Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

RULING AND ORDER ON MOTION TO DISMISS

The Parties to this proceeding are:

On January 5, 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) from [Father & Mother] (the "Parents") on behalf of their daughter, [Student] (the "Student"). This request was transmitted to the Division of Hearings and Appeals on March 27, 2001.

On May 1, 2001, the Madison Metropolitan School District ("District") filed a motion to dismiss. The Parents filed their response on May 8, 2001.

The motion to dismiss is granted on the ground that the hearing request is time barred by the one-year limitations period of Wis. Stat. § 115.80(1)(a).

Motions to dismiss are appropriately treated as motions for summary judgment when evidentiary material is considered. See Wis. Stat. § 802.06(3); Envirologix Corp. v. City of Waukesha, 192 Wis.2d 277, 287, 531 N.W.2d 357, 362 (Ct.App. 1995). The grant of summary judgment is appropriate when the evidentiary material shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Moulas v. PBC Productions, Inc., 213 Wis.2d 406, 410, 570 N.W.2d 739 (Ct.App. 1997). No genuine issue of material fact exists here. The material facts are as follows.

The Student is a "child with a disability" within the meaning of Wis. Stat. § 115.76(5)(a) and corresponding federal laws and regulations. For the school year 1999-2000, she was enrolled in the 8^th grade at Cherokee Middle School in the District.

By an order effective on May 8, 1998, a Dane County circuit court appointed an educational guardian for the Student for the school year 1998-1999. In June 1999, the court extended the guardianship for the school year 1999-2000.

The Student’s individualized education program ("IEP") for the school year 1999-2000 (the 8^th grade year) was developed in an IEP meeting held on March 19, 1999. The IEP provided for specially designed instruction to address deficits in language arts, math, learning strategies, and expressive language. The IEP, as amended on May 6, 1999 to correct an administrative error, provided for no related services. The IEP is devoid of any reference or indication that the special education is required because of an emotional disturbance.

The educational guardian participated as the "Parent/Legal Guardian" in the IEP team meetings that developed the IEP for the 1999-2000 school year. The Parents did not participate in these IEP team meetings.

On April 26, 1999, the Parents filed a request for a due process hearing to challenge the IEP developed on March 19, 1999. The Parents claimed that the IEP was deficient in that it failed to address emotional disturbance of the Student, specifically "mental illness, anxiety, depression, and mood disorder". The Parents asserted: "E.D. services needed."

By order dated July 22, 1999, an administrative law judge ("ALJ") dismissed this due process hearing request. The ALJ ruled that the Parents did not have legal standing to file the request, but rather that the educational guardian supplanted the Parents for purposes of the special education laws. In the matter of [Student] v. Madison Metropolitan School District, LEA-99-019 (7/27/1999).

In March 2000, upon motion of the educational guardian, the circuit court terminated the educational guardianship "effective upon the completion of the revised IEP in March 2000". The guardian had moved to terminate the guardianship in part because the Student was expected to meet her annual goals in reading, written language, and math, as established by the IEP for the school year 1999-2000. Accordingly, sometime in March 2000, the Parents resumed responsibility for the Student’s education.

On January 5, 2001, the Parents filed the present request for a due process hearing. The only substantive claim set forth in the request is as follows: "[Student] was denied emotional disability in 8^th grade" (the 1999-2000 school year).

At the direction of the undersigned, the Parents have since more fully defined their complaint as follows: "The [District] refused to accept a medical evaluation by a licensed psychiatrist who determined that [Student] had a serious emotional disturbance." In support of this contention, the Parents have proffered a letter dated November 12, 1999 from [Father] to the educational guardian. In that letter, [Father] stated that "[Student]’s mental health diagnosis continues to be confirmed", and that it "has been very obvious that the school is not willing to address this even with the involvement of the family therapist and the diagnosis" of a physician. [Father] complained further that school staff "does not see a problem and that there wasn’t a plan to deal with any of [Student]’s emotional needs." [Father]’s stated concerns to the guardian regarding the District’s perceived failure to address the Student’s mental health needs did not result in any changes in the IEP.

The District contends that the due process hearing request is time-barred because the IEP for the school year 1999-2000, which specified no special education or related services respecting emotional disturbance, was developed more than one year before the Parents filed the due process hearing request. For the reasons set forth below, the motion to dismiss is granted.

Section 115.80(1)(a), Stats. (1999-2000), establishes a one-year limitations period for requesting a due process hearing and provides in pertinent part as follows:

The term "parent" is defined in Wis. Stat. § 115.76(12). From May 8, 1998 until the completion of the revised IEP in March 2000, the educational guardian had the status of "parent" under section 115.76(12), and thus had exclusive authority to request a change in an IEP or a due process hearing under section 115.80(1)(a). In the matter of [Student] v. Madison Metropolitan School District, LEA-99-019. When the educational guardianship terminated in March 2000, these rights reverted to the Parents.

Claims under the special education laws "accrue when the parents know or have reason to know of the injury or event that is the basis for their claim." Hall v. Knott County Bd. of Educ., 941 F.2d 402, 18 IDELR 192 (6^th Cir. 1991)(internal quotes omitted).

Here, both the educational guardian and the Parents knew in March 1999 that the IEP for the school year 1999-2000 did not provide for special education or related services respecting emotional disturbance. The Parents requested a due process hearing on this basis in April 1999, but the request was dismissed because only the educational guardian had standing to make such a request. The educational guardian chose not to assert this claim on behalf of the Student, even after [Father]’s letter to the guardian in November 1999, wherein he continued to express his dissatisfaction with the District’s failure to address matters related to the Student’s mental health. Upon regaining their status as "parents" under the special education laws in March 2000, the Parents did not reassert the complaint regarding the absence of "emotional disturbance" services under the 1999-2000 IEP until January 2, 2001, after nine more months had passed.

The gist of the Parents’ present complaint remains their dissatisfaction with the District’s refusal to provide services related to emotional disturbance in the IEP for 1999-2000. The event that forms the basis for the present claim is the District’s determination in March and April 1999 not to provide services for emotional disturbance in the face of the Parents’ clearly expressed wishes to the contrary.

Here, the challenge to the District’s determination not to change the IEP to provide the "E.D. services" that the Parents wanted included in the IEP should have been asserted within one year of this determination. Wis. Stat. § 115.80(1)(a). Indeed, in April 1999 the Parents initiated an unsuccessful challenge to the District’s acts on this basis. The current request for a due process hearing restates the complaint of this April 1999 hearing request. The April 1999 hearing request was ripe for adjudication when the Parents filed it, and would have been adjudicated if the Parents had then had the standing to assert it. The present hearing request, however, filed some twenty months later and setting forth essentially the same challenge as the April 1999 hearing request, is now stale, having been filed more than one year after the event that is the basis of the claim. Hall v. Knott County Bd. of Educ., supra. Accordingly, the request for a due process hearing is 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 on January 5, 2001 is dismissed because it is barred by the one-year limitations period of Wis. Stat. § 115.80(1).

In view of this disposition, the prehearing telephone conference scheduled for May 16, 2001, and the due process hearing scheduled for May 22-23, 2001, are cancelled, as are all other directives pertaining to the previously scheduled hearing.

NOTICE OF APPEAL RIGHTS