Legal Issues: IDEA Eligibility Beyond the Age of Eighteen

 

This article reviews IDEA education system obligations for students over 18, discusses state-by-state differences in special education eligibility, and recommends policy, funding, staffing, and communication planning.

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Allan G. Osborne, Jr., EdD 
Charles J. Russo, JD, EdD

 Published DATE-GOES-HERE

To receive federal funding under the Individuals with Disabilities Education Act (IDEA), states and local school boards must provide a free appropriate public education (FAPE) in the least restrictive environment to all qualified children with disabilities from the age of three and until they graduate high school or turn 21, inclusive, whichever comes first. Because students over the age of 18 are often, but not always, cared for in adult workshop-type facilities with an increase in cost to their school boards, this brief review of states that do provide IDEA services to these older students should be of interest to school business officials (SBOs) and their teams as they consider doing so in their districts.

The IDEA and Students over Eighteen 

Litigation has ensued over the meaning of the term "inclusive" in the IDEA. As discussed in this column, in some states, inclusive means that IDEA eligibility begins on a child’s third birthday and may, but does not always, continue until the student's 22nd birthday. Yet, the IDEA does not require school boards to offer services to students with disabilities until the last day of their 21st year if their states do not require them to provide services to students of the same age who do not have disabilities.  

While this litigation is not extensive, as noted in the cases cited, federal and state courts in ten jurisdictions have weighed in on the question of the eligibility of students with disabilities over the age of 18 with mixed results. Whether school boards are required to provide services to qualified students with disabilities until they reach their twenty-second birthdays depends on individual state laws.  

To start, as in Hawaii and New York, if states, either by statute or practice, provide educational services to students in general or regular programming up to the age of 22, they must do the same for those with disabilities who have not yet earned their high school diplomas and continue to require special education services to receive the FAPEs the IDEA guarantees.  

Courts have required school boards in these states to provide special education services to qualified students with disabilities until they reach the age of 22. Although these programs may not be administered or even funded by the local boards, they still may be required to continue to offer FAPEs to students with disabilities.

While students participating in such programs may have to pay for some incidentals, such as textbooks and course materials, if the programs receive state funding and individuals have the opportunity to attend tuition-free, courts likely consider local school boards as appropriately offering FAPEs to students in the 18 to 21-year-old bracket. 

According to state laws in Connecticut, Nebraska, New Jersey, Rhode Island, and Washington, students are eligible to receive special education services until the end of the school year in which they turn 21. However, Connecticut excluded individuals with disabilities between the ages of 21 and 22 who had not completed their education, while the First Circuit invalidated a Rhode Island law that allowed boards to discontinue services when individuals turned 21. Finally, as in Oklahoma, if school boards allow students who have repeated grades to continue to attend their local high schools for another year or two to complete their studies, they must also provide FAPEs to students with disabilities who have not yet earned their high school diplomas. Even though some students with disabilities may not be on a path to earning their high school diplomas, they are still entitled to the opportunities to continue their special education programs in Oklahoma.

Although these programs may not be administered or even funded by the local boards, they still may be required to continue to offer FAPEs to students with disabilities.

Policy Recommendations 

In light of the significant legal and financial issues, the delivery of IDEA services to individuals over 21 may raise, SBOs and their teams may wish to consider the following policy recommendations. 

  • Put together broad-based policy writing and revising teams regardless of whether state law permits or mandates the provision of special education services to students over the age of 18. 

  • Policy writing-revising teams should include the SBO, a board member, the director of special education, a regular and special education teacher, the board attorney, a faculty member from a local college or university with expertise in the area of special education law, a parent of a special education student who is over the age of 18, a student over the age of 18 who is continuing to receive or has received services to the age of 21. 

  • Pay particular attention to adult education and general education development (GED) programs because offering such programs may affect whether boards are required to provide special education to students with disabilities in the 18-21-year-old bracket. 

  • Consider how to raise funds for the additional cost of educating students over the age of 18 and address where they will receive not only educational programs, but also how they will be transported to the sites they will attend. 

  • Provide specialized professional development sessions for staff who will work with students over the age of 18. 

  • Include information about programs for those over 18 in materials sent home to parents and on district websites, so as to keep them informed about what is available for their children. 

  • Conduct information sessions for parents so they can better understand the educational rights of their children.  

  • Review plans annually to ensure that they are up-to-date, particularly with state laws, regulations, and case law on the delivery of special education services to those over the age of 18, because the IDEA was last reviewed in 2004, and it does not appear that any changes will be forthcoming anytime in the near future.

About the Author:

Allan G. Osborne, Jr., EdD

Allan G. Osborne, Jr., EdD, is the retired principal of Snug Harbor Community School, Quincy, Massachusetts.

Email: allan_osborne@verizon.net

Charles J. Russo, JD, EdD

Charles J. Russo, JD, EdD, a member of the ASBO Education Webinar Taskforce, is Joseph Panzer Chair of Education, co-director of its PhD program in educational leadership, research professor of law in the School of Law at the University of Dayton, Ohio, a visiting professor on the faculty of law at Notre Dame University of Australia, Sydney Campus, and a senior research fellow at O.P. Jindal Global University, Sonipat, India. 

Email: crusso1@udayton.edu

  

   

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