Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

On February 2, 2001, the Department of Public Instruction received a request for a due process hearing, under Subchapter V, Chapter 115, Wis. Stats., and the Individuals with Disabilities Education Act (IDEA). After a relatively circuitous procedural history, the chronology of which is detailed below, the parties agreed that all education-related had been resolved. The sole remaining issue that prevents the parties from entering into a settlement agreement is the amount of the Parent’s attorney fees that the Cumberland School District is willing to reimburse. All issues that the Division of Hearings and Appeals has the authority to decide have been resolved. Accordingly, the hearing scheduled in this matter was cancelled and for the reasons set forth below the request for a due process hearing is dismissed as moot.

The Parties to this proceeding are:

1. The Parent made a request for a due process hearing on February 2, 2001.
2. Commencing in March, 2001, the Parent and the School District began exchanging settlement proposals, the purpose of which was to attempt to resolve all disputes short of an evidentiary hearing.
3. Through a series of correspondence, telephone conversations, and voice mail messages, the Parent and the School District voluntarily agreed as of April 18, 2001, to settle the due process hearing under the following terms:
1. Placement of the Student at Northwest Passage, a day treatment facility in Frederic, Wisconsin.
2. Compensatory education in the form of summer school at Northwest Passage if recommended by the Northwest staff and the IEP team.
3. Additional compensatory education in the amount of 200 hours to be used or waived by the conclusion of the summer session of the 2002-2003 school year.
4. The settlement would remain confidential.
5. The Parent would execute a release of FAPE-related claims.
6. The School District would reimburse the Parent for her attorney’s fees in a compromised amount of $5,000.
4. Thereafter, counsel for the School District drafted a settlement agreement and release of claims in accordance with the parties’ negotiations. The proposed agreement also included language which the parties had not previously discussed, including an indemnification paragraph which required the Parent to indemnify the School District from any actions commenced by [Student] (the "Student") upon reaching the age of majority. The School District also inserted a signature line in the settlement agreement for [biological Father], the biological father of [Student]. The settlement agreement was faxed to the Parent’s counsel on April 23, 2001.

5. On April 21, 2001, the School District’s counsel advised the Division that the parties had reached an agreement in principle to settle the case and requested that the hearing in this matter, scheduled to commence April 25, 2001, be postponed. On the same date, I wrote to the parties stating "The deadline for issuing a decision in this matter is May 11, 2001. If I have not heard anything further from the parties by that date, I will assume that this matter had been settled but that the parties failed to advise [the Division of Hearing’s and Appeals] of the settlement and an Order of Dismissal will be issued." The April 25, 2001 due process hearing was cancelled.

6. In an April 24, 2001, letter, the Parent objected to the indemnification clause inserted in the settlement agreement, as well as the signature line for [biological Father]. The Parent asserted that [biological Father] has never been adjudicated the legal parent of the Student and that he has no parental rights, including standing to bring an action under the IDEA.
7. In an April 30, 2001. letter to the School District’s counsel, the Parent withdrew her objection to the indemnification clause proposed by the School District. However, she continued to object to the inclusion of [biological Father] in the settlement agreement, asserting that [biological Father] had no rights or standing under IDEA.
8. It is undisputed that [biological Father] is the biological father of [Student]. [biological Father]’s parental rights or rights to make educational decisions on behalf of the Student have never been adjudicated or extinguished.
9. In a May 4, 2001, letter to the Parent’s counsel, the School District requested additional information regarding the statement that [biological Father] had no parental rights under IDEA. A request was made to provide the School District with more detail or documentation, which supported the assertion. However, the School District’s counsel he would "be out of the office on vacation until May 15, 2001." The counsel for the School District directed the counsel for the Parent to contact him when he returned to the office.
10. On May 6, 2001, counsel for the Parent advised in a letter to the School District’s attorney that a request was being made to place the hearing back on the calendar because the parties were unable to reach a resolution prior to the May 11, 2001, deadline for a decision. In response to that request, a telephone prehearing conference was scheduled for May 18, 2001, and the deadline for issuing a decision in this matter was extended to May 25, 2001.
11. In a May 16, 2001, letter to the Parent’s counsel, the School District objected to the decision to proceed with the hearing, stating that the parties had reached an agreement in principle with regard to all material terms. Once again, the School District requested that [biological Father] sign the settlement agreement, or have the Parent agree to indemnify the School District against potential claims that [biological Father] could bring against the School District. As a third alternative, the School District requested that the Parent sign an affidavit attesting to [biological Father]’s non-involvement with the Student.
12. In a May 17, 2001, telephone conversation, the School District’s counsel was advised that the Parent was unwilling to go along with any of the School District’s proposals and that she intended to proceed to a due process hearing.
13. In a May 18, 2001, pre-hearing conference, the School District requested the opportunity to make a motion to enforce the settlement agreement in this case. I granted the School District’s request. The School District further requested that [biological Father] be provided notice of the instant due process hearing such that any claims he could bring against the School District would also be adjudicated. I delayed ruling on this request until the School District’s enforcement action was decided. During the prehearing conference, the School District also indicated that it would voluntarily offer the summer placement for the Student at Northwest Passage even in the absence of a settlement agreement.
14. After reviewing briefs for and against the School District’s motion to enforce the settlement agreement, I issued a letter decision dated July 6, 2001. The substance of that order is restated in the Conclusions of Law below.
15. In the same July 6, 2001, letter, I requested that the parties provide me with additional briefing on the issue of whether [biological Father] is a necessary party to the due process hearing, such that he should be provided notice and an opportunity to participate therein.
16. Both the Parent and the School District submitted briefs that addressed the matter of [biological Father]’s status vis-à-vis this due process hearing. In addition, the School District made a request that I reconsider or otherwise clarify my July 6, 2001 decision.
17. On July 23, 2001, prior to the commencement of a scheduled pre-hearing conference, the School District wrote to the Division and requested that I certify the issue of enforcement of the settlement agreement for an interlocutory appeal in the event I decided not to grant the School District’s motion.
18. During the July 23, pre-hearing conference, I advised the parties that I was, for the reasons set forth below, unwilling to enforce the oral settlement agreement in this case. In the course of the telephone conference the School District stated that it would be willing to settle the matter without the signature of [biological Father], indemnification of the School District by the Parent or an affidavit from the Parent. The attorney for [Mother] indicated [Mother] would still accept the terms of the settlement agreement with respect to all education-related issues. I indicated to the parties that since all education matters related to the Student have been resolved, there was no need for an evidentiary hearing in this matter. I accorded the parties until Friday, July 27, 2001 to come to an agreement on the amount of attorney’s fees, the only remaining issue in this case. I indicated that if the parties were unable to resolve this case, I would likely issue an order that would allow the School District to appeal the denial of its motion to enforce the oral settlement agreement and/or permit the Parent to pursue her request for attorney’s fees in the appropriate forum.
19. On July 27, 2001, the parties advised me that they were unable to reach an agreement on the issue of attorney’s fees. On July 27, 2001, the School District submitted a draft Decision and Order dismissing the Parent’s request for a due process hearing. In a cover letter accompanying the draft Decision and Order, the attorney for the School District stated that its proposed "Order simply dismisses the due process hearing, rather than authorize an interlocutory appeal. Upon further reflection, [the School District thought] this matter would be cleaner if it was simply dismissed."

1. The School District and the Parent negotiated and voluntarily settled all education-related issues concerning the Student. The parties also agreed to a compromised amount of attorney’s fees incurred by the Parent.
2. Pursuant to the IDEA and Wisconsin law, I have the authority as a special education due process hearing officer to enforce settlement agreements, including oral settlement agreements.
3. However, when the School District insisted that either [biological Father] sign the settlement agreement or that the Parent indemnify the School District for any future actions brought by [biological Father], there was no longer a settlement in this matter. A material component of the settlement agreement was the reimbursement of the Parent’s attorney’s fees. Even though the School District subsequently withdrew its demand that [biological Father] sign the settlement agreement or that [Mother] indemnify the School District for any future actions brought by [biological Father], after the School District raised the issue of the need for [biological Father] to sign the settlement agreement or for the Parent to indemnify the School District, the Parent’s attorney’s fees increased and the amount of attorney fees agreed to by the parties in April was no longer a satisfactory settlement amount for the Parent.
4. I find, however, that the parties have resolved all education-related issues in this case. As a result, there is no need to conduct an evidentiary hearing and the request for hearing can be dismissed as moot with respect to the jurisdiction of the Division of Hearings and Appeals.

THEREFORE,

1. The Parent’s request for a due process hearing is hereby DISMISSED, without prejudice.
2. Since a hearing on the merits was never conducted, I am unable to declare a prevailing party in this case.

Dated at Madison, Wisconsin on August 9, 2001.

NOTICE OF APPEAL RIGHTS