Chapter 115

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.

115.77(1) (1) In sub. (1m) (a) to (d), except as provided in s. 118.51 (12) (b), if a child with a disability is attending a public school in a nonresident school district under s. 118.50, 118.51, or 121.84 (1) (a) or (4), “local educational agency” means the school district that the child is attending.

115.77(1m) (1m) A local educational agency shall demonstrate to the division that it does all of the following:

115.77(1m)(a) (a) Identifies, locates and evaluates all children with disabilities who are in need of special education and related services, including such children who are not yet 3 years of age. A local educational agency may provide special education and related services to children with disabilities who are not yet 3 years of age under an interagency agreement with a county agency responsible for the early intervention program under s. 51.44.

115.77(1m)(b) (b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law, except that a local educational agency that provides special education and related services to a child with a disability who has not yet attained the age of 3 and who is participating in an early intervention program under s. 51.44 is not required to provide the child with a free appropriate public education.

115.77(1m)(bg) (bg) Includes children with disabilities in statewide and local educational agency-wide assessments, including assessments described in 20 USC 6311 (b) (2), with appropriate accommodations and alternate assessments where necessary and as indicated in their individualized education programs.

115.77(1m)(c) (c) Ensures that children participating in early intervention programs under s. 51.44 who will participate in preschool programs assisted under this subchapter experience a smooth and effective transition to those preschool programs and that, by the 3rd birthday of such a child, an individualized education program has been developed and is being implemented for the child. The local educational agency shall participate in transition planning conferences arranged by the county administrative agency, as defined in s. DHS 90.03 (10), Wis. Adm. Code.

115.77(1m)(d) (d) Ensures that children with disabilities who are enrolled in private schools and facilities are provided special education and related services, in accordance with individualized education programs, at no cost to them or to their parents, if such children are placed in, or referred to, such schools or facilities by a local educational agency to satisfy the requirements of this subchapter or applicable federal law.

115.77(1m)(e) (e) To the extent consistent with the number and location of children with disabilities who are enrolled by their parents in private elementary and secondary schools located within the local educational agency, ensures that those children have an opportunity to participate in special education and related services and that the amount spent to provide those services by the local educational agency is equal to a proportionate amount of federal funds made available under this subchapter.

115.77(1m)(f) (f) Establishes written policies, procedures, and programs for implementing this subchapter and applicable federal law.

115.77(1m)(g) (g) Makes available to any person, upon request, all documents relating to the agency’s eligibility for funds under this subchapter.

115.77(1m)(h) (h) Regularly publicizes information regarding its special education procedures and services.

115.77(2) (2) The local educational agency shall provide the division with information necessary to enable the division to carry out its duties under this subchapter and applicable federal law.

115.77(3) (3) Any state or federal aid that is made available to a local educational agency for special education and related services shall be used by the local educational agency to comply with this subchapter.

115.77(4) (4) A local educational agency shall submit to the division, pursuant to a schedule and instructions established and published by the division, a plan that provides assurances to the division that the local educational agency meets the conditions required by 20 USC 1413 (a), including all of the following:

115.77(4)(L) (L) Statements of assurance as required by applicable federal law.

115.77(4)(m) (m) Information relating to access of private school pupils to the local educational agency’s special education and related services.

115.77(4)(p) (p) Assurances that the local educational agency, in providing for the children with disabilities within its jurisdiction, has in effect policies, procedures, and programs that are consistent with this subchapter and applicable federal law.

115.77(4)(q) (q) The local educational agency’s plan for ensuring that all personnel necessary to carry out the requirements of this subchapter are appropriately and adequately prepared according to applicable state and federal law.

115.77(4)(r) (r) The data regarding children with disabilities and nondisabled children in the local educational agency that the division is required to collect or report to be in compliance with 20 USC 1400 to 1482.

115.77(4)(s) (s) Any other information the division requires to permit its review of the plan.

115.77(8) (8) The local educational agency shall serve children with disabilities who are attending a charter school under contract with the local educational agency under s. 118.40 in the same manner as it serves children with disabilities attending schools of the local educational agency, and shall provide funds under this subchapter to such charter schools on the same basis as it provides funds under this subchapter to schools of the local educational agency, including proportional distribution based on enrollment of children with disabilities, and at the same time as it distributes other federal funds to the agency’s other schools.

115.77(9) (9) The local educational agency shall exercise its authority in compliance with 20 USC 1415 (k).

115.77 History History: 1997 a. 164; 1999 a. 117; 2005 a. 258; 2009 a. 180; 2015 a. 55; 2017 a. 36, 59.

115.77 Annotation When there was no reasonable cause to believe that a student was emotionally disturbed and required special education, there was no obligation to submit an exceptional needs referral on the student’s behalf. Hoffman v. East Troy Community School District, 38 F. Supp. 2d 750 (1999).

115.775 115.775 Duties of operators of certain charter schools.

115.775(1) (1) Except as provided in sub. (2), an operator of a charter school under s. 118.40 (2r) or (2x) is a local educational agency, as defined in 20 USC 1401 (19), and shall comply with 20 USC 1400 to 1482.

115.775(2) (2) The board of directors of the school district operating under ch. 119 is a local educational agency under this section and shall comply with 20 USC 1400 to 1482 if the board of directors enters into a written agreement with an operator of a charter school under s. 118.40 (2r) or (2x) under which the board of directors agrees to serve as the local educational agency.

115.775 History History: 1999 a. 9; 2005 a. 258; 2015 a. 55.

115.777 115.777 Special education referrals.

115.777(1) (1) 

115.777(1)(a) (a) A physician, nurse, psychologist, social worker or administrator of a social agency who reasonably believes that a child brought to him or her for services has a disability shall refer the child to the local educational agency. If the local educational agency to whom the referral is made is the school district in which the child resides but the child is attending a public school in a nonresident school district under s. 118.50, 118.51, or 121.84 (1) (a) or (4), the school board of the school district in which the child resides shall provide the name of the child and related information to the school board of the school district that the child is attending.

115.777(1)(b) (b) A person who is required to be licensed under s. 115.28 (7), who is employed by a local educational agency and who reasonably believes a child has a disability, shall refer the child to the local educational agency. If the local educational agency to whom the referral is made is the school district that the child is attending but the child is a nonresident attending a public school in that school district under s. 118.50, 118.51, or 121.84 (1) (a) or (4), the school board of the school district that the child is attending shall provide the name of the child and related information to the school board of the child’s school district of residence.

115.777(1)(c) (c) Any person other than those specified under par. (a) or (b) who reasonably believes that a child is a child with a disability may refer the child to a local educational agency. If the local educational agency to whom the referral is made is the school district in which the child resides but the child is attending a public school in a nonresident school district under s. 118.50, 118.51, or 121.84 (1) (a) or (4), the school board of the school district in which the child resides shall provide the name of the child and related information to the school board of the school district that the child is attending.

115.777(2) (2) 

115.777(2)(a) (a) All referrals shall be in writing and shall include the name of the child and the reasons why the person believes that the child is a child with a disability.

115.777(2)(b) (b) Before submitting a referral to a local educational agency under sub. (1) (a) or (b), a person required to make a referral under sub. (1) (a) or (b) shall inform the child’s parent that he or she is going to submit the referral.

115.777(3) (3) A local educational agency shall do all of the following:

115.777(3)(a) (a) Establish written procedures for accepting and processing referrals.

115.777(3)(b) (b) Document and date the receipt of each referral.

115.777(3)(c) (c) Provide information and in-service opportunities to all of its licensed staff to familiarize them with the agency’s referral procedures.

115.777(3)(d) (d) At least annually, inform parents and persons required to make referrals under sub. (1) (a) about the agency’s referral and evaluation procedures.

115.777(3)(e) (e) Within 15 business days of receiving a referral, send to the child’s parents a request for consent to evaluate the child under s. 115.782 except that if the local educational agency determines that no additional data are necessary, the agency shall notify the child’s parent of that determination within 15 business days of receiving the referral.

115.777 History History: 1997 a. 164; 1999 a. 117; 2005 a. 258; 2015 a. 55.

115.78 115.78 Individualized education program team; timeline.

115.78(1) (1) Definition. In this section, for a child who is attending a public school in a nonresident school district under s. 118.50, 118.51, or 121.84 (1) (a) or (4), “local educational agency” means the school board of the school district that the child is attending.

115.78(1m) (1m) Appointment of Team. The local educational agency shall appoint an individualized education program team for each child referred to it under s. 115.777. Each team shall consist of all of the following:

115.78(1m)(a) (a) The parents of the child.

115.78(1m)(b) (b) At least one regular education teacher of the child if the child is, or may be, participating in a regular educational environment.

115.78(1m)(c) (c) At least one special education teacher who has recent training or experience related to the child’s known or suspected area of special education needs or, where appropriate, at least one special education provider of the child.

115.78(1m)(d) (d) A representative of the local educational agency who is qualified to provide, or supervise the provision of, special education, is knowledgeable about the general education curriculum and is knowledgeable about and authorized by the local educational agency to commit the available resources of the local educational agency.

115.78(1m)(e) (e) An individual who can interpret the instructional implications of evaluation results, who may be a team participant under pars. (b) to (d) or (f).

115.78(1m)(f) (f) At the discretion of the parent or the local educational agency, other individuals who have knowledge or special expertise about the child, including related services personnel as appropriate.

115.78(1m)(g) (g) Whenever appropriate, the child.

115.78(1m)(h) (h) If the child is attending a public school in a nonresident school district under s. 118.50, 118.51, or 121.84 (1) (a) or (4), at least one person designated by the school board of the child’s school district of residence who has knowledge or special expertise about the child.

115.78(2) (2) Duties of Team. The individualized education program team shall do all of the following:

115.78(2)(a) (a) Evaluate the child under s. 115.782 to determine the child’s eligibility or continued eligibility for special education and related services and the educational needs of the child.

115.78(2)(b) (b) Develop an individualized education program for the child under s. 115.787.

115.78(2)(c) (c) Determine the special education placement for the child under s. 115.79.

115.78(3) (3) Timeline.

115.78(3)(a) (a) The local educational agency shall determine if a child is a child with a disability within 60 days after the local educational agency receives parental consent for the evaluation of the child under s. 115.782 (1) (b) or (4) (b), provides notice under s. 115.777 (3) (e) that no additional data are needed, or provides notice under s. 115.782 (4) (c) that no additional data are needed.

115.78(3)(b) (b) The 60-day period under par. (a) does not apply to a local educational agency if any of the following occur:

115.78(3)(b)1. 1. A child enrolls in a school served by that local educational agency after the 60-day period has begun and before a determination by the child’s previous local educational agency as to whether the child is a child with a disability, the subsequent local educational agency is making sufficient progress to ensure a prompt completion of the evaluation, and the child’s parent and the subsequent local educational agency agree to a specific time when the evaluation will be completed.

115.78(3)(b)2. 2. The child’s parent repeatedly fails or refuses to produce the child for the evaluation.

115.78(3)(c) (c) The local educational agency shall conduct a meeting to develop an individualized education program under s. 115.787 and determine a placement under s. 115.79 within 30 days of a determination that a child is a child with a disability.

115.78(3)(d) (d) Subject to pars. (a) to (c), if the parents of the child or the local educational agency staff determines at any meeting during the process of the evaluation, development of the individualized education program or placement of the child that additional time is needed to permit meaningful parental participation, the local educational agency shall provide it. Upon request, the local educational agency shall provide a copy of the most recent evaluation report under s. 115.782 (3) (b) to the child’s parents at any meeting of the individualized education program team.

115.78(5) (5) Attendance at meetings.

115.78(5)(a) (a) A member of an individualized education program team is not required to attend a meeting of the individualized education program team, in whole or in part, if the parent of a child with a disability and the local educational agency agree that the attendance of the member is unnecessary because the member’s area of the curriculum or related service is not being modified or discussed at the meeting.

115.78(5)(b) (b) A member of an individualized education program team may be excused from attending a meeting of the individualized education program team, in whole or in part, when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services if the child’s parent and the local educational agency consent and, before the meeting, the member submits to the child’s parent and to the individualized education program team, in writing, the member’s input into the development of the child’s individualized education program.