Residency disputes arise with remarkable frequency in the practice of special education law. In A.P. ex rel. E.F. v. Lower Merion School District, No. 16–5925, 2018 WL 1100908, ___ F. Supp. 3d ___, 71 IDELR 188 (E.D. Pa. Mar. 1, 2018), Judge Savage ruled that when a residency dispute is intertwined with a claim under IDEA, the residency issue must be presented to the hearing officer through the due process hearing procedure.
A.P. attended a public school in the Lower Merion school district, but his parent was dissatisfied with his special education services and enrolled him in a private school in Maryland for the 2015–16 school year. The parent and her children then moved to Maryland and she enrolled A.P.’s siblings in public school there. Midway through the school year, the parent filed for due process in Pennsylvania, seeking tuition for the private school from the Lower Merion district. The district agreed to reimburse the parent for the tuition for that year. When the parent sought to reenroll A.P. for 2016-17, Lower Merion contended he was ineligible because he was not a resident of the district. The school district offered the parent a residency hearing before the Board of School Directors or a hearing officer appointed by the Board, and said that if the hearing was not requested by July 27, 2016, it would be deemed waived.
Instead of requesting the residency hearing, the parent filed a due process complaint on July 20, 2016. She argued that the district’s failure to offer services for the summer of 2016 and the 2016-17 school year deprived A.P. of free, appropriate public education. The due process hearing officer granted the school district’s motion to dismiss. The parent then filed an action in district court seeking adjudication of the residency question and reimbursement, or, alternatively, a remand to the hearing officer to resolve both the residency issue and the FAPE claim. The parent contended that she was residing in Lower Merion school district, and that the due process hearing officer had jurisdiction to resolve the issue of residency. The district moved to dismiss. The court denied the motion.
The court declared that Pennsylvania law makes children residents of the school district in which their parent or guardian resides and that a school district does not have to provide FAPE to children who are not residents. Although residency is an issue of state law, under IDEA due process complaints “must ‘relat[e] to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child[ ].’” 2018 WL 110090834, at *3, (quoting 34 C.F.R. § 300.507(a)(1)). Since “the residency issue must be resolved to vindicate the federally granted right to FAPE,” “the residency determination is intertwined with the child’s entitlement to FAPE, it must be addressed in a due process hearing.” Id.
IDEA administrative procedures must be exhausted before suit may be brought in court, and the residency issue was not exhausted.
However, it was not [the parent’s] failure. She raised residency at the due process hearing. But, the hearing officer did not decide it, concluding that it was beyond his jurisdiction. As we have explained, the [state-appointed] hearing officer had the obligation to resolve the residency dispute as a necessary part of the due process hearing mandated by the IDEA.
Id. at *4.
The court said the hearing officer was competent to resolve the factual disputes that are key to a residency determination, and that the review process for a Board or Board hearing officer determination is not appropriate for challenging a denial of enrollment on residency grounds in an IDEA case. The process is lengthy and has procedural obstacles that “could thwart or unreasonably delay achieving the goal of the IDEA to provide FAPE.” Id. at *6. The maintenance of placement provision, 20 U.S.C. § 1415(j), prevented a gap in services in this case, but the delay could be harmful if children were not already receiving special education. The court remanded the case to the state agency that conducts due process hearings.
A number of courts have found residency determinations that affect a child’s FAPE rights to be a proper subject for the IDEA due process hearing procedure. The A.P. court cited D.L. v. Unified Sch. Dist. No. 497, 270 F. Supp. 2d 1217, 1257–58, 2005 LRP 2137 (D. Kan. 2002), vacated in part on other grounds, 392 F.3d 1223, 42 IDELR 139 (10th Cir. 2004); Roxbury Twp. Bd. of Educ. v. West Milford Bd. of Educ., 283 N.J. Super. 505, 662 A.2d 976, 982–83, 23 IDELR 69 (1995); and M.C. Weber, Special Education Law and Litigation Treatise § 16.1 & n.30 (3d ed. 2008) (citing, among other authorities, 34 C.F.R. § 300.507(a)(1)). A hearing officer may have concerns about the potential expansion of jurisdiction to cover state law residency issues that do not hinge on construing IDEA or state law that relates specifically to special education, but the prospect that IDEA and its interpretation could affect the application of the state law, and general considerations of judicial economy and expeditious resolution of disputes appear to militate in favor of the A.P. court’s approach.
Should there be a residency dispute included in the due process complaint, the parties should be encouraged to first resolve the dispute at the resolution meeting. If the issue is not resolved, an IHO’s determination that the student is not a resident of the district will result in dismissal of the hearing (unless the request for hearing was solely to seek relief for a past denial of FAPE). Therefore, an IHO should hold a limited hearing immediately after the resolution meeting period has ended to make a record of the evidence necessary to make findings of disputed facts to determine the residency issue. If the determination is that the student is not a resident, a final decision can be rendered forthwith. If the determination is that the student is a resident, to assist in moving the hearing along expediously, the determination can be made by issuance of a brief interim ruling merely noting the residency determination and that the findings of fact and conclusions of law upon which it is based will be made a part of the final determination.