Law: When Does FAPE End for Students with Disabilities?

March 14, 2025

The Second Circuit Court of Appeals issued a decision in A.R. v. Connecticut State Board of Education, 5 F.4th 155 (2d Cir 2021), which found that Connecticut state law violated the Individuals with Disabilities Education Act (IDEA) by terminating eligibility for a free appropriate public education (FAPE) at age 21. The 2021 decision had far-reaching implications.

Under IDEA, states must provide FAPE to all children with disabilities residing in the state “between the ages of 3 and 21, inclusive.” The Second Circuit had interpreted the word “inclusive” to mean the right to an education ends at a student’s 22nd birthday. However, IDEA allows states to limit FAPE eligibility prior to a student’s 22nd birthday if the state does not provide public education services to non-disabled students between ages 18 and 21.

In A.R., the question before the Second Circuit was whether FAPE eligibility extended to age 22 for students with disabilities in Connecticut who had not received a high school diploma. The Court found that non-disabled students in the state between ages 21 and 22 were eligible for publicly funded adult education (GED) programs, a form of public education, while state law excluded public education to same-aged disabled students. As such, the Court found that Connecticut students with disabilities who had not earned a high school diploma were entitled to FAPE until age 22.

Decision in New York

Last year, the New York State Education Department (SED) advised districts that based on the A.R. decision, students with disabilities were entitled to FAPE until receipt of a high school diploma or their 22nd birthday, whichever comes first. New York State Education Law defines FAPE eligibility as applying to students who are under 21 prior to the start of the school year as of September 1. SED noted that New York law was indistinguishable from Connecticut law, including the offer of similar adult education programs to non-disabled peers over age 21.

Therefore, SED concluded that New York law violated IDEA by limiting FAPE services to end at age 21. Through an Opinion of Counsel, SED advised districts that they should consider, but are not required to provide, special education services until the end of the school year of the student’s 22nd birthday.

In March 2024, a state trial court judge cast doubt on that interpretation in Katonah-Lewisboro Union Free School District v. New York State Education Department, 124 LRP 7822 (N.Y. Sup. Ct, Albany County 2024). In that decision, the court held that districts in New York were only required to provide FAPE until receipt of a high school diploma, or a student reaches the age of 21 in accordance with current New York State Education Law. SED said it would appeal the decision.

This past fall, SED’s Office of State Review (SRO) issued two decisions that address whether the district denied FAPE by terminating eligibility at age 21, instead of 22. In both decisions, the SRO rejected the Katonah-Lewisboro decision and affirmed SED’s prior guidance on this issue. In one decision, the SRO awarded over 1,000 hours of compensatory services for the deprivation of FAPE.

Despite the significant legal exposure that districts in New York face if they don’t provide FAPE until age 22, there is no funding stream to aid districts in reimbursement for the additional year of eligibility. Districts in other states face similar financial challenges.

Similar case in Washington

In May 2024, the Ninth Circuit Court of Appeals analyzed whether Washington state was required to provide FAPE to students with disabilities until age 22 where non-disabled students were eligible for GED programs at age 21 (N.D. v. Reykdal, 102 F.4th 982 [9th Cir 2024]).

The state argued that these GED programs were not free to non-disabled students because they were charged a $25 fee for each marking period. Therefore, they were not required to provide a free appropriate public education to disabled students over 21.

However, the Ninth Circuit found that 40% of the state’s GED students received tuition waivers, making the programs free to them. As such, the state violated IDEA by limiting FAPE to age 21 for disabled students.

The case in Pennsylvania

In 2023, the Pennsylvania Department of Education (PDE) informed districts that to receive federal funding, they would need to provide FAPE until age 22. The policy change was the result of the PDE settling a class action lawsuit on this issue. It was paused in 2024 after a judge found that the PDE failed to comply with the state’s rulemaking process.

To complicate matters, the U.S. Supreme Court left the issue unsettled when it declined to hear a case from the Third Circuit in October 2024, in Luo v. Owen J. Roberts School District. At issue was Pennsylvania’s law terminating a student’s pendent placement and FAPE eligibility at age 21 during the 2021-22 school year, which was upheld by the Third Circuit. (A pendent placement allows the student to remain in the previously agreed upon placement while the parent’s due process complaint remains pending.)

Given the legal landscape, districts should consult with their board counsel, continue to monitor this legal development in their own state, and budget additional funds to cover the cost of continuing education until a student’s 22nd birthday where applicable.