Education Rights of Children in Out-of-Home Care

Education Rights of Children in Out-of-Home Care Janet Stocco, Esq. Education Law Center 1315 Walnut Street Philadelphia, PA 19107-4798 (215) 238 – 6970 Spring 2006

Topical Overview • Special Education vs. Accommodations • Special Education • Brief Special Education Overview • Parents and Surrogate Parents • Initial Evaluations for Children in Care • Transferring a Child’s IEP to a new school district • Discipline for Students with Disabilities • Confidentiality

Brief Overview of School Services for Students with Disabilities Special Education (IEPs) and Section 504 (service agreements)

Special Education (IEP) Eligibility: (2-part test) From: 34 CFR § 300.8 • Mental retardation/ • developmental delays • Hearing impairments • Speech or language impairments • Visual impairments • Serious emotional disturbance • Orthopedic impairments • Autism • Traumatic brain injury • Specific learning disabilities • Multiple disabilities • Other health impairment STEP 1: Child must have a “disability”

Important Definition • “Serious Emotional Disturbance” • Exhibits ≥ 1 of following for long time: • Inability to learn not explained by intellectual, sensory or health factors • Inappropriate relationships with peers/teachers • Inappropriate behavior in normal circumstances • Pervasive unhappiness or depression • Physical symptoms or fears associated with personal or school problems • Includes schizophreia • But not: “socially maladjusted”

Important Definition • “Other Health Impairment” • Having limited strength, vitality or alertness • Includes heightened alertness to environmental stimuli that reduces alertness to the educational environment • So ADHD may qualify *BUT* • Remember this is a two-part test… • Must also “adversely affect … educational performance”

Special Education (IEP) Eligibility : STEP 2: As a result of the disability, the child must require special education & related services (e.g.: specialized instruction, modified curriculum) • If child does not qualify but has a disability that substantially impairs a major life activity, child protected by: • Section 504 of the Rehabilitation Act • See next slide for more information

Section 504 / Chapter 15 (Federal name / State name) • Federal Law prevents discrimination • Entitlement to reasonable accommodations: • Written Plan (called a 504 plan or a services agreement) Examples: • Child with ADHD is promised extra time on tests, preferential seating, help organizing notebook • Child with chronic fatigue is allowed attend school for ½ days without penalty • Still has concept of LRE/FAPE (see below) but other special education rules don’t apply

Individuals with Disabilities Education Act: “Special Education” • Federal Law – applies to all public schools • Includes charter schools • States allowed to be more protective • Two main points: • Free Appropriate Public Education (FAPE) • Least Restrictive Environment (LRE) • To the maximum extent appropriate, include the child with students without disabilities

FLOW CHART(from 34 C.F.R. § § 300.301 - .311) • Step 1: Request an Evaluation • Must be in writing (keep a copy) • In many states, parents must sign a permission form (need informed consent) • School has 60 calendar days to complete the evaluation and issue the Eval. Report (ER) • States may set a different timeline (longer or shorter) – so check state rules • For example: Pa has timeline of 60 school days for public schools. No timeline for charter schools, so they must follow the 60-calendar-day rule.

FLOW CHART cont’d(from 34 C.F.R. Part 300.301 - .311) • Step 2: Evaluation • Must be free, non-discriminatory and assess the child in all areas of suspected disability • Not just an IQ test • In language most likely to give accurate info. Parents are members of the evaluation team & must be allowed input in eligibility decision • Consider sharing private evaluations or evaluations by the child welfare agency (if get consent) • Independent Educational Evaluation • Can be at public expense if parent disagrees with school’s evaluation (or school must go to a hearing to avoid paying) • But only one IEE per school evaluation

FLOW CHART cont’d(from 34 C.F.R. § § 300.320 - .328) • STEP 3: Individualized Education ProgramIf student is found eligible: • Team must meet within 30 calendar days of eligibility • Team must include the “parent” • School must document efforts to include the parent – including records of phone calls, copies of letters, records of visits to parent’s home or place of employment! • If parent can’t attend, school must use other methods (phone calls) to ensure parent participation • Parent can bring people with expertise on child (CW agency) • “IEP” = a document outlining child’s special education program and related services tailored to child’s unique needs –a “contract” of services

FLOW CHART cont’d(from 34 C.F.R. Part 300) • Types of Services in an IEP • Specially designed instruction in academics Phys Ed, travel & vocational training • Related Services: transportation, speech therapy, physical therapy, counseling, etc. • Transition Services: starting with IEP in effect at age 16 (can always plan for this earlier) • Assistive Technology: (devices/services): to increase functional capabilities of the child • Ex: wheelchair, communication devices, etc. • Specifically excludes surgically implanted devices (cochlear implants, for example)

FLOW CHART cont’d(from 34 C.F.R. §§ 300.114 - .117, .500) • Step 4: Placement Decision • Placement should be decided after IEP written • Key: least restrictive environment in which IEP can be implemented successfully using supplementary aids/services • Parent must be part of team deciding the placement • Same rules for meeting participation as IEP meeting • Parents must be given prior written notice of IEP & Placement before it starts • Parents can disagree with the IEP and/or placement • If parent’s disagree, child remains in last-agreed-to placement pending resolution of the dispute process

FLOW CHART cont’d(from 34 C.F.R. § 300.303, .323 ) • Implementing/Revising IEPs • Must be implemented “as soon as possible” following development of the IEP • (state may have a timeline for this) • Reevaluations must occur: • Every 3 years (unless school and parent agree not to) • If parent or teacher requests re-evaluation; or • If school determines that child’s educational or related services needs ”warrant” a reevaluation BUT school need not agree to more than one a year

What to do if you there is a disagreement with the school • Complaint to State Education Agency • Follow state rules for filing the complaint • Federal rules include: • Must send a copy of complaint to the school • Certain required information must be in the complaint (name, address, facts about the problem, proposed resolution) • Limit: only violations in past calendar year • 60 days to investigate and issue report See 34 C.F.R. § § .151-.153

What to do if you there is a disagreement with the school • Due Process: usually for more complicated disputes over eligibility, services, placement • How?File a “complaint” letter • Specific rules on information to include (sufficiency challenges) • Must send a copy to the school and to the state • Limit: only issues in past 2 years (only a few exceptions) • Alternative Dispute Resolution: • Parent and school either agree to mediation or a resolution session within 15 days to work out their differences • If parent doesn’t attend, complaint can be dismissed • After, go to hearing (maybe state-level appeal) • Appeal to court within 90 calendar days

Special Education Law Topics for Youth In Care

Who can make special education decisions? • The IDEA now defines a “parent” as • A natural or adoptive parent • A foster parent (unless prohibited by state law) • A guardian but not the State • Thus no CW agency caseworkers • A person acting in the place of a parent • Such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the child’s welfare; or • A surrogate parent See 34 C.F.R. § 300.30(a)

Who can make special education decisions? • Two caveats to “parent” definition: • When there is more than one category of “parent” under IDEA, school must presume that the biological or adoptive parent is the “parent” if: • Bio./adoptive parent still has legal authority • Bio./adoptive parent is “attempting to act as the parent” • If a judicial decree or order identifies someone to act as the “parent”, then school must recognize that person’s authority See 34 C.F.R. § 300.30(b)

Who can make special education decisions? • Confusing Issues • Guardians ad lietm • Will only count as a parent if the appointment gives the GAL the power to act as the child’s parent generally or to make educational decisions for the child (71 FR 46566) • When are bio./adoptive parents “attempting to act”? • Nothing requires the bio./adoptive parent to assert their rights affirmatively (71 FR 46566) • But, comments say examples of a bio./adoptive parent attempting to act include providing consent for an evaluation or attending an IEP meeting (71 FR 46567) • TIP: argue that school must document efforts to engage parent & accommodate their schedule before using other “parent” • Some support at 71 FR 46568

Surrogate Parents:School Responsibilities • School district must appoint a surrogate if : • No “parent” can be identified • School, after reasonable efforts, can’t locate parent • Child is a ward of the state under laws of that state • Child is unaccompanied homeless youth • School can’t appoint a surrogate just because the bio./adoptive parent is “uncooperative” or won’t attend a meeting (71 FR 46689) • School must have methods to decide if a child needs a surrogate and for assigning surrogate • Must make reasonable efforts to appoint in 30 days

Surrogate Parents:Court Option • For “wards of the State,” alternatively surrogate may be appointed by the judge • Question: Who does this rule apply to? • Can judges appoint surrogates for kids who have foster parents? • IDEA defines “ward of the State” to exclude kids in foster homes, does this exclude them from judge surrogates? • But surrogate parent rule says any kid who is a “ward of the State under the laws of the State” might need a surrogate parent – so maybe judges can appoint for kids in foster care • Why matter? If foster parent does not want to be the child’s special education decisionmaker (71 FR 46711)

Surrogate Parents (continued) • Who may not be a surrogate parent? • Employees of school district or State Education Agency • Employees of “any agency that is involved in the education or care of the child” (i.e., child welfare workers) • For School-appointed surrogates two more rules to follow: • Can’t have a conflict of interest • Must have knowledge and skills to represent child • Unaccompanied Homeless Youth • Staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parent

What does a surrogate parent do? • Surrogate parent rights: • Review education records • Receive notice of school district proposed actions • Participate in IEP meetings • Accept or reject a proposed IEP and placement • Dispute school district decisions by filing a complaint or requesting mediation or a hearing • Surrogate parents do not have any rights outside of the special education system

Other surrogate rules34 C.F.R. § 300.519 • Who may request a surrogate parent? • Anyone who believes one is needed • A birth parent might want to request a surrogate if he or she lives far away, is incarcerated, etc. • If so, ask in writing & can revoke request at any time • Nothing in the law requires school to honor request • Can a school “fire” a surrogate? • Probably not if they are appointed by the judge • But duty to replace a surrogate who isn’t carrying out responsibility “to represent child in all identification, evaluation, placement” and “FAPE” decisions for child • School can not fire surrogate for exercising rights of the child (i.e., by disagreeing with the school) • Why? Violates laws against retaliation for exercising civil rights 71 FR 46712

Initial Evaluations • General Rules • Districts must obtain consent from a “parent” before conducting an initial evaluation • This means that a caseworker can’t sign • Schools might refer students to a “screening” program but parents can request the special ed. evaluation At ANY time • If parent won’t consent to the evaluation, school can go to a hearing to get an order for the evaluation

Initial Evaluations & Youth in Care • Wards of the State (children in the custody of a child welfare agency who do not have a foster parent with the power to make special education decisions) • School districts may conduct initial evaluations withoutparental consent if: • The school district can’t locate the parents after making reasonable efforts • The birth parents rights are terminated (TPR) • Or a judge removes the birth parents’ educational rights (temporarily or permanently) & consent is given by an individual the judge appoints • School/judge should appoint surrogate in the interim

Initial Evaluations vs. Initial IEP • If parent won’t consent to initial evaluation: • School has option to request a hearing to force the child to be evaluated • If parent won’t consent to initial IEP services? • School cannot go to a hearing to force services • So, if a ward of the State is evaluated without parental consent, its very important to appoint a surrogate in the meantime (through school or juvenile judge) • Surrogate then decides whether to approve/refuse the initial IEP services & placement

What if the child moves during the Initial Evaluation? • Recall the timeline: • 60 school days (or any state-imposed timeline) • If child moves to a New district: 34 CFR § 300.301(d, e) • The timeline may be extended, but ONLY IF: • “Parent” and school agree to a new specific time • New school ensures prompt evaluation • Exception: Schools do not have to meet the timeline if parent repeatedly fails or refuses to produce child for the evaluation TIP: Caseworkers must help in coordination!

What happens when a child moves who has an IEP? • If a child with an IEP moves: 34 C.F.R. 300.323(d) • In-State Transfers: new district must provide “services comparable to those described in the previously held IEP” & ensure FAPE • Until district formally adopts the old IEP or negotiates a new IEP with the parent • Transfers from Another State: same rule as above: comparable services to previous IEP & FAPE • Until district conducts a new evaluation (if needed) & negotiates a new IEP with the parent

Other rules for children who move: • Reevaluations: • Old and new school districts (or charter schools) must coordinate all evaluations to ensure prompt completion 34 C.F.R. § 300.304(c)(5) • Records • New school must take reasonable steps to promptly obtain child’s records including IEP and supporting documents • Old school must take reasonable steps to promptly respond to the records request • NOTE: School records privacy laws allow schools to transfer records without parental consent in enrollment situations

Conclusion:What can you do to help? • Consider whether a surrogate parent is needed: • Ask the district or juvenile judge to appoint one • Try to find a good person to be the surrogate, especially for kids in congregate care • Ensure “parent” is invited to & attends IEP mtg. • If can’t attend, suggest phone or video conference • If parent doesn’t attend, explain what occurred & facilitate paper signing (agreeing or disagreeing)

Conclusion:What can you do to help? • Help parent advocate for appropriate plan • Invite private therapists or doctors to the meeting to suggest services for the child or strategies to deal with child’s behavior • Suggest inviting the foster parent to give input on the child • Explain procedural safeguard rights to the parent and encourage their use if needed • Complaints, Mediation, Hearings

School Discipline for Children with Disabilities 20 U.S.C. § 1415 34 C.F.R. § § 300.530 - .537

School Discipline for Children with Disabilities • In general, students with disabilities may be disciplined under the same rules – and same protections – as regular education students • Includes: in-school suspension out-of-school suspension alternative school • Exception: Schools have to take extra measures if the misbehavior is a result of the child’s disability, and if the disciplinary sanction counts as a “change in placement”

What is a change in placement? • A transfer to an alternative educational setting. • A school exclusion for: > 10 school days in a row OR The child has already been excluded from school for at least 10 schools days, and the proposed additional exclusion constitutes a pattern. Factors (to decide if it’s a “pattern”):the similarity of the behavior that has resulted in a sanction, and the number, length, and proximity of the suspensions.

What if the school wants to change the child’s placement? • Schools proposing the discipline must: • Give parents notice of the discipline • Inform parents of their rights • Hold a “manifestation determination meeting” within 10 school days

Manifestation Determination • The misbehavior IS a manifestation of the disability if it: • Was caused by the disability • Had a direct & substantial relationship to the child’s disability • ORWas the direct result of the school’s failure to implement the IEP Old law had other protections, these are now gone

When School agrees the Conduct IS a Manifestation: • The school may NOT change the child’s placement without parent consent • Unless it is an “Exceptional Circumstance”(See later slides) • The school must hold an IEP meeting within 10 school days and: • If the school district has not already done so, conduct a functional behavioral assessment • Develop, review, or revise a behavior plan

When the Conduct is NOTa Manifestation : • The school district may discipline the child • Should decide punishment on a case-by-case basis • Can’t be more severe punishment than non-disabled peers • If the school wants to expel the child • Must follow state rules for expelling all children • School must provide services for child: • To participate in general curriculum & • To progress toward IEP goals (20 USC § 1415(k))

When parties disagree whether the conduct is a manifestation • The family can ask for a hearing to challenge the team’s determination • In the meantime, • School can impose the discipline • Includes transfer to alternative schools, suspensions, and even expulsions • Child must receive enough services to participate in the general curriculum & progress in IEP goals • Expedited Hearing process • If family wins, child must be returned to previous educational setting (unless its an exceptional circumstance)

Children Not Yet Found Eligible for Special Education • The protections apply if, prior to the incident: • Parent stated in writingto a supervisor, administrator or a teacher that child might need special education, or • Parent requested an evaluation, or • Teacher / staff expressed specific concerns about child’s pattern of behaviordirectly to director of special ed. or other supervisory person • Exceptions: • If child previously evaluated & found ineligible or • Parent refused special education/evaluation in past Old law was much more protective

Automatic Exceptions– Regardless of Manifestation Decision • The school may move the child to an alternative education setting for up to45 days without parent permission if: • Child carried a weapon to school /function • Child knowingly possessed, used or sold illegal drugs while at school/ function (or if the child sold Rx drugs) • Child “inflicted serious bodily injury” upon another person while at school/function

Exceptions requiring a hearing: • School may ask a hearing officer to place the child in an alternative setting for up to 45 days • School must show that maintaining child in the current placement is “substantially likely to result in injury to child or others” • After any of these 45-day placements, child must be returned to the previous placement • Unless a hearing officer orders a new 45-day stay in the alternative school based on dangerousness (above)

Education Rights of Children in Out-of-Home Care