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’ 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’s meaning  and, thus, effectuated a substantive change to the School Code and the Department’s 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.