a parent under this subchapter and has no interests that would conflict with the interests of the child.

115.76(12)(b) (b) “Parent” does not include any of the following:

115.76(12)(b)1. 1. A person whose parental rights have been terminated.

115.76(12)(b)2. 2. The state, a county, or a child welfare agency, if a child was made a ward of the state, county, or child welfare agency under ch. 54, 2017 stats., or ch. 880, 2003 stats., or if a child has been placed in the legal custody or guardianship of the state, county, or child welfare agency under ch. 48 or 767.

115.76(12)(b)3. 3. An American Indian tribal agency if the child was made a ward of the agency or placed in the legal custody or guardianship of the agency.

115.76(13) (13) “Person acting as a parent of a child” means a relative of the child or a private individual allowed to act as a parent of a child by the child’s biological or adoptive parents or guardian, and includes the child’s grandparent, neighbor, friend or private individual caring for the child with the explicit or tacit approval of the child’s biological or adoptive parents or guardian. “Person acting as a parent of a child” does not include any person that receives public funds to care for the child if such funds exceed the cost of such care.

115.76(14) (14) 

115.76(14)(a) (a) “Related services” means transportation and such developmental, corrective, and other supportive services as may be required to assist a child with a disability to benefit from special education, including all of the following:

115.76(14)(a)1. 1. Speech-language pathology and audiology services.

115.76(14)(a)2. 2. Interpreting services.

115.76(14)(a)3. 3. Psychological services.

115.76(14)(a)4. 4. Physical and occupational therapy.

115.76(14)(a)5. 5. Recreation, including therapeutic recreation.

115.76(14)(a)6. 6. Social work services.

115.76(14)(a)7. 7. School nursing services designed to enable a child with a disability to receive a free appropriate public education as described in the child’s individualized education program.

115.76(14)(a)8. 8. Counseling services, including rehabilitative counseling.

115.76(14)(a)9. 9. Orientation and mobility services.

115.76(14)(a)10. 10. Medical services for diagnostic and evaluative purposes only.

115.76(14)(a)11. 11. The early identification and assessment of disabling conditions in children.

115.76(14)(b) (b) “Related services” does not include a medical device that is surgically implanted or the replacement of such a device.

115.76(14g) (14g) “Residential care center for children and youth” means a facility operated by a child welfare agency licensed under s. 48.60 for the care and maintenance of children residing in that facility.

115.76(15) (15) “Special education” means specially designed instruction, regardless of where the instruction is conducted, that is provided at no cost to the child or the child’s parents, to meet the unique needs of a child with a disability, including instruction in physical education.

115.76(16) (16) “Supplementary aids and services” means aids, services and other supports that are provided in regular education classes or other education-related settings to enable a child with a disability to be educated with nondisabled children to the maximum extent appropriate.

115.76(17) (17) “Transition services” has the meaning given in 20 USC 1401 (34).

115.76 History History: 1997 a. 164, 237; 1999 a. 116, 161; 2001 a. 59; 2005 a. 258, 344, 387; 2005 a. 443 s. 265; 2007 a. 20 s. 9121 (6) (a); 2007 a. 97; 2011 a. 158; 2015 a. 128; 2019 a. 109.

115.762 115.762 Division for learning support.

115.762(1) (1) Appointment of administrator. The state superintendent shall appoint the administrator of the division.

115.762(2) (2) Staff. Subject to the approval of the state superintendent, the administrator of the division shall appoint qualified staff necessary to perform the duties required of the division.

115.762(3) (3) Division duties. The division is responsible for all of the following:

115.762(3)(a) (a) Ensuring that all children with disabilities, including children who are not yet 3 years of age, who reside in this state and who are in need of special education and related services are identified, located and evaluated.

115.762(3)(am) (am) Ensuring that a free appropriate public education is available to all children with disabilities who reside in this state, including such children who are suspended or expelled from school.

115.762(3)(b) (b) Developing and implementing a practical method to determine which children with disabilities are receiving special education and related services.

115.762(3)(c) (c) Complying with the requirements of this subchapter and applicable federal law, including 20 USC 1415 (k) and 42 USC 11431 to 11434a.

115.762(3)(d) (d) Coordinating and supervising the provision of all publicly funded special education and related services for children with disabilities in this state and ensuring that such education and services meet the educational standards of the department, including any criteria established by the department relating to enrollment.

115.762(3)(e) (e) Determining local educational agency eligibility for assistance, including determining whether a local educational agency is failing to comply with any of the requirements of the plan submitted to the division under s. 115.77 (4).

115.762(3)(g) (g) Monitoring and enforcing local educational agency and residential care center for children and youth compliance with this subchapter and applicable federal law, including 20 USC 1415 (k) and 42 USC 11431 to 11434a.

115.762(3)(h) (h) Developing and maintaining a performance plan in compliance with 20 USC 1416 (b).

115.762(3)(i) (i) Establishing and maintaining qualifications to ensure that personnel necessary to carry out the requirements of this subchapter are appropriately and adequately prepared and trained, in compliance with 20 USC 1412 (a) (14), and requiring that local educational agencies take measurable steps to recruit, hire, train, and retain highly qualified personnel to provide special education and related services to children with disabilities under this subchapter.

115.762(3)(j) (j) Examining data, including data disaggregated by race and ethnicity, to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities among local educational agencies or compared to such rates for nondisabled children within such agencies. If such discrepancies are occurring, the division shall review and, if appropriate, revise or require the affected local educational agency to revise its policies, procedures and practices relating to the development and implementation of individualized education programs, the use of positive behavioral interventions and supports and procedural safeguards to ensure that such policies, procedures and practices comply with this subchapter.

115.762(4) (4) Limitation. Nothing in this subchapter requires that special education and related services be provided to a child with a disability who is at least 18 years old and who, in the child’s educational placement before his or her incarceration in a state prison, was not identified as a child with a disability or for whom an individualized education program was not developed.

115.762 History History: 1997 a. 164; 1999 a. 161; 2001 a. 59; 2005 a. 258; 2011 a. 158.

115.77 115.77 Local educational agency duties.