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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 Fall 2006. Topical Overview. Enrollment Rules Confidentiality of Education Records No Child Left Behind Act Special Education

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Education Rights of Children in Out-of-Home Care

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  1. 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 Fall 2006

  2. Topical Overview • Enrollment Rules • Confidentiality of Education Records • No Child Left Behind Act • Special Education • IEPs versus 504 plans • 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 • Gifted Education

  3. Enrollment Rules

  4. The Child’s Right to Attend School Where He/She Lives • Foster Children • 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…

  5. Enrollment Rules • 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 documents • If New School asks Old School for records, must be sent within 10 business days From: 22 Pa Code 11.11(b)

  6. Enrollment Rules • 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

  7. Enrollment Rules (continued) • School may ask for other (contact-type) information • Information schools MAY NOTrequire: • 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

  8. Enrollment Rules (continued) • School district can not refuse to educate the child based on disciplinary record • Exception: If child is currentlyexpelled 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 From: 24 P.S. 13-1317.2(e.1)

  9. Resolving Enrollment Disputes • Person trying to enroll child can complain to: • School Services Unit, Pa Department of Education333 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.

  10. Confidentiality of Education Records

  11. 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

  12. 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!)

  13. 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

  14. 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

  15. Obtaining extra services for public school students Tutoring Grants & No Child Left Behind Act

  16. Pa Dept. of Education – Tutoring Grants • Classroom Plus • $500 tutoring grants to parents/guardians of students struggling in math or reading • Eligibility: K – 9th grade who • Score at “basic” or “below basic” on the PSSA or • In the bottom half on a state-approved test • Call 1-800-698-2720 for more information • Get an application – school fills in test scores • Send to state for approval • Will get a list of approved tutors you can use

  17. No Child Left Behind Act • Accountability system for schools/districts • www.paayp.com gives school’s results on latest PSSA tests + lists school’s status:

  18. No Child Left Behind Act • Unsafe School Choice (transfer rights): • Victims of Violent Crimes at School • Students in Persistently Dangerous Schools For more info:http://www.pde.state.pa.us/svcs_students(click on “persistently dangerous schools” to get info. on both programs) • TIP: parents, guardians, and foster parents must be sure not to miss the deadlines to apply for transfers & services under NCLB

  19. For more info on NCLB • Visit our website www.elc-pa.org and click on the “publications” link • Topics include: • Highly Qualified Teachers • Parent Participation (involvement in school improvement plans, class observation etc.) • Making the most of PSSA test results • Achievement & Opportunity Gap Reports

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

  21. Special Education (IEP) Eligibility: (2-part test) From: 34 CFR § 300.7 • 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”

  22. 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”

  23. 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… (See next slide)

  24. 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 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

  25. Section 504 / Chapter 15 (Federal name / State name) • Federal Law prevents discrimination • Entitlement to reasonable accommodations: • Written Plan (called a 504 plan, chapter 15 plan, or a service agreement – they are really the same thing) Examples: • Child with ADHD is promised extra time on tests, preferential seating, help organizing • Child with chronic fatigue is allowed attend school for ½ days without penalty • BUT: some special education rules do NOT apply

  26. Individuals with Disabilities Education Act: “Special Education” • Federal Law – applies to all public schools • But some state rules (Chapter 14) do not apply to charter schools • Two main points: • Free Appropriate Public Education (FAPE) • Least Restrictive Environment (LRE) • To the maximum extent appropriate, include the child with students without disabilities

  27. FLOW CHART(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14) • Step 1: Request an Evaluation • Must be in writing • Parents 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 KEEP A COPY of all papers you send or sign

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

  29. Purposes of Evaluations • Determine eligibility for special education services: • Two-part test (see next slides) • Provide recommendations to develop appropriate program for child

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

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

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

  33. FLOW CHART cont’d(from 34 C.F.R. Part 300 & 22 Pa. Code Chapter 14) • Implementing/Revising IEPs • Must be implemented w/in 10 school days • IEP team must meet at least annually • Parents may request IEP meeting at any time • Reevaluations must occur: • 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

  34. 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: A parent or organization may file a complaint on behalf of a student • How: Call 800-879-2301 to get the form or visit our website 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 • 60 days to investigate and issue report See 34 C.F.R. § § .151-.153

  35. 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”

  36. What to do if there is a disagreement with the school • Special Education Hearing • How? • Must be a “PARENT” to request a hearing • Request by sending “complaint” letter to school and state • See our fact sheet for rules on writing the “complaint” letter • Resolution Session or Mediation (to try to work it out) • Hearing scheduled if no agreement reached • After hearing, appeal to state panel and then to court • Attorneys’ fees • Parents may get fees back from school if they win – but no longer can get expert fees paid by school • School can make parents or lawyers pay fees if frivolous

  37. Special Education Law Topics for Youth In Care

  38. Who can make special education decisions? • The Individuals with Disabilities Education Act (IDEA) defines a “parent” as • A natural or adoptive parent • A foster parent (BUT SEE NEXT SLIDE) • 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 surrogateparent

  39. 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)

  40. Who can make special education decisions? • Confusing Issue: When are bio./adoptive parents “attempting to act” as a parent? • Comments to Regulations say (71 FR 46566-68): • Nothing requires the bio./adoptive parent to assert their rights affirmatively • But, comments also say examples of a bio./adoptive parent attempting to act include providing consent for an evaluation or attending an IEP meeting – isn’t this contradictory? • 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)

  41. 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

  42. 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 • You may be able to suggest who they appoint (for example: an aunt, the foster parent, or a CASA) • Phila. SD: mandrews@phila.k12.pa.us /215-400-6086 • If child is in custody of a child welfare agency, can also ask the juvenile judge • The court should enter a clear order appointing a surrogate (may also have to temporarily suspend the parent’s right to make special education decisions) • The school must honor the judge’s selection

  43. 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

  44. 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

  45. 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

  46. 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 (ex: CSAP in Philly) but parents can request the special ed. evaluation At ANY time • 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

  47. 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 can NOT go to a hearing to force services • So, if a ward of the State is evaluated by school without parental consent, it is important to appoint a surrogate in the meantime (through school or juvenile judge) • After evaluation, surrogate will decide whether to approve/refuse the initial IEP services & placement

  48. 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

  49. What if the child moves during the Initial Evaluation? • Timeline for initial evaluations: • 60 school days (60 calendar days if charter school) • 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!

  50. 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

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