The PARTIES to this proceeding are:

On January 18, 2000, the Department of Public Instruction received a request for a due process hearing under Wis. Stat. Chap. 115 (1997-1998) and the Individuals with Disabilities Education Act (IDEA) from [Mother], on behalf of her son, [Student], d/o/b [xxxxxx], who is currently enrolled at West Bend High School. [Mother] requested a hearing for the following stated reasons:

[*The information [Mother] attached was factual assertions, in a format similar to that of a legal pleading, that related in large part to [Student]'s truancies in the fall of 1999].

On February 2, 2000, the undersigned held a prehearing telephone conference in which the parties disclosed that on January 26, 2000, [Mother] had consented to allowing the District to conduct an evaluation to determine whether [Student] is a "child with a disability" as defined in Wis. Stat. § 115.76(5). ([Mother]'s hearing request had appeared to challenge such an evaluation as unnecessary). The District then asserted an oral motion to dismiss the hearing request. The District argued the request was premature because the evaluation to determine whether [Student] was a "child with a disability" under Chapter 115 had yet to be completed because [Mother] had only recently consented to the evaluation.

Rather than rule on the oral motion to dismiss, the undersigned set a schedule for the filing of any formal written motion and response thereto. The District thereafter filed its written motion to dismiss, and [Mother] filed a written response opposing the motion.

The District's written motion essentially restates its prior oral motion. In her memorandum opposing the motion, [Mother] states that she only recently consented to the District's evaluation to determine whether [Student] is a "child with a disability" under Chapter 115 "because the District requested it so many times, she was obliged to negotiate the content of the referral." [Mother] asserts that the motion to dismiss should be denied because:

Elsewhere in her response [Mother] stated that she enrolled [Student] in the District schools in April 1998 upon relocating to Wisconsin from New Mexico. [Mother] also provided documentation indicating that last school year (1998-1999) the District had determined that [Student] was eligible for an educational accommodation plan under the federal Rehabilitation Act of 1973. [Mother] supplied correspondence between herself and the district pertaining to the content of such a proposed plan, but there is no indication that such a plan was ever agreed to or implemented for that academic year. However, [Mother] did provide a "504 Accommodation Plan" dated August 2, 1999, for the current school year (1999-2000), which reflects an "area of concern" to be "Attention Deficit Hyperactivity Disorder".

There is no indication in the information supplied by [Mother] that at the time [Student] enrolled in the District schools in April 1998 he was then classified as a "child with a disability" under federal regulation (34 CFR 300.7[a][1]) or any corresponding provisions of New Mexico law. Rather, [Mother] alleges that on January 1998, she asked a school district in New Mexico to conduct "an immediate assessment evaluation and IEP due to [Student]'s ADHD", but that two weeks later she withdrew [Student] from that school district and enrolled him in another school district in New Mexico. Some 10 weeks later, she withdrew [Student] from that school district, moved to Wisconsin, and enrolled him in the West Bend School District.

There is also no indication in the documentation supplied by [Mother] that the District has refused to initiate an evaluation of [Student] under Chapter 115. To the contrary, all indications are that the District had been attempting to obtain [Mother]'s consent to such an evaluation, but that [Mother] had declined to give her consent, relenting only after she had filed this request for a due process hearing. The evaluation is currently underway.

For the reasons set forth below, the motion to dismiss is granted.

[Mother] appears to have been proceeding upon the mistaken understanding that [Student] is eligible for special education and related services under Chapter 115 simply because he has previously been diagnosed to have ADHD. If she has been so mistaken, this may explain why, until only recently, she had declined to give her consent to an evaluation under Chapter 115. See Wis. Stat. § 115.782(1) (requiring parental consent before a local educational agency [LEA] may conduct an initial evaluation of a child).

Section 115.77(1m)(b) requires LEA's to provide a free appropriate public education (FAPE) to "children with disabilities". The term "child with a disability" is defined in § 115.76(5) to mean "a child who … needs special education and related services" by reason of a number of conditions, including "other health impairments" (OHI). The term OHI is not defined in the Wisconsin statute, but it is defined in the federal regulations in such a way to expressly bring ADHD within its ambit if the ADHD adversely impacts upon the child's performance to the extent that he or she requires special education and/or related services. The federal regulation at 34 CFR 300.7(a)(9) defining OHI provides in part as follows:

A mere diagnosis of ADHD does not a "child with a disability" make. The ADHD must in addition cause limited alertness with respect to the educational environment that adversely affects the child's educational performance such that the child requires special education and related services. Accordingly, a child diagnosed with ADHD may be determined not to be a "child with a disability" under § 115.76(5), Wis. Stats. See, e.g., Rochester City School District, 31 IDELR 178 (SEA 1999).

Accordingly, the District was under no obligation to deem [Student] a "child with a disability" simply because he has been previously diagnosed with ADHD. It follows that any alleged failure of the District to deem [Student] to be a "child with a disability" simply because he had been diagnosed with ADHD will not support a request for a due process hearing.

Wisconsin law also permits a parent to request a due process hearing "after the refusal … of the local educational agency to initiate … his or her child's evaluation." No documentation has been supplied indicating that the District has refused to initiate an evaluation under Chapter 115. To the contrary, all indications are that the school had sought to initiate an evaluation, but that [Mother] had declined to give her consent to it until after she had filed the due process hearing request. There being no indication that the District refused a parent's request to initiate an evaluation under Chapter 115, there is no basis to request a due process hearing for this reason either.

To the extent that [Mother]'s request for a due process hearing can be deemed to challenge the District's refusal to place [Student] in a different public high school or to pay for private placement at public expense, a request for a due process hearing on these grounds is premature. A determination on whether [Student] is a "child with a disability" is a necessary predicate to a challenge to any placement of [Student] following such a determination. See OSEP Compliance Letter, 21 IDELR 998 (OSEP, 5/5/94)(opining that an LEA is not required "to provide special education and related services, or implement intervention strategies, prior to the time that the child is evaluated and determined to have" one or more identified disabilities "and to need special education and services, and an individualized education program (IEP) developed"). Until such a determination is made, a due process hearing request under Chapter 115 challenging [Student]'s placement is premature and should be dismissed.

The appropriate time to request the due process hearing will be upon the timely completion of the evaluation of [Student] or upon the development of any individualized education program under Chapter 115. The request for the due process hearing is dismissed as premature.

IT IS HEREBY ORDERED, that the due process hearing request filed by [Mother] on behalf of her son [Student] is dismissed.

Dated at Milwaukee, Wisconsin, this 2nd day of March 2000.