Chapter 115

115.792 115.792 Procedural safeguards.

115.792(1) (1) Safeguards ensured.

115.792(1)(a) (a) The local educational agency shall establish and maintain procedures to ensure all of the following:

115.792(1)(a)1. 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 a free appropriate public education to the child, and may obtain an independent educational evaluation of the child.

115.792(1)(a)2. 2. That a child’s rights are protected by the assignment of an individual, who shall not be an employee of the department, the local educational agency, or any other agency that is involved in the education or care of the child, to act as a surrogate for the child’s parents whenever the child’s parents are not known; the local educational agency cannot, after reasonable efforts, locate the child’s parents; or the child is a ward of the state. For a child who is a ward of the state, a judge overseeing the child’s care may appoint a surrogate for the child’s parents if the surrogate meets the requirements of this subdivision.

115.792(1)(a)3. 3. That a child’s parents are offered an opportunity to use mediation under s. 115.797.

115.792(1)(b) (b) The local educational agency shall establish and maintain procedures to ensure that a child’s parents are provided prior written notice whenever the local educational agency proposes to initiate or change, or refuses to initiate or change, the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to the child. In this paragraph, “local educational agency” includes the nonresident school district that a child is attending under s. 118.50, 118.51, or 121.84 (1) (a) or (4).

115.792(2) (2) Notice. The notice required under sub. (1) (b) shall be in the native language of the child’s parents unless the local educational agency determines that it clearly is not feasible to do so and shall include all of the following:

115.792(2)(a) (a) A description of the action proposed or refused by the local educational agency.

115.792(2)(b) (b) An explanation of why the local educational agency proposes or refuses to take the action.

115.792(2)(c) (c) A description of any other options that the local educational agency considered and the reasons why it rejected those options.

115.792(2)(d) (d) A description of each evaluation procedure, assessment, record, or report that the local educational agency used as a basis for the proposed or refused action.

115.792(2)(e) (e) If the notice proposes to evaluate or reevaluate the child, the names of the evaluators, if known.

115.792(2)(f) (f) A description of any other factors that are relevant to the local educational agency’s proposal or refusal.

115.792(2)(g) (g) A statement that the parents of a child with a disability have procedural safeguards under this section and, if this notice is not an initial referral for evaluation, the way in which the parents may obtain a description of the procedural safeguards under sub. (3).

115.792(2)(h) (h) Sources for parents to contact to obtain assistance in understanding this subchapter.

115.792(3) (3) Procedural safeguards notice.

115.792(3)(a) (a) In this subsection, “local educational agency” includes the nonresident school district that a child is attending under s. 118.50, 118.51, or 121.84 (1) (a) or (4).

115.792(3)(b) (b) The local educational agency shall give to the parents of a child with a disability, once a year but also upon the child’s initial referral or parental request for evaluation, upon the first occurrence of the filing of a request for a hearing under s. 115.80, and upon request by the child’s parent, a full explanation written in an easily understandable manner, and in the native language of the child’s parents unless it clearly is not feasible to do so, of the procedural safeguards available under this section and under applicable federal law relating to all of the following:

115.792(3)(b)1. 1. Independent educational evaluation.

115.792(3)(b)2. 2. Prior written notice.

115.792(3)(b)3. 3. Parental consent.

115.792(3)(b)4. 4. Access to educational records.

115.792(3)(b)5. 5. Opportunity to present and resolve complaints, including the period in which the child’s parents may request a hearing and the opportunity for the local educational agency to resolve the issues presented by the request.

115.792(3)(b)6. 6. The child’s placement during pendency of due process proceedings.

115.792(3)(b)7. 7. Procedures for pupils who are subject to placement in interim alternative educational settings under 20 USC 1415 (k).

115.792(3)(b)8. 8. Requirements for the unilateral placement by parents of pupils in private schools at public expense.

115.792(3)(b)9. 9. Mediation.

115.792(3)(b)10. 10. Hearings under s. 115.80.

115.792(3)(b)11. 11. Civil actions, including the period in which to file a civil action.

115.792(3)(b)12. 12. Attorney fees.

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

115.797 115.797 Mediation.

115.797(1) (1) Definitions. In this section:

115.797(1)(a) (a) “Dispute” means any disagreement between parties concerning the proposal or refusal to initiate or change the evaluation, individualized education program or educational placement of a child with a disability or the provision of a free appropriate public education to such a child. “Dispute” includes any such disagreement between parties that arises before the filing of a request for a hearing under s. 115.80 or in which other processes, including a hearing under s. 115.80 or litigation, have been requested or commenced.

115.797(1)(b) (b) “Mediation” has the meaning given in s. 802.12 (1) (e).

115.797(1)(c) (c) “Party” means a competent adult pupil or the parent of a child or adult pupil adjudicated incompetent who is the subject of a dispute, and the local educational agency.

115.797(2) (2) Request for mediation, consent of parties.

115.797(2)(a) (a) The division shall establish a program for the mediation of disputes between parties. A party may request the division to arrange for mediation of a dispute at any time. The request shall be in writing, shall briefly describe the dispute and shall identify both parties. Both parties may jointly request mediation.

115.797(2)(b) (b) If only one of the parties requests mediation, within 5 business days after receiving the request the division shall notify the other party in writing of the request for mediation. The notice shall include all of the following:

115.797(2)(b)1. 1. An explanation of mediation and its advantages.

115.797(2)(b)2. 2. A statement that participation in mediation is voluntary and that agreement or refusal to participate will not affect the resolution of the dispute in any pending or potential adjudicative process, or the timing of that process, unless the parties agree otherwise.

115.797(2)(b)3. 3. A request that the party notify the division within 5 business days after receiving the notice regarding the party’s consent or refusal to participate in mediation.

115.797(2)(c) (c) If the division does not receive timely response under par. (b) 3. or if the other party notifies the division under par. (b) 3. of its refusal to participate in mediation, the division shall so notify the party that requested mediation.

115.797(3) (3) Appointment of mediator.

115.797(3)(a) (a) A party that requests mediation may nominate a mediator from the roster under sub. (4). If a party nominates a mediator, the division shall include in the notice under sub. (2) (b) the name of the nominated mediator.

115.797(3)(b) (b)

115.797(3)(b)1. 1. If both parties nominate the same person as mediator, the division shall appoint that person as mediator if he or she is on the roster under sub. (4) and available to mediate.

115.797(3)(b)2. 2. If both parties request mediation but neither party nominates a mediator, the division shall propose a mediator from the roster under sub. (4).

115.797(3)(b)3. 3. If both parties consent to mediation but the party that requests mediation does not nominate a mediator, the nominated mediator is not available or the other party does not consent to the appointment of the nominated mediator, the division shall propose a mediator from the roster under sub. (4).

115.797(3)(c) (c) Whenever the division proposes a mediator under par. (b) 2. or 3., it shall send information about the mediator’s training and experience to both parties. Within 3 business days after receiving the information, either party may request the division to propose a different mediator from the roster under sub. (4).

115.797(4) (4) Roster of mediators.

115.797(4)(a) (a) In consultation with the council on special education, the division shall maintain a roster of mediators qualified to resolve disputes. The division may include a person on the roster if all of the following apply:

115.797(4)(a)1. 1. The division determines that the person has the appropriate skills and knowledge to act as a mediator under this section.

115.797(4)(a)2. 2. The person participates in a training program of at least 5 days’ duration that has been approved by the division.

115.797(4)(a)3. 3. The person agrees to mediate, at the rate of compensation established by the division, the number of disputes required by the division each year.

115.797(4)(a)4. 4. The person consents to be observed by a division representative at any mediation session if the parties consent.

115.797(4)(b) (b) The division may not maintain a person on the roster unless he or she participates in at least one day of additional training approved by the division each year.

115.797(4)(c) (c) Subject to subch. II of ch. 111, the division may remove from the roster any person whom it believes cannot serve effectively as a mediator.

115.797(5) (5) Mediation.

115.797(5)(a) (a) Unless both parties agree otherwise, mediation shall commence within 21 days after the mediator is appointed and shall not delay hearings or appeals related to the dispute. All mediation sessions shall be held in a location that is convenient to the parties.

115.797(5)(b) (b) The parents of the child or adult pupil and 2 representatives of the local educational agency may participate in mediation. With the consent of both parties, other persons may participate in mediation. With the consent of both parties, a division representative may observe the mediation sessions.

115.797(5)(c) (c) At the commencement of mediation, the mediator shall inform the parties of the information that is required to be reported to the division for the purpose of administering the mediation program. The division may not require a mediator to disclose the substance of any matter discussed or communication made during mediation.

115.797(5)(d) (d) Either party may recess a mediation session to consult advisors, whether or not present, or to consult privately with the mediator. The mediator may recess a mediation session to consult privately with a party. If the mediator does so, he or she shall disclose the general purpose of the consultation but may not reveal other information about the consultation without the consent of the party consulted.

115.797(5)(e) (e) Unless both parties and the mediator agree otherwise, no person may record a mediation session.

115.797(5)(f) (f) Discussions that occur during mediation are confidential and may not be used as evidence in any subsequent hearing or civil proceeding. The mediator may require the parties to sign a confidentiality pledge before the commencement of mediation.

115.797(5)(g) (g) The mediator and either party may withdraw from mediation at any time.

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 written resolution or agreement shall state that all discussions that occurred during mediation are confidential and may not be used as evidence in any hearing or civil proceeding. The resolution or agreement is legally binding upon the parties and is enforceable in the circuit court for the county in which the local educational agency is located.

115.797(7) (7) Mediator compensation.

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; 2005 a. 258, 387.

115.80 115.80 Due process hearings.

115.80(1) (1) 

115.80(1)(a) (a)

115.80(1)(a)1. 1. A parent, or the attorney representing the child, may file a written request 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 for a hearing only to override a parent’s refusal to grant consent for an initial evaluation or a reevaluation 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) A parent or local educational agency, or the attorney representing a parent or local educational agency, shall file a request for a hearing under this subsection by providing the request to the other party and a copy of the request to the division. 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(1)(e) (e)

115.80(1)(e)1. 1. If the parent of a child with a disability files a written request for a hearing, and the local educational agency has not previously sent a written notice to the parent under s. 115.792 (1) (b) regarding the subject matter of the hearing request, the local educational agency shall, within 10 days of receiving the hearing request, send to the child’s parent a written explanation of why the local educational agency proposed or refused to take the action raised in the hearing request, a description of other options that the individualized education program team considered and the reason why those options were rejected, a description of each evaluation procedure, assessment, record, or report that the local educational agency used as the basis for the proposed or refused action, and a description of the factors that are relevant to the local educational agency’s proposal or refusal. A response by a local educational agency under this subdivision does not preclude the agency from asserting that the parent’s request for a hearing is insufficient under subd. 2.

115.80(1)(e)2. 2. A hearing may not occur until the party requesting the hearing, or the attorney representing that party, files a request that meets the requirements of par. (a) 2. The request under par. (a) 2. shall be considered sufficient unless the party receiving the request notifies the hearing officer and the other party in writing within 15 days of receiving the request that the receiving party believes the request does not meet the requirements of par. (a) 2. Within 5 days of receiving a notice under this subdivision, the hearing officer shall determine whether the request meets the requirements under par. (a) 2. and notify the parties.

115.80(1)(f) (f) The party receiving a request for a hearing shall send to the party requesting the hearing a written response that addresses the issues raised in the hearing request within 10 days of receiving the request.

115.80(1)(g) (g) A party filing a written request for a hearing under par. (a) may amend its request only if the other party consents in writing and is given the opportunity to resolve the issues presented by the request at a meeting under sub. (2m), or if the hearing officer grants permission at least 5 days before the hearing is scheduled to occur. The applicable timeline for resolution under sub. (2m) and for a hearing under sub. (6) recommences when the party files an amended request for a hearing. Nothing in this paragraph precludes a parent from filing a separate hearing request on an issue separate from the hearing request already filed.