Presented by the School Leaders’ Liability Practice Group

Legal Update for Special Education Law – Updates from the Pennsylvania Department of Education

By
Teresa O. Sirianni

Commonwealth Court voids Pennsylvania Department of Education’s newly imposed Age-Out Plan for failure to implement it in accordance with Pennsylvania Laws.*
PSBA, Inc., et al. v. Dr. Khalid N. Mumin, Secretary of Education of the Pa. Dept. of Ed., et al., 2024 WL 2195545 (Pa. Cmwlth. May 16, 2024)

On May 16, 2024, the Pennsylvania Commonwealth Court issued an en banc decision granting the petitioners’ Application for Summary Relief and denying the Pennsylvania Department of Education’s (PDE) cross Application for Summary Relief. In its petition, the petitioners asserted that the PDE illegally implemented a new regulation requiring Pennsylvania Local Educational Agencies (LEA) to provide a Free and Appropriate Education (FAPE) until a student’s 22nd birthday—rather than through the end of the school term in which the student reaches 21 years of age—otherwise known as the “Age-Out Plan.” More specifically, the petitioners—the Pennsylvania School Boards Association (PSBA) and three school districts across Pennsylvania—alleged the PDE did not follow the required rulemaking procedures to implement the new Age-Out Plan, which would have included public and timely notice prior to implementing the regulation. Without timely notice of the new Plan, the petitioners, including PSBA members, could not budget to account for the new, additional services to eligible students and, in turn, were required to educate students with unbudgeted funds. The lack of timely notice made the petitioners also ineligible for related funding. The Commonwealth Court sided with the PSBA and the school districts, finding that the New Age-Out Plan was a binding regulation with the effect of law, thus requiring the PDE to promulgate it in accordance with applicable Pennsylvania laws. Finding that the PDE did not do so, the Commonwealth Court ruled that the New Age-Out Plan was void ab initio and unenforceable.

The underlying facts giving rise to the cross petitions were largely stipulated by the parties. In July 2023, a student, through his parents, filed a class action complaint in the Eastern District Court of Pennsylvania alleging that the PDE’s Age-Out Plan violated the Individuals with Disabilities Education Act (IDEA) by prematurely cutting off special education services of 21-year-old students. On August 30, 2023, the PDE entered into a settlement agreement with the student and his parents to end the litigation. In the settlement agreement, PDE agreed, beginning with the 2023–2024 school year, to change its Age-Out Plan expiration from the end of the school year in which a child with disabilities turns age 21 to his/her 22nd birthday. 

The written settlement agreement specifically outlined the terms of the “New Age-Out Plan” providing that: 

  1. the PDE will rescind and cease implementing and enforcing the Age-Out Plan as it exists in its Model Policy at Section 300.101; 
  2. the PDE “has amended Section 300.101” to reflect that the IDEA requires Pennsylvania to provide a FAPE to children with disabilities until their 22nd birthday (New Age-Out Plan); 
  3. immediately upon execution of the settlement agreement, the PDE will implement, publish and enforce the New Age-Out Plan to be effective no later than September 5, 2023; and 
  4. the New Age-Out Plan will apply to all children with disabilities as defined in the U.S. Department of Education’s Regulations including those who turned 21 during or after the 2022–2023 school term. Further, the settlement agreement required the PDE, within 24 hours, to post online and to send a notice letter via several different means of communication to parents of children with disabilities who turned 21 during the 2022-2023 school year of their potential eligibility to re-enroll. 

On August 30, 2023, the PDE also, in accordance with the settlement agreement, immediately revised its Model Policy to reflect the new policy and otherwise followed the terms of the settlement agreement. Importantly, the court noted that the PDE never notified the LEAs before entering into the settlement agreement on August 30, 2023, or before revising its policy, both of which occurred after the LEAs had adopted their budgets and set their taxes on or before June 30 of each year.

The court rejected all of the PDE’s arguments in its cross petition, including that there was no actual controversy since the LEAs had yet to implement the new regulation, that the petitioners lacked standing, and that the petitioners failed to exhaust administrative remedies before going directly to the Commonwealth Court. In its ruling in favor of the petitioners, the court noted that the petitioners were not challenging the IDEA and were not skirting any of its legal obligations to provide a FAPE to students with disabilities. Rather, the court noted that the petitioners merely sought to have the court declare whether the PDE could implement and enforce the New Age-Out Plan via the settlement agreement instead of complying with Pennsylvania laws that specifically require certain rulemaking procedures, including providing notice to the public of its proposed rulemaking and an opportunity for the public to comment, along with legislative scrutiny. Without such compliance and a “mere six days’ notice” to comply with the New Age-Out Plan, the PDE put the LEAs in the position of having to provide a FAPE to eligible students until their 22nd birthday with unbudgeted funds and to risk losing federal funding for a failure to comply. Accordingly, the court found that the petitioners had a substantial, direct, immediate interest and imminent harm relative to the implementation of the new regulation, thereby declaring the new regulation unenforceable. 

*The PDE has appealed the Commonwealth Court’s ruling invalidating the New Age-Out Plan to the Pennsylvania Supreme Court. This appeal remains pending. The appeal effectively stays the Commonwealth Court’s decision pending the outcome in the Pennsylvania Supreme Court, which means that the New Age-Out Plan remains in full force and effect at this time. 

 

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