Yesterday, the Commonwealth Court of Pennsylvania struck down a directive issued by the Pennsylvania Department of Education “PDE” in August, 2023 that required schools to provide special education services to students until the student’s 22nd birthday. This decision brings back the pre-existing framework of eligibility under which special education students remain eligible for education until they either graduate with a regular high school diploma, or the end of the school year in which the student reaches 21 years of age.
Update
Last week, we wrote about the Pennsylvania Commonwealth Court’s ruling which invalidated the Pennsylvania Department of Education’s revised Age-Out plan that required schools to provide special education services to students until the student’s 22nd birthday. The Commonwealth Court’s ruling brought back the pre-existing framework of eligibility under which special education students remain eligible for education until they either graduate with a regular high school diploma, or the end of the school year in which the student reaches 21 years of age.
However, today PDE appealed the Commonwealth Court’s decision to the Supreme Court of Pennsylvania. As a result, the Commonwealth Court’s decision is stayed pending resolution of the appeal or further order of court. This means that students eligible for special education services until their 22nd birthday will remain eligible for services until the Supreme Court of Pennsylvania makes a decision on the appeal.
If you have notified students about the rule change based on last week’s decision, we recommend notifying them that students will remain eligible until their 22nd birthday, pending the decision of the Pennsylvania Supreme Court. If you have not notified students at this time, then you do not need to do anything further. We will advise you of any further changes to the rule, including the outcome of the appeal.
Background
On July 11, 2023, a federal class action lawsuit was filed against PDE, alleging that PDE’s policy prematurely exited special education students from eligibility and further claiming that students should remain eligible until their 22nd birthday. On August 30, 2023, PDE settled the class action by agreeing to change its Age-Out Plan to establish eligibility for special education students to remain in school until age 22. PDE notified LEAs of the change via a PennLink and revised its Model Policy, which were to be effective no later than September 5, 2023.
On September 11, 2023, PSBA and representative members of the association filed a lawsuit against PDE which sought to enjoin implementation of the new Age-Out Plan. PSBA argued that PDE did not follow statutorily required rulemaking procedures.
The Commonwealth Court’s ruling
The Commonwealth Court held that the New Age-Out Plan was a regulation because it expanded upon Section 1301 of the School Code and Section 11.12 of the Department’s regulations by increasing the maximum age for students to receive services. Further, the policy created a binding norm rather than just being tentative guidance. Regulations must be issued through formal rulemaking notice and comment requirements under the Commonwealth Documents Law and Regulatory Review Act. Since PDE did not follow this process, the rule change was void.
Bottom Line for School Districts
The rule change is effective immediately. For students who do not have IEPs or NOREPS which state that services will last until age 22, the LEA can follow their usual graduation procedures following completion of regular high school requirements, or at the end of the school year in which the student turned 21 years of age. LEAs should send written notice of the change to parents of students who have IEPs or NOREPS stating that the student will receive special education services until age 22, and invite them to request IEP meetings to discuss these changes.
We expect that this issue is not completely resolved and that further litigation may follow. KingSpry’s Special Education Law Practice Group is prepared to assist schools in navigating this issue.
Schools with questions should contact their solicitor or KingSpry’s Special Education Law Group.
