The Third Circuit Court of Appeals has called into question the ability of schools to dis-enroll a student after 10 consecutive absences, as provided for under Pennsylvania's attendance regulations, when that student has an IEP. The case of R.B. v. Mastery Charter School raises a lot of concern 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. Acting consistent with this provision, in R.B. a Pennsylvania charter school removed a student from the rolls of its membership after the student was absent for more than 10 days. The parents of the student then filed a Due Process Complaint, which raised the issue of what the student's pendent placement was, as the last agreed-upon IEP was for a placement at the charter school and the student, it appears, was not enrolled in any other district or charter school at the time of the Due Process Complaint filing.
While a preliminary review of this decision might lead one to believe it is limited to the facts of the case, the court paints with such a broad brush in its analysis that the potential broader implications of the decision cannot be ignored. First, the court finds that the dis-enrollment of a student via the attendance regulations is a change of placement and, while not directly saying so, at least implies it cannot or should not be done without parental consent. While in many cases this may be less of an issue where the student enrolls in another district or charter school and the new school entity provides an IEP and NOREP that the parents agree to, the prior school may not be fully aware this has occurred, leaving them to guess what they should do. Second, the court finds that because the last agreed-upon placement was the charter school, the charter school was the pendent placement during the Due Process Hearing. Again, assuming the student is enrolled elsewhere and a new operative IEP and NOREP have been agreed upon, this becomes a non-issue, but the prior school entity may not be aware of this. Finally, the court found that the clear language of the Pennsylvania regulations on this issue is irrelevant, as it is preempted by the IDEA.
The decision raises more questions than it answers. First, is consent required before dis-enrolling a student? Second, at what point is the prior district or charter school off the hook for the student and how will they know? Finally, what about funding, given that a school entity would need to be cautious about dis-enrolling a student, but the student may have gone elsewhere and now two places claim this student as their own for state funding. The case does tell us though that school districts and charter schools need to be careful before dis-enrolling students with an IEP, despite the clear language in the Pennsylvania regulations.
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