Commonwealth Court Rules New Age-Out Plan is “Unenforceable” (May 16, 2024)

Today, May 16, 2024, PA Commonwealth Court ruled for the petitioners (i.e., Pennsylvania School Boards Association, Inc., School District of Pittsburgh, Central Bucks School District, and Upper Darby School District) in their suit against the PA Department of Education and PA Ed. Secretary Dr. Khalid Mumin. The ruling in a case originally argued on February 7th sought relief by the petitioners effectively stuck down the New Age-Out Plan which extended the period under which a child with disabilities may be entitled to a FAPE beyond the end of the school year in which the child with disabilities turns 21 to his/her 22nd birthday.

Extending the Age-Out Plan came as a result of a Settlement Agreement and Release (Settlement Agreement) in which the PDE agreed, beginning with the 2023-24 school year, to change its Age-Out Plan expiration from the end of the school year in which a child with disabilities turns 21 to his/her 22nd birthday. PDE thus moved to implement, publish, and enforce the New Age-Out Plan, which became effective no later than September 5, 2023.

According to the Court, importantly PDE “did not notify the LEAs, including Petitioners, of the New Age-Out Plan before it entered into the private Settlement Agreement on August 30, 2023.” The Court also held that PDE “did not follow the required rulemaking procedures to implement it, nor did it submit it to the Legislative Reference Bureau as required by the Regulatory Review Act (RRA).”

As a result, Petitioners, because they did not have prior notice of the New Age-Out Plan, did not budget for the new, additional services they would need to provide to eligible students, and they are now ineligible for related funding. Thus, Petitioners filed an Application for Special Relief seeking a preliminary injunction on the basis that PDE’s implementation of the New Age-Out Plan violated state law, including the PA School Code. Petitioners clearly alleged in the Petition for Review that PDE’s implementation of the New Age-Out Plan has harmed them in terms of the unanticipated number of students who could return to school, and the associated costs and expenses for which they risk losing federal funding.

The Court’s ruling states that PDE “gave LEAs a mere six days‚Äô notice that, to comply with the Model Policy and State Plan and to continue to receive federal funding, they would have to offer a FAPE to eligible students until their 22nd birthdays with unbudgeted funds.”

Importantly, the ruling also states that PDE “changed the Age-Out Plan via the Settlement Agreement without complying with the CDL and RRA rulemaking procedures despite a history of promulgating Section 11.12 of its Regulations in accordance with the CDL and RRA. In fact, the PDE did not submit the New Age-Out Plan to those processes.

The Court also ruled that PDE “extended the period under which a child with disabilities may be entitled to a FAPE beyond the end of the school year in which the child turns 21, which expands upon the School Code‚Äôs meaning ¬†and, thus, effectuated a substantive change to the School Code and the Department‚Äôs Regulations.”

In sum, the Court ruled that, “[b]ased on the foregoing, the New Age-Out Plan is a binding regulation with the effect of law and, thus, the Department (PDE) had to promulgate it through formal rulemaking notice and comment requirements pursuant to the CDL and the RRA. Because the Department (PDE) did not do so, the New Age-Out Plan is void ab initio and unenforceable.”

As a result of today’s ruling, LEAs are advised to seek legal counsel to determine how they should respond moving forward, particularly as we near graduation ceremonies.

Note: PAPSA is not qualified to provide legal counsel and this document is not intended to provide legal advice. It is merely informative and should in no way be used to make decisions that should be guided by consultation with legal counsel.

Click here to view the Court’s Decision and Order.

Department Of Health Alerts Pennsylvanians About Possible Lead Exposure From Children’s Painting Toy, Reminds Parents Of Importance Of Lead Exposure Testing (May 10, 2024)

The Recalled Creativity Street Foam Pattern Rollers Come In Four Assorted Patterns With Yellow, Green, Blue, And Red Handles.

foam rollers.png

The Pennsylvania Department of Health (PDH) is alerting parents and caregivers about the U.S. Consumer Product Safety Commission’s recall of Dixon Ticonderoga Creativity Street Foam Pattern Rollers, typically used for painting by children, because their lead levels exceed the federal content ban. Approximately 2,880 sets were sold at Amazon.com, StaplesAdvantage.com, MacPhersonsArt.com, ADASales.com, at Walmart.com, and at the Teacher’s Edition store in Brooklyn, New York, from September 2023 through January 2024, for approximately $15. 

This recall involves Creativity Street Foam Pattern Rollers with model PAC5170, intended for children to use when painting. Lot codes ‚Äú02142080423‚ÄĚ and ‚Äú02142230523‚ÄĚ are included in the recall and are printed on the back of the packaging, as shown below.

foam roller code.png


Consumers should immediately stop using the recalled foam pattern rollers and keep them away from children. They can also contact Dixon Ticonderoga to receive a pre-paid label to return the recalled product. When the foam pattern rollers are received, consumers will receive a full refund. The firm or retailer is contacting all known purchasers directly. 

According to CDC recommendations, all young children should be tested for lead exposure at least once, and when elevated, the tests should be repeated. Early identification of elevated lead levels can prevent the most serious effects so that all children can reach their full potential.

The Department maintains a toll-free lead information hotline, 1-800-440-LEAD, to provide information about lead poisoning prevention, testing, follow-up, and local resources. Information about lead can also be found on the Department of Health’s website.  

Parents and caregivers of children who may have used these rollers should contact their child‚Äôs health care provider about getting a blood lead test. 

The Department of Health has shared a health alert notice to further communicate this recall among state and local public health agencies, health care providers, hospitals, and emergency management officials. 

Five State Boards Have Adopted New Policies Making Clear That Conversion Therapy on LGBTQ+ Minors is Harmful and Unprofessional (May 6, 2024)

As of May 2, 2024, five relevant State Boards have taken action to protect Pennsylvania youth, warning that licensees who engage in conversion therapy may be subject to administrative discipline. All five State Boards voted to adopt new policies condemning the discredited, pseudoscientific practice of conversion therapy in the Commonwealth. It was also announced that the state board of Nursing joined the Medicine, Social Workers, Marriage and Family Therapists, and Professional Counselors, Psychology and Osteopathic Medicine who all voted recently to adopt new Statements of Policy (SOP) that oppose the use of conversion therapy on minors in Pennsylvania.

The new policies notify licensees that all five Boards consider the use of conversion therapy to be unprofessional, harmful conduct that may subject any licensee engaging in it to administrative discipline.

Sometimes referred to as reparative therapy, sexuality counseling, or sexual orientation/gender identity change efforts, conversion therapy refers to any practice that seeks or purports to change an individual’s sexual orientation or gender identity.

The Trevor Project ‚Äď a national organization devoted to ending suicide among LGBTQ+ young people ‚Äď along with the Pennsylvania chapter of the National Association of Social Workers and the Pennsylvania Psychology Association told State Boards earlier this year that conversion therapy on minors remains an issue in the Commonwealth despite an August 2022 Executive Order from former Governor Tom Wolf protecting Pennsylvanians from the invalidated practice.

Among the numerous national and global health associations that strongly oppose conversion therapy due to its lack of scientific evidence and its heightened risk of causing harm to minors are the following:
American Academy of Child Adolescent Psychiatry
American Academy of Family Physicians
American Academy of Nursing
American Academy of Pediatrics
American Association for Marriage and Family Therapy
American Association of Sexuality Educators, Counselors and Therapists
American College of Physicians
American Medical Association
American Psychiatric Association
American Psychoanalytic Association
American Psychological Association
Association for Behavioral and Cognitive Therapies
National Association of Social Workers
Pan American Health Organization
World Medical Association
World Psychiatric Association

The new SOPs will be effective upon publication in the Pennsylvania Bulletin.

Anyone can file a complaint against a licensed professional engaging in unprofessional or harmful conduct like conversion therapy via the Department of State website.

Shapiro Administration Recognizes Trauma And Mental Health Awareness Month (May 6, 2024)

The Shapiro Administration is encouraging Pennsylvanians to focus on their mental health as leaders from multiple agencies marked May as Trauma and Mental Health Awareness Month. Pennsylvania is focused on expanding access to trauma-informed and healing-centered approaches so we can better respond to the needs of Commonwealth residents who have had adverse childhood or other serious, traumatic experiences to prevent and heal trauma.

In the 2023-24 budget, Governor Josh Shapiro secured $100 million for student mental health services and $20 million for county mental health support. The 2024-25 budget proposal matches those investments and takes it a step further by investing:
-$100 million in mental health funding for K-12 schools, building upon one-time federal funds and ensuring schools have the continued resources to provide mental health services to students and staff; 
-Increasing funding for community-based mental health services by an additional $20 million this year and calling for additional funds in successive years, reaching an overall increase of $60 million per year by 2025-26;  
-$10 million for 988 crisis hotline operations to enhance Pennsylvania’s crisis intervention services, and 
-$5 million for establishing and maintaining walk-in mental health crisis stabilization centers.

Prolonged exposure to adversity, stress, and trauma – particularly in early childhood – can cause lasting harm and contribute to some of the most pressing social and health challenges. 

HEAL PA, the Commonwealth‚Äôs statewide trauma coalition works as a multisectoral and multidisciplinary vehicle for trauma prevention and intervention in Pennsylvania. Together with partners from DHS‚Äô Office of Mental Health and Substance Abuse Services (OMHSAS), the PA Behavioral Health Council, and PDE‚Äôs Office of Safe Schools, a series of events were organized and made available to the public at no cost. Activities included guided Yoga on the steps of the Capitol building by Y6 Yoga of Collegeville and Exton PA and an art exhibit entitled I‚Äôm Fine, initiated by co-curators Carrie Breschi and Maureen Joyce, that displayed images of ceramic masks made by residents throughout the Commonwealth to represent how we often minimize our mental health struggles. 

Additionally, as part of the #WeHealUS campaign, Pennsylvania is coming together with every state in the U.S. for a unified, consistent, and impactful movement around trauma-informed services and mental health intervention.

For more information about HEAL PA, visit www.healpa.org.

BSE: SEDR Preview Open to LEAs through May 10th (May 4, 2024)

On May 3, 2024, Carole L. Clancy, Director of the PDE Bureau of Special Education, sent a PennLink message to all LEAs titled Local Educational Agency Special Education Data Reports Online Preview. The message states that the Individuals with Disabilities Education Act of 2004 (IDEA) requires states to report annually to the public on the performance of each Local Educational Agency (LEA) in the state on the targets established in the State Performance Plan. Annually, states are required to report LEA performance on the following State Performance Plan school-age indicators for students with disabilities: Graduation Rates; Dropout Rates; Participation and Performance on Statewide Assessments; Suspension Rates; Educational Environments; School-Facilitated Parent Involvement; Disproportionate Representation by Race/Ethnicity Receiving Special Education; Disproportionate Representation by Race/Ethnicity in Specific Disability Categories; Timelines for Initial Evaluation; Individualized Education Program Secondary Transition Goals and Services; and Post-School Outcomes.

To fulfill the State Performance Plan public reporting requirement for the 2022-23 school year, each LEA will have an online Special Education Data Report (SEDR) that shows local performance on the above indicators. In some instances, an LEA’s report will not have data for every indicator (e.g., the data comes from cyclical monitoring and the LEA was not monitored in 2022-23 or the data set is too small to be reliable) and a reason code will be on the report.

Prior to the Pennsylvania Department of Education (PDE) publishing these reports publicly, LEAs will have an opportunity to preview the website and their reports. The preview period will begin May 3, 2024 and end on May 10, 2024. To review your State Performance Plan SEDR, visit Preview of LEA SEDR and select your LEA from the drop-down list. The accompanying narrative explains how data are obtained and how to interpret the reports and can be found at PennData > Public Reporting > State Performance Plan Narrative (psu.edu).

If your LEA has questions or concerns about the data displayed, first consult your Intermediate Unit Data Manager to ensure that the data submitted to the state matches what your LEA provided. If questions remain following these internal reviews and verifications, contact Jodi Rissinger, Data Manager with PDE, via email at

[email protected] or Dan Ficca at [email protected]. When the SEDR Reports go live on the public site, they can be accessed by visiting the Special Education Data Reporting (formerly PennData) website at SEDR Report Dashboard (psu.edu) and selecting your LEA from the drop-down list. The most current State Performance Plan approved by the U.S. Department of Education is available for reference on the PDE website at www.education.pa.gov and the Pennsylvania Training and Technical Assistance Network website at www.pattan.net.