A.P. v. Lower Merion Sch. Dist.

294 F.Supp.3d 406

A.P., a Minor, BY his Parent, E.F.

v.LOWER MERION SCHOOL DISTRICT

CIVIL ACTION NO. 16–5925

United States District Court, E.D. Pennsylvania.

March 1, 2018

Mu'min F. Islam, MFI Law Group PLLC, Philadelphia, PA, for A.P.

Michael D. Kristofco, Wisler Pearlstine, LLP, Blue Bell, PA, for Lower Merion School District.

MEMORANDUM OPINION

Savage, District Judge.

In this action brought under the Individuals with Disabilities Education Act (IDEA), the threshold issue, one of first impression, is whether a federal court has jurisdiction to determine a disabled child's residency before addressing a school district's obligation to provide him a free appropriate public education (FAPE). The corollary issue is whether the state agency, the Office of Dispute Resolution (ODR), must first decide the residency issue.

Because a school district has an obligation to provide a free appropriate public education to a disabled child who resides in its jurisdiction, the residency issue is intertwined with IDEA eligibility for FAPE. A residency determination is an issue of state law. Thus, we conclude that a challenge to a residency determination, when intertwined with a disabled child's IDEA claim, must first be presented through the state administrative process.

The ODR hearing officer must adjudicate the question of residency. Only on appeal from the ODR hearing officer's decision does the federal court have jurisdiction to review the school district's residency determination.

Background

A.P., a disabled child entitled to special education services under the IDEA, attended Bala Cynwyd Middle School in Lower Merion. Dissatisfied with Lower Merion's implementation of his individual educational plan, E.F. enrolled A.P. for the 2015–2016 school year in the Ivymount School, a private school in Rockville, Maryland. She and her children moved to Maryland and she enrolled A.P.'s siblings in a nearby public school.¹

In December 2015, midway through A.P.'s school year at Ivymount, E.F. filed a due process complaint with ODR, seeking reimbursement for the cost of tuition at Ivymount. Lower Merion agreed to reimburse E.F. for A.P.'s tuition at Ivymount for the 2015–2016 school year.²

On June 20, 2016, E.F. applied to reenroll A.P. in Bala Cynwyd Middle School for the 2016–2017 school year.³ On July 13, 2016, finding that A.P. was not a resident of Lower Merion, Lower Merion concluded that he was ineligible "to attend school in the District or [another school] at the District's expense."⁴ Lower Merion advised E.F. that residency in the district was a prerequisite for enrollment or tuition reimbursement.⁵

Lower Merion notified E.F. that she could challenge the decision at a hearing before either the Lower Merion Board of School Directors or an appointed hearing officer. The notice warned that unless she requested a hearing on or before July 27, 2016, Lower Merion would conclude that she had waived one.⁶

E.F. did not request a hearing before the Lower Merion Board of School Directors or a hearing officer. Instead, on July 20, 2016, she filed a due process complaint with ODR. She claimed that Lower Merion's failure to offer appropriate extended school year services in the summer of 2016 and a special education placement for the 2016–17 school year constituted a denial of FAPE in violation of the IDEA.⁷ Lower Merion moved to dismiss the complaint on the basis that E.F. and A.P. were non-residents.⁸

The ODR hearing officer granted Lower Merion's motion to dismiss. He concluded that he lacked jurisdiction to determine residency. He reasoned that because residency "falls under the School Code and its regulations," only the courts, not ODR, have jurisdiction to adjudicate an appeal of a district's residency determination.⁹ Consequently, he did not reach the substantive claims.

E.F. then filed this civil action, claiming violations of the IDEA, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act. She asks that we adjudicate the question of residency and award reimbursement for A.P.'s tuition at Ivymount.¹⁰ Alternatively, she requests we remand to the hearing officer to conduct an evidentiary hearing to resolve not only her substantive claims, but also the residency issue.¹¹

Moving to dismiss the complaint, Lower Merion challenges subject matter jurisdiction, arguing that E.F. failed to exhaust her administrative remedies. Lower Merion also contends that we must deny E.F.'s request for remand because the hearing officer lacks jurisdiction to adjudicate the issue of residency.¹²

Standard of Review

In its Rule 12(b)(1) motion, Lower Merion makes a facial challenge to subject matter jurisdiction. It does not dispute the allegations in the amended complaint. It argues that even accepting E.F.'s allegations as true, they are insufficient to invoke subject matter jurisdiction because she failed to exhaust her administrative remedies.

Because the issue before us is a legal question, we consider only the allegations in the complaint and the attached documents. Constitution Party of Pa. v. Aichele , 757 F.3d 347, 358 (3d Cir. 2014) (citation omitted). We accept the allegations as true and construe them in the light most favorable to the plaintiff to determine if she has sufficiently alleged a basis for subject matter jurisdiction. See Gould Elecs., Inc. v. United States , 220 F.3d 169, 176 (3d Cir. 2000) (citations omitted); see also U.S. ex rel. Atkinson v. PA. Shipbuilding Co. , 473 F.3d 506, 514 (3d Cir. 2007).

Analysis

The IDEA mandates that "children with disabilities residing in the State between the ages of 3 and 21" receive FAPE. 20 U.S.C. § 1412(a)(1)(A). The local educational agency must "provid[e] for the education of children with disabilities within its jurisdiction." 34 C.F.R. § 300.201. A local educational agency is defined as a "public board of education or other public authority" with "administrative control or direction of ... public elementary schools or secondary schools." 20 U.S.C. § 1401(19). A school district is a local educational agency under the IDEA. 22 Pa. Code § 14.103. Thus, each school district must provide "for the education of all students with disabilities who are residents of the district." 22 Pa. Code § 14.104(c).

Whether Lower Merion must provide A.P. with IDEA-related services depends on whether he was a resident of the school district when E.F. sought to reenroll him at Bala Cynwyd Middle School. A school district is obligated to provide FAPE only to qualified students who reside in the school district. Conversely, a school district has no obligation to provide FAPE to ineligible non-residents. Otherwise, parents would be free to place their child in any school district regardless of where they reside. Hence, when challenged, the residency of the disabled child is a threshold issue in the context of an IDEA claim.

The IDEA does not address residency requirements or enrollment policies. Residency is a matter of state law. Pennsylvania law provides that a child who resides in a school district is entitled to attend public schools in that district. See 24 Pa. Cons. Stat. §§ 5–501, 13–1301; 22 Pa. Code § 11.11(a)(1). A child's district of residence is the school district in which his parent or guardian resides. 24 Pa. Cons. Stat. § 13–1302(a); 22 Pa. Code § 11.11(a)(1).

A school district is not required to enroll a child who does not reside in the district. 22 Pa. Code § 11.11(b).¹³ Specifically, the Pennsylvania School Code states that a "school district ... has no obligation to enroll a child until the parent ... making the application has supplied proof of the child's age, residence , and immunizations as required by law." Id. (emphasis added). The school district determines a child's eligibility to enroll in its schools, including whether the child is a resident of the district.

E.F. does not disagree that she must reside in Lower Merion for A.P. to be entitled to IDEA services from Lower Merion. She contends that she does reside in the Lower Merion School District. Lower Merion denied A.P.'s reenrollment because it determined that E.F. was not a resident.

Who decides whether Lower Merion's residency determination was correct is the question. E.F. contends that the ODR hearing officer has jurisdiction to resolve the residency issue. Lower Merion disagrees, arguing that E.F.'s remedy is the administrative process provided by Pennsylvania law.

That residency is a state law issue does not mean it is not implicated in the IDEA proceedings. A state is obligated under the IDEA to identify, evaluate, and maintain an individualized education plan designed to provide FAPE to a disabled child residing in the state. 34 C.F.R. § 300.111. These obligations require each school district to provide special education services to disabled children "thought to be eligible for special education within the school district's jurisdiction." 22 Pa. Code §§ 14.121, 14.122. Thus, the child's residence is a prerequisite to entitlement to FAPE provided by the school district.

A disabled child's residency must be established before a school district is obligated to provide him FAPE. The due process complaint must "relat[e] to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child[ ]." 34 C.F.R. § 300.507(a)(1). In other words, the residency issue must be resolved to vindicate the federally granted right to FAPE. Therefore, because the residency determination is intertwined with the child's entitlement to FAPE, it must be addressed in a due process hearing. M. Weber, Special Education Law Treatise § 16.11 & n.30 (3d ed. 2008) (citing 34 C.F.R. § 300.507(a)(1) ); see also, e.g. , D.L. v. Unified Sch. Dist. No. 497 , 270 F.Supp.2d 1217, 1257–58 (D. Kan. 2002), vacated in part on other grounds , 392 F.3d 1223 (10th Cir. 2004) ; Roxbury Twp. Bd. of Educ. v. W. Milford Bd. of Educ. , 283 N.J.Super. 505, 662 A.2d 976, 982–83 (1995).

E.F. contends that A.P. resided...