Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

On August 30, 1999, the Department of Public Instruction received a due process request as to [Student] (hereinafter, Student). It had alleged that the [Unnamed] School District had violated the Student’s civil rights in failing to provide an appropriate health care plan for the Student. This was for the 1997-1998 and early 1998-1999 school year. The Student had been diagnosed with juvenile diabetes in 1996. The complaint also identifies that the Student was withdrawn from the [Unnamed] School District during the 1998-1999 school year and was home schooled.

At the time of the due process hearing request, the Student and his parents relocated to Minnesota, and the Student is enrolled in the Hermantown School District. The remedy sought in this due process request is that the school district pay for the relocation expenses of the Mr. and Mrs. [Family] (Parents). The expenses include: the loss on the sale of their home, purchase of a new residence, loss of income as to the mother, who alleged that she had to quit her job to have the Student home schooled.

At the initial phone conference between counsel for both parties and the Administrative Law Judge (ALJ), a motion to dismiss on the threshold question of jurisdiction was entertained by the School District (District). Counsel for both parties agreed to a written decision on this issue. A pleading schedule was created and was set forth in a pre-trial memorandum, dated September 7, 1999. Both parties have filed the requisite motion and response.

1. Is jurisdiction lacking due to the Family’s relocation to a Minnesota School District?
2. Is there jurisdiction to proceed on a non-resident student who has never been identified under IDEA?
3. Are the Parents entitled to the compensatory remedy they seek?

1. The Student was born xxxxx. He was diagnosed with juvenile diabetes in August, 1996.
2. The diagnosis of Type I juvenile diabetes requires that the Student have a blood glucose reading and injections, during the course of the school day.
3. On October 10, 1997, the Parent requested an assessment be done of the Student pursuant to Section 504, asking for a determination that special accommodations be made to help her son deal with his diabetic conditions. As a result of that request, on December 4, 1997, the District Coordinator advised the Parents that the Student did not have an impairment that could substantially limit one or more life activities at that time. (District’s Motion – Exhibit A)
4. At the 504-determination meeting, the District did agree to implement a health care plan for the Student to cover any health problems that the Student would encounter. The specific plan was not covered at the 504 meeting because it was not part of a 504 determination. (District’s Motion – Exhibit A).
5. In part of the 504 request, Parents were given definition of those students identified under Section 504. They were also provided with a Student/Parents Rights documentation and the name of a contact person and phone number to clarify any questions that had arisen from this information. (District’s Motion – Exhibit A).
6. One of the factors in finding the Student ineligible under Section 504, is the fact that he missed almost no days of school, his classroom grades in a regular educational setting were average or above average, and that he was able to participate in activities within the school setting, (District’s Motion – Exhibit A and Exhibit B).
7. The District did develop a formal health plan for the Student, (District’s Motion – Exhibit A).
8. This health plan was agreed to by the Student’s physician, (District’s Motion – Exhibit D).
9. The Parent had concerns about the proper implementation of the District’s health plan in early 1998. Represented by counsel, the Parent met with the District’s attorney on January 23, 1998. A recorded summary of that two-hour meeting evidenced that the District tried to address the health care issues of the Parent. Attorney for the Parent indicated that the open dialog was progressive in meeting Parent’s concerns (District’s Motion – Exhibit E.). On November 17, 1998, District’s counsel in correspondence to the attorney for the Parents, indicated that although the District maintained the agreed upon health care plan for the Student, the mother was constantly calling the school and using foul language to address school personnel. The District placed a one-call a day restriction on the Parent (Parent’s Response – Exhibit B). It was shortly after that letter, that the Student was withdrawn from the school, (Due Process Request, 8/30/99). He now resides and goes to school in Minnesota (Due Process Request, 8/30/99).

Section 115.76(5), Wisconsin Statutes, defines a child with disabilities. It includes students who have cognitive disabilities, hearing impairments, etc. It also encompasses children who may have unspecified health needs considered under "Other Health Impairments" (115.76(5)(9)). Other health impairments is defined under the code:

Until the 8/30/99 due process request, the Parents have never asserted a claim under IDEA. Their due process request on 8/30/99, was due to the District’s failure to address the health care plan; they indicate that this is a violation of their son’s civil rights. Parent’s counsel, in his response to the motion to dismiss, states that the child is in need of special education and related services by reason of, "other health impairment", (Parent’s Response – paragraph #1). He also asserts that the Student is entitled to a designation of handicapped under Section 504, the Rehabilitation Act of 1973 (504), because his diabetes substantially limits one or more major life activities, (Parent’s Response – paragraph #2). The IDEA claim has not been raised until now. The Student has never been and may not be currently enrolled in a special education program. The appropriate forum for IDEA, would be the district in which the Student resides and is enrolled. This would be the Hermantown, Minnesota School District.

Well established, is the fact that it is the Student’s current school district that bears the obligation to provide for the District’s specialized educational needs and related services if the Student is identified with a disability under IDEA. That obligation was never identified or raised as an issue while the Student was enrolled in the [Unnamed] School District.

In P.T. v. the Independent School District #113 at 29 IDELR 13, "the court found that the review officer and the hearing officer lacked jurisdiction over claims against the district. Because the student was enrolled in the neighboring district when the Parents requested due process, the claims against the district were moot". A second Minnesota case also held that a move from a district and subsequent attempts to seek due process with regard to the sufficiency of special education services provided in the district mooted that claim (See: Smith by Townsend v. Special School District #1 at 30 IDELR 805).

The Parents did seek a finding under Section 504 indicating that the diabetes of the child substantially limited one or more major life activities. The District responded indicating that they had a 504-determination meeting. It indicated that the Student did not have such an impairment. The District offered to work on creating a written health plan for the Student. No appeal was made from this 504 finding by the Parents. While Parent’s counsel raises the lack of notice of appeal rights and procedure, (Parent’s Response – paragraph 4) as to the process, Exhibit A of the District’s Motion to Dismiss contains the information to the Parents as to the 504 determination. It identified a contact person and a phone number. (See: Sherwood School District at 25 IDELR 1254. This case indicated that lack of notice of a disabled child’s rights under 504 are not legally sufficient to constitute violations of IDEA). Additionally, shortly after this, Parents retained counsel for the purpose of representing them on behalf of the Students education (Districts Motion – Exhibit. E, and Parent’s Response – Exhibit. B). Parents’ counsel also indicates that the Parents were never advised by the District that they had potential rights under IDEA and or that the District refused to initiate a claim under IDEA (Parents Response – paragraphs 5 and 6). The District may bring an action under IDEA if they deem this appropriate. Likewise, Parents also have the ability to do so. Section 115.80(1), Wisconsin Statutes outline that ability and also indicates that the request be in writing. There have been no written request by the Parents requesting due process until almost a year after they withdrew the Student from the [Unnamed] School District. Parents have a duty to assert claims on behalf of the Students, including those with specialized educational needs. The District cannot be forced to initiate an IDEA claim where one is not determined to [be] warranted. The Student in this matter was enrolled in a regular educational setting; he had a good attendance record and passing grades. The health care records provided by Parent’s counsel evidence an active child who likes to swim and ride his bike. His needs, per his diabetes, were met by a defined health plan within the school setting. The Parents are now asking a School District through a decision by an ALJ from Wisconsin to create an IEP for a child who is now located in Minnesota and not within the District. I am without authority to entertain such issues or fashion the remedy the Parent’s seek. Because I am without authority to address the claims raised for a non-resident who has never been identified under IDEA, I will not address Parents’ issue of reimbursement and compensation for their voluntary relocation to the Hermantown Minnesota School District.

1. The Student no longer resides in the [Unnamed] School District and has never been identified as a child under IDEA while he was enrolled in the [Unnamed] School District.
2. The Parent’s requested a 504 determination of the [Unnamed] School District. This determination dated 12/4/97, indicated the Student did not meet 504 criteria. That decision is not appealable to this Division. This finding went unchallenged by Parents who did seek the benefits of counsel.
3. There is no ability to proceed on Parent’s request on due process.
4. The Districts Motion to Dismiss is granted.

IT IS HEREBY ORDERED, that the Parents’ due process claim be dismissed for lack of jurisdiction.

Dated at Madison, Wisconsin on September 30, 1999.