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Residency Requirements Lead to Issues with IEP for Autistic Student

Judge Timothy A. Reardon of the California Court of Appeals, First District, was asked to hear the appeal of TL and her minor son NL, who sued the Brentwood Union School District (the District) for, among other things, breach of contract and civil rights violations.

NL was a child eligible for services under the Individuals with Disabilities Education Act (IDEA), based on his classification as “autistic-like.” He received services from the District for several years; however, a dispute arose among the District, and TL and NL regarding those services.  The parties agreed to a Compromise and Release Agreement (Agreement) in January 2010 to resolve the dispute, and also set up a new Individualized Education Plan (IEP) for NL. The District’s Board approved the Agreement for two years, unless the family moved its home outside the District’s boundaries.

Under the IEP, services were to run from January 29 through July 31, 2010. The Agreement specified that the District’s obligation to fund IEP services was conditioned on continued residency within the District: “If, at any time covered by this Agreement, Parents and [NL] move their residence, as defined by California Government Code § 244, outside the District’s geographical boundaries during the 2009–2010 school year or 2010–2011 school year, the District’s obligation to fund IEP services will immediately cease.”

California Government Code § 244 provides that in determining the place of residence the following must be satisfied:

(a) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he or she returns in seasons of repose.

(b) There can only be one residence.

(c) A residence cannot be lost until another is gained.

(d) The residence of the parent with whom an unmarried minor child maintains his or her place of abode is the residence of such unmarried minor child.

(e) The residence of an unmarried minor who has a parent living cannot be changed by his or her own act.

(f) The residence can be changed only by the union of act and intent.

(g) A married person shall have the right to retain his or her legal residence in the State of California notwithstanding the legal residence or domicile of his or her spouse.

After several months, TL filed a complaint with the California Department of Education (CDE), claiming that the District was not complying with the terms of the Agreement and the IEP. CDE made several findings against the District and ordered corrective actions.

In June 2010, the District asked TL for proof of residency, and a few months later it told TL that the Agreement was no longer in effect because of her breach. The District informed TL its investigation showed that she was no longer a resident, and notified her of the right to appeal the residency finding.  TL was given a copy of the Board’s residency policy and was provided with the reasons for the residency determination. The residency policy stated:

If the Superintendent or designee, upon investigation, determines that a student’s enrollment is based on false evidence of residency, he/she shall revoke the student’s enrollment. Before any such revocation, the parent/guardian shall be sent written notice of the facts leading to the decision. This notice shall state the parent/guardian’s right, within 10 school days, to schedule a meeting with a hearing officer to inspect supporting documents, rebut district evidence, question any district witnesses, … on the student’s behalf….  If the parent/guardian fails to schedule the above meeting, the student’s enrollment shall be revoked 11 school days after the date of the notice.

The policy also indicated that if the parent didn’t meet with the hearing officer, the parent had the right to appeal the hearing officer’s decision to the Board, whose decision was final.

TL received a letter from the District in October 2010, which stated that the District “was terminating services for NL.”  The next month TL sued the District and three administrators for breach of the Agreement and other causes.  The trial court held that TL failed to exhaust the District’s administrative process concerning its residency decision and failed to plead the futility exception to the exhaustion requirement.  After oral argument the court permitted TL leave to amend, but made it clear it had “already ruled on the exhaustion issue and the futility exception.”

The trial court said that TL could not challenge the District’s termination of services to her son based on the District’s residency determination, because she failed to exhaust her administrative remedies.  The court also sustained demurrer without leave to amend on TL’s other claims.

On appeal, TL maintained that the trial court arbitrarily restricted claims to a specific period of time, which was contrary to her allegations.  Specifically, the pleading alleged that NL began attending another school, but the District had not reimbursed her for her $3,000 deposit. Additionally, the District failed to pay under the terms of the Agreement for school at Springstone, from October 2011 and thereafter.

The District responded that the initial IEP expired in July 2010.  However, the Agreement is not limited to paying for services related to that IEP. The District claimed TL did not cite any breaches occurring after July 31, 2010, but that is not the case, as shown above. The District additionally argued that by September 24, 2010, its investigation revealed TL was no longer a resident, and under the terms of the Agreement, its obligations immediately ceased.  However, the complaint states that the District notified TL on October 1, 2010, that she had a right to appeal the residency determination within 10 days and provided her with a copy of its residency policy. That policy provided that a student’s enrollment was revoked 11 school days after the date of notice of the right to schedule a meeting with a hearing officer following a residency determination.  Judge Reardon explained that—by the District’s own alleged actions—NL’s enrollment was not revoked until expiration of the 11 day period—which was on or about October 12, 2010.

On appeal, TL also argued that her amended complaint alleged material breaches of the contract that occurred prior to October 12, 2010—the effective date she asserted that the District’s termination of residency.  Judge Reardon concluded that the trial court erred in limiting TL’s contract-related claims to a period ending August 2010.  Though the parties argued at length about whether TL had the ability to perform under the Agreement and whether the District’s breach and repudiation of the Agreement excused TL’s performance, those issues, the judge wrote—to the extent they concerned matters occurring before October 12, 2010—were factual questions that should be decided on remand.

The judgment in this case was affirmed in part, and reversed in part.  On remand, TL was permitted to proceed with her breach of contract claims occurring before October 12, 2010.  T.L. v. Brentwood Union School District, Not Reported in Cal.Rptr.3d, 2013 WL 1209040 (Cal.App. 1 Dist. March 26, 2013)


QDo you have questions about residency requirements, the Individuals with Disabilities Education Act, and a free appropriate public education for your special needs child?

Ms. Adams’ and her experienced staff represent the interests of children from the ages of 3 through 22 who qualify or should qualify for special education and related services provided by their local school districts. Contact ADAMS ESQ today to get answers to your questions. They can be reached at 1-800-785-6713 or oaklandadmin@adamsesq.com.

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