Educational Advocacy for Youth In Foster Care

1. Educational Advocacy for Youth In Foster Care Center for Children’s Advocacy December 15, 2009

2. TOPICS • Assessing Educational Needs • Ensuring provision of adequate services • Discipline and School Arrests • Transition/Aging out services • School Mobility and new Federal Law

3. Statistics • Between a third and half of school-age children in the foster care system receive special education services, compared to only 11% of all school-age children.

4. Assessment • How is the child performing in school? • Accessing child’s educational records. • Has the child ever been evaluated for special services? • Has the child ever received extra help in school?

5. Assessment • John’s story

6. Assessment • Multi-disciplinary Evaluation • Release for school records • Appointment of educational decision-maker • Review educational needs at treatment planning conference

7. Decision-Making • Who can make educational decisions on behalf of a child in foster care?

8. IDEA Parent • A birth or adoptive parent. • Another qualified person. OR any of the following individuals can be the IDEA • Foster parent unless barred by state law from serving as an IDEA • A guardian (both a general guardian or a guardian specifically • authorized to make education decisions) • Aperson acting in the place of the parent with whom the child lives • A person legally responsible for the child’s welfare • A surrogate parent (more on this below) • A person designated by the judge (what if child is under an OTC?)

9. Surrogate: CT law • Sec. 10-94g. Commissioner of Education to appoint surrogate parent. Procedure for objection to or extension of said appointment. (a)(1) When in the opinion of the Commissioner of Education or a designee of said commissioner, (A) a child may require special education, or a child who required special education no longer requires such education but requires or may require services under Section 504 of the Rehabilitation Act of 1973, as amended from time to time, and (B) the parent or guardian of such child cannot be identified, the whereabouts of the parent cannot be discovered after reasonable efforts to locate the parent have been made, such child is a ward of the state or such child is an unaccompanied and homeless youth, both as defined in 42 USC 11434a, as amended from time to time, the commissioner or a designee of said commissioner shall appoint a surrogate parent who shall represent such child in the educational decision-making process

10. Regular Education Interventions • Parent Teacher Conferences • Student Support Team (SST) • Convened when student is not making expected progress • Implement interventions - Tutoring - Classroom accommodations, e.g., preferential seating - Different teaching strategies

11. Special Education: Getting ServicesStep 1: Referral Connecticut has even more specific requirements for “child find” than federal law : “. . . Provision shall be made for the prompt referral to a planning and placement team of all children who have been suspended repeatedly or whose behavior, attendance or progress in school is considered unsatisfactory or at a marginal level of acceptance.” CT State Reg. 10-76d-7

12. Special Education: Red Flags Key Questions/Red Flags for advocates when a youth is not receiving services • Has the youth ever been diagnosed with a disability? • Has the youth ever had PPT meeting? (for referral or services) • Has the youth been absent from school for more than 20 days of the school year?

13. Special Education: Red Flags Key Questions/Red Flags for advocates when a youth is not receiving services • Has the youth been suspended for more than 10 days, expelled, or getting into continuous trouble in school?

14. Special Education: Red Flags Key Questions/Red Flags for advocates when a youth is not receiving services • Has the youth ever been hospitalized for mental health reasons or placed in a clinical day treatment program? • Is the youth not getting access to basic mental health care? • Does it appear that the youth does not have a thorough evaluation or proper diagnosis of his/her mental health/emotional problems by the school system?

15. Special Education: Getting ServicesStep 2: Referral PPT The first PPT, called a referral PPT or a PPT-1, determines what evaluations should be conducted The duty to evaluate is in all areas of suspected disability including, if appropriate, health, vision, hearing, social & emotional status, general intelligence, academic performance, communicative status and motor abilities.

16. Special Education: Getting ServicesStep 2: Referral PPT Types of Evaluations: Educational Psychological Psychiatric Speech & Language Neuropsychological Sexual Abuse And others

17. Evaluation Timeline • 45 school days from the initial request for referral to Special Education & consent by parent • When additional evaluations requested subsequent to initial identification, they must be completed within a reasonable time period • Must be in dominant language of student

18. Eligibility Determination • If IDEA parent disagrees with evaluations, or does not believe complete: • Can request independent evaluation • If school denies, pursue Due Process

19. Child with a “disability” Disability categories in CT: - Autism - Deaf-blindness - Deafness - Developmental delay - Emotional disturbance - Hearing impairment - Intellectual disability (mental retardation) - Multiple disabilities - Orthopedic impairment

20. Child with a “disability” - Other health impairments, e.g., ADHD - Specific learning disability - Speech or language impairment - Traumatic brain injury - Visual impairments, incl. blindness **Must have a negative impact on student’s ability to learn**

21. Related Services • Supportive services, including assistive technology, required to assist a child with a disability to benefit from special education • Examples: • Speech & language services • Transportation • Social work services • Teaching the caregiver about the disability

22. John’s Story: services he may benefit from • Counseling • Social skills instruction • Small group instruction • Door to door transportation • Tutoring • Resource room • Additional evaluations

23. John’s Story • Ask for a copy of the education records (from district or DCF) • Ensure that child is receiving an annual PPT and that child welfare agency is aware of ongoing educational needs • Make sure that educational performance and other related issues are covered in the treatment plan process.

24. Discipline and Special Education

25. Discipline It is possible to discipline special education students, but special education students are entitled to significant protections not available to regular education students.

26. Before an Incident Occurs • If a student’s disability contributes to behavior problems, the IEP must include a Functional Behavior Assessment (FBA). • The FBA leads to the creation of a Behavior Intervention Plan (BIP), also a part of the IEP.

27. After An Incident Occurs • Determine whether the discipline was a change in placement. • The child was moved to another educational setting, either inside or outside the school; AND • The removal was for more than 10 consecutive days; OR • The child was subjected to a series of shorter removals that constitutes a pattern and amounts to more than 10 days during a school year. • If yes, the school must hold a Manifestation Determination

28. Manifestation Determination • Manifestation determination must occur within 10 days of the change in placement • PPT determines whether the conduct for which discipline is imposed is • a result of the student’s disability, or • the direct result of a failure to implement the IEP • If yes, the district must return the child to the placement from which the child was removed. • Exception: Interim Alternative Educational Setting for 45 days for behavior involving weapons, drugs, serious bodily injury • If no, the district can change child’s placement, but child must still receive FAPE. • As with any other PPT decision, if parent disagrees, can appeal.

29. The 11th day • Beginning on the 11th day that a child with a disability is removed from their current placement, the district must provide those services necessary for the child to -Appropriately progress in the general curriculum and -Appropriately advance toward achieving their IEP goals • School personnel determine where the services will be provided

30. Discipline and Special Education Interim Alternative Setting Even if the behavior was a manifestation of the student’s disability, a student can still be moved to an “interim alternative setting” for 45 days if the student: Brought a weapon to school or a school function Possessed or used illegal drugs or sold or solicited the sale of drugs at school or at a school function Inflicted serious bodily injury upon another person at school or at a school function

31. Discipline and Special Education If a special education student is expelled or placed in an interim alternative educational setting, the student shall: continue to receive the services he/she needs to continue to make educational progress receive, as needed, a functional behavioral assessment, behavioral intervention services, and modifications, designed to keep the behavior from occurring again.

32. Discipline and Special Education What if the district decides the interim alternative educational setting is homebound? Any decision to place a special education student on homebound instruction should be made by a PPT, not unilaterally by the district.

33. “Knowledge” Provides Protection • Even if child is not identified as special education, can access these protections if the district had knowledge that the child had a disability • District is considered to have “knowledge” if • Parent has expressed concern in writing to supervisory or administrative personnel, or a teacher of the child, that the child was in need of special education and related services; or • The teacher of the child, or other personnel of the LEA, had expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the Director of Special Education or to other supervisory personnel of the agency.

34. No “Knowledge” Situations • If the parent of the child has not allowed an evaluation of the child • If the parent has refused services • If the child has been evaluated and determined not to be a child with a disability In such cases, regular disciplinary measures apply.

35. Some Key Discipline Points • State statute limits total number of days student can be suspended to 50, occurring in batches of no longer than 10 consecutive school days • This is true for both reg. ed. & spec. ed.

36. School-Based Arrests Another way that schools use the juvenile justice system to address disciplinary issues is through school-based arrests.

37. School Based Arrests and Special Needs Too often students are referred to law enforcement for conduct that could be a manifestation of their disabilities, and their Behavior Intervention Plans (BIPs), which were developed and approved by their planning and placement teams (PPTs) are disregarded.

38. School-Based Arrests and Special Education IDEA does not prohibit a school district from reporting a crime committed by a child with a disability to law enforcement. IDEA does require that, when such a crime is reported, the district “shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.” However, any disclosure of records must also comply with the Family and Educational Rights and Privacy Act (FERPA), which states that educational records can only be shared if parent consents in writing. BUT: “health and safety exception”: if the district decides there is a “significant and articulable threat” to the student or others’ health or safety, the records can be disclosed to anyone who needs that information to protect that student’s or others’ health or safety

39. IMPORTANT: Transition Services • Kim’s Story • Begin following child’s 15th birthday • Discuss transition from school to adult life • Youth attends the PPT • IEP must include appropriate measurable post-secondary goals

40. Transition Services • Transition services needed to assist child in reaching goals • May require district to get other agencies involved (DDS, DMHAS, Vocation and Rehabilitation Services, BRS)

41. Transition Services IEP must consider • child’s strengths • Guardian’s concerns • Recent evaluations • Academic, developmental and functional needs of child

42. Transition Services • If participating agency fails to provide necessary services, the buck stops with the school district

43. Legal Requirements under IDEA • Transition services are a coordinated set of activities that promote movement from school to such post-school activities as post-secondary education, vocational training, employment, adult services, independent living and community participation. • They must be based on the individual student's needs, taking into account his or her preferences and interests. • Transition services must include instruction, community experiences, and development of employment and other post school adult living objectives. If appropriate, daily living skills and functional vocational evaluation may also be included.

44. Transition Services • If the IEP team determines an individual student does not need services in one or more of these areas the IEP must contain a statement to that effect and the basis upon which the determination is made. • Before the student leaves school the IEP must also contain, if appropriate, a statement of each public agency's and each participating agency's responsibilities or linkages (including financial) for the transition activities (34 CFR 300.346(d) and comment).

45. Transition Services • The IEP meeting must include a representative of the public agency providing and supervising the transition activities and, if appropriate, representatives of other participating agencies. • In almost all situations the familiar district representative required for all IEP meetings would qualify as this representative. • If appropriate, the student should also be there to ensure her or his needs, preferences, and interests are addressed. It is difficult to imagine circumstances where it would not be appropriate for a student who has a learning disability to be at the meeting. If the student cannot attend, other methods of participating must be used (34 CFR 300.344(c)(3)).

46. Transition Services • The ultimate responsibility for providing transition services rests with the school district (or state education agency if district fails) and there is no provision for a waiver of this requirement. • Thus it applies to all public agencies to whom IDEA applies and, if a participating agency defaults on service provision, it is the school that must find an alternative way to provide the service.

47. Kim’s Story • DCF youth entitled to treatment planning • Entitled to Adolescent Plan under federal law • Fostering Connections underscores transition plan requirement • Child welfare agency must ensure that school district providing appropriate transition services

48. Kim’s Story • Permanency Plan should address. If plan is independent living, court must make finding that agency made/is making reasonable efforts to achieve that goal. • Advocate for community based learning; experiential learning; vocational assistance.

49. Special Education Services What if youth is not receiving adequate or appropriate services? • Due Process Hearing Request • Mediation Request • Administrative Complaint • If in Juvenile Court, bring school district in as a necessary party

50. Special Education Services What if youth is not receiving adequate or appropriate services? • Is there a surrogate • Is DCF educational consultant involved? • Is court aware of educational issues? • Do DCF court updates address educational issues and services