Chapter 115

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, and who do not have a personal or professional interest that conflicts with the person’s objectivity in the hearing, to serve as hearing officers in hearings under this section. A hearing officer must possess knowledge of, and the ability to understand, state and federal special education laws, rules, and regulations, and legal interpretations by federal and state courts. A hearing officer also must possess the knowledge and ability to conduct hearings and render and write decisions in accordance with appropriate, standard legal practice. Upon receipt of a written request for a hearing under sub. (1), the division shall appoint a hearing officer from the list.

115.80(2m) (2m) 

115.80(2m)(a) (a) Except as provided in par. (c), within 15 days of receiving a request for a hearing under sub. (1) (a) 1. and before the hearing is conducted, the local educational agency shall convene a meeting with the child’s parents and the relevant members of the individualized education program team who have specific knowledge of the facts identified in the hearing request. At the meeting, the child’s parents shall discuss the hearing request and the facts that form the basis of the request and the local educational agency may resolve the issues.

115.80(2m)(b) (b) The meeting under par. (a) shall include a representative of the local educational agency who is authorized to make decisions on behalf of the agency. The meeting may not include an attorney of the local educational agency unless the child’s parent is accompanied by an attorney.

115.80(2m)(c) (c) The parents and the local educational agency may agree in writing to waive the meeting under par. (a) or use mediation under s. 115.797.

115.80(2m)(d) (d) If the child’s parents and the local educational agency resolve the subject matter of the hearing request at the meeting under par. (a), they shall execute and sign a legally binding agreement that is enforceable in the circuit court for the county in which the local educational agency is located, except that either the parent or the local educational agency may void the agreement within 3 business days of its execution.

115.80(2m)(e) (e) If the local educational agency does not resolve the issues presented by the hearing request to the satisfaction of the child’s parents within 30 days of receipt of the request, the hearing requested under sub. (1) (a) 1. may occur.

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. The party requesting the hearing may not raise issues at the hearing that were not raised in the notice filed under sub. (1) (a) unless the other party agrees.

115.80(5) (5) 

115.80(5)(a) (a) 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.

115.80(5)(b) (b) 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. The decision shall be made on substantive grounds based on a determination of whether the child has received a free appropriate public education.

115.80(5)(c) (c) In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies impeded the child’s right to a free appropriate public education, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the child, or caused a deprivation of educational benefits. Nothing in this paragraph precludes a hearing officer from ordering a local educational agency to comply with procedural requirements.

115.80(6) (6) The hearing officer shall issue a decision within 45 days after the conclusion of the 30-day period specified in sub. (2m) (e). 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. 118.50, 118.51, or 121.84 (1) (a) or (4).

115.80(9) (9) A circuit court may award reasonable attorney fees and actual costs in any action or proceeding brought in circuit court under this section as provided in 20 USC 1415 (i) (3) (B) to (G).

115.80(10) (10) Sections 227.44 to 227.50 do not apply to hearings conducted under this section.

115.80 History History: 1997 a. 164, 251; 1999 a. 117; 2005 a. 258; 2015 a. 55.

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 adjudicated incompetent in this state, 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(4) (4) The local educational agency shall provide the individual and the individual’s parents with information on supported decision-making under ch. 52, other alternatives to guardianship, and strategies to remain engaged in the individual’s secondary education.

115.807 History History: 1997 a. 164; 2005 a. 387; 2017 a. 345; 2021 a. 238 s. 44.

115.81 115.81 Children in residential care centers.

115.81(1) (1) Definitions. In this section:

115.81(1)(a) (a) “County department” means a county department under s. 46.215, 46.22 or 46.23.

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 services, 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), 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) (3) Referral.

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; 2005 a. 258, 344; 2007 a. 20 s. 9121 (6) (a).

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 children and families, 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 residential care centers for children and youth 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) (3) Interagency cooperation.

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. DHS 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) (b)

115.812(3)(b)1. 1. In this paragraph, “public agency” has the meaning given in s. 323.60 (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; 2005 a. 258; 2007 a. 20; 2009 a. 42, 180, 185.

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) (2) Establishment.

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.

115.817(3) (3) Organization.

115.817(3)(a) (a) The board shall consist of 3 or more persons, as determined by the county board of supervisors, elected by the county board or appointed by the chairperson of the county board, as the rules of the county board direct. Board members shall be electors selected from that part of the county participating in the program and shall be representative of the area the board serves. The board may include school board members, members of the county board of supervisors and other electors. Board members shall hold office for a term of 3 years, except that the terms of office of members of the first board shall be 3 years, 2 years and one year. Board members shall receive compensation and reimbursement for mileage in an amount fixed by the county board of supervisors, but not more than that of county board members.

115.817(3)(b) (b) The board annually shall select one member as chairperson and one as secretary. The county treasurer shall serve as board treasurer but shall not be a member of the board.

115.817(3)(c) (c) The board shall appoint an advisory committee whose membership includes school district administrators representative of the area the board serves.

115.817(4) (4) Application. Upon authorization of the county board, the board shall apply to the division for the establishment of a program or part of a program to provide special education and related services. The application shall state whether the program or part will be available in the county at large or only to certain school districts.

115.817(5) (5) Board duties.

115.817(5)(a) (a) The board shall have charge of all matters pertaining to the organization, equipment, operation and maintenance of such programs and may do all things necessary to perform its functions, including the authority to erect buildings subject to county board approval and employ teachers and other personnel. The board shall prepare an annual budget, which shall be subject to approval of the county board under s. 65.90 unless a resolution is adopted under sub. (9) (c), and shall include funds for the hiring of staff, the purchase of materials, supplies and equipment and the operation and maintenance of buildings or classrooms.

115.817(5)(b) (b)

115.817(5)(b)1. 1. At the close of each fiscal year, the board shall employ a certified public accountant licensed or certified under ch. 442 to audit its accounts and certify the audit. The cost of the audit shall be paid from board funds.

115.817(5)(b)3. 3. The department shall establish by rule a standard contract and minimum standards for audits performed under this paragraph.

115.817(5)(c) (c) If the county board of supervisors establishes an initiative to provide coordinated services under s. 59.53 (7), the county children with disabilities education board shall participate in the initiative, and may enter into written interagency agreements or contracts under the initiative.

115.817(5)(d) (d) Annually by October 1, the board and the school boards of the school districts participating in the county program shall submit a report to the state superintendent that specifies the portion of each school day that each pupil enrolled in the county program who is also enrolled in the school district of the pupil’s residence spent in county program classes in the previous school year and the portion of the school day that the pupil spent in school district classes in the previous school year. The state superintendent shall develop guidelines for a full-time equivalency methodology. The state superintendent is not required to promulgate the guidelines as rules.

115.817(6) (6) Assignment of functions.

115.817(6)(a) (a) The board may not assign by resolution or by contract the full administrative or instructional services of the board.

115.817(6)(b) (b) The ability of the board to contract with the board of control of a cooperative educational service agency, a school board or other public agency in the county for a portion of administrative or instructional services is not prohibited by par. (a). The board shall be responsible for all programs contracted under this paragraph.

115.817(7) (7) Withdrawal and dissolution.

115.817(7)(a) (a) The school board of any school district that is included under the administration of a board may withdraw from participation in any part of the program only with the approval of the state superintendent after conference with the board and a determination by the state superintendent that such withdrawal is in the interest of the program in the county and the school district affected. Such withdrawal shall be effective only if the school board has the approval of the division to establish an equivalent part of a program. Such withdrawal shall be effective either December 31 or June 30 provided that 12 months’ notice has been given to the board. The withdrawing school district shall be liable for its proportionate share of all operating costs until its withdrawal becomes effective, shall continue to be liable for its share of debt incurred while it was a participant and shall receive no share in the assets.

115.817(7)(b) (b) A program established under this section may be dissolved by action of the county board, but such dissolution shall not take place until the end of the school term in which the action was taken. When a program is dissolved, assets and liabilities shall be distributed under s. 66.0235 to all units which participated in the program, except as provided in sub. (9m).

115.817(8) (8) Transportation. The board may promulgate a plan for the transportation at county expense of children who are receiving special education and related services under this section, special education and related services provided at child care centers, or special education and related services provided by a private organization within whose attendance area the child resides and which is situated not more than 5 miles beyond the boundaries of the area the board serves, as measured along the usually traveled route. The plan, upon approval of the state superintendent, shall govern the transportation of such children. Any such plan for transportation during the school term supersedes ss. 115.88 and 121.54 (3).

115.817(9) (9) Area taxed.

115.817(9)(a) (a) The tax for the operation and maintenance of each part of a special education program and for the transportation of children under sub. (8) shall be levied against the area of the county participating in the part of the program. The tax for the costs associated with the dissolution of the program operated by the Racine County children with disabilities education board that are specified under sub. (9m) shall continue to be levied only against the area of Racine County that participated in the program before its dissolution.