The Parties to this proceeding are:

On April 26, 2000 the Department of Public Instruction received a due process hearing request under the Individuals with Disabilities Education Act (IDEA) from the Parent of [Student] (Child), a student residing in the Madison Metropolitan School District (District). Specifically, the Parent alleged that the District did not follow a previous Administrative Law Judge’s order in LEA 97-020 to follow a psychologist’s recommendations in constructing an Individualized Education Plan (IEP) for the Child.

A pre-hearing teleconference was held on May 4, 2000 and a hearing was scheduled for May 31, 2000, in time to complete the decision by June 12, 2000 and comply with the 45-day requirement included in 34 CFR § 300.511(1).

At the request of both parties, another pre-hearing teleconference was scheduled and held on May 19, 2000. Due to the statute of limitations for due process hearings found in Wis. Stats § 115.80(1), the undersigned Administrative Law Judge (ALJ) limited the issues for a hearing to the following:

The District requested more time to review the record and exhibits of the previous hearing, as it was the basis for the allegations in the instant case. This required retrieving the record of LEA 97-020 off-site at a record storage facility. Another pre-hearing conference was scheduled for May 31, 2000. At this pre-hearing teleconference, the hearing was rescheduled to July 17 and 18, 2000 and the decision date was extended to July 28, 2000. This hearing date was later rescheduled again for August 15 and 16, 2000 due to an ALJ family consideration. The decision date was also extended to September 5, 2000 but at the Parent’s request, was still before the Child’s classes reconvened for the fall semester.

On August 9, 2000, the attorney for the Parent called the undersigned ALJ and asked that the hearing be cancelled and not rescheduled, but that the hearing request remain open. The reason given was to allow the Student to transition from middle school to high school without a due process hearing hanging over the relationships in her new environment. According to the Parent’s attorney, it was felt that with the change in environment and a due process hearing necessarily reviewing past conduct during the effective time, any remedy offered by a decision would be limited. The undersigned ALJ cancelled the hearing and told the Parent’s attorney that the case could remain open until the September 5, 2000 decision date, but that no extension would be granted without the intention to hold a hearing.

On September 7, 2000, after several unreturned phone calls, the undersigned ALJ issued a letter noticing the parties that if no reply was received by September 15, 2000, the case would be dismissed. A letter from the Parent’s attorney was received on September 14, 2000 requesting that the matter not be dismissed and restating the reasons for not pursuing a hearing.

The IDEA structure created by Congress envisioned a short hearing process. Under 34 CFR § 300.511, a 45-day timeline is established from when a hearing application is filed to when a decision is reached and mailed to the parties.

In addition, discretion was given hearing officers to grant extensions as warranted. Under 34 CFR § 300.511(c), "a hearing officer . . . may grant specific extensions of time beyond the periods set out . . . at the request of either party." See also Wis. Stats. 115.80(6). It is clear after reviewing the Comments section published along with the federal regulations that "the use of the word ‘may’ instead of ‘shall’ in §300.511(c) means that the granting of specific extensions of time are at the discretion of the hearing . . . officer. It is not necessary to clarify that this discretion means that requests for extensions can be denied as well as granted since this is implicit in the regulation." 64 FR 12614 (March 12, 1999). This discretion is further delineated in 34 CFR § 300.583 and § 300.584.

This ALJ has not heard the merits of this case. But it is clear that the Parent’s reticence to push for a hearing in August after applying for a hearing in April has changed the complexion of the situation.

Two things have substantively changed during this period. First, this ALJ has limited the issues pertinent to a hearing as permitted under 34 CFR §300.583(c)(7). The September 13, 2000 letter from the Parent’s attorney specifically notes that this ALJ’s "ruling as to the issues" did not leave "a great deal to gain by having the trial". Both parties have had opportunity to review the record from the previous hearing. Apparently, whatever enlightenment or remedy that the Parent sought in April is less likely now, in her opinion.

Second, the Child has moved from a middle school to high school as a natural age-appropriate transition. According to the Child’s attorney, a hearing might undermine "her opportunities for success in that new environment".

Without having a reason to have a hearing, the process should cease. The purpose of the process is to have a hearing, if necessary, and render a decision. The [Family]’s are seeking neither a hearing nor a decision. They do seem to be seeking some prospective protection from the District. According to their letter, the Parent’s have an intention of waiving a hearing if "things went well" during the first semester.

That is not the purpose of IDEA. I can find no authority that would validate some prophylactic application of the hearing process. If there is a disagreement, the appropriate avenue is to pursue mediation or have a hearing. There is no method of case management in IDEA that would let a hearing officer manage a case without a hearing, or just let it float along without resolution. This is a process that seeks resolution with alacrity.

Continuing with this "no hearing but no dismissal" stance undermines two provisions of the hearing process. The first is that the District has a right to either contest its provision of a free and appropriate public education or to be free of these allegations. There needs to be some finality to the process. Unless the Parent has a problem with the IEP, the District needs to pursue the Child’s IEP and provide the Child with FAPE. It has earned a period of repose when it is not worried about what may appear in a hearing, but how best to educate the Child.

Second, by allowing the file to remain open without a hearing, the legislative intent of the statute of limitations is undermined. Under Wis. Stats. § 115.80(1), the Wisconsin Legislature has provided a one-year statute of limitations for IDEA cases. This is intended to allow fresh disagreements to be dispatched quickly. By seeking an extension into the end of the first semester in January, the Parent is effectively asking for a nine month extension on the statute of limitations. Given the reticence to hold a hearing and further their claims, this extension is not warranted.

What is clear from the Parent’s letter is that whatever case the Parent wanted to press in April, circumstances have changed opinions in September. An extension of time is within the discretion of this hearing officer and is denied. Furthermore, the explicit request not to hold a hearing is an effective withdrawal. The purpose for filing no longer exists.

If the Parent is unhappy with the Child’s current educational program, her rights are still viable and can be claimed with a new due process hearing application. A new 45-day clock will start, a new one-year statute of limitations will trigger and all parties will participate in a hearing if necessary.

It is hereby ordered that the due process hearing requested by [Student] and her Parent be dismissed with prejudice.

Dated at Madison, Wisconsin on September 19, 2000.