The United States Court of Appeals for the Third Circuit has called into question the ability of schools to remove a student from its enrollment roster (dis-enroll) if the student has an IEP.  Pennsylvania’s attendance regulations permit the disenrollment of a student after 10 consecutive unexcused absences.  The case of R.B. v. Mastery Charter School raises questions and concerns about using the automatic dis-enrollment procedure under Pennsylvania law for a student with an IEP.

Pennsylvania law provides that a student, who is “at any time in the school term absent from school for 10 consecutive school days, shall thereafter be removed from the active membership roll [of the district]” subject to certain exceptions. 22 Pa. Code § 11.24. When R. B. was absent for more than 10 consecutive days from a Pennsylvania charter school, the charter school removed R.B. from its membership rolls.  The student’s parents then filed a due process complaint, which raised the issue of what the student’s pendent placement was, as the last agreed-upon placement in the IEP was for a placement at the charter school.  The student, from the case facts, did not appear to be enrolled in any other school district or charter school at the time of the filing of the due process complaint.

While initially this decision appears to have only limited application due to the relatively unusual facts of this case, the court’s expansive analysis implies that there are broader implications of the decision which need to be considered.  First, the Third Circuit finds that the dis-enrollment of a student pursuant to the Pennsylvania attendance regulations is a change of placement.  While not directly saying so, there is the implication that this change in placement cannot or should not be done without parental consent.  In most cases, this is less of an issue because a student who dis-enrolls from a school district or charter school simply re-enrolls in another school district or charter school.  The new school provides a new IEP and NOREP that are satisfactory to the parents.  However, there are times when the original school may not be aware or informed that the student has enrolled in another school district which has developed a new IEP and NOREP acceptable to the parents.  Second, the court determined that because the last agreed-upon placement was the charter school, the charter school was the pendent placement during due process.  This forced the charter school in this case to re-enroll the student pending the outcome of due process.  Again, assuming the student becomes enrolled elsewhere and a new IEP and NOREP have been agreed upon, pendent placement does not become a major issue.  With more options for students, including charter schools, cyber charter schools and their neighborhood schools, it is not always a simple matter for the original school of placement to know where the student enrolled after dis-enrollment.  Finally, the court found that the clear language of the Pennsylvania attendance regulations on this issue is irrelevant, as it is preempted by the IDEA.

As a school district, these questions need to be answered.  First, is consent required before dis-enrolling a student with an IEP?  Second, at what point is the prior district or charter school no longer responsible for the student with the IEP and how will the school district know other enrollment has taken place?  Lastly, what about funding, given that a school entity would need to be cautious about dis-enrolling a student, but the student may have enrolled elsewhere and now two places claim this student as their own student for state funding.  What we do know is that school districts and charter schools need to cautiously review the facts of the cases for dis-enrollment of students with IEPS.  Clearly, the continued application of the Pennsylvania attendance regulations to a student with an IEP is not so clear.

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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.