Chapter DHS 90

DHS 90.12 Note Note: For the information of interested persons, the confidentiality provisions of ch. DHS 90 meet the confidentiality requirements of Part B of the Individuals with Disabilities Education Act, 20 USC ch. 33, and 34 CFR 300.560 to 300.576 and the requirement of 34 CFR Pt. 99, with the following modifications:

DHS 90.12 Note (1) Any reference in those places to “state education agency” or “SEA” means the department;

DHS 90.12 Note (2) Any reference to “education of all children with disabilities” or“provision of free appropriate public education to all children” means provision of services to eligible children and families;

DHS 90.12 Note (3) Any reference to “local education agencies” or “LEAs” or to“intermediate education units” means county administrative agencies;

DHS 90.12 Note (4) Any reference to 34 CFR 300.128 on identification, location and evaluation of children with disabilities means 34 CFR 303.164 and 303.321, comprehensive child find system; and

DHS 90.12 Note (5) Any reference to 34 CFR 300.129 on confidentiality of personally identifiable information means 34 CFR 303.460, confidentiality of information.

DHS 90.12(4) (4) Opportunity to examine records.

DHS 90.12(4)(a) (a) The parent of a child may review all early intervention records concerning the child unless the county administrative agency has been provided documentation that the parent does not have the authority to review a record under state law governing such matters as custody, foster care, guardianship, separation and divorce.

DHS 90.12(4)(b) (b) When a child’s parent asks to review the child’s early intervention records, the county administrative agency or service provider shall:

DHS 90.12(4)(b)1. 1. Make the records available to the parent without unnecessary delay but not later than 10 days following the date of the request except that, if the request is in connection with a meeting on the individualized family service plan or a hearing to resolve a dispute or complaint involving the parent and the county agency or service provider, the records shall be made available at least 5 days before the meeting or hearing but in no case later than 10 days following the date of the request;

DHS 90.12(4)(b)2. 2. Permit the parent to have a representative of the parent’s choosing review the record with the parent or, with the parent’s written consent, in place of the parent; and

DHS 90.12(4)(b)3. 3. Respond to reasonable requests of the parent or parent’s representative for explanations and interpretations of the record.

DHS 90.12(4)(c) (c) If an early intervention record includes information on more than one child, the parent may review the information relating only to the parent’s child or, if this is not separable, the information shall not be disclosed to the parent but the parent shall be informed of the contents as it relates to the parent’s child.

DHS 90.12(4)(d) (d) The county administrative agency shall provide a parent, at the parent’s request, with a list of the types and locations of early intervention records.

DHS 90.12(4)(e) (e) No fee may be charged for parent review of an early intervention record or for information disclosed to a parent or for the search for or retrieval of a record. If a parent requests a copy of the record, one copy shall be supplied free of charge. A fee may be charged for each additional copy if the fee does not prevent the parent from exercising the right to inspect and review the record.

DHS 90.12(4)(f) (f)

DHS 90.12(4)(f)1. 1. A child’s parent may request that particular information in the child’s record be amended or deleted on grounds that it is inaccurate or misleading, or violates the privacy or any other right of the child, a parent or other family member.

DHS 90.12(4)(f)2. 2. The county administrative agency or service provider shall respond in writing to a request for amendment or deletion of information as soon as possible but not later than 30 days after the request is made.

DHS 90.12(4)(f)3. 3. If the county administrative agency or service provider refuses to amend or delete the information as requested, the administrative agency shall inform the parent that the parent may appeal that decision within 14 days after being notified of it by asking the county administrative agency in writing or in the parent’s normal mode of communication for a hearing on it.

DHS 90.12(4)(f)4. 4. The county administrative agency shall hold a hearing in accordance with 34 CFR 99.22 on an appeal under subd. 3. within a reasonable time after receiving the request and shall provide the parent with a written decision within a reasonable period after the hearing.

DHS 90.12(4)(f)5. 5. If as a result of the hearing the agency determines that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child or family, the agency shall amend the information in the record and inform the parent in writing of the amendment.

DHS 90.12(4)(f)6. 6. If the information is not finally amended or deleted as requested, the administrative agency shall inform the parent of the parent’s right to request the county administrative agency or service provider to include in the record a statement prepared by the parent commenting on the information in question and giving the parent’s reasons for disagreeing with the decision not to amend or delete the information. The county administrative agency or service provider shall then maintain that statement as part of the record and shall disclose it with the contested information whenever that information is disclosed.

DHS 90.12(5) (5) Procedures for resolution of disputes - mediation.

DHS 90.12(5)(a) (a) Definitions. In this subsection:

DHS 90.12(5)(a)1. 1. “Dispute” means any disagreement between parties concerning a county administrative agency’s proposal or refusal to initiate or change the evaluation process or eligibility determination of the child or to provide appropriate early intervention services for the child and the child’s family. “Dispute” includes a disagreement in which any other process, including a hearing under sub. (6) or litigation, has been requested or commenced.

DHS 90.12(5)(a)2. 2. “Mediation” means a dispute resolution process in which a neutral third person, who has no power to impose a decision if the parties do not agree to settle the case, helps the parties reach an agreement by focusing on the key issues in the dispute, exchanging information between the parties and exploring options for settlement.

DHS 90.12(5)(a)3. 3. “Party” means the parent of a child who is the subject of a dispute or the county administrative agency that is responsible for providing early intervention services to the child.

DHS 90.12(5)(b) (b) Request for mediation.

DHS 90.12(5)(b)1. 1. A party may request the department to arrange for mediation of a dispute at any time. The request shall be in writing, shall briefly describe the dispute and shall identify the parties. Both parties may jointly request mediation.

DHS 90.12(5)(b)2. 2. If only one of the parties requests mediation, no later than the next day after receiving the request the department shall notify the other party in writing of the request for mediation. The notice shall include all of the following:

DHS 90.12(5)(b)2.a. a. An explanation of the mediation process and its advantages;

DHS 90.12(5)(b)2.b. b. 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; and

DHS 90.12(5)(b)2.c. c. A request that the party notify the department within 3 business days after receiving the notice regarding the party’s consent or refusal to participate in mediation.

DHS 90.12(5)(b)3. 3. If the department does not receive a timely response to the notice under subd. 2. or if the other party notifies the department of its refusal to participate in mediation, the department shall notify in writing the party that requested mediation that the other party has not responded or refuses to participate.

DHS 90.12(5)(c) (c) Appointment of mediator. The department shall select mediators on a random, rotational, or other impartial basis.

DHS 90.12(5)(d) (d) Roster of mediators. In collaboration with the department of public instruction, the department shall maintain a roster of mediators qualified to resolve disputes. The department may include a person on the roster if all of the following apply:

DHS 90.12(5)(d)1. 1. The department determines that the person has the appropriate skills and knowledge to act as a mediator under this section;

DHS 90.12(5)(d)2. 2. The person participates in a training program of at least 5 days’ duration that has been approved by the department;

DHS 90.12(5)(d)3. 3. The person consents to be observed by a department representative at any mediation session; and

DHS 90.12(5)(d)4. 4. The person participates in at least one day of additional training approved by the department each year.

DHS 90.12(5)(e) (e) Mediation.

DHS 90.12(5)(e)1. 1. Unless both parties agree otherwise, mediation shall commence within 14 days after the mediator is appointed and shall not delay hearings or civil action related to the dispute.

DHS 90.12(5)(e)2. 2. The parents of the child and 2 representatives of the county administrative agency may participate in mediation. With the consent of both parties, other persons may participate in mediation. With the consent of both parties, a department representative may observe the mediation sessions.

DHS 90.12(5)(e)3. 3. At the commencement of mediation, the mediator shall inform the parties of the information that is required to be reported to the department for the purpose of administering the mediation program. The department may not require a mediator to disclose the substance of any matter discussed or communication made during mediation.

DHS 90.12(5)(e)4. 4. 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.

DHS 90.12(5)(e)5. 5. Unless both parties and the mediator agree otherwise, no person may record a mediation session.

DHS 90.12(5)(e)6. 6. The mediator and either party may withdraw from mediation at any time.

DHS 90.12(5)(e)7. 7. 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.

DHS 90.12(5)(f) (f) Resolution or agreement. 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.

DHS 90.12(5)(g) (g) Mediator compensation.

DHS 90.12(5)(g)1. 1. Except as provided in subds. 2. and 3., the department is responsible for the costs of mediation services. The department 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. 20.435 (6) (m), Stats.

DHS 90.12(5)(g)2. 2. If the parties agree that the amount of compensation paid to a mediator should be greater than the schedule under subd. 1. allows, the additional compensation is the responsibility of the parties.

DHS 90.12(5)(g)3. 3. If the parties have agreed to mediation by a mediator who is not on the roster under par. (d), the mediator’s compensation is the responsibility of the parties.

DHS 90.12(5)(h) (h) Program evaluation. The department may require that mediators, and may request that parties, participate in the evaluation of the mediation program. The department shall ensure that mediators and parties may participate in evaluating the program without being required to identify themselves or mediation participants.

DHS 90.12(5)(i) (i) 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 administration of the program.

DHS 90.12(6) (6) Procedures for resolution of disputes - hearing.

DHS 90.12(6)(a) (a) Definitions. In this subsection:

DHS 90.12(6)(a)1. 1. “Dispute” means any disagreement between parties concerning a county administrative agency’s proposal or refusal to initiate or change the evaluation process or eligibility determination of the child or to provide appropriate early intervention services for the child and the child’s family. “Dispute” includes a disagreement in which any other process, including mediation under sub. (5) or litigation, has been requested or commenced.

DHS 90.12(6)(a)2. 2. “Impartial decision-maker” means a person appointed by the department to implement the dispute resolution process who meets all of the following qualifications:

DHS 90.12(6)(a)2.a. a. Is knowledgeable about the requirements of this chapter, including dispute process management requirements, and the needs of and services available for eligible children and their families;

DHS 90.12(6)(a)2.b. b. Is not an employee of the county administrative agency or of any other agency or program involved in the provision of early intervention services or care for the child, although he or she may be paid by an involved agency or program to provide impartial decision-maker services; and

DHS 90.12(6)(a)2.c. c. Does not have a personal or professional interest that would conflict with his or her objectivity in implementing the process.

DHS 90.12(6)(a)3. 3. “Party” means the parent of a child who is the subject of a dispute or the county administrative agency that is responsible for providing early intervention services to the child.

DHS 90.12(6)(b) (b) Filing of request for hearing. A parent may request a hearing to challenge a county administrative agency’s proposal or refusal to initiate or change the evaluation process or eligibility determination of the child or to provide appropriate early intervention services for the child and the child’s family. The request shall be in writing and filed with the department within one year after the date of the agency’s proposal or refusal. The written request shall include the name and address of the child, the county responsible for providing early intervention services to the child, a description of the nature of the problem relating to the action or inaction which is the subject of the complaint, including facts relating to the problem, and a proposed resolution of the problem to the extent known and available to the parent at the time.

DHS 90.12(6)(c) (c) Referral of dispute to impartial decision-maker.

DHS 90.12(6)(c)1. 1. Upon receipt of a written request from a parent under subd. 2., the department shall promptly appoint an impartial decision-maker.

DHS 90.12(6)(c)2. 2. After it appoints an impartial decision-maker, the department shall send to the county administrative agency and the parent a copy of the parent’s written request with the name and address of the impartial decision-maker.

DHS 90.12(6)(c)3. 3. Upon receipt of a parent’s request for a hearing, the department shall inform the parent about the availability of mediation under sub. (5) and about any free or low-cost legal services that might be available to the parent.

DHS 90.12(6)(c)4. 4. The county administrative agency is responsible for the costs of a hearing, including the salaries of the impartial decision-maker and stenographer.

DHS 90.12(6)(d) (d) Conduct of hearing.

DHS 90.12(6)(d)1. 1. Both parties at a hearing may be accompanied by counsel and advised by counsel and by individuals with special knowledge of or training in early intervention services for eligible children.

DHS 90.12(6)(d)2. 2. Both parties at a hearing may present evidence, compel the attendance of witnesses and the production of relevant documents and confront and cross-examine witnesses.

DHS 90.12(6)(d)3. 3. At least 5 business days prior to a hearing, a party shall disclose to the other party all evaluations completed by that date and recommendations based on the evaluations that the party intends to use at the hearing. An impartial decision-maker may bar any party that fails to comply with this requirement from introducing a relevant evaluation or recommendation without the consent of the other party.

DHS 90.12(6)(d)4. 4. The impartial decision-maker shall do all of the following:

DHS 90.12(6)(d)4.a. a. Schedule each hearing at a time and place that is reasonably convenient for the parent and notify the parties accordingly;

DHS 90.12(6)(d)4.b. b. Serve as hearing officer;

DHS 90.12(6)(d)4.c. c. Review the record and make a decision about the dispute;

DHS 90.12(6)(d)4.d. d. Issue a written decision, and mail it to both parties and to the state birth to 3 program coordinator not later than 30 days after receipt of the request for hearing under par. (b), unless granting an extension of the time period limit at the request of either party. If an extension is granted, the impartial decision-maker shall include that extension and the reason for it in the hearing record; and

DHS 90.12(6)(d)4.e. e. When requested by either party or by the department, produce an official record of the hearing no later than 30 days from the date of the decision under this subd. 4. d.

DHS 90.12(6)(e) (e) Civil action. Either party aggrieved by the decision under par. (d) 4. d. may bring a civil action in state or federal court. An action filed in circuit court shall be commenced within 30 days after the date of the written decision. Pursuant to 20 USC 1439 (a) (1) and s. 51.44 (1m) and (5) (a) 4., Stats., the court shall receive the record of the administrative hearing, shall hear additional evidence at the request of a party and, basing its decision on the preponderance of evidence, shall grant whatever relief the court determines is appropriate. Sections 227.52 to 227.58, Stats., do not apply to actions under this section.

DHS 90.12(6)(f) (f) Services pending decision on a dispute. Pending the decision on a dispute, unless the county administrative agency and parent agree otherwise, a child shall continue to receive the early intervention services that were provided before the dispute was filed. If the dispute involves an application for initial services, the child shall receive any services that are not in dispute.

DHS 90.12 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; emerg. am. (1) (b) 5., (3) (a), (b), (d), (4) (a), (b) 1., (c), (e), (f) 3., (5) (a) 1., 2. and (d) 3., r. and recr. (2) (a) 3., cr. (2) (a) 4., (c), (3) (f), (g), (4) (f) 5. and (5) (d) 4. b., renum. (4) (f) 5., (5) (d) 4. b., c., and (e) 2. to be (4) (f) 6., (5) (d) 4. c., d., and (e) and am. (4) (f) 6. and (5) (e), r. (5) (e) 1., eff. 1-1-93; am. (1) (a), (b) 1., 3. and 5., (2) (a) 3., (3) (a), (b), (d) and (e), (4) (a), (b) 1., (c), (e) and (f) 3., (5) (a) 1., 2. and (d) 3., cr. (2) (a) 4., (c), (3) (f), (g), (4) (f) 5. and (5) (d) 4. b., renum. (4) (f) 5., (5) (d) 4. b., c., and (e) 2. to be (4) (f) 6., (5) (d) 4. c., d., and (e) and am. (4) (f) 6. and (5) (e), r. (5) (e) 1., Register, June, 1993, No. 450, eff. 7-1-93; am. (3) (d), (e), (f) (intro.), (5) (c) 1. and 3., Register, April, 1997, No. 496, eff. 5-1-97; r. and recr. (5), cr. (6), Register, September, 1999, No. 525, eff. 10-1-99; corrections in (6) made under s. 13.93 (2m) (b) 1., Stats., Register, September, 1999, No. 525; emerg. am. (2) (c), eff. 10-1-01; CR 01-106: am. (2) (c), Register February 2002 No. 554, eff. 3-1-02; CR 03-033: am. (6) (e) Register December 2003 No. 576, eff. 1-1-04; CR 20-039: am. (3) (g), (4) (a), (b) 1., r. and recr. (5) (c), am. (6) (d) 4. d. Register October 2021 No. 790, eff. 11-1-21.

DHS 90.13 DHS 90.13 Surrogate parent.

DHS 90.13(1) (1) Appointment.

DHS 90.13(1)(a) (a) The county administrative agency shall, in accordance with this section, appoint in writing a person to serve as a surrogate parent to represent the interests of an eligible child or of a child who is suspected of being eligible for early intervention services under this chapter if one of the following applies:

DHS 90.13(1)(a)1. 1. The county administrative agency cannot identify a parent of the child;

DHS 90.13(1)(a)2. 2. The county administrative agency, after reasonable efforts, cannot discover the whereabouts of a parent; or

DHS 90.13(1)(a)3. 3. The child is under the legal custody or guardianship of the state, a county or a child welfare agency pursuant to ch. 48, 54, or 767, Stats., and the state, county or child welfare agency has the authority to make service decisions for the child.

DHS 90.13(1)(b) (b) A surrogate parent shall be appointed for an indefinite period of time and shall continue to serve until he or she resigns, the appointment is terminated by the county administrative agency or the child is no longer eligible for early intervention services.