Education Rights of Education Rights of Children in Out-of-Home Children in Out-of-Home

CareCare

Janet Stocco, Esq.Janet Stocco, Esq.Education Law CenterEducation Law Center

1315 Walnut Street1315 Walnut StreetPhiladelphia, PA 19107-4798Philadelphia, PA 19107-4798

(215) 238 – 6970(215) 238 – 6970Fall 2006Fall 2006

Topical OverviewTopical Overview

Enrollment RulesEnrollment Rules Confidentiality of Education RecordsConfidentiality of Education Records No Child Left Behind ActNo Child Left Behind Act Special EducationSpecial Education

– IEPs versus 504 plansIEPs versus 504 plans– Special Education Overview Special Education Overview – Parents and Surrogate Parents Parents and Surrogate Parents – Initial Evaluations for Children in CareInitial Evaluations for Children in Care– Transferring a Child’s IEP to a new school Transferring a Child’s IEP to a new school

districtdistrict– Discipline for Students with DisabilitiesDiscipline for Students with Disabilities

Gifted EducationGifted Education

Enrollment RulesEnrollment Rules

The Child’s Right to Attend The Child’s Right to Attend School Where He/She LivesSchool Where He/She Lives

Foster ChildrenFoster Children– Non-resident children in foster care must be Non-resident children in foster care must be

treated in the same manner as resident childrentreated in the same manner as resident children

Children in Children’s Institutions Children in Children’s Institutions ((agency agency supervised or licensed shelters, group homes, maternity supervised or licensed shelters, group homes, maternity homes, RTFs, or other institutions for the care or training of homes, RTFs, or other institutions for the care or training of

adolescentsadolescents))– ““Host” school districts (where facility is located) Host” school districts (where facility is located)

must provide or arrange to provide education must provide or arrange to provide education services, including special education servicesservices, including special education services

– This is a separate question from who gets the This is a separate question from who gets the bill…bill…

Enrollment RulesEnrollment Rules

Law allows foster parent or caseworker Law allows foster parent or caseworker to enroll the childto enroll the child

How long should it take?How long should it take?– Must enroll child within Must enroll child within 5 business days 5 business days

of receiving required documentsof receiving required documents– If New School asks Old School for records, If New School asks Old School for records,

must be sent within must be sent within 10 business days10 business days

From: 22 Pa Code From: 22 Pa Code 11.11(b) 11.11(b)

Enrollment RulesEnrollment Rules Law requires proof of:Law requires proof of:

AGEAGE – Birth certificate, notarized statement by the parent, etc. Birth certificate, notarized statement by the parent, etc.

TIP: try old school records if you have themTIP: try old school records if you have them

IMMUNIZATIONSIMMUNIZATIONS – Can be oral assurance from old district or a doctor with Can be oral assurance from old district or a doctor with

the record to follow laterthe record to follow later

RESIDENCYRESIDENCY – Agency letter of placement & foster parent provides Agency letter of placement & foster parent provides

proof that he or she is a residentproof that he or she is a resident

From: 22 Pa Code 11.11(b) + PDE’s BEC on From: 22 Pa Code 11.11(b) + PDE’s BEC on EnrollmentEnrollment

SWORN STATEMENT OF DISCIPLINARY RECORDSWORN STATEMENT OF DISCIPLINARY RECORD– Signer can say “to best of my knowledge” if not sureSigner can say “to best of my knowledge” if not sure

From: 22 Pa CS 13-1304-A (Act 26) + PDE’s BEC on From: 22 Pa CS 13-1304-A (Act 26) + PDE’s BEC on EnrollmentEnrollment

Enrollment Rules Enrollment Rules (continued)(continued)

School may ask for other (contact-type) School may ask for other (contact-type) informationinformation

Information schools Information schools MAY NOTMAY NOT require:require:

Child’s social security number,Child’s social security number, Visa/immigration documents,Visa/immigration documents, Reason for child’s placement or placement Reason for child’s placement or placement

historyhistory– For example: psych. eval. by child welfare agency For example: psych. eval. by child welfare agency

((remember these records are probably confidentialremember these records are probably confidential!) !) Court order: placing the child or guardianshipCourt order: placing the child or guardianship

From: PDE’s BEC on EnrollmentFrom: PDE’s BEC on Enrollment

Enrollment Rules Enrollment Rules (continued)(continued)

School district can School district can notnot refuse to refuse to educate the child based on disciplinary educate the child based on disciplinary recordrecord

– Exception: Exception: If child is If child is currentlycurrently expelled for expelled for a a weaponsweapons offense, the district may assign offense, the district may assign that student to an that student to an alternative assignmentalternative assignment or provide or provide alternative education servicesalternative education services for the duration of the expulsionfor the duration of the expulsion

From: 24 P.S. 13-From: 24 P.S. 13-

1317.2(e.1)1317.2(e.1)

Resolving Enrollment Resolving Enrollment DisputesDisputes

Person trying to enroll child can complain to:Person trying to enroll child can complain to:

School Services Unit, Pa Department of EducationSchool Services Unit, Pa Department of Education333 Market Street333 Market StreetHarrisburg, Pa 19126-0333Harrisburg, Pa 19126-0333(717) 787-4860 or 783-3750 (717) 787-4860 or 783-3750 phone phone (717) 783-(717) 783-6802 6802 faxfax

– Within 5 business days, PDE will request the Within 5 business days, PDE will request the district’s position. It must respond in 5 business district’s position. It must respond in 5 business days. days.

– If enrollment is denied, PDE’s Office of Chief Counsel If enrollment is denied, PDE’s Office of Chief Counsel

may choose to intervene.may choose to intervene.

Confidentiality of Confidentiality of Education RecordsEducation Records

Confidentiality: FERPAConfidentiality: FERPA Family Education Rights & Privacy Act:Family Education Rights & Privacy Act:

– Governs educational Governs educational recordsrecords Includes EI records & all special education Includes EI records & all special education

records birth to 21records birth to 21 Not individual teacher/staff notes kept to Not individual teacher/staff notes kept to

themselvesthemselves Note: once a medical record is given to a school Note: once a medical record is given to a school

(ex: immunizations, evaluations) it becomes a (ex: immunizations, evaluations) it becomes a school record and isn’t covered by HIPAAschool record and isn’t covered by HIPAA

– Parents have right to:Parents have right to: Inspect and review child’s recordsInspect and review child’s records A hearing to challenge content of the recordsA hearing to challenge content of the records Keep Keep recordsrecords confidential unless they give confidential unless they give

written consent to release to a specific partywritten consent to release to a specific party

Confidentiality: FERPAConfidentiality: FERPA

School Release of RecordsSchool Release of Records– Generally requires parent consentGenerally requires parent consent– Exceptions include:Exceptions include:

Disclosure to school staff with a legitimate Disclosure to school staff with a legitimate educational interesteducational interest

Court ordered release to specific partyCourt ordered release to specific party Sharing information with a new education Sharing information with a new education

agency in which the child seeks to enroll agency in which the child seeks to enroll (parent is notified but consent not needed)(parent is notified but consent not needed)

Health or Safety Emergency (Very limited!)Health or Safety Emergency (Very limited!)

FERPA FERPA cont’d…cont’d…

Does not specifically address foster care Does not specifically address foster care Definition of Parent: includes Definition of Parent: includes

– natural parent, a guardian (prob. not the natural parent, a guardian (prob. not the state), state),

– or an individual acting as a parent in the or an individual acting as a parent in the absence of a parent or guardianabsence of a parent or guardian

FERPA rights transfer to child at age 18FERPA rights transfer to child at age 18– But, special education rights do not transfer But, special education rights do not transfer

until age 21, so special education records until age 21, so special education records probably still in parents’ controlprobably still in parents’ control

– Parents will still have right to access recordsParents will still have right to access records

FERPA FERPA cont’d…cont’d…

Redisclosure:Redisclosure: when can you show education when can you show education records to other people?records to other people?– Parents can always redisclose recordsParents can always redisclose records

If you have parent consent to the record, you can always If you have parent consent to the record, you can always redisclose records redisclose records as long asas long as the parent has consented the parent has consented

– But, if you access records under an But, if you access records under an exception to FERPA, then you cannot exception to FERPA, then you cannot redisclose recordsredisclose records Ex: if caseworker or child advocate accesses Ex: if caseworker or child advocate accesses

the record via court order, he or she can NOT the record via court order, he or she can NOT redisclose to a third partyredisclose to a third party

Obtaining extra services Obtaining extra services for public school for public school

studentsstudents

Tutoring Grants &Tutoring Grants &

No Child Left Behind ActNo Child Left Behind Act

Pa Dept. of Education – Pa Dept. of Education – Tutoring GrantsTutoring Grants

Classroom PlusClassroom Plus– $500 tutoring grants to parents/guardians $500 tutoring grants to parents/guardians

of students struggling in math or readingof students struggling in math or reading– Eligibility: K – 9Eligibility: K – 9thth grade who grade who

Score at “basic” or “below basic” on the PSSA Score at “basic” or “below basic” on the PSSA or or

In the bottom half on a state-approved testIn the bottom half on a state-approved test

– Call Call 1-800-698-27201-800-698-2720 for more information for more information Get an application – school fills in test scoresGet an application – school fills in test scores Send to state for approvalSend to state for approval Will get a list of approved tutors you can useWill get a list of approved tutors you can use

No Child Left Behind ActNo Child Left Behind Act Accountability system for Accountability system for

schools/districtsschools/districts www.paayp.comwww.paayp.com gives school’s results gives school’s results

on latest PSSA tests + lists school’s on latest PSSA tests + lists school’s status:status:

Met AYPMet AYP

WarningWarning Make improvement plan Make improvement plan (w/input)(w/input)

School Improvement School Improvement II

AboveAbove ++ offer children in the offer children in the school chance to transfer to school chance to transfer to better schoolbetter school

School Improvement School Improvement IIII

AboveAbove ++ Extra tutoring must be Extra tutoring must be offered to struggling studentsoffered to struggling students

Corrective Action (I, Corrective Action (I, II)II)

AboveAbove ++ Major changes should Major changes should be made to curriculum, teaching be made to curriculum, teaching etc.etc.

RestructuringRestructuring AboveAbove ++ Extreme reorganization Extreme reorganization

No Child Left Behind ActNo Child Left Behind Act Unsafe School Choice Unsafe School Choice

(transfer rights):(transfer rights):– Victims of Violent Crimes at SchoolVictims of Violent Crimes at School– Students in Persistently Dangerous Students in Persistently Dangerous

SchoolsSchoolsFor more info:For more info: http://www.pde.state.pa.us/svcs_studentshttp://www.pde.state.pa.us/svcs_students

(click on “persistently dangerous schools” to get info. on (click on “persistently dangerous schools” to get info. on both programs)both programs)

TIP: parents, guardians, and TIP: parents, guardians, and foster parents must be sure not foster parents must be sure not to miss the to miss the deadlinesdeadlines to apply for to apply for transfers & services under NCLBtransfers & services under NCLB

For more info on NCLBFor more info on NCLB

Visit our website Visit our website www.elc-pa.orgwww.elc-pa.org and and click on the “publications” linkclick on the “publications” link

Topics include:Topics include:– Highly Qualified TeachersHighly Qualified Teachers– Parent Participation (involvement in school Parent Participation (involvement in school

improvement plans, class observation etc.)improvement plans, class observation etc.)– Making the most of PSSA test resultsMaking the most of PSSA test results– Achievement & Opportunity Gap ReportsAchievement & Opportunity Gap Reports

Brief Overview of School Brief Overview of School Services for Students Services for Students

with Disabilitieswith Disabilities

Special Education (IEPs)Special Education (IEPs)

and and

Section 504 (service Section 504 (service agreements)agreements)

Special Education (IEP) Special Education (IEP) Eligibility:Eligibility:

(2-part test) (2-part test) From: 34 CFR § 300.7From: 34 CFR § 300.7

• Mental retardation/Mental retardation/• developmental developmental

delaysdelays• Hearing impairmentsHearing impairments• Speech or language Speech or language

impairmentsimpairments• Visual impairmentsVisual impairments• Serious emotional Serious emotional

disturbancedisturbance

• Orthopedic Orthopedic impairments impairments

• AutismAutism• Traumatic brain injuryTraumatic brain injury• Specific learning Specific learning

disabilitiesdisabilities• Multiple disabilitiesMultiple disabilities• Other health Other health

impairmentimpairment

STEP 1:STEP 1: Child must have a “ Child must have a “disabilitydisability””

Important DefinitionImportant Definition ““Serious Emotional Disturbance”Serious Emotional Disturbance”

– Exhibits ≥ 1 of following for long time:Exhibits ≥ 1 of following for long time: Inability to learn not explained by intellectual, Inability to learn not explained by intellectual,

sensory or health factorssensory or health factors Inappropriate relationships with peers/teachersInappropriate relationships with peers/teachers Inappropriate behavior in normal circumstancesInappropriate behavior in normal circumstances Pervasive unhappiness or depressionPervasive unhappiness or depression Physical symptoms or fears associated with Physical symptoms or fears associated with

personal or school problemspersonal or school problems

– Includes schizophreiaIncludes schizophreia– But notBut not: “socially maladjusted”: “socially maladjusted”

Important DefinitionImportant Definition

““Other Health Impairment”Other Health Impairment”– Having limited strength, vitality or Having limited strength, vitality or

alertnessalertness– Includes heightened alertness to Includes heightened alertness to

environmental stimuli that reduces environmental stimuli that reduces alertness to the educational environmentalertness to the educational environment

So ADHD may qualify *BUT*So ADHD may qualify *BUT*– Remember this is a two-part test… Remember this is a two-part test…

(See next slide)(See next slide)

Special Education (IEP) Special Education (IEP) Eligibility :Eligibility :

Part 2:Part 2: As a result of the disability, As a result of the disability, the child the child requires special requires special education & related serviceseducation & related services

for example:for example: special instruction methods, special instruction methods, modified curriculum, speech therapymodified curriculum, speech therapy

If the child does If the child does notnot meet Part 2 but has a meet Part 2 but has a disability that disability that substantially impairs a major substantially impairs a major life activitylife activity, the child is protected by , the child is protected by Section Section 504 / Chapter 15504 / Chapter 15– Non-discrimination, equal access lawNon-discrimination, equal access law

Section 504 / Chapter 15 Section 504 / Chapter 15 (Federal name / State name)(Federal name / State name)

Federal Law prevents Federal Law prevents discriminationdiscrimination Entitlement to Entitlement to reasonable accommodationsreasonable accommodations::

– Written Plan (called a 504 plan, chapter 15 plan, or Written Plan (called a 504 plan, chapter 15 plan, or a service agreement – they are really the same a service agreement – they are really the same thing)thing)

ExamplesExamples::– Child with ADHD is promised extra time on tests, Child with ADHD is promised extra time on tests,

preferential seating, help organizing preferential seating, help organizing – Child with chronic fatigue is allowed attend school Child with chronic fatigue is allowed attend school

for ½ days without penaltyfor ½ days without penalty BUT: some special education rules do NOT BUT: some special education rules do NOT

applyapply

Individuals with Disabilities Individuals with Disabilities Education Act: “Special Education Act: “Special

Education”Education”• Federal Law – applies to Federal Law – applies to allall public public

schoolsschools• But some state rules (Chapter 14) do not But some state rules (Chapter 14) do not

apply to charter schoolsapply to charter schools

• Two main points:Two main points:• Free Appropriate Public Education (FAPE)Free Appropriate Public Education (FAPE) • Least Restrictive Environment (LRE) Least Restrictive Environment (LRE)

• To the maximum extent appropriate, include To the maximum extent appropriate, include the child with students without disabilitiesthe child with students without disabilities

FLOW CHARTFLOW CHART(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)

Step 1: Request an EvaluationStep 1: Request an Evaluation– Must be in writing Must be in writing – Parents must sign a Permission to Evaluate Parents must sign a Permission to Evaluate

Form (PET form)Form (PET form)– District has District has 60 school days60 school days to complete the to complete the

evaluation and issue the Eval. Report (ER) evaluation and issue the Eval. Report (ER) Count time from the date of the PET formCount time from the date of the PET form Charter schools have only Charter schools have only 60 calendar days 60 calendar days to to

complete the evaluationcomplete the evaluation

KEEP A COPY of all papers you send or KEEP A COPY of all papers you send or signsign

FLOW CHART cont’dFLOW CHART cont’d(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)

Step 2: EvaluationStep 2: Evaluation– Must be free, non-discriminatory and assess the Must be free, non-discriminatory and assess the

child in child in allall areas of suspected disability areas of suspected disability Not just an IQ testNot just an IQ test In language most likely to give accurate info. In language most likely to give accurate info.

– Parents are members of the evaluation team & Parents are members of the evaluation team & must be allowed input in eligibility decisionmust be allowed input in eligibility decision Consider sharing private evaluations or evaluations by Consider sharing private evaluations or evaluations by

the child welfare agency (if get consent)the child welfare agency (if get consent)

– Independent Educational EvaluationIndependent Educational Evaluation Can be at public expense if parent disagrees with Can be at public expense if parent disagrees with

school’s evaluation (or school must go to a hearing to school’s evaluation (or school must go to a hearing to avoid paying)avoid paying)

But only one IEE per school evaluationBut only one IEE per school evaluation

Purposes of EvaluationsPurposes of Evaluations

Determine eligibility for special Determine eligibility for special education services:education services:– Two-part test (see next slides)Two-part test (see next slides)

Provide recommendations to Provide recommendations to develop appropriate program for develop appropriate program for childchild

FLOW CHART cont’dFLOW CHART cont’d(34 C.F.R. § § 300.320 - .328 & 22 Pa. Code Chapter 14)(34 C.F.R. § § 300.320 - .328 & 22 Pa. Code Chapter 14)

STEP 3: Individualized Education ProgramSTEP 3: Individualized Education ProgramIf student is found eligibleIf student is found eligible::– Team must meet within Team must meet within 30 calendar days30 calendar days of eligibility of eligibility

Team must include the “parent”Team must include the “parent” School must document efforts to include the parent – School must document efforts to include the parent –

including records of phone calls, copies of letters, records of including records of phone calls, copies of letters, records of visits to parent’s home or place of employment!visits to parent’s home or place of employment!

If parent can’t attend, school must use other methods (phone If parent can’t attend, school must use other methods (phone calls) to ensure parent participationcalls) to ensure parent participation

Parent can bring people with expertise on child (CW agency)Parent can bring people with expertise on child (CW agency)

– ““IEP” = a document outlining child’s special education IEP” = a document outlining child’s special education program and related services tailored to child’s program and related services tailored to child’s uniqueunique needs –a “contract” of services needs –a “contract” of services

FLOW CHART cont’dFLOW CHART cont’d(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)

Types of Services in an IEPTypes of Services in an IEP– Specially designed instructionSpecially designed instruction in academics in academics

Phys Ed, travel & vocational trainingPhys Ed, travel & vocational training

– Related Services:Related Services: transportation, speech transportation, speech therapy, physical therapy, counseling, etc.therapy, physical therapy, counseling, etc.

– Transition Services:Transition Services: starting with IEP in starting with IEP in effect at age 16 (can always plan for this effect at age 16 (can always plan for this earlier)earlier)

– Assistive Technology:Assistive Technology: (devices/services): to (devices/services): to increase functional capabilities of the childincrease functional capabilities of the child Ex: wheelchair, communication devices, etc.Ex: wheelchair, communication devices, etc.

FLOW CHART cont’dFLOW CHART cont’d(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)

Step 4: Placement DecisionStep 4: Placement Decision– Placement should be decided Placement should be decided afterafter IEP written IEP written– Key: Key: least restrictive environmentleast restrictive environment in which IEP in which IEP

can be implemented successfully using can be implemented successfully using supplementary aids/servicessupplementary aids/services Parent must be part of team deciding the placementParent must be part of team deciding the placement Same rules for meeting participation as IEP meetingSame rules for meeting participation as IEP meeting

– Parents must be given prior written notice of Parents must be given prior written notice of IEP & Placement before it startsIEP & Placement before it starts Parents can disagree with the IEP and/or placementParents can disagree with the IEP and/or placement If parent’s disagree, child remains in last-agreed-to If parent’s disagree, child remains in last-agreed-to

placement pending resolution of the dispute placement pending resolution of the dispute processprocess

FLOW CHART cont’dFLOW CHART cont’d(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)

Implementing/Revising IEPsImplementing/Revising IEPs Must be implemented w/in Must be implemented w/in 10 school days10 school days IEP team must meet at least annuallyIEP team must meet at least annually Parents may request IEP meeting at any time Parents may request IEP meeting at any time

ReevaluationsReevaluations must occur: must occur: Every 3 years (2 years if child with MR); orEvery 3 years (2 years if child with MR); or If parent requests a reevaluation; orIf parent requests a reevaluation; or If school believes “conditions warrant”If school believes “conditions warrant”

BUT school need not agree to > one a yearBUT school need not agree to > one a year

What to do if you there is What to do if you there is a disagreement with the a disagreement with the

schoolschool Division of Compliance Complaint:Division of Compliance Complaint:

– WhenWhen: school isn’t following the IEP or a clear : school isn’t following the IEP or a clear legal rule (ex: timelines, procedures, etc.)legal rule (ex: timelines, procedures, etc.)

– WhoWho: A parent or organization may file a : A parent or organization may file a complaint on behalf of a studentcomplaint on behalf of a student

– HowHow: Call 800-879-2301 to get the form or visit : Call 800-879-2301 to get the form or visit our website for the formour website for the form Must send a copy of complaint to the schoolMust send a copy of complaint to the school Certain required information must be in the complaint Certain required information must be in the complaint

(name, address, facts about the problem, proposed (name, address, facts about the problem, proposed resolution)resolution)

Limit: only violations in past calendar yearLimit: only violations in past calendar year

– 60 days to investigate and issue report60 days to investigate and issue reportSee 34 C.F.R. § § .151-.153See 34 C.F.R. § § .151-.153

What to do if there is a What to do if there is a disagreement with the schooldisagreement with the school

Mediation:Mediation:– Free & voluntaryFree & voluntary– No lawyers allowedNo lawyers allowed– Discussions are confidentialDiscussions are confidential– New: Legally binding agreement (in New: Legally binding agreement (in

court)court)– How? call Office of Dispute Resolution at How? call Office of Dispute Resolution at

800-992-4334800-992-4334 MUST BE A “PARENT”MUST BE A “PARENT”

What to do if there is a What to do if there is a disagreement with the schooldisagreement with the school

Special Education HearingSpecial Education Hearing– How? How?

Must be a “PARENT” to request a hearingMust be a “PARENT” to request a hearing Request by sending “complaint” letter to school and Request by sending “complaint” letter to school and

statestate See our fact sheet for rules on writing the “complaint” See our fact sheet for rules on writing the “complaint”

letterletter Resolution Session or Mediation (to try to work it out)Resolution Session or Mediation (to try to work it out) Hearing scheduled if no agreement reachedHearing scheduled if no agreement reached After hearing, appeal to state panel and then to court After hearing, appeal to state panel and then to court

– Attorneys’ feesAttorneys’ fees Parents may get fees back from school if they win – but Parents may get fees back from school if they win – but

no longer can get expert fees paid by schoolno longer can get expert fees paid by school School can make parents or lawyers pay fees if frivolousSchool can make parents or lawyers pay fees if frivolous

Special Education Special Education Law Topics for Youth Law Topics for Youth

In CareIn Care

Who can make special Who can make special education decisions?education decisions?

The Individuals with Disabilities Education Act The Individuals with Disabilities Education Act (IDEA) defines a “(IDEA) defines a “parentparent” as” as– A A natural or adoptive parentnatural or adoptive parent– A A foster parentfoster parent (BUT SEE NEXT SLIDE) (BUT SEE NEXT SLIDE)– A A guardianguardian but not the State (thus no but not the State (thus no

caseworkers)caseworkers)– A A person acting in the place of a parentperson acting in the place of a parent

Such as a grandparent or stepparent with whom the Such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for child lives, or a person who is legally responsible for the child’s welfare; the child’s welfare; oror

– A A surrogatesurrogate parentparent

Who can make special Who can make special education decisions?education decisions?

Two caveats to “parent” definition:Two caveats to “parent” definition:– When there is more than one category of When there is more than one category of

“parent” under IDEA, school must presume that “parent” under IDEA, school must presume that the biological or adoptive parent is the “parent” the biological or adoptive parent is the “parent” if:if: Bio./adoptive parent still has legal authorityBio./adoptive parent still has legal authority Bio./adoptive parent is “Bio./adoptive parent is “attempting to act as the attempting to act as the

parentparent””

– If a judicial decree or order identifies someone If a judicial decree or order identifies someone to act as the “parent”, then school must to act as the “parent”, then school must recognize that person’s authorityrecognize that person’s authority

See 34 C.F.R. § See 34 C.F.R. § 300.30(b)300.30(b)

Who can make special Who can make special education decisions?education decisions?

Confusing Issue:Confusing Issue: When are bio./adoptive parents When are bio./adoptive parents “ “attempting to actattempting to act” as a parent?” as a parent?– Comments to Regulations say (Comments to Regulations say (71 FR 46566-6871 FR 46566-68):):

Nothing requires the bio./adoptive parent to assert their Nothing requires the bio./adoptive parent to assert their rights affirmatively rights affirmatively

But, comments also say examples of a bio./adoptive But, comments also say examples of a bio./adoptive parent attempting to act include providing consent for an parent attempting to act include providing consent for an evaluation or attending an IEP meeting – isn’t this evaluation or attending an IEP meeting – isn’t this contradictory? contradictory?

– TIPS: TIPS: Argue that school must document efforts to engage parent Argue that school must document efforts to engage parent

& accommodate their schedule for IEP meetings, etc. & accommodate their schedule for IEP meetings, etc. before allowing another “parent” to act on the child’s before allowing another “parent” to act on the child’s behalfbehalf

Or have the judge appoint a decision-maker (school must Or have the judge appoint a decision-maker (school must use)use)

When Does a Child Need a When Does a Child Need a Surrogate Parent?Surrogate Parent?

School district must appoint a surrogate if :School district must appoint a surrogate if : No “parent” can be identified No “parent” can be identified School, after reasonable efforts, can’t locate parentSchool, after reasonable efforts, can’t locate parent Child is a ward of the state Child is a ward of the state under laws of that stateunder laws of that state Child is unaccompanied homeless youthChild is unaccompanied homeless youth

– School can’t appoint a surrogate just because School can’t appoint a surrogate just because the bio./adoptive parent is “uncooperative” or the bio./adoptive parent is “uncooperative” or won’t attend a meeting won’t attend a meeting (71 FR 46689)(71 FR 46689)

– School must have methods to decide if a child School must have methods to decide if a child needs a surrogate and for assigning surrogateneeds a surrogate and for assigning surrogate Must make reasonable efforts to appoint in Must make reasonable efforts to appoint in 30 days30 days

Who can you ask to appoint a Who can you ask to appoint a surrogate parent?surrogate parent?

From: 20 U.S.C. § 1415(b)(2)From: 20 U.S.C. § 1415(b)(2)

Ask the Ask the school districtschool district – ShouldShould appoint within 30 days appoint within 30 days– You may be able to suggest who they appoint (for You may be able to suggest who they appoint (for

example: an aunt, the foster parent, or a CASA)example: an aunt, the foster parent, or a CASA) Phila. SD: Phila. SD: mandrews@phila.k12.pa.usmandrews@phila.k12.pa.us /215-400-6086 /215-400-6086

If child is in custody of a child welfare If child is in custody of a child welfare agency, can also ask the agency, can also ask the juvenile judgejuvenile judge – The court should enter a clear order appointing a The court should enter a clear order appointing a

surrogate (may also have to temporarily suspend surrogate (may also have to temporarily suspend the parent’s right to make special education the parent’s right to make special education decisions) decisions)

– The school must honor the judge’s selectionThe school must honor the judge’s selection

Surrogate Parents Surrogate Parents (continued) (continued)

Who may Who may notnot be a surrogate parent? be a surrogate parent?– Employees of school district or Pa Dept. of Ed.Employees of school district or Pa Dept. of Ed.– Employees of “any agency that is involved in the Employees of “any agency that is involved in the

education or care of the child” education or care of the child” DHS, Children &Youth or Private Agency workersDHS, Children &Youth or Private Agency workers

Other rules for School-appointed surrogates:Other rules for School-appointed surrogates: Can’t have a conflict of interestCan’t have a conflict of interest

Rule does not apply to judge-appointed surrogatesRule does not apply to judge-appointed surrogates““Conflict” is defined by U.S. Dept. of Ed as coming from the Conflict” is defined by U.S. Dept. of Ed as coming from the

employer relationship (e.g., can’t be teacher in another employer relationship (e.g., can’t be teacher in another school district, or in the group home where child is living)school district, or in the group home where child is living)

Must have knowledge and skills to represent childMust have knowledge and skills to represent childRule does not apply to judge-appointed surrogates, so Rule does not apply to judge-appointed surrogates, so

school can’t force them to them to attend the school’s school can’t force them to them to attend the school’s surrogate classsurrogate class

What does a surrogate parent What does a surrogate parent do?do?

Surrogate parent rights:Surrogate parent rights:– Review education recordsReview education records– Receive notice of school district proposed actionsReceive notice of school district proposed actions– Participate in IEP meetingsParticipate in IEP meetings– Accept or reject a proposed IEP and placementAccept or reject a proposed IEP and placement– Dispute school district decisions by filing a Dispute school district decisions by filing a

complaint or requesting mediation or a hearingcomplaint or requesting mediation or a hearing

Surrogate parents do Surrogate parents do notnot have any rights have any rights outside of the special education systemoutside of the special education system

Other surrogate rulesOther surrogate rules34 C.F.R. § 300.51934 C.F.R. § 300.519

Who may request a surrogate parent?Who may request a surrogate parent?– Anyone who believes one is neededAnyone who believes one is needed– A birth parent might want to request a surrogate if he or A birth parent might want to request a surrogate if he or

she lives far away, is incarcerated, etc.she lives far away, is incarcerated, etc. If so, ask in writing & can revoke request at any time If so, ask in writing & can revoke request at any time Nothing in the law requires school to honor request Nothing in the law requires school to honor request

Can a school “fire” a surrogateCan a school “fire” a surrogate??– Probably not if they are appointed by the judgeProbably not if they are appointed by the judge– But duty to replace a surrogate who isn’t But duty to replace a surrogate who isn’t

carrying out responsibility “to represent child in carrying out responsibility “to represent child in all identification, evaluation, placement” and all identification, evaluation, placement” and “FAPE” decisions for child“FAPE” decisions for child

– School can School can notnot fire surrogate for exercising rights fire surrogate for exercising rights of the child (i.e., by disagreeing with the school)of the child (i.e., by disagreeing with the school) Why? Violates laws against retaliation for exercising civil Why? Violates laws against retaliation for exercising civil

rightsrights71 FR 4671271 FR 46712

Initial EvaluationsInitial Evaluations

General RulesGeneral Rules– Districts must obtain consent from a Districts must obtain consent from a

“parent” before conducting an initial “parent” before conducting an initial evaluationevaluation This means that a caseworker can’t sign This means that a caseworker can’t sign Schools might refer students to a “screening” Schools might refer students to a “screening”

program (ex: CSAP in Philly) program (ex: CSAP in Philly) butbut parents can parents can request the special ed. evaluation At request the special ed. evaluation At ANYANY time time

– If parent won’t consent, a school can go to If parent won’t consent, a school can go to a hearing to get an order for the evaluationa hearing to get an order for the evaluation School must show hearing officer why the School must show hearing officer why the

parent is wrong to block the evaluationparent is wrong to block the evaluation

Initial Evaluations vs. Initial Initial Evaluations vs. Initial IEPIEP

If parent won’t consent to initial evaluation:If parent won’t consent to initial evaluation:– School has option to request a hearing to force the School has option to request a hearing to force the

child to be evaluatedchild to be evaluated

If parent won’t consent to initial IEP services?If parent won’t consent to initial IEP services?– School can School can NOTNOT go to a hearing to force services go to a hearing to force services

So, if a ward of the State is evaluated by school without So, if a ward of the State is evaluated by school without parental consent, it is important to appoint a surrogate in parental consent, it is important to appoint a surrogate in the meantime (through school or juvenile judge)the meantime (through school or juvenile judge)

After evaluation, surrogate will decide whether to After evaluation, surrogate will decide whether to approve/refuse the initial IEP services & placementapprove/refuse the initial IEP services & placement

Initial Evaluations Initial Evaluations & Youth in Care& Youth in Care

Wards of the StateWards of the State ((children in the custody of a child welfare agency who do children in the custody of a child welfare agency who do notnot have a have a

foster parent with the power to make special education decisionsfoster parent with the power to make special education decisions))

– School districts may conduct initial School districts may conduct initial evaluations evaluations withoutwithout parental consent if:parental consent if: The school district can’t locate the parents after The school district can’t locate the parents after

making reasonable effortsmaking reasonable efforts The birth parents rights are terminated (TPR)The birth parents rights are terminated (TPR) OrOr a judge removes the birth parents’ educational a judge removes the birth parents’ educational

rights (temporarily or permanently) & consent is rights (temporarily or permanently) & consent is given by an individual the judge appointsgiven by an individual the judge appoints

– School/judge should appoint surrogate in the interimSchool/judge should appoint surrogate in the interim

What if the child moves during What if the child moves during the Initial Evaluation?the Initial Evaluation?

Timeline for initial evaluations:Timeline for initial evaluations:– 60 school days (60 calendar days if charter school)60 school days (60 calendar days if charter school)

If child moves to a New districtIf child moves to a New district: : 34 CFR § 300.301(d, 34 CFR § 300.301(d, e)e)

– The timeline may be extended, but The timeline may be extended, but ONLY IF:ONLY IF: ““Parent” and school agree to a new specific time Parent” and school agree to a new specific time New school ensures New school ensures promptprompt evaluation evaluation

Exception:Exception: Schools do not have to meet the Schools do not have to meet the timeline if parent repeatedly fails or refuses timeline if parent repeatedly fails or refuses to produce child for the evaluationto produce child for the evaluation

TIP: Caseworkers must help in coordination!TIP: Caseworkers must help in coordination!

What if the child moves What if the child moves after an IEP is written & after an IEP is written &

signed?signed? If a child with an IEP movesIf a child with an IEP moves: : 34 C.F.R. 300.323(d)34 C.F.R. 300.323(d)

– In-State TransfersIn-State Transfers: new district must provide : new district must provide “services comparable to those described in the “services comparable to those described in the previously held IEP” & ensure FAPEpreviously held IEP” & ensure FAPE Until district formally adopts the old IEP or Until district formally adopts the old IEP or

negotiates a new IEP with the parentnegotiates a new IEP with the parent

– Transfers from Another StateTransfers from Another State: same rule as : same rule as above: comparable services to previous IEP & above: comparable services to previous IEP & FAPEFAPE Until district conducts a new evaluation (if Until district conducts a new evaluation (if

needed) & negotiates a new IEP with the needed) & negotiates a new IEP with the parentparent

Other rules for children who Other rules for children who move:move:

Reevaluations:Reevaluations:– Old and new school districts (or charter Old and new school districts (or charter

schools) must coordinate all evaluations schools) must coordinate all evaluations to ensure prompt completionto ensure prompt completion

– Remember: Under state enrollment Remember: Under state enrollment rules, if new school requests records rules, if new school requests records from the old school (in Pa), they must be from the old school (in Pa), they must be sent within sent within 10 business days10 business days

Conclusion:Conclusion:What can you do to help?What can you do to help?

Consider whether a surrogate parent is needed:Consider whether a surrogate parent is needed:– Ask the district or juvenile judge to appoint oneAsk the district or juvenile judge to appoint one– Try to find a good person to be the surrogate, Try to find a good person to be the surrogate,

especially for kids in congregate careespecially for kids in congregate care

Ensure “parent” is invited to & attends IEP mtg. Ensure “parent” is invited to & attends IEP mtg. – If can’t attend, suggest phone or video conferenceIf can’t attend, suggest phone or video conference– If parent doesn’t attend, explain what occurred & If parent doesn’t attend, explain what occurred &

facilitate paper signing (agreeing or disagreeing)facilitate paper signing (agreeing or disagreeing)

Conclusion:Conclusion:What can you do to help?What can you do to help?

Help parent advocate for appropriate plan Help parent advocate for appropriate plan – Invite private therapists or doctors to the Invite private therapists or doctors to the

meeting to suggest services for the child or meeting to suggest services for the child or strategies to deal with child’s behaviorstrategies to deal with child’s behavior

– Suggest inviting the foster parent to give Suggest inviting the foster parent to give input on the childinput on the child

Explain procedural safeguard rights to the Explain procedural safeguard rights to the parent and encourage their use if neededparent and encourage their use if needed– Complaints, Mediation, HearingsComplaints, Mediation, Hearings

School Discipline for School Discipline for Children with DisabilitiesChildren with Disabilities

20 U.S.C. § 141520 U.S.C. § 1415

34 C.F.R. § § 300.530 - .53734 C.F.R. § § 300.530 - .537

22 Pa. Code § 14.14322 Pa. Code § 14.143

School Discipline for School Discipline for Children with DisabilitiesChildren with Disabilities

In general, students with disabilities may be In general, students with disabilities may be disciplined under the same rules – and disciplined under the same rules – and same protections – as regular education same protections – as regular education studentsstudents– Includes: Includes: in-school suspensionin-school suspension

out-of-school suspensionout-of-school suspensionalternative schoolalternative school

Exception:Exception: Schools have to take extra Schools have to take extra measures if the misbehavior is a result of measures if the misbehavior is a result of the child’s disability, and if the disciplinary the child’s disability, and if the disciplinary sanction counts as a “sanction counts as a “change in placementchange in placement””

What is a change in What is a change in placement?placement?

Any removal from school for a child with mental Any removal from school for a child with mental retardation.retardation.

A transfer to an alternative educational setting.A transfer to an alternative educational setting. A school exclusion for:A school exclusion for:

> 10 school days in a row> 10 school days in a row

> 15 total school days in a year (> 15 total school days in a year (except public chartersexcept public charters))

OR (for public charters)OR (for public charters)

The child has already been excluded from school for at The child has already been excluded from school for at least 10 schools days, and the proposed additional least 10 schools days, and the proposed additional exclusion constitutes a pattern. Factors relevant to exclusion constitutes a pattern. Factors relevant to determining whether there is a pattern are, for example, determining whether there is a pattern are, for example, the similarity of the behavior that has resulted in a the similarity of the behavior that has resulted in a sanction, and the number, length, and proximity of the sanction, and the number, length, and proximity of the suspensions.suspensions.

What if the school wants to What if the school wants to change the child’s change the child’s

placement?placement? Schools proposing the Schools proposing the

discipline mustdiscipline must::– Give parents notice of the Give parents notice of the

disciplinediscipline– Inform parents of their Inform parents of their

rightsrights– Hold a “manifestation Hold a “manifestation

determination meeting” determination meeting” within 10 school dayswithin 10 school days

Manifestation DeterminationManifestation Determination

The misbehavior The misbehavior ISIS a manifestation a manifestation of the disability if it:of the disability if it:– Was Was caused bycaused by the disability the disability– Had a Had a direct & substantial relationshipdirect & substantial relationship

to the child’s disabilityto the child’s disability– OROR Was the Was the direct resultdirect result of the of the

school’s failure to implement the IEPschool’s failure to implement the IEP

When School agrees the When School agrees the Conduct Conduct ISIS a Manifestation: a Manifestation:

The school may The school may NOTNOT change the child’s change the child’s placement without parent consentplacement without parent consent

Unless it is an “Exceptional Circumstance”Unless it is an “Exceptional Circumstance”(See later slides)(See later slides)

The school must hold an IEP meeting The school must hold an IEP meeting within 10 school days and:within 10 school days and:

If the school district has not already done so, If the school district has not already done so, conduct a functional behavioral assessment conduct a functional behavioral assessment

Develop, review, or revise a behavior planDevelop, review, or revise a behavior plan

When the Conduct is When the Conduct is NOTNOT a Manifestation :a Manifestation :

The school district The school district maymay discipline the child discipline the child Should decide punishment on a case-by-case basisShould decide punishment on a case-by-case basis Can’t be more severe punishment than Can’t be more severe punishment than

non-disabled peersnon-disabled peers

If the school wants to If the school wants to expelexpel the child the child– Requires a formal hearing Requires a formal hearing (22 Pa. Code 12.8)(22 Pa. Code 12.8)

– If expelled, school must provide services for child: If expelled, school must provide services for child: To participate in general curriculum &To participate in general curriculum & To progress toward IEP goals To progress toward IEP goals (20 USC § 1415(k))(20 USC § 1415(k))

NOTE: this is more than regular education NOTE: this is more than regular education studentsstudents

(they only get “provision” for their education)(they only get “provision” for their education)

When parties disagree When parties disagree whether the conduct is a whether the conduct is a

manifestationmanifestation The family can ask for a hearing to challenge the The family can ask for a hearing to challenge the

team’s determinationteam’s determination– In the meantime,In the meantime,

School can impose the discipline it would impose School can impose the discipline it would impose on non-disabled students (includes transfer to on non-disabled students (includes transfer to alternative schools, suspensions, expulsions)alternative schools, suspensions, expulsions)

Child must receive enough services to Child must receive enough services to participate in the general curriculum and make participate in the general curriculum and make progress towards IEP goalsprogress towards IEP goals

Expedited Hearing processExpedited Hearing process– If family wins, child must be returned to previous If family wins, child must be returned to previous

educational setting (unless its an exceptional educational setting (unless its an exceptional circumstance)circumstance)

Children Not Yet Found Eligible Children Not Yet Found Eligible for Special Educationfor Special Education

The protections apply if, The protections apply if, prior to prior to the incident:the incident:– Parent stated Parent stated in writingin writing to a supervisor, to a supervisor,

administrator or a teacheradministrator or a teacher that child might need that child might need special education, orspecial education, or

– Parent requested an evaluation, orParent requested an evaluation, or– Teacher / staff expressed Teacher / staff expressed specific concerns about specific concerns about

child’s pattern of behaviorchild’s pattern of behavior directlydirectly to director of to director of special ed. or other supervisory personspecial ed. or other supervisory person

Exceptions:Exceptions:– If child previously evaluated & found ineligible orIf child previously evaluated & found ineligible or– Parent refused special education/evaluation in pastParent refused special education/evaluation in past

““Special Circumstances”Special Circumstances”

The school may move the child to an The school may move the child to an alternative education setting for alternative education setting for up toup to 45 days45 days without parent permission if: without parent permission if:

Child carried a Child carried a weaponweapon to school /function to school /function Child knowingly possessed, used or sold Child knowingly possessed, used or sold

illegal drugsillegal drugs while at school/ function (or if while at school/ function (or if the child sold Rx drugs)the child sold Rx drugs)

Child “inflicted Child “inflicted serious bodily injuryserious bodily injury” upon ” upon another person while at school/functionanother person while at school/function

Special Education Transfers Special Education Transfers requiring a hearing:requiring a hearing:

School may ask a hearing officer to place the School may ask a hearing officer to place the child in an alternative setting for up to child in an alternative setting for up to 45 days45 days– School must show that maintaining child in the School must show that maintaining child in the

current placement is “substantially likely to result current placement is “substantially likely to result in injury to child or others”in injury to child or others”

After any of these 45-day placements, child After any of these 45-day placements, child must be returned to the previous placementmust be returned to the previous placement– Unless a hearing officer orders a new 45-day stay in Unless a hearing officer orders a new 45-day stay in

the alternative school based on dangerousness the alternative school based on dangerousness (above)(above)

Gifted Education: Gifted Education: An overlooked option An overlooked option for children in carefor children in care

Gifted Education OverviewGifted Education Overview

State Law: Chapter 16State Law: Chapter 16 Applies to children who have:Applies to children who have:

– Outstanding intellectual & creative ability, which Outstanding intellectual & creative ability, which requires specially designed programs or support requires specially designed programs or support services not normally provided in a regular classroom services not normally provided in a regular classroom to be developedto be developed

Who can ask for an evaluation?Who can ask for an evaluation?– Natural or adoptive parentNatural or adoptive parent– Guardian = Guardian = probably a caseworkerprobably a caseworker– Person acting as the parent = Person acting as the parent = a foster parent / a foster parent /

kinshipkinship care provider care provider

Chapter 16 Rules:Chapter 16 Rules:

Before found eligible:Before found eligible:– Right to a free evaluation (limit 1/year)Right to a free evaluation (limit 1/year)– Right to review results of evaluationRight to review results of evaluation– Right to have independent evaluations (that you Right to have independent evaluations (that you

pay for) considered by the districtpay for) considered by the district– Right to written notice of eligibility decisionRight to written notice of eligibility decision

To request an evaluation – write to the To request an evaluation – write to the principal of the school (keep a copy)principal of the school (keep a copy)– School has 45 school days to complete the School has 45 school days to complete the

evaluationevaluation

Chapter 16 Rules:Chapter 16 Rules:

If the child is found eligible:If the child is found eligible:– Right to a Gifted-IEP (GIEP), revised once a year Right to a Gifted-IEP (GIEP), revised once a year

or more often at parent requestor more often at parent request Lists individualized goalsLists individualized goals Provides specialized instruction/servicesProvides specialized instruction/services

– Right to notice before a change in child’s Right to notice before a change in child’s placementplacement

Disputes:Disputes:– Mediation or Hearing: if over eligibility/servicesMediation or Hearing: if over eligibility/services– Complain to Bureau of Curriculum & Academic Complain to Bureau of Curriculum & Academic

Services if timelines or GIEP are not followedServices if timelines or GIEP are not followed

Take Home MessageTake Home Message

We are here to Help!!!We are here to Help!!!

Visit our website at: Visit our website at: www.elc-pa.orgwww.elc-pa.org– We have fact sheets and publications on We have fact sheets and publications on

many school law topics, including: many school law topics, including: Enrollment, attendance/truancy, school Enrollment, attendance/truancy, school

discipline, charter schools, homeschoolingdiscipline, charter schools, homeschooling Section 504 (the anti-discrimination Section 504 (the anti-discrimination

statute)statute) Many Special Education TopicsMany Special Education Topics

Call our helpline at: Call our helpline at: 215-238-6970215-238-6970– To speak to an attorney about a caseTo speak to an attorney about a case