Section DHS 90.12 - Procedural safeguards for parents(1) PRIOR NOTICE. (a) A reasonable time before a county administrative agency or service provider proposes or refuses to initiate or change any of the following, the county administrative agency or service provider shall provide written notice to the parent and ensure that the parent understands the notice:1. Identification, evaluation or placement of a child; or2. Provision of early intervention services to the child and the child's family.(b) The notice under par. (a) shall provide sufficient detail to inform the parent about: 1. The proposed or refused action;2. The reasons for taking the action, including a description of other options considered and reasons for rejecting them;3. The information upon which the proposed or refused action is based;4. Their right to refuse consent to an evaluation or a service; and5. All procedural safeguards the parent has under this chapter, including the right to file a complaint under s. DHS 90.05(4), the right to participate in mediation and the right to request a hearing regarding the proposed or refused action.(c)1. The notice under par. (a) shall be in language understandable to the general public.2. If the parent's proficiency in English is limited, the notice under par. (a) shall also be provided in the language normally used by the parent unless this is clearly not feasible.3. If the language or other mode of communication normally used by the parent is not written, the county agency or service provider shall take steps to ensure that: a. The notice is translated orally or by other means into the language the parent normally uses or other mode of communication;b. The parent understands the notice; andc. There is written evidence of notice that complies with this subsection.4. If a parent is deaf or blind, the mode of notifying the parent shall be the mode of communication normally used by the parent, such as sign language, braille or oral communication.(2) CONSENT. (a)For evaluation and assessment.1. The county administrative agency shall obtain the parent's written consent before conducting the initial evaluation and assessment of a child. This consent shall continue in effect until revoked by the parent or until the child is no longer receiving early intervention services.2. The county administrative agency requesting a parent's written consent to the evaluation and assessment shall inform the parent of the following:a. The purpose of the evaluation and assessment, the procedures to be employed and the types of professionals who will be involved;b. Any likely effects on the parents of the evaluation or assessment such as need to provide transportation for the child; andc. If consent is not given, the child will not receive the evaluation or assessment.3. The parent may refuse to give consent for a particular evaluation or assessment procedure. If a parent refuses consent, the county administrative agency may not carry out that procedure. The county administrative agency may not limit or deny the use of a particular procedure because the parent has refused to consent to another procedure. If the county administrative agency believes that a particular evaluation or assessment procedure to which a parent has refused consent would provide important information to assist in determining appropriate service needs, the agency shall develop a timeline and procedure with the parent for how consent would again be requested. The county shall keep written documentation of efforts to obtain consent as well as written documentation of the agreed timeline and procedure.4. If a parent refuses consent for evaluation or assessment and the refusal falls within the scope of s. 48.981(2), Stats., the county administrative agency or service provider may take action in accordance with s. 48.981(2), Stats.(b)For services.1. The county administrative agency shall develop the IFSP in collaboration with the parent and obtain the parent's written consent for the delineated services before early intervention services are provided to the eligible child and family. This consent shall continue in effect until revoked by the parent or until the child is no longer receiving early intervention services.2. The county administrative agency requesting a parent's written consent for services shall inform the parents of the following:a. The purpose of each service to be provided and the manner in which the service will be provided. The parent's written consent shall specify each service the parent has authorized;b. The known cost to the parents of the services, if there are any costs, whether direct or indirect;c. Any likely effects on the parents of each service;d. The possible consequences of not consenting to each proposed service; ande. If consent is not given, the child will not receive the services.3. A parent may consent to some services and reject others. If the parent objects to a proposed service, the program may not provide that service. The county administrative agency may not limit or deny the provision of a particular service because the parent has refused to consent to another service.(c)For billing a third party. With the parent's consent, a third party may be billed for early intervention services. The service coordinator shall ensure that the parent, prior to giving consent, is informed of and understands that because of third party billing the parent may incur financial loss, including but not limited to a decrease in benefits or increase in premiums or discontinuation of the policy.(3) CONFIDENTIALITY. (a) Personally identifiable information about a child, a parent of the child or other member of the child's family is confidential at all stages of record development and maintenance, including information collection, storage, disclosure and destruction.(b) The county administrative agency is responsible for maintaining the confidentiality of a child's early intervention records wherever those records are located. Any interagency agreement or contract with a service provider shall set forth the service provider's responsibility to keep early intervention records confidential. One staff member at each agency maintaining early identification records shall be designated to ensure that personally identifiable information is kept confidential. The county administrative agency shall provide training to staff concerning the policies of early intervention record maintenance and confidentiality.(c) Parents may review the early intervention records of their child.(d) A county administrative agency or service provider may disclose confidential information from early intervention records, without parental consent, only to those of its employees who have a legitimate need for the information in the performance of their duties and to representatives of the department who require the information for purposes of supervising and monitoring services provision and enforcing this chapter. Each county administrative agency shall maintain a list attached to the early intervention record which identifies by name the parents and by name and title those employees of the agency and service providers who are identified in the child's IFSP as having a legitimate need for access to the early intervention record and who will have unrestricted access to that record. Each county administrative agency shall also maintain a log as part of an early intervention record, on which the name of any other employee or representative given access to the record or to whom information from the record was disclosed shall be recorded, along with the date of access or disclosure and the purpose of the access or disclosure.(e) The parent's written consent consistent with s. 51.30(2), Stats., is required to disclose confidential information except as authorized in par. (d). If a parent refuses consent to release confidential information and the refusal falls within the scope of s. 48.981, Stats., the county administrative agency or service provider may take action in accordance with s. 48.981, Stats.(f) The county administrative agency shall annually give notice to fully inform parents about the types of personally identifiable information that will be collected, maintained and distributed about participants in the early intervention system or information compiled during child find activities. This notice shall: 1. Be given in the native languages of the various population groups and list the languages in which the notice is available;2. Contain a description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the agency intends to use in gathering the information, including the sources from whom information is gathered, and the uses to be made of the information;3. Contain information regarding storage, disclosure to third parties and retention and destruction of personally identifiable information; and4. Contain a description of all the rights of parents and children regarding this information, including rights under 34 CFR 99.(g) The county administrative agency shall inform the parent when personally identifiable information contained in the early intervention record is no longer needed to provide early intervention services. The information shall be destroyed at the request of the parent except that a permanent record of the child's name, date of birth, the parent's address, the parent's phone number, names of service coordinators and service providers, and exit data, including year and age upon exit and any programs entered into upon exiting, may be maintained. In this paragraph, "destruction" means physical destruction or removal of personally identifiable information from the early intervention record. 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:
(1) Any reference in those places to "state education agency" or "SEA" means the department;(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; (3) Any reference to "local education agencies" or "LEAs" or to "intermediate education units" means county administrative agencies;(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(5) Any reference to 34 CFR 300.129 on confidentiality of personally identifiable information means 34 CFR 303.460, confidentiality of information.(4) OPPORTUNITY TO EXAMINE RECORDS. (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.(b) When a child's parent asks to review the child's early intervention records, the county administrative agency or service provider shall: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;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; and3. Respond to reasonable requests of the parent or parent's representative for explanations and interpretations of the record.(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.(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.(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.(f)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.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.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.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.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.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.(5) PROCEDURES FOR RESOLUTION OF DISPUTES - MEDIATION.(a)Definitions. In this subsection: 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.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.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.(b)Request for mediation.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.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: a. An explanation of the mediation process and its advantages;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; andc. 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.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.(c)Appointment of mediator. The department shall select mediators on a random, rotational, or other impartial basis.(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: 1. The department determines that the person has the appropriate skills and knowledge to act as a mediator under this section;2. The person participates in a training program of at least 5 days' duration that has been approved by the department;3. The person consents to be observed by a department representative at any mediation session; and4. The person participates in at least one day of additional training approved by the department each year.(e)Mediation.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.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.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.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.5. Unless both parties and the mediator agree otherwise, no person may record a mediation session.6. The mediator and either party may withdraw from mediation at any time.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.(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.(g)Mediator compensation.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.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. 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.(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.(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.(6) PROCEDURES FOR RESOLUTION OF DISPUTES - HEARING.(a)Definitions. In this subsection: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.2. "Impartial decision-maker" means a person appointed by the department to implement the dispute resolution process who meets all of the following qualifications: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;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; andc. Does not have a personal or professional interest that would conflict with his or her objectivity in implementing the process.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.(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.(c)Referral of dispute to impartial decision-maker.1. Upon receipt of a written request from a parent under subd. 2., the department shall promptly appoint an impartial decision-maker.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.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.4. The county administrative agency is responsible for the costs of a hearing, including the salaries of the impartial decision-maker and stenographer.(d)Conduct of hearing.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.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.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.4. The impartial decision-maker shall do all of the following: a. Schedule each hearing at a time and place that is reasonably convenient for the parent and notify the parties accordingly;b. Serve as hearing officer;c. Review the record and make a decision about the dispute;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; ande. 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.(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.(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.Wis. Admin. Code Department of Health Services DHS 90.12
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.Amended by, 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. 11/1/2021