Education Law Center Juvenile Law Center KidsVoice Fall 2008

1. Individuals with Disabilities Education Act and Youth In the Substitute Care System: Improving Educational Outcomes Education Law Center Juvenile Law Center KidsVoice Fall 2008

2. Delayed enrollment Lack of placement stability Many eligible youth do not access special ed. Over-representation in alt. ed. programs Low rates of graduation Low rates of post-secondary attendance Confusion about legal rights What are the Barriers to Educational Achievement?

3. Requirements of the Adoption and Safe Families Act (ASFA) • Child welfare agency is responsible for meeting youth’s educational needs. • Placement decisions must take into account proximity of current school. • Family case record must include current ed. records/updated every 6 months and upon placement change.

4. Pedro When Pedro first came into care he was placed in a thirty day emergency shelter. Where should he enroll in school?

5. Enrollment for “Homeless” Youth Under the McKinney-Vento Homeless Assistance Act, homeless youth include youth who are: • living in emergency or transitional shelters • doubled up • living in substandard housing • awaiting foster placement • unaccompanied youth

6. McKinney-Vento Homeless Assistance Act A child is eligible to remain in his or her original school (instead of moving), if in: • Shelter • Emergency foster care • Interim or respite foster care • Kinship care • Evaluation or diagnostic center or placement for the sole purpose of evaluation • PA Dept. of Education definition of child “awaiting foster care placement”

7. Enrollment for “Homeless” Youth These youth are entitled to: • enroll in the district in which they now reside OR their school of origin (prior to placement). • IMMEDIATE enrollment (even if all documents required for enrollment are not available). • Assistance from the liaison for homeless children in collecting materials for enrollment and general advocacy. • Transportation assistance if attend school of origin.

8. Fostering Connections to Success and Increasing Adoptions ActHR 6893 Planning and transportation assistance to promote education stability for children in foster care. Educational Stability Plans: Requires case plans to include assurances that: • Placement takes into account the appropriateness of the current educational setting and proximity of school to where child is enrolled at the time of placement; • State agency must coordinate with LEA to ensure that the child remains in the same school that he or she was enrolled at the time of placement. • Exemption applies if remaining in the same school is not in the best interests of the child, in which case state & LEA must provide immediate and appropriate enrollment, with prompt records transfer. Education-related Transportation Costs: Funding to cover the cost of education-related transportation for Title IV-E eligible children in institutional care by expanding maintenance payments to cover the cost of reasonable travel for the child to same school enrolled at the time of placement.

9. Special Education Overview Special Education Basics

10. IDEA: The Entitlement • The IDEA entitles disabled children ages 3-21 to a free appropriate public education (FAPE), which includes “special education” and “related services” • “Transition services” for youth 14 and older to assist in the transition from school to work • All services should be provided in the Least Restrictive Environment (LRE). • Eligible youth have an Individual Education Program (IEP) that can be reviewed and amended at any time, (but at least annually) • When a special education youth changes schools, the new school is obligated to implement the existing IEP and to provide comparable services until a new IEP is developed

11. 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 impairments Eligibility: Disability + Need for Specially Designed Instruction

12. Getting an Evaluation • The school must evaluate the youth within 60 calendar days (minus the summer months) of the parent or educational decision maker signing a Permission To Evaluate (“PTE”)-ConsentForm • **This form is on PDE’s website (www.pattan.k12.pa.us) and must be made “readily available” to the person requesting the evaluation if an evaluation is request in writing • If “parent” orally requests an evaluation, school must make Permission To Evaluate-Evaluation RequestForm available within 10 calendar days and after “parent” fills out that form, then school must provide the Consent Form within a reasonable time or give the parent a NOREP

13. Right to Independent Evaluation (“IEE”) • If a parent believes the District’s evaluation is insufficient (e.g., didn’t test in all areas of suspected disability) the parent can ask for a “second opinion” in the form of an independent evaluation • The IEE must have the same credentials (e.g., must be a certified school psychologist) and be able to observe child in class in the same manner as the District’s evaluator.

14. Contents of the IEP: A Summary • A statement of the specific special education and related services, and supplementary aids to be provided • Extent to which the student can participate in in regular education programs • The need and type of alternative assessments • Statement of the needed transition services and goals for a youth 14 and older in Pennsylvania • Appropriate objective criteria and evaluation procedures and schedules • Whether child should receive Extended School Year (ESY) services • Whether graduation will be based on achieving IEP goals or meeting the standards of the regular curriculum.

15. Transition Services Transition Services May Include: • Instruction in activities of daily living, such as cooking, doing laundry, getting around on public transportation. • Assistance with completing college applications. • Services from OVR. • Internship or work experience.

16. Speech/language Psychological services Physical/occupational therapy Recreation/therapeutic activity Counseling services Behavior support services Orientation and mobility services School health services Social work services Parent counseling and training Transportation Related Services:

17. Gena Gena is 16 and is being moved to a RTF from a foster home. In her previous school, she received ES services and had some trouble with socialization. She did excel academically and has been identified as gifted. The RTF tells you she must enroll in their on-grounds school.

18. Gena – Educational Placement • When a school-age child is placed by a public agency in a residential setting for non-educational reasons, the child is to be educated in a regular public school unless there is a legitimate reason making such educational placement unwise for the child or otherwise improper.

19. Is Voc. Ed an Option for a child with an IEP? • Yes. Vocational programs CANNOT discriminate & must have a nondiscriminatory written policy. • Although Voc Ed Reg. provides that student enrollment can be limited to students likely to experience success - - • For a student with a disability success shall be predicted by the student’s IEP team on the basis of his or her ability to benefit from the program. (§339.21). (Voc Ed Teacher must participate in IEP Team)

20. Least Restrictive Environment Schools must: • Seek “to the maximum extent appropriate” to educate disabled children with children who are not disabled • Only remove from the regular classroom when the nature/severity of the disability is such that education in the regular education class with the use of appropriate supplementary aids and services cannot be achieved satisfactorily • Note: Placement and school inquiries should be separated. Just because a youth is in a restrictive residential placement does not mean that he or she needs a restrictive educational program.

21. Making Changes to an IEP • IEPs must be reviewed annually. Reevaluations must be conducted every 3 years (every 2 years for children with mental retardation). • IEPs can be changed at any time if there is an issue or problem that needs to be addressed. • To change an IEP, you must request an IEP team meeting. • Changes to the IEP must be implemented within 10 days

22. 504 Plans • Accommodations for a student who does not need specialized instructions. • Examples of services in a 504 Plan *Access to an elevator for a child w/ asthma or mobility issues. *Placement in a school with a full time nurse for a diabetic student. *Administration of medication.

23. Gena: Part 2 You explain to the RTF that they cannot change Gena’s school placement without changing the IEP. They propose to change the IEP on the spot and ask you to sign it.

24. 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 • foster parent • guardian but not the State (no caseworkers or pos) • 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 • surrogate parent

25. Terrell Terrell is in a foster home. His mom is incarcerated and her rights have not been terminated. An IEP meeting is being scheduled. Who can sign off on the IEP for Terrell?

26. Who can make special education decisions? • Two caveats to “parent” definition: • Presumption in favor of Biological or Adoptive Parent • Unless a court orders someone else to act as the “parent”

27. 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

28. Who can you ask to appoint a surrogate parent?20 U.S.C. § 1415(b)(2) • Ask the school district • 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

29. Challenging the IEP (or Results of an Evaluation) A parent or surrogate parent can dispute the contents of an IEP by requesting: • Mediation • A Due Process Hearing A parent or surrogate can complain that the youth is not receiving the services listed in the IEP or that legal timelines have not been met by: • Filing a Complaint with the State Bureau of Special Education (BSE)

30. Behavior: Considerations in Drafting the IEP • The IEP Team should consider strategies to address behavior that impedes learning, including positive behavior interventions, strategies, and supports. • The involvement of child welfare and mh/mr providers involved with the youth is helpful. • Parents or surrogates can request a functional behavioral assessment to assist in creating a behavior plan for the youth.

31. Examples of Behavioral Interventions that May be Included in IEP • Use of positive verbal statements. • Redirection. • Designated locations for the youth to go when experiencing frustration. • Sign in sheets. • Reward systems and/or incentives. • Access to a therapist.

32. Coordinating MH/MRServices • All youth in substitute care are eligible for medical assistance, and are entitled to receive all services that medically necessary (EPSDT). • Youth registered with OMR are eligible for support services. • Insuring that the youth’s mh/mr needs are met and that the mh/mr provider is part of the IEP team will improve delivery of educational services.

33. Coordinating MH Services: BHRS (Wrap-around) • Behavioral Health Rehabilitation Services (wrap-around) are available for MA eligible youth with emotional behavioral disorders. • These can include: therapeutic staff support, mobile therapy, and/ or behavioral specialist consultants. • Wrap-around services can allow a youth to remain in the LRE while meeting her special needs.

34. MH/ Behavioral Needs: The School District’s Responsibility to Provide Services • If the IEP identifies that a child is in need of behavioral health support and the support is not being provided by MA (or is delayed or the worker is absent), the school district MUST provide the identified services. • This obligation includes one-on-one behavioral health supports identified in the IEP.

35. Discipline for Special Education Students

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

37. Discipline and Special Education: Disciplinary Change in Placement Exclusion of a student w/ a disability: • More than 10 days in a row; or • More than 15 days total in a school year; or • When days 11-15 constitute a pattern of exclusion; or • Any exclusion of one day or more of a child with mental retardation

38. Before Change in Placement • Written notice must be given to the parent. If the parent disagrees, the youth must generally “stay put,” and no placement change can occur (there are some exceptions) • A Manifestation Determination Meeting • School personnel should consider “any unique circumstances on a case-by-case basis” when deciding whether to order a change in placement—suggesting no zero tolerance (NEW)

39. Manifestation Determination • The conduct was “caused by, or had a direct and substantial relationship to the child’s disability” (NEW) OR • The conduct was a “direct result of the school’s failure to implement the IEP” IF YES: • Return to placement (with Behavioral Intervention plan in some cases) IF NO: • Placement can be changed

40. Exceptions to Expulsion Rules • Removal for up to 45 days to alternative setting if: • weapon or drug offenses • infliction of serious bodily injury • Current placement likely to result in injury to child or others. • Interim alternative settings should be determined by the IEP team. • The removal can only be continued with parental permission or at the order of a hearing officer.

41. Schools in Institutional Settings • Must follow both federal and state law • Require a revision of the IEP • Are governed by the 3800 Regulations • LRE requirement still applies • YOUTH IN INSTITUTIONS ARE STILL ENTITLED TO ATTEND PUBLIC SCHOOL

42. Useful Websites • Juvenile Law Center • http://www.jlc.org • KidsVoice • http://www.kidsvoice.org • Education Law Center-PA • http://www.elc-pa.org • Disability Rights Network of PA • http://www.drnpa.org • Pennsylvania Training and Technical Assistance Network (PaTTAN) • http://www.pattan.k12.pa.us • Pennsylvania Department of Education • http://www.pde.state.pa.us • IDEA Statute and Regulations • http://idea.ed.gov/ & http://www.wrightslaw.com • PA Code • http://www.pacode.com • Office for Dispute Resolution (ODR) • http://odr.pattan.net/

43. Contact Information Jennifer Staley jstaley@kidsvoice.org KidsVoice 412-391-3100 www.kidsvoice.org Neha Desai ndeasai@jlc.org Jessica Feierman jfeierman@jlc.org Sherry Orbach Sorbach@jlc.org Juvenile Law Center 215-625-0551 1-800-875-8887 (in PA) www.jlc.org Maura McInerney mmcinerney@elc-pa.org Education Law Center 215-238-6970 www.elc-pa.org