Chapter DHS 90

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.

DHS 90.13(2) (2) Qualifications. A person appointed to serve as a child’s surrogate parent shall:

DHS 90.13(2)(a) (a) Be at least 18 years of age;

DHS 90.13(2)(b) (b) Not be a person providing early intervention services to the child or the child’s family;

DHS 90.13(2)(c) (c) Not be an employee of any state agency or an agency providing services to the child or to any family member of the child, although he or she may be paid by that agency to provide surrogate parent services;

DHS 90.13(2)(d) (d) Have no other interest that conflicts with the interests of the child;

DHS 90.13(2)(e) (e) Be of the same ethnic background as the child or be sensitive to factors in the child’s ethnic background that may be relevant for services provision and receipt;

DHS 90.13(2)(f) (f) Have knowledge or skills that enable him or her to provide adequate representation for the child;

DHS 90.13(2)(g) (g) Be familiar with available early intervention services;

DHS 90.13(2)(h) (h) Be committed to acquaint himself or herself with the child and the child’s early intervention service needs; and

DHS 90.13(2)(i) (i) Not be a surrogate parent for more than 4 children at any one time.

DHS 90.13(3) (3) Functions. A surrogate parent may represent a child in all matters related to:

DHS 90.13(3)(a) (a) The evaluation and assessment of the child;

DHS 90.13(3)(b) (b) The development and implementation of the child’s IFSP, including annual evaluations and periodic reviews;

DHS 90.13(3)(c) (c) The ongoing provision of early intervention services to the child; and

DHS 90.13(3)(d) (d) The working of the other procedural safeguards under s. DHS 90.12.

DHS 90.13 History History: Cr. Register, June, 1992, No. 438, eff. 7-1-92; emerg. am. (1) (a) (intro.), eff. 1-1-93, am. (1) (a) (intro.), Register, June, 1993, No. 450, eff. 7-1-93; am. (1) (a) 3., Register, April, 1997, No. 496, eff. 5-1-97; renum. (2) (b) to (h) to be (2) (c) to (i), cr. (2) (b), am. (2) (c), Register, September, 1999, No. 525, eff. 10-1-99; correction in (1) (a) 3. made under s. 13.92 (4) (b) 7., Stats., Register November 2008 No. 635.