The PARTIES to this proceeding are:

On July 3, 2000, the undersigned issued an order denying Milwaukee Public Schools' (MPS) motion to dismiss the due process hearing request of [Student]. MPS's motion sought dismissal on the ground that the hearing request is time-barred by the one-year limitations period of Wis. Stat. § 115.80(1)(a). MPS thereafter requested that an evidentiary hearing be convened to resolve factual disputes pertinent to its motion. The request was granted and the limited evidentiary hearing was held on July 21 and 27, 2000.

Based upon the testimony presented at the hearing and other evidence of record, I find that the request for a due process hearing has not been timely filed so that MPS's motion to dismiss must be granted.

Findings of Fact

1. On April 7, 2000, [Student] ("[Student]") caused to be filed a request for a due process hearing under Wis. Stat. Chap. 115 (1997-1998) and the federal Individuals with Disabilities Education Act (IDEA).

2. [Student] graduated from Hamilton High School on June 10, 1999. [Student] turned age eighteen while in the eleventh grade, on September 4, 1997, and she was nineteen when she graduated on June 10, 1999.

3. [Student] has never been determined to be eligible for special education or related services under IDEA or subchapter V, Chapter 115, Wis. Stats. MPS evaluated [Student] in March 1991 and again in June 1995 to determine whether she was eligible; MPS determined each time that she was not. [Student]'s mother ("Parent") received notice of her right as a parent to request a due process hearing challenging these separate determinations, and she did not request a hearing either time.

4. By the time [Student] entered the twelve grade, if not before, both she and the Parent had become aware that when she had reached age eighteen the Parent no longer had the authority to make decisions respecting her educational program, but rather those decisions rested solely with [Student]. [Student] nonetheless assented to the Parent's continued direct involvement in her educational program after she turned eighteen.

5. From April 6, 1999, through graduation on June 10, 1999, neither [Student] nor the Parent asked any official of MPS to conduct another evaluation of [Student] to determine whether she was "a child with a disability" under state or federal law and thus eligible for special education or related services. Having received no request for an evaluation from either [Student] or the Parent between April 6, 1999, and graduation in June 1999, MPS had no opportunity to refuse any such requested evaluation, and thus did not refuse to initiate such an evaluation.

The request for a due process hearing has not been timely filed under the one-year limitations period of Wis. Stat. § 115.80(1), and thus the request for hearing must be dismissed.

Section 115.80(1)(a), Stats. (1997-98) establishes a one-year limitations period for requesting a due process hearing, and provides in pertinent part as follows:

When [Student] turned eighteen in September 1997, the right to request a due process hearing accrued to her by operation of Wis. Adm. Code § PI 11.16, which has since been rescinded. Former section PI 11.16(1) provided as follows:

Rights accrue to the child. … [W]here a child with EEN attains the age of 18 years, he or she shall have all the rights and responsibilities that were formerly provided to his or her parents under this subchapter.

Section 115.807, Stats. (1997-98), became effective on May 5, 1998, and provided for the transfer of rights from a parent to a child at age eighteen in the same manner that former Wis. Adm. Code § PI 11.16 had done. Section 115.807, Stats. (1997-98), provides as follows:

Because [Student] has never been determined to be a "child with a disability" within the meaning of state or federal law, the provision in subparagraph (3) requiring a school district to provide parent and adult child with notice of transfer of rights was not applicable. Accordingly, MPS was not required to provide any such notice to [Student] and the Parent, and did not provide any such notice.

MPS challenges the analysis of the previous order denying its motion in which the Parent's claimed request for an evaluation of [Student] was deemed sufficient to trigger a school district's responsibility to respond as if the request had been made directly [Student]. The validity of that analysis notwithstanding, the evidence is insufficient to support a finding that the Parent truly made such a request for an evaluation between April 6, 1999 and graduation on June 10, 1999.

The motion to dismiss was originally denied based upon an averment in the Parent's affidavit in which she stated that between April 6, 1999, and graduation in June 1999, she asked Ms. Cora Pugh, who is employed by MPS as a Parent Information Specialist, "about performing another M-team on [Student], but Ms. [Pugh] said they could not do so, because they had just done one in 1995." In her testimony, however, the Parent stated that her affidavit misstated the time frame of this conversation with Ms. Pugh, and that this conversation occurred sometime after the 1995 evaluation and before April 6, 1999, though she could not fix the date with any greater specificity. Assuming that the Parent's recollection in this respect is accurate, the request for a due process hearing has been filed more than one year after MPS's claimed refusal to initiate the requested evaluation, and thus is outside the one-year limitations period of § 115.80(1)(a).

The Parent also testified that between April 6, 1999, and [Student]'s graduation on June 10, 1999, she had other telephone conversations regarding [Student]'s educational program with Ms. Pugh and also with Dr. Rita Fagan, who is the Guidance Director at Hamilton High School. The Parent described telephone conversations in which she voiced concerns about her daughter's academic proficiency and inquired about preventing her daughter from graduating. None of the conversations she recounted were tantamount to a request that MPS initiate another evaluation of [Student] to determine whether she was a "child with a disability" under state or federal law. Accordingly, assuming the Parent's recollection of these conversations is reliable, the conversations she recalls are insufficient to support a finding that MPS refused a request to initiate an evaluation under Wis. Stat. § 115.80(1)(a).

Further, I find the recollections of Ms. Pugh and Dr. Fagan that they did not have the telephone conversations described by the Parent to be more reliable than the Parent's recollection. Ms. Pugh recalled having spoken with the Parent from time to time regarding the Parent's son, who was also a student in MPS, but she could not recall having ever discussed [Student] with the Parent. Ms. Pugh expressly denied having had a conversation with the Parent in 1999 regarding [Student], and believes she would have recalled a conversation such as that recounted by the Parent, in which a parent sought to stop a child's imminent graduation.

Similarly, Dr. Fagan denied having had any conversation with the Parent regarding [Student]. She was certain that if she had received a telephone call in which a parent inquired about stopping a child's graduation, she would have remembered it because of its extraordinary nature.

There is thus insufficient evidence to support findings either (1) that any telephone conversations took place between the Parent and Ms. Pugh or Dr. Fagan between April 6, 1999, and June 10, 1999, or (2) that the substance of any such conversations, if they did occur, was as the Parent recalled. Accordingly, the preponderance of the evidence regarding the claimed telephone conversations occurring on or after April 6, 1999, does not support a finding that MPS refused to initiate a requested evaluation to determine whether [Student] was eligible to receive special education or related services under state or federal law. Therefore, MPS did not refuse a request to initiate an evaluation under Wis. Stat. § 115.80(1)(a) from April 6, 1999, to graduation on June 10, 1999. The request for a due process hearing is thus time-barred because it was not filed within the one-year limitations period of Wis. Stat. § 115.80(1)(a).

IT IS HEREBY ORDERED, that the due process hearing request filed by [Student] is dismissed.

Dated at Milwaukee, Wisconsin, this _15th_ day of August 2000.