Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

On November 18, 1999, the Wisconsin Department of Public Instruction received a request for a due process hearing under Subchapter V, Chapter 115, Wis. Stats. from the parents of [Student], a child with a disability residing in the [Unnamed] School District. In their request, the parents requested that both the [Unnamed] School District (District) and the [Unnamed] County Children with Disabilities Education Board ([X]CCDEB) be noticed of their request. The Wisconsin Department of Public Instruction did not notice the [X]CCDEB of the due process hearing request, although the District was notified.

The parents, in their request, alleged that [Student]’s right to a free and appropriate public education (FAPE) has been violated, that an order resulting from a previous due process hearing had been not been implemented and that a unilateral change in placement had occurred.

Administrative Law Judge (ALJ) Jacqueline Rothstein, of the Division of Hearings and Appeals signed the previous order on March 1, 1999. The parents and District were the only named parties in that decision, and the District was ordered to change [Student]’s placement. See In the Matter of [Student] v. [Unnamed] School District, LEA 98-038.

Specifically, the parents, in their November 18, 1999 request for a due process hearing, asserted that FAPE was violated by:

Although the parents named the [X]CCDEB along with the District at this "pleading" stage, it did not allege a denial of FAPE by the [X]CCDEB.

A telephone pre-hearing conference was noticed to the District and the parents and held on Monday, December 6, 1999. At this conference, a motion for Emergency Relief made on December 2, 1999 was denied orally pending a hearing. In addition, the parties agreed to a temporary homebound placement and the undersigned ALJ signed an order implementing this placement on December 7, 1999 which temporarily changed the placement ordered by the previous ALJ in LEA 98-038. Also at the conference, the hearing was set for December 21 and 22 and the derivative briefing dates were set and noticed in an order dated December 7, 1999.

A decision date was determined to be January 3, 2000 in order to comply with the 45-day requirement for decisions guaranteed under Wis. Stats. § 115.80(6) (1997-98), 34 CFR § 300.511(a)(1) and 20 USC 1415.

During the telephone pre-conference, the subject of [X]CCDEB participating as a party arose. The parent’s attorney asked about the status. The District attorney noted that unlike the previous due process hearing, he was not representing the [X]CCDEB. The undersigned ALJ determined at that time that additional parties were probably not appropriate but as no motion was made, no ruling was rendered.

Later on December 6, 1999, the parent’s attorney sent a facsimile to the ALJ and the District’s attorney seeking clarification on the parties, assuming that the District attorney would be representing [X]CCDEB. The District’s attorney replied in a letter dated December 10, 1999, clarifying that he only represented the District. The parent’s attorney requested a telephone conference in a letter faxed and dated December 13, 1999 to settle the matter.

A telephone conference call was held on the morning of December 14, 1999 with the attorneys for the parents and District. The undersigned ALJ determined that the [X]CCDEB was not a party to the proceeding and issued an oral order to that effect. An attorney representing the [X]CCDEB called the ALJ later on December 14, seeking to be included as a party and seeking to delay the hearing scheduled for the next week. This was denied by the ALJ on the phone and a written motion to intervene and motion to adjourn was received via fax at 5:56 p.m. on December 15, 1999.

Should the [X]CCDEB, a Children with Disabilities Education Board authorized under Wis. Stats. § 115.817, (1997-98) be allowed to be a party of interest in [Student] v. [Unnamed] School District, LEA 99-055?

The Wisconsin legislature, in following the IDEA, has determined that parents have the right to a due process hearing where a local educational agency (LEA) initiates a change in placement, IEP, or the provision of a FAPE. Wis. Stats. § 115.80 (1) (1997-98). The legislature further elucidates a LEA in Wis. Stats. § 115.76 (10) (1997-98) when it defines a LEA as "the school district in which the child with a disability resides, the department of health and family services if the child with a disability resides in an institution or facility operated by the department of health and family services, or the department of corrections if the child with a disability resides in a Type I secured correctional facility."

The [X]CCDEB does not fall under any of these statutory classifications delineated under Wis. Stats. § 115.76(10) (1997-98). In fact, the statutory authority granted a Children with Disabilities Education Board under Wis. Stats. § 115.817 (1997-98) makes no mention of any obligation to provide a FAPE to a child or to be a party in a due process hearing. This is a glaring omission. The Wisconsin legislature has not given the [X]CCDEB the responsibility to provide a FAPE.

The [X]CCDEB notes in its brief that it "contracts with the [Unnamed] School District for the provision of services’. [X]CCDEB Motion to Intervene, Item 7, pg 3. The authority of a Children with Disabilities Education Board requires approval by formal action of the school board. Wis.Stats. § 115.817(2)(c) (1997-98). What is clear in both reality of the parties and the intent of the legislature is that the [X]CCDEB has a derivative relationship with the [Unnamed] School District. The [X]CCDEB participates in the education of [Student] at the election of the District.

The motion by the [X]CCDEB notes that federal law has defined a LEA differently. Specifically, it says:

What is clear in reading this passage along with the provisions of Wis. Stats. § 115.817 and § 115.80 is that the Wisconsin Legislature directed the school district to be the primary LEA and responsible for the provision of FAPE and did not direct boards such as the [X]CCDEB to be responsible for FAPE. See Wis. Stats.§ 115.77(1m)(b). The Wisconsin legislature did not constitute a Children with Disabilities Board for the implementation of a FAPE. That is, after all, the gravamen of request for the hearing – the parents have alleged a denial of FAPE by the District.

According to the Wisconsin statutes, the district has final plenary control over the services and administrative functions delivered for children with a disability. That is in fact true in the instant case where [X]CCDEB has a contract with the District for the provision of services. The legislature has not legally constituted a Children with Disabilities Board to educate children with a disability without a formal action of the school board. This is a derivative relationship flowing from the contract between public agencies. If there is a problem with the contract, this venue is not empowered to adjudicate that. These forums determine the implementation of a free and appropriate public education which both the Wisconsin legislature and the IDEA determines flow from the school district to the child with a disability.

With the Wisconsin legislature not giving the [X]CCDEB the responsibility and its admitted derivative relationship to the child – derivative through a contract at the election of the District -- the [X]CCDEB is not a necessary party to this proceeding.

Although untested in Wisconsin, this issue has been similarly decided in other jurisdictions. It is clear from these decisions that "the purpose of due process is to provide a forum where there is a dispute between a parent and a school district over FAPE; it is not designed or intended to resolve financial disputes between agencies." Inteboro Sch. Dist. 29 IDELR 838 (1998).

More persuasively, a federal district court found that a county education consortium was not an indispensable or necessary party for purposes of joinder in an appeal of a federal court action with the Federal Rules of Civil Procedure applicable. This is analogous to the instant case. In this Indiana case, the federal magistrate found that Indiana statutes vested the responsibility for FAPE with the local school district and not the education consortium and therefore the county education consortium was neither an indispensable party nor a necessary party. Wojnarowicz v. Duneland Sch. Corp. 28 IDELR 1197 (1997).

The facts, as they are known prior to a hearing, do not lead one to believe that the [X]CCDEB is a necessary and proper party. The District was implementing an order as directed by an ALJ. The parents alleged a denial of FAPE by the District in its request for a due process hearing. It is clear that although [X]CCDEB may be an interested party as a contract provider of services, it is not a necessary party.

Finally, with the motion to intervene is a motion to adjourn. This will delay the hearing and decision well past the statutory deadline, given the school personnel availability as witnesses over the holidays. Additionally, this will require that the undersigned ALJ find cause for the delay. Wis.Stats. § 115.80(6) (1997-98). Given the tenuous link to being a party and the noticed hearing dates, this will not be found based on the [X]CCDEB’s wish to be a party to the proceeding. Interboro noted this problem when it noted "that a child’s educational program would be delayed and litigation costs for the parents would be increased." Interboro Sch. Dist.,29 IDELR 838.

The parents of [Student] allege that an ALJ’s order was avoided and that a unilateral change in placement has occurred. The undersigned ALJ has signed an order agreed to by the District and parents to temporarily change the placement to a homebound placement, where the child has no operating IEP and for a period of time during the pendancy of this hearing, was receiving no education. In the world of IDEA due process hearing requests, this is a four-alarm fire. Delay is an option to be avoided.

WHEREFORE IT IS HEREBY ORDERED, that the [Unnamed] County Children with Disabilities Education Board’s Motion to Intervene is dismissed. It is further ordered that the parties to the proceeding of In the Matter of [Student] v. [Unnamed] School District, LEA 99-055 are the parents of [Student], for [Student] and the [Unnamed] School District and that the December 14, 1999 scheduling order and its deadlines remain in effect.

Dated at Madison, Wisconsin on March 8, 2000.