Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

On or about August 13, 1998, [Father and Mother], by their attorney Wendy J. Bromley, requested a due process hearing on behalf of their daughter, [Student]. A telephone prehearing conference was held on August 18, 1998, at which time the parties agreed to enter into mediation. On September 25, 1998, the parties informed the undersigned administrative law judge (ALJ) that they had been unable to resolve their differences. The matter was then set for hearing to be held on November 12, 1998. On October 29, 1998, the District, by its attorney, Gary Ruesch, filed a Motion to Dismiss. The parties had a scheduled prehearing telephone conference call on October 30, 1998. Ms. Bromley requested an opportunity to file a response to the District's Motion to Dismiss. Her request was granted. The parties reconvened by telephone on November 6, 1998. The matter was adjourned to November 9, 1998. Both parties made oral arguments. The undersigned ALJ ruled in favor of the District and indicated that a written decision would follow. Both parties requested an extension of the proceedings and agreed that a final decision would be issued no later than December 7, 1998.

The [Parents] requested a due process hearing in order to address the following three issues. First, whether the District breached an implied contract with [Mother] by not compensating her for services rendered on behalf of her daughter [Student] during the 1997-98 school year. Second, whether the District failed to provide an appropriate bathroom facility for [Student] during the 1997-98 school year. And, third, whether the District should reimburse the [Parents] for a medical evaluation of [Student] conducted during 1998. Each of these issues shall be addressed in turn.

During the 1996-97 school year, the District and [Mother] entered into a written contract wherein the District agreed to pay [Mother] for providing [Student] with a variety of services during the school day, including transportation to and from school, assistance with her daily living skills and personal hygiene, and sanitation of her bathroom facilities. The District agreed to pay [Mother] $7,200.00 for her services. [Mother] continued to provide similar services to [Student] during the 1997-98 school year. However, [Mother] did not enter into a written contract with the District for that period. Nevertheless [Mother] maintains that she and the District had an implied contract and that she is therefore entitled to receive $8,000.00 for those services. Neither the District nor the [Parents] dispute that [Student]'s 1997-98 IEP was properly implemented. Accordingly, what remains to be determined is whether the District breached an implied contract with the [Parents].

The Individuals with Disabilities Education Act (IDEA) and the Wisconsin Statutes define the scope of a due process hearing. A parent may present complaints "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free and appropriate public education." 20 U.S.C. §1415 (b) (6) and §115.80 (1) (a), Wis. Stats. The IDEA does not identify specific remedies that are available; however, an ALJ has the authority "to grant any relief he/she deems necessary . . . to ensure that a child receives the FAPE to which he/she is entitled." Letter to Kohn, OSEP, 17 EHLR 522 (1990). Nevertheless, the remedies available under the IDEA "do not necessarily depend on what an aggrieved party wants." Charlie F. v. Board of Education of Skokie School District, 98 F.3d 989, 991 (7th Cir., 1996). Indeed, parents cannot "ignore remedies available under the IDEA and insist on those of their own devising." Id.

The District readily concedes that [Mother] transported [Student] to and from school during the 1997-98 school year and that she also cleaned [Student]'s bathroom at school on several occasions. The District also believes that it had an obligation to compensate [Mother] for those services. Accordingly, the District tendered a check to [Mother] on or about June 19, 1998, in the amount of $1815.00. [Mother] maintains, however, that she should also be compensated for "medical services" identified in [Student]'s IEP. Had [Mother] performed medical services on behalf of [Student], they may well be considered a compensable related service under the IDEA. But there is no evidence to suggest that [Mother] performed any such service. She was given a "beeper" in the event an emergency arose, but it was never used. Consequently, all that remains to be determined is whether [Mother] was compensated at an appropriate rate of pay for the services she rendered. Neither the IDEA nor the Wisconsin Statutes authorize an administrative law judge to make such determinations, and I decline to do so here. Such issues are properly brought before a circuit court.

The [Parents] also maintain that [Student] was not provided with a FAPE because the District failed to provide her with an adequate bathroom facility during the 1997-98 school year. However, both parties readily concede that [Student] is currently using an acceptable bathroom facility, which was also available to her during the preceding school year. Therefore, since there is no controversy regarding this issue, it is moot and no relief is available under the IDEA. See Downers Grove Grade School v. Steven L., 89 F.3rd 464, 467 (7th Cr., 1996) (holding that "absent an actual live controversy, a case is moot and must be dismissed as nonjusticiable"); Nashaminy School District v. Karla B. 25 IDELR 725 (1997) (holding that "[t]o sustain jurisdiction, a dispute must not only be alive when filed, but throughout its pendancy." (citations omitted)).

Finally, the [Parents] maintain that they are entitled to reimbursement for medical expenses that they incurred following an injury [Student] allegedly sustained during recess sometime in the 1997-98 school year. Upon learning of this incident, the [Parents] were apparently advised to obtain a medical evaluation of [Student]. If the medical evaluation was an "independent evaluation" for educational purposes, then perhaps the District would be required to reimburse the [Parents] for it. To date, though, there is no evidence to suggest that [Student]'s medical examination was, in fact, an independent evaluation intended to provide information for educational purposes. See Downers Grove Grade School v. Steven L., 89 F.3rd 464, 467 (7th Cr., 1996); Burlington v. Massachusetts, 471 U.S. 359, 371 (1985). Accordingly, that issue is not ripe for determination. Moreover, implicit in the [Parents]'s hearing request is that the ALJ determine whether a tort was committed against [Student]. A due process proceeding is not the appropriate forum for such matters, and I make no finding with respect to it.

Dated at Madison, Wisconsin, this 30th day of November, 1998.