As school districts around the Commonwealth embark on the 2023-24 school year, the Pennsylvania Department of Education (PDE) has sprung a surprise by issuing direction that local educational entities (LEAs) must now provide a free and appropriate public education (FAPE) under the Individuals with Disabilities Education Act to all students until they turn 22.This change will add as much as an additional year of eligibility for students and liability for districts.
The guidance from PDE states that students are entitled to receive a FAPE until their 22nd birthday, appearing to contradict the Pennsylvania School Code, which provides that students are entitled to be educated until the end of the school year in which they turn 21. The guidance from PDE indicates that students who take advantage of this new provision are to be exited from special education on their 22nd birthday, even if that falls within the middle of the school year. Further, the guidance provides that districts must provide a FAPE in the same manner they do for all other students until the student’s 22nd birthday and that reevaluations should likewise continue in the same manner. Lastly, the guidance provides that PDE will notify students who were exited from special education during the 2022-23 school year because they aged out and that LEAs should also notify these students to afford them the opportunity to re-enroll until their 22nd birthday. Once a student decides to re-enroll, the district should offer them a FAPE.
For the 2023-24 school year, districts should use an approach similar to that used in summer 2021 and 2022, when the Pennsylvania Legislature extended eligibility for services by an additional year due to the pandemic. Specifically, the district should notify the affected students of the new period of eligibility and develop a plan to provide them with a FAPE for this school year until they turn 22, if and when they re-enroll. This will require a review, and where appropriate a revision, of the student’s Individualized Education Plan (IEP) and in some cases may require a reevaluation. It is important to note that PDE has provided LEAs until September 5, 2023, to put this change in place.
In addition, districts should plan ahead during this school year to accommodate students who will now be eligible for services in the 2024-25 school year and beyond, until they hit age 22. This should include determining and securing potential placements for such students and planning with families for what this final year of eligibility may look like in terms of programming and services, keeping in mind the student’s birthday and, as a result, what portion of the year services will be provided.
Finally, districts are advised to continue to monitor any additional guidance from PDE on this issue.
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