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COMMONWEALTH COURT OVERTURNS PDE REGULATION REQUIRING FAPE UNTIL SPECIAL EDUCATION STUDENTS TURN 22 YEARS OLD

David J. Mongillo, Esq., dmongillo@tuckerlaw.com, (412) 594-5598

On May 16, 2024, the Pennsylvania Commonwealth Court overturned a Pennsylvania Department of Education (“PDE”) regulation stating special education students are entitled to a free and appropriate public education until the day before their 22nd birthday. PDE shared this regulation with Pennsylvania Local Education Agencies (“LEAs”) via Penn Link Communication and webinar presentations in August 2023 but gave no advance notice to LEAs. The Commonwealth Court explained PDE did not follow appropriate rulemaking procedures before enacting this regulation. 

PDE argued its communication to LEAs was not a regulation but was legal guidance LEAs were free to ignore. The Commonwealth Court disagreed citing PDE statements directing LEAs to comply. Because PDE was regulating LEA actions, PDE was required to observe formal rulemaking procedures but did not do so, according to the Court.

It is unclear at this point whether PDE will appeal this ruling to the Supreme Court of Pennsylvania or will initiate the rulemaking procedures identified in the Commonwealth Court’s opinion. If PDE does appeal, this may stay the Commonwealth Court’s decision, which would mean PDE’s disputed regulation will stay in place until the appeal is resolved.

Pennsylvania law currently allows public school students to remain enrolled only until the end of the school year during which they turn 21. 24 P.S. § 13-1301; 22 Pa. Code § 11.12. But before applying these provisions to special education students, LEAs should wait for PDE’s response to the recent Commonwealth Court decision. We also suggest LEAs review with their solicitor the applicable law in this area, including the federal court decisions underlying PDE’s regulation. The decision can be located at Pennsylvania School Boards Association, Inc. et al. v. Pennsylvania Department of Education, et al., 409 M.D. 2023 (Pa. Commw. Ct. May 16, 2024).

For guidance on how this ruling, contact your Solicitor or David Mongillo.

May 17, 2024

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