By Kevin M. French & Michael W. Lewis

September 1, 2023

The Pennsylvania Department of Education (PDE), Office of Elementary and Secondary Education and Bureau of Special Education, issued an announcement on August 30, 2023, that it is implementing a policy change in the age of eligibility for continued education services to special education students. The change impacts all students eligible under the Individuals with Disabilities Education Act (IDEA) and, according to the announcement, ensures such students can access a free appropriate public education (FAPE) to which they are entitled under federal law.

The Policy, effective September 5, 2023, allows all students entitled to FAPE, and all the rights and procedural safeguards under the IDEA and Chapter 14 of Title 22 of the Pennsylvania Code, to remain enrolled in public schools until they turn 22 years of age. This includes students who turn 21 and exited school during the 2022-23 academic year.

The IDEA requires states to make FAPE available to all children with disabilities residing in the state between the ages of 3 and 21, inclusive. Under Pennsylvania’s prior regulations, every child between the ages of 6 and 21 years was entitled to attend the public schools in their school district of residence until graduation from high school, or the end of the school term in which a student reached the age of 21 years, whichever occurred first. In an effort to be proactive, and in response to a case filed in federal court in July on behalf of a Lower Merion School District student, A.P. v. Pennsylvania Department of Education, PDE determined that a change needed to be made to comply with the requirement under federal law requiring school districts to provide FAPE.

The Policy reads, in relevant part, “The Commonwealth of Pennsylvania ensures that all children with disabilities ages 3 years through 21 years residing in Pennsylvania have the right to a FAPE, including children with disabilities who have been suspended or expelled from school. The Commonwealth shall make FAPE available to a child with a disability eligible under IDEA until the student turns 22. Notwithstanding any other provision of law to the contrary, a child eligible under IDEA who attains the age of twenty-one (21) years may remain enrolled in their resident district free of charge until their 22nd birthday.”

PDE has outlined two categories of students who are eligible to re-enroll for the 2023-24 school year: (1) a student with a disability who turned 21 and exited during or after the 2022-23 school term, and (2) where a student with a disability who turned 21 and a parent/guardian/student signed a Notice of Recommended Education Placement / Prior Written Notice (NOREP/PWN) related to graduation but now wants to re-enroll. However, in light of Act 66 of 2021 and Act 55 of 2022, under the new policy students will exit school when they turn 22, not at the end of the school year. Those that choose to re-enroll should be counted in the October 1 Child Count, December 1 Child Count, July Submissions PIMS Collections, Act 16 Reporting, and the PA Post School Outcome Survey.

Local education agencies (LEAs) are directed to contact students with disabilities who turned 21 and exited during or after the 2022-23 school year and provide them an option to re-enroll and access FAPE until their 22nd birthday. Additionally, LEAs should post a link to PDE’s webpage that contains the Amended Age of Eligibility Policy, the Student/Parent Notice Letter, and the PENN*LINK communication. Upon enrollment, LEAs should provide FAPE in accordance with the IDEA under PDE’s new policy.

Should you have any questions about this policy, or any special education-related questions, please do not hesitate to contact William J. Zee, Kevin M. French, Michael W. Lewis, or any of the attorneys in the Appel, Yost & Zee Education Law Group.