July 11, 2023 – The federal Individuals with Disabilities Education Act (IDEA) seeks to ensure that students with disabilities are prepared for “further education, employment, and independent living” after they leave high school. Under the IDEA, students have a right to receive a free appropriate public education (FAPE), including services to support their individual needs, until they either earn a regular high school diploma or turn 22. But in Pennsylvania, that support is cut off prematurely—the PA Department of Education has a policy and practice of aging students out of special education services at the end of the school year in which they turn 21, depriving students of up to a year of a FAPE at a critical juncture in their lives.
A.P., a 19-year-old student with multiple disabilities in the Lower Merion School District, is one of the students who is impacted by this illegal age-out policy. He works with personal care assistants and receives occupational therapy, speech therapy, and transition services to help him prepare to successfully transition to adult life. His 22nd birthday is in February 2026—but because of Pennsylvania’s age out policy, he will lose access to the services he needs, and to which he is legally entitled, in summer 2025, more than six months earlier.
Today, A.P. and his family filed a federal class action lawsuit against the PA Department of Education (PDE), demanding that PDE comply with federal law and provide special education services to eligible students until their 22nd birthdays. Each year there are about 17,000 special education students in Pennsylvania between the ages of 18-21, approximately 300 of whom are 21.
A.P. and his family are represented by the Public Interest Law Center and Berney & Sang. The Law Center has a long history of working to expand and protect the rights of students with disabilities, leading the first successful case establishing that students with disabilities had the right to receive a free public education alongside their peers, 1971’s PARC v. Commonwealth of Pennsylvania. Berney & Sang, a civil rights law firm, has successfully litigated hundreds of cases on behalf of students with disabilities.
“Federal law is clear: students with disabilities are entitled to a free appropriate public education until they turn 22,” said Claudia De Palma, a staff attorney at the Law Center for A.P. and the class of students he represents. “PDE’s age-out policy unlawfully cuts this right short, denying eligible young adults the supports and services they need to succeed in life after high school.”
“For children with significant disabilities who are not yet ready to transition out of high school, another school year can make a huge difference in their lives,” said David Berney, the founding partner of Berney & Sang.
In response to similar lawsuits filed in other states, federal courts have repeatedly ruled that states must comply with the IDEA and provide special education to students with disabilities until their 22nd birthday if they provide free public education to other students in that age range. Pennsylvania provides a variety of free public education opportunities for young adult students through its adult education programs.
“PDE’s Age-Out Policy unlawfully deprives students with disabilities of up to a year of a FAPE at a critical juncture of their lives, denying them essential services such as job readiness training, functional math and literacy instruction, and the acquisition of daily living skills such as using public transportation, shopping for groceries, or managing a home,” the complaint reads. “The Age-Out Policy also harms the very students most in need of these services: students with significant disabilities who are more likely to remain in school instead of earning a regular high school diploma, and who will require coordinated, comprehensive supports to successfully transition to adult life.”
