WI Statutes & Rules Relating to Due Process Hearings and Appeals under Chapter 115, Wis. Stats., and PI 11, Wisconsin Administrative Code

This document reflects changes in Chapter 115, Wis. Stats., effective May 6, 1998. Following the statutory citations, you will find sections of PI 11, Wisconsin Administrative Code, effective October 1, 1998.

Chapter 115, Wisconsin Statutes

115.80 Due Process Hearings. (1) (a) 1. A parent, or the attorney representing the child, may file a written request with the division 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.

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.

(b) A local educational agency may file a written request with the division for a hearing to override a parent's refusal to grant consent for an initial evaluation, a reevaluation or an initial educational placement or to contest the payment of an independent educational evaluation.

(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).

(d) 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.

(2) The division shall maintain a list of qualified hearing officers who are not employed by or under contract with the department or a local educational agency, other than being appointed under this subsection, to serve as hearing officers in hearings under this section. Upon receipt of a written request for a hearing under sub. (1), the division shall appoint a hearing officer from the list.

(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.

(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.

(5) 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. 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.

(6) The hearing officer shall issue a decision within 45 days after the receipt of the request for the hearing under sub. (1). 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.

(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.

(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. 118.51.

(9) (a) Subject to par. (b), a circuit court may award reasonable attorney fees and actual costs to the parents of a child with a disability who is the prevailing party in any action or proceeding brought in circuit court under this section.

(b) 1. Fees and costs may not be awarded under par. (a) for services performed after a written offer or settlement to a parent if all of the following apply:

  1. The offer is made within the time prescribed by s. 807.01 for actions in circuit court and at least 11 days before the hearing begins for administrative hearings.
  2. The offer is not accepted within 10 days.
  3. The court or hearing officer finds that the relief granted to the parents is not more favorable to the parents than the offer of settlement.

2. Fees and costs may not be awarded under par. (a) if they relate to any meeting of the individualized education program team unless the meeting is convened as a result of an administrative hearing or judicial action, or for mediation under s. 115.797 that is conducted before filing a request for a hearing under sub. (1).

(c) Notwithstanding par. (b), fees and costs may be awarded under par. (a) to a parent who is the prevailing party and whose rejection of a settlement offer was substantially justified.

(d) 1. Except as provided in subd. 2., whenever the court finds any of the following it shall reduce the amount of the fees awarded under par. (a):

  1. During the course of the action, the parent unreasonably protracted the final resolution of the controversy.
  2. The attorney representing the parent did not provide to the division the information specified in sub. (1) (a) 2.

2. A court may not reduce the amount of the fees awarded under par. (a) if it finds that the state or a local educational agency unreasonably protracted the final resolution of the controversy or violated this subchapter.

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

Wisconsin Statutes, Section 115.76 Definitions. In this subchapter: (8) "Hearing officer" means an independent examiner appointed to conduct hearings under s. 115.80.

      

PI 11, Wisconsin Administrative Code

Wisconsin Administrative Code, Section PI 11.02
Definitions.

In this chapter:

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(5) "Hearing officer" has the meaning defined under s. 115.76 (8), Stats.

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Wisconsin Administrative Code, Section PI 11.12
Hearing Officers
.

(1) IMPARTIALITY. No person may be appointed as a hearing officer to conduct a hearing under s. 115.80, Stats., if that person meets any of the following criteria:

(a) Is an employe of the department or a public agency that is involved in the education or care of the child who is the subject of the hearing. A person who otherwise qualifies to conduct a hearing under this paragraph is not an employe of the department solely because he or she is paid by the department to serve as a hearing officer.

(b) Is an employe of or under contract to a local education agency as defined in s. 115.76 (10), Stats., a cooperative educational service agency created in ch. 116, Stats., or a county children with disabilities education board as defined in s. 115.817, Stats.

(c) Has a personal or professional interest which would conflict with his or her objectivity in the hearing.

(2) HEARING OFFICERS; APPOINTMENT. (a) The division shall maintain a list of persons who are available for appointment as hearing officers. The list shall include a statement of the qualifications of each of those persons. The division may not put a person's name on the list unless he or she meets both of the following:

1. The person is an attorney licensed to practice law in Wisconsin.

2. The person has completed the hearing officer training approved by the division as described in par. (b).

(b) Before a person's name may initially be put on the list in par. (a), he or she shall attend an initial training program approved by the division. Annually thereafter each person shall attend a refresher course approved by the division. The division may charge fees of persons attending the training courses.