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					Education Rights of Children
   in Out-of-Home Care

      Education Law Center
       Juvenile Law Center
            Spring 2007
            Topical Overview
 Enrollment   Rules

 Confidentiality   of Education Records

 Special   Education
Enrollment Rules
     The Child’s Right to Attend
     School Where He/She Lives
   General Rule – the child has the right to attend school
    where parent lives; but this wouldn’t work for kids in
    out of home care.

   Foster Children
     – Under PA law, can attend where foster parent resides
     – Non-resident children in foster care must be treated in the same
       manner as resident children

   Children in Children’s Institutions (agency supervised or
    licensed shelters, group homes, maternity homes, RTFs, or other institutions
    for the care or training of adolescents)
     – “Host” school districts (where facility is located) must provide or
       arrange to provide education services, including special
       education services
     – This is a separate question from who gets the bill…
               Enrollment Rules
   Who can enroll? Law allows foster parent or
    caseworker to enroll the child

   How long should it take?
    – Must enroll child within 5 business days of receiving
      required information
    – If New School asks Old School for records, must be
      sent within 10 business days
        Delay in obtaining school records is not grounds for
         refusal to enroll the child

                               From: 22 Pa Code 11.11(b)
                 Enrollment Rules
   What is required for Enrollment?
    – Law requires proof of:
         AGE
            – Birth certificate, notarized statement by the parent, etc.
            – TIP: try old school records if you have them
         IMMUNIZATIONS
            – Can be oral assurance from old district or a doctor with the
              record to follow later
         RESIDENCY
            – Agency letter of placement & foster parent provides proof that
              he or she is a resident
                From: 22 Pa Code 11.11(b) + PDE’s BEC on Enrollment
         SWORN STATEMENT OF DISCIPLINARY RECORD
            – Signer can say “to best of my knowledge” if not sure
                 From: 22 Pa CS 13-1304-A (Act 26) + PDE’s BEC on
                Enrollment
    Enrollment Rules (continued)
   School may ask for other (contact-type)
    information

   Information schools MAY NOT
    require:
        Child’s social security number,
        Visa/immigration documents,
        Reason for child’s placement or placement history
          – For example: psych. eval. by child welfare agency
            (remember these records are probably confidential!)
        Court order: placing the child or guardianship
                              From: PDE’s BEC on Enrollment
           Enrollment Rules
             (continued)
 School district can not refuse to educate
 the child based on disciplinary record
  – Exception: If child is currently expelled for
    a weapons offense, the district may assign
    that student to an alternative assignment or
    provide alternative education services for the
    duration of the expulsion
       – But discipline can never be a reason to refuse to enroll
         the child promptly
                                   From: 24 P.S. 13-1317.2(e.1)
Resolving Enrollment Disputes
   Person trying to enroll child can complain to:

        School Services Unit, Pa Department of Education
         333 Market Street
         Harrisburg, Pa 19126-0333
         (717) 787-4860 or 783-3750 phone (717) 783-6802 fax

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

    – If enrollment is denied, PDE’s Office of Chief Counsel
      may choose to intervene.
Confidentiality of
Education Records
      Confidentiality: FERPA
   Family Education Rights & Privacy Act:
    – Governs educational records
        Includes EI records & all special education
         records birth to 21
        Not individual teacher/staff notes kept to
         themselves
        Note: once a medical record is given to a school
         (ex: immunizations, evaluations) it becomes a
         school record and isn’t covered by HIPAA
    – Parents have right to:
        Inspect and review child’s records
        A hearing to challenge content of the records
        Keep records confidential unless they give
         written consent to release to a specific party
        Confidentiality: FERPA
   School Release of Records
    – Generally requires parent consent
    – Exceptions include:
        Disclosure to school staff with a legitimate
         educational interest
        Court ordered release to specific party
        Sharing information with a new education agency
         in which the child seeks to enroll (parent is
         notified but consent not needed)
        Health or Safety Emergency (Very limited!)
                 FERPA cont’d…
   Does not specifically address foster care
   Definition of Parent: includes
    – natural parent, a guardian (prob. not the state),
    – or an individual acting as a parent in the absence
      of a parent or guardian
   FERPA rights transfer to child at age 18
    – But, special education rights do not transfer until
      age 21, so special education records probably still
      in parents’ control
    – Parents will still have right to access records
                   FERPA cont’d…
   Redisclosure: when can you show education
    records to other people?
     – Parents can always redisclose records
        If you have parent consent to the record, you can always
         redisclose records as long as the parent has consented
    – But, if you access records under an exception
      to FERPA, then you cannot redisclose records
        Ex: if caseworker or child advocate accesses the
         record via court order, he or she can NOT
         redisclose to a third party
Overview of Special
   Education and
Rules for Children in
 Out of Home Care
               Special Education
•   Individuals with Disabilities Education Act and
    federal regulations
    • Apply to all public schools
•   Chapter 14 regulations
    • Do not apply to public charter schools

•   Three main rights:
    • Evaluation
    • Free Appropriate Public Education (FAPE) in an IEP
    • Appropriate Placement in Least Restrictive
      Environment (LRE)
•   Also a system of Procedural Safeguards
        Who can make special
        education decisions?
 A “parent” is needed to make special education
  decisions for child
 The Individuals with Disabilities Education Act
  (IDEA) defines a “parent” as
    –   A natural or adoptive parent
    –   A foster parent
    –   A guardian but not the State (thus no 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
            Who can make special
            education decisions?
   Two caveats to “parent” definition:
    – Presumption in favor of Biological or Adoptive
      Parent if
        Bio./adoptive parent still has legal authority
        Bio./adoptive parent is “attempting to act as the
         parent”
    – Unless a court orders someone else to act as the
      “parent”
    – So if no bio parent, but there is a foster parent,
      foster parent is the “parent”
                      See 34 C.F.R. § 300.30(b)
           Who can make special
           education decisions?
   When is bio./adoptive parent
        “attempting to act” as a parent?
    – TIPS:
        Argue that school must document efforts to engage
         parent & accommodate their schedule for IEP
         meetings, etc. before allowing another “parent” to
         act on the child’s behalf
        Or have the judge appoint a decision-maker (school
         must use)
      When Does a Child Need a
         Surrogate Parent?
   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
        Who can you ask to appoint a
             surrogate parent?
                      From: 20 U.S.C. § 1415(b)(2)

   Ask the school district
    – Should appoint within 30 days
    – Can suggest someone (for example: an aunt, the foster
      parent, or a CASA)
   If child is in custody of a child welfare
    agency, can also ask the judge
    – Unless a foster parent is available
        But judge can appoint an alternative-decision maker instead
         (but it cannot be a caseworker)
    – Ask for order
        The school must honor the judge’s selection
    Surrogate Parents (continued)
   Who may not be a surrogate parent?
    – Employees of school district or Pa Dept. of Ed.
    – Employees of “any agency that is involved in the
      education or care of the child”
        DHS, Children &Youth or Private Agency workers


   Other rules for School-appointed surrogates:
    – Can’t have a conflict of interest
           Rule does not apply to judge-appointed surrogates
           “Conflict” is defined by U.S. Dept. of Ed as coming from the
             employer relationship (e.g., can’t be teacher in another school
             district, or in the group home where child is living)
    – Must have knowledge and skills to represent child
           Rule does not apply to judge-appointed surrogates, so school can’t
             force them to them to attend the school’s surrogate class
    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
The Special Education Process
        (from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)


   Step 1: Request an Evaluation
    – Must be in writing
    – “Parent” must sign a Permission to Evaluate
      Form (PET form)
    – District has 60 school days to complete the
      evaluation and issue the Eval. Report (ER)
        Count time from the date of the PET form
        Charter schools have only 60 calendar days to
         complete the evaluation
    – Child Find duty – identify, locate, evaluate
                      The Process
         (from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)

   Step 2: Evaluation
    – What is an 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.
    – Who is involved?
        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)
    – What if the parent does not agree with evaluation?
        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
     Purposes of Evaluations

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


 Provide recommendations  to develop
 appropriate program for child
    Special Education (IEP) Eligibility:
              (2-part test)   From: 34 CFR § 300.7

STEP 1: Child must have a “disability”
•   Mental retardation/        •   Orthopedic
•   developmental delays           impairments
•   Hearing impairments        •   Autism
•   Speech or language         •   Traumatic brain injury
    impairments                •   Specific learning
•   Visual impairments             disabilities
•   Serious emotional          •   Other health
    disturbance                    impairment
Special Education (IEP) Eligibility :
Part 2: As a result of the disability, the child
  requires special education & related
  services
     for example: special instruction methods,
     modified curriculum, speech therapy


But remember Section 504/ Chapter 15
  If the child does not meet Part 2 but has a disability that
  substantially impairs a major life activity, the child is
  protected by Section 504 / Chapter 15
   – Non-discrimination, equal access law
   – Service Agreement/ 504 plan – which lists
       accommodations
     Consent for Initial Evaluations
   General Rule
    – Districts must obtain consent from a “parent” before conducting
      an initial evaluation
    – If parent won’t consent, a school can go to a hearing to get an
      order for the evaluation
         School must show hearing officer why the parent is wrong to block
          the evaluation
   Exception for “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 without parental
      consent under certain circumstances:
         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
         School cannot provide initial special ed services without consent of “parent”
What if the child moves during the
        Initial Evaluation?

   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!
                      The Process
        (34 C.F.R. § § 300.320 - .328 & 22 Pa. Code Chapter 14)


   STEP 3: Individualized Education Program
    If student is found eligible:
    – What is an “IEP”?
        “IEP” = a document outlining child’s special education
         program and related services tailored to child’s unique needs
         –a “contract” of services
    – Who is on the team?
        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 Team must meet within 30 calendar days of
      eligibility
                    The Process
         (from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)

   Components of an IEP
    – Measurable Annual Goals
    – 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.
                     The Process
         (from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)

   Step 4: Placement Decision
    – When is it made?
        Placement should be decided after IEP written
    – Who decides? The team, including parent
    – What is LRE?
        Children with disabilities should be educated with their non-
         disabled peers to the maximum extent appropriate
        Key: least restrictive environment in which IEP can be
         implemented successfully using supplementary aids/services
    – Parents must be given prior written notice of IEP &
      Placement before it starts
        NOREP: Notice of Recommended Educational Placement -
         Parents can disagree with the IEP and/or placement
        Pendency: If parent disagrees, child remains in last-agreed-to
         placement pending resolution of the dispute process
                     The Process
         (from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14)

   Implementing/Revising IEPs
    – When and how often?
        Must be implemented w/in 10 school days
        IEP team must meet at least annually
        Parents may request IEP meeting at any time


   Reevaluations
    – When?
        Every 3 years (2 years if child with MR); or
        If parent requests a reevaluation; or
        If school believes “conditions warrant”
    BUT school need not agree to > one a year
     What if the child moves
after an IEP is written & signed?
   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
 What to do if you there is a
disagreement with the school
   Division of Compliance Complaint:
    – When: school isn’t following the IEP or a clear legal
      rule (ex: timelines, procedures, etc.)
    – Who: Anyone may file a complaint on behalf of a
      student
    – How: Call 800-879-2301 to get the form or visit
      www.elc-pa.org for the form
        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
    – Timeline: 60 days to investigate and issue report
              See 34 C.F.R. § § .151-.153
         What to do if there is a
      disagreement with the school
 Mediation:
  –   Free & voluntary
  –   No lawyers allowed
  –   Discussions are confidential
  –   New: Legally binding agreement (in court)
  –   How? call Office of Dispute Resolution at
      800-992-4334
        MUST BE A “PARENT”
         What to do if there is a
      disagreement with the school
   Special Education Hearing
    – What is it?
        Administrative hearing before a Hearing Officer
    – Must be a “PARENT” to request a hearing
    – How to request a hearing?
        Request by sending “complaint” letter to school and state
           – See ELC fact sheet for rules on writing the “complaint” letter
        Resolution Session or Mediation is required to try to work it
         out unless the parties waive
        Hearing scheduled if no agreement reached
    – After hearing, appeal to state panel and then to court
                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
   Inform parent of rules and rights
   Suggest an evaluation if needed
   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)
   Participate in IEP meetings
   Inform parent of dispute resolution options
    – Possibly file DOC complaint

				
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