Federal Court carves out special rule for special education residency disputes-when an issue of residency is intertwined with the receipt of special education services, the Office for Dispute Resolution hearing officer must resolve the issue in the first instance.
In the case of A.P. v. Lower Merion School District , No. 16-5925, E.D. Pa. (March 1, 2018) a federal court has determined that due process hearing officers have the authority and jurisdiction to decide residency challenges for special education students. Due Process hearings typically concern disagreements over “identification, evaluation, or placement of, or the provision of FAPE to a student.” 22 Pa. Code 14.162(b). IDEA and its implementing regulations do not address residency requirements, it is left to a matter of state law. In Pennsylvania, a child who resides in a school district is entitled to attend the public schools in that district. 22 Pa. Code 11.11(a)(a). Residence is determined by where the parent or guardian of the child resides. Without proof of residency, a school district does not have to enroll a student (absent a 1302 affidavit, foster care and homeless exceptions) and is not liable for a FAPE to a non-resident child.
The Lower Merion School District applied its enrollment policies and informed the parent of the right to dispute the denial of enrollment of her child. Instead of seeking a residency hearing, A.P.’s parent filed for due process. At the due process hearing, the hearing officer ruled he did not have jurisdiction to decide residency and dismissed the case. On appeal to the Federal District Court, Judge Timothy J. Savage reasoned that Pennsylvania’s enrollment regulations which require notification of denial of enrollment and opportunity to challenge the denial at a hearing before the school board or hearing officer appointed by the school board would “thwart or unreasonably delay achieving the goal of the IDEA to provide a free appropriate public education (“FAPE”).” Thus, to assure that a disabled child receives a FAPE as soon as possible, the residency determinations must be made at the due process hearing.
MB&M Guidance: In the event your school district is faced with a question of residency for a special education student, the District should issue a Prior Written Notice (PWN/NOREP) indicating its decision to deny services based on the lack of residency. The PWN will provide the parent the right to challenge the decision by filing for a due process hearing. As always, our Education Law Team is available to discuss this matter with you further.