PA Court To Address Outdated PDE Age-Out Policy

By Michael W. Lewis

August 2, 2023

On July 11, 2023, a class action complaint for declaratory and injunctive relief was filed in the United States District Court for the Eastern District of Pennsylvania. The complaint challenges the current Pennsylvania Department of Education (PDE) policy and practice of “prematurely cutting off special education services for 21-year-old students in violation of the Individuals with Disabilities Education Act” (“IDEA”).

Overview of the Case

Plaintiff, A.P., is a 19-year-old high school student in the Lower Merion School District with an intellectual disability, Autism Spectrum Disorder, Other Health Impairment, and Speech and Language Impairment. According to the complaint, A.P. is entitled to a free and appropriate public education (FAPE) until February 10, 2026, when he turns 22. However, due to PDE’s Age-Out Policy, his special education services are set to terminate at the end of the 2024-2025 school year, preventing A.P. from receiving over half of a year of educational programming under the IDEA.

The questions of law and fact common to members of the Class include (1) whether the IDEA entitles children with disabilities to a FAPE until their 22nd birthday, (2) whether the Commonwealth of Pennsylvania is legally obligated to provide a FAPE to eligible students until their 22nd birthdays, and (3) whether PDE’s Age-Out Policy violates the IDEA by terminating eligible students’ FAPE at the end of the school term in which a student turns 21. Interpretation of ‘Inclusive’ in the IDEA

The IDEA was enacted to ensure that all children with disabilities are prepared for further education, employment, and independent living after leaving high school. A state receiving federal funds under the IDEA must provide FAPE to children with disabilities, “between the ages of 3 and 21, inclusive.” FAPE is defined by three characteristics: (1) it is provided at public expense; (2) with the objective of providing elementary or secondary education; (3) under public direction and supervision. Courts have interpreted the word ‘inclusive’ in the IDEA to mean that a child remains eligible for FAPE until their 22nd birthday, as the word ‘inclusive’ means that the relevant period begins on a child’s third birthday and ends on the last day of his 21st year, which culminates his 22nd birthday.

Despite this, the IDEA allows states to further limit age eligibility for FAPE under certain conditions. States need not provide FAPE to individuals with disabilities ages 18 to 21, pursuant to the IDEA, if doing so would be inconsistent with a State law or practice regarding the provision of public education to children in those age ranges. The court in K.L. v. R.I. Bd. of Educ. held that a state may deny FAPE to children with disabilities ages 18 through 21, inclusive, only if it denies “public education” to non-disabled individuals of the same age. Put differently, the court in E.R.K. v. State Dep’t of Educ. explained that the state shall not avail itself of the exception where a state does in fact provide free public education to non-handicapped children in these age groups.

Therefore, according to precedent on the issue before the court in A.P. v. PDE, a state that provides “public education” for non-disabled individuals ages 18 through 21, inclusive, must also provide FAPE to individuals with disabilities in the same age range. In K.L. v. R.I. Bd. of Educ., the court found that the Rhode Island Board of Education violated the IDEA by denying special education to individuals with disabilities ages 21 and over because Rhode Island provided public education programs to non-disabled individuals of the same age. As the Rhode Island law was construed by the court, if a 21-year-old student in Rhode Island did not complete high school for a non-disability related reason, such as incarceration, the state provided a route to obtain a high-school level degree, but if that same 21-year-old student did not complete high school due to a qualifying disability, the state did not offer her ability-appropriate services to attain the same level of educational achievement. Likewise, E.R.K. v. State Dep’t of Educ. held that the Hawaii Department of Education violated the IDEA by denying special education to individuals with disabilities ages 20 through 21, inclusive, because Hawaii provided adult secondary education programs to non-disabled persons of the same age.

Interpretation of ‘Public Education’ in Other Circuits

The difficulty in the current class action hinges on the analysis of what programs fall within the scope of “public education,” and whether adult education programs offered in Pennsylvania are deemed to qualify as “public education.” The term “public education” is not defined in the IDEA. In the absence of such guidance, statutory interpretation defaults to the ordinary, common-sense meaning of a term, bearing in mind the fundamental canon that words must be read in their context and with a view to their place in the overall statutory scheme.

The courts in E.R.K. and K.L. cases also provide guidance in defining “public education.” The Second Circuit in A.R. v. Connecticut State Board of Educ. adopted the holding in K.L. that adult education programs constituted “public education” within the meaning of the IDEA because their primary objective was to assist students in achieving a secondary-education level of academic competence. As the court in A.R. noted, to define “public education” only as education delivered at traditional public schools would significantly curtail the number of students with disabilities who would be entitled to FAPE under the IDEA, which would conflict with the IDEA’s remedial purpose if interpreted so narrowly.

Implications of A.P. v. PDE

Applying the interpretation of “inclusive” and “public education” from the precedent in other circuits suggests that because PDE provides free public education to students 18 through 21 via its adult education programs, it is obligated under the IDEA to make a FAPE available to students with disabilities in that age range as well, thus providing such services to eligible students until their 22nd birthday.. The complaint asserts that PDE has gone “contrary to this clear requirement” in instituting a policy of terminating students’ FAPE eligibility at the end of the school term in which students turn 21. As such, plaintiffs argue that the Age-Out Policy deprives 21-year-old students of as much as a year of the critical supports and services to which they are entitled under the IDEA.

Should the court agree with the statutory interpretation provided in the precedent from successful plaintiffs in the First, Second, and Ninth Circuit, the Commonwealth will be obligated to provide a FAPE to children with disabilities until their 22nd birthdays, as the current framework and policies would be deemed violative of the IDEA. This will enable students “deprived” of an extra year of education through the current Age-Out Policy to receive FAPE up unto age 22, to assure their preparedness for life post-graduation. This would necessitate a rescission of the current Age-Out Policy to ensure that students who will see a meaningful benefit from continued special education and related services until they turn 22, are permitted to remain enrolled.

The Appel, Yost & Zee Education Law Group will continue to monitor and update clients on the case and guidance pertaining to its implementation.

Should you have any questions regarding this case, please do not hesitate to contact Michael W. Lewis or any of the attorneys in the Appel, Yost & Zee Education Law Group