029-12 Age of Eligibility
The Virginia Regulations governing special education mandate that a student with a disability turning age 22 after September 30 remains eligible for a free appropriate public education (FAPE) for the remainder of the school year (8 VAC 20-81-10). Does the same mandate apply if the student turns 22 prior to September 30 and a new school year has started?
FAQ 008-10 reinforces the above referenced regulation that students with disabilities turning 22 years of age after September 30 have the right to continue to receive services in accordance with the IEP for the remainder of the school year. This is consistent with the definition of "age of eligibility" in the Virginia Regulations, and assumes that the student has not graduated with a standard of advanced studies diploma.
Also consistent with this same definition is the fact that FAPE-eligibility ends when the student turns 22 prior to September 30 even after the beginning of a new school year. If the regulation had intended that any student who turned 22 during the school year remained eligible for the remainder of the year, the regulation would have simply stated this point. Instead, it refers to the September 30 date and the right of the student who turns 22 after that date to finish the school year. The converse is true for students who turn 22 prior to that date. In this instance, the IEP team may determine, with consent, that the student’s FAPE ends on:
- the last day of the previous school year (assuming the student’s IEP does not provide for extended school year (ESY) services; or
- if the IEP provides for ESY, the last day of those services; or
- the exact birth date.
As noted in the Practice Tip for FAQ 008-10, it is essential that good planning, including secondary transition, be provided the student in his/her last year of school, so that the student transitions successfully from public school.