May 2024:
The MLO Minute: “PDE POLICY ON SPECIAL EDUCATION ELIGIBILITY TO AGE 22 INVALIDATED BY COURT”
By Michael Connolly, Esq., Supervising Partner of The Special Education Department —
To resolve a federal class action suit brought against the Pennsylvania Department of Education challenging the practice in Pennsylvania of exiting students from special education during the school year in which they turn 21, PDE entered into a Settlement Agreement and Release wherein it agreed to extend special education eligibility until a student’s 22nd birthday. Several school districts in Pennsylvania filed suit in the Pennsylvania Commonwealth Court asserting, among other things, that the agreement to change the age special education eligibility terminates amounts to a regulation, and therefore PDE violated the rulemaking requirements of the Commonwealth Documents Law (“CDL”).
On May 16, 20224, the Commonwealth Court issued its decision siding with the school districts who filed suit. The court stated that “[u]ltimately, a regulation not promulgated pursuant to the CDL and the RRA is void ab initio. See Corman; see also Germantown Cab Co. v. Phila. Parking Auth., 993 A.2d 933 (Pa. Cmwlth. 2010), aff’d, 36 A.3d 105 (Pa. 2012). Based on the foregoing, the New Age-Out Plan is a binding regulation with the effect of law and, thus, the Department had to promulgate it through formal rulemaking notice and comment requirements pursuant to the CDL and the RRA. Because the Department did not do so, the New Age-Out Plan is void ab initio and unenforceable.” However, of note, the Court also stated, “this Court does not decide whether the New Age-Out Plan is necessary for the Department to comply with the IDEA, just that the Department must promulgate the change in accordance with the CDL and the RRA.” In other words, the Court did not decide whether Pennsylvania must ultimately change its regulations to allow eligible student to continue receiving services through their 22nd birthday, but rather only decided that the process PDE followed in this case was not appropriate.
It is unclear at this time if PDE intends to appeal; but if it does, it has an automatic stay of this opinion. For now, however, it appears that we are back to the original age-out policy of eligibility terminating at the conclusion of the school year the student turns 21.
Keep an eye out for our future MLO Minutes as the situation develops and more information becomes available.
