Surrogate Parents and Special Education Decision-Making for IDEA-Eligible or Thought-to-be-Eligible Children. November 2009

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1 Surrogate Parents and Special Education Decision-Making for IDEA-Eligible or Thought-to-be-Eligible Children November 2009

2 Acknowledgements: A special expression of gratitude to staff in the California Department of Education. The outline and much of the information included in this document follow the manual entitled Surrogate Parents in California Special Education: An Overview, Special Education Division, California Department of Education. Also, the Office of Special Education (OSEP) staff comments were beneficial in the compilation of this manual. Documents from the Educational Law Center, various intermediate units (IUs), advocacy groups, and the Pennsylvania Training and Technical Assistance Network (PaTTAN) were reviewed and parts of the information were included in the manual. The Pennsylvania Department of Education (PDE) does not discriminate in its educational programs, activities, or employment practices, based on race, color, national origin, sex, sexual orientation, disability, age, religion, ancestry, union membership, or any other legally protected category. Announcement of this policy is in accordance with State law including the Pennsylvania Human Relations Act and with Federal law, including Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1967, and the Americans with Disabilities Act of 1990, and the American with Disabilities Act Amendments of 2008.

3 Introduction This manual addresses who can make decisions involving the provision of special education services for IDEA-eligible or thought-to-be eligible children. The Individuals with Disabilities Education Improvement Act (IDEA) permits parents to make decisions related to the provision of special education services. IDEA defines parents to include not only birth or adoptive parents, but in some cases, foster parents, a person with whom the child is living and who is acting as the child s parent, and others. Specifically, this manual focuses on surrogate parents. A surrogate parent or other educational decision maker can be appointed by a court or other public agency and, once appointed, is authorized to make special educational decisions for a child who is eligible or who is thought to be eligible for special education services. 34 CFR defines public agency as the SEA, LEAs, ESAs, nonprofit public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA, and any other political subdivisions of the State that are responsible for providing education to children with disabilities. See 34 CFR This manual was developed to assist local educational agencies (LEAs), placing agencies - both private and public - and other service providers in the implementation of the requirements pertaining to the appointment of surrogate parents. 34 CFR defines in relevant part, LEA: (a) General. The local educational agency or LEA means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for a combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools. (b) Educational service agencies and other public institutions or agencies. The term includes: 1. An educational service agency, as defined in 34 CFR ; and 2. Any other public institution or agency having administrative control and direction of a public elementary school or secondary school, including a public nonprofit charter school that is established as an LEA under State law. (c) BIA funded school. The term includes an elementary or secondary school funded by the Bureau of Indian Affairs, and not subject to the jurisdiction of any SEA other than the Bureau of Indian Affairs, but only to the extent that the inclusion makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the LEA receiving assistance under the Act with the smallest student population. 34 CFR Information related to federal mandates pertaining to parental involvement, educational entitlements, and procedural safeguards for a child s Individualized Education Program (IEP) are outlined throughout the manual.

4 This manual covers the major considerations under federal law when surrogate parent appointments are made for children ages 3 through 21 as covered by Part B of the Individuals with Disabilities Education Improvement Act, including: The identification of children in need of a surrogate parent; The appointment process; The rights, responsibilities, and requirements of surrogate parents; The recruitment of surrogate parents; The training of surrogate parents; and The responsibilities and roles of agencies in this process. The goal of this manual is to provide references to statutes and regulations, sample forms, and other information regarding the appointment of surrogate parents. The information in this manual is designed to assist LEAs and other public agencies to develop exemplary surrogate parent programs. Compliance with the statutes, regulations, and Office of Special Education Program (OSEP) letters that are referenced in the text are mandatory.

5 TABLE OF CONTENTS CHAPTER 1 Surrogate Parents in Pennsylvania Overview of the Surrogate Parent Mandate...1 What is the Regulatory Definition of a Parent?...1 What are the Current Federal Regulatory Requirements for a Surrogate Parent?...2 What is a Surrogate Parent?...3 Who Can Appoint A Surrogate Parent to Fulfill the IDEA Requirement?...3 Can the Foster Parent Act as a Parent?...3 Can a Guardian Make Educational Decisions?...3 What are the Parental Rights After a Surrogate Parent is Selected?...3 Who Cannot Serve as a Surrogate Parent?...4 Who Can Serve as a Surrogate Parent?...4 When Must a Surrogate Parent be Appointed?...4 Who Can Request or Challenge the Appointment of a Surrogate Parent?...5 What is the Age of Majority for Consent Requirements in IDEA?...5 CHAPTER 2 Rights, Responsibilities, and Requirements of Surrogate Parents What is the Surrogate Parent s Role?...6 What is the Authority of the Surrogate Parent?...6 What is the Relationship of the Surrogate Parent to Other Agencies?...6 What are the Rights of the Surrogate Parent to Access Educational Records?...6 What are the Rights of the Surrogate Parent Regarding Suspension and Expulsion?...6 CHAPTER 3 When to Appoint Surrogate Parents What are the Basic Criteria for Appointing a Surrogate Parent?...7.How are Wards of the State Assigned Surrogate Parents?...7 How are Surrogate Parents Assigned to Children Residing in Group Homes, Residential Treatment Facilities, and Institutions?...7.How are Unaccompanied Homeless Youth Assigned Surrogate Parents?...8 Continued...

6 TABLE OF CONTENTS continued CHAPTER 4 The Appointment Process What are the Steps in Getting Started?...9 Step 1: Contacting Parents...9 Step 2: Selecting Surrogate Parents...9 Step 3: Surrogate Parent Application...9 Step 4: Screening for Conflict of Interest...10 Step 5: Training of Potential Surrogate Parents...10 Step 6: Additional Procedures...11 CHAPTER 5 Appointment Terms and Dismissal of a Surrogate Parent When Should a Surrogate Parent Be Dismissed?...12 What is the Role of Public Noneducational Agencies and Foster Care Providers?...12 How are the Parents Educational Rights Determined?...12 How are State Complaints and Due Process Complaints Handled?...12 CHAPTER 6 The Role of the Intermediate Unit in the Surrogate Parent Process What is the Role of the Intermediate Unit in the Surrogate Parent Process?...13 CHAPTER 7 Conclusion and Attachments Conclusion...14 Agreement to Serve as a Surrogate Parent...15 Application to Serve as a Surrogate Parent...16 Notification of Assignment as Surrogate Parent...18 Surrogate Parent Referral Form...19

7 CHAPTER 1: Surrogate Parents in Pennsylvania Overview of the Surrogate Parent Mandate This section provides an overview of federal requirements and describes surrogate parents and other persons who have a legal authority to act on an IDEA-eligible or thought-to-be eligible child s behalf in the special education process. This manual does not attempt to outline or otherwise analyze the authority of court of competent jurisdiction to appoint an educational guardian for a student pursuant to state law. What is the Regulatory Definition of a Parent? The definition of a parent is specified in the IDEAimplementing regulations found at 34 CFR : (a) Parent means (1) A biological or adoptive Parent of a child; (2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent; (3) A guardian generally authorized to act as the child s parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State); (4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child s welfare; or (5) A surrogate parent who has been appointed in accordance with or section 639(a) (5) of the [IDEA]. (b) (1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive Parent does not have legal authority to make educational decisions for the child. (2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (4) of this section to act as the parent of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the parent for purposes of this section. (Authority: 20 U.S.C. 1401(23)) Since the IDEA includes a surrogate parent within the definition of parent, a surrogate parent, once appointed, has all the procedural rights provided to the parent. It is the surrogate parent s responsibility to assert these rights on behalf of the assigned child. See Letter to Ford, 41 IDELR 10 (OSEP 2003). State Educational Agencies (SEAs) are required to establish procedures to protect the rights of the child when no parent can be identified, a public agency cannot, after reasonable efforts, locate a parent, the child is a ward of the State (i.e., the child is in the custody of Children and Youth and does not have a foster parent who can make educational decisions), or the child is an unaccompanied homeless youth. A surrogate parent must be appointed to any IDEA-eligible or thought-to-be eligible child in Pennsylvania who meets this criteria and for whom there is no identified parent under the IDEA. However, an LEA cannot appoint a surrogate parent if the available parent is disinterested and refuses to participate in the special education process. See Letter to Perryman, 211 IDELR (OSEP 1987). Also, LEAs are not permitted to appoint a surrogate parent when an available parent acts in a manner that is opposed to, or inconsistent with, the best interest of the child. In its publication of the 2006 regulations, 71 Fed. Reg (August 2006), the United States Department of Education (USDE) provided clarification related to the appointment of surrogate parents. Specifically, the USDE noted that: [t]here is no statutory authority to permit the appointment of a surrogate parent when a parent is either unable or unwilling to attend a meeting in which a decision is made relating to a child s 1

8 2 educational placement. In Section 615(b)(2) of the Act, a public agency does not have the authority to appoint a surrogate parent where a child s parent is available or can be identified and located after reasonable efforts, but refuses, or is unable to attend a meeting or otherwise represent the child. Some options for public agencies to consider in order to ensure that the IDEA-eligible or thought-to-be eligible child has a parent decision-maker, include but are not limited to the following: 1. Collaboration with other parties, such as child welfare or homeless liaisons, regarding the appointment of a parent-decision maker; 2. Consultation with the placement agencies; 3. A determination whether a court has appointed a parent decision-maker. If a judicial decree or order identifies a person or persons to act as the parent of a child or to make educational decisions on behalf of that child, then that person would be determined to be the child s parent for IDEA purposes; 4. Use of alternative methods such as individual or conference telephone calls when a parent decision-maker can be identified but is unable to attend meetings regarding an eligible child s education; and 5. Investigation of the child s home to determine whether there is an individual acting in the place of the biological or adoptive parent with whom the child lives who is willing to act as the IDEA parent decision-maker. What are the Current Federal Regulatory Requirements for a Surrogate Parent? The federal requirements related to the appointment of a surrogate parent for an IDEA-eligible or thought-to-beeligible child are specified in 34 CFR : (a) General. Each public agency must ensure that the rights of a child are protected when (1) No parent (as defined in ) can be identified; (2) The public agency, after reasonable efforts, cannot locate a parent; (3) The child is a ward of the State under the laws of that State; or (4) The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C a(6)). (42 U.S.C a(6)). (b) Duties of public agency. The duties of a public agency under paragraph (a) of this section include the assignment of an individual to act as a surrogate for the parents. This must include a method (1) For determining whether a child needs a surrogate parent; and (2) For assigning a surrogate parent to the child. (c) Wards of the State. In the case of a child who is a ward of the State, the surrogate parent alternatively may be appointed by the judge overseeing the child s case, provided that the surrogate meets the requirements in paragraphs (d)(2)(i) and (e) of this section. (d) Criteria for selection of surrogate parents. (1) The public agency may select a surrogate parent in any way permitted under State law. (2) Public agencies must ensure that a person selected as a surrogate parent (i) Is not an employee of the SEA, the LEA, or any other agency that is involved in the education or care of the child; (ii) Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and (iii) Has knowledge and skills that ensure adequate representation of the child. (e) Non-employee requirement; compensation. A person otherwise qualified to be a surrogate parent under paragraph (d) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a surrogate parent. (f) Unaccompanied homeless youth. In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to paragraph (d)(2)(i) of this section, until a surrogate parent can be appointed that meets all of the requirements of paragraph (d) of this section. (g) Surrogate Parent responsibilities. The surrogate parent may represent the child in all matters relating to (1) The identification, evaluation, and educational placement of the child; and (2) The provision of FAPE to the child.

9 (h) SEA responsibility. The SEA must make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after a public agency determines that the child needs a surrogate parent. (Authority: 20 U.S.C. 1415(b)(2)). What is a Surrogate Parent? A surrogate parent is an individual who represents an IDEA-eligible child or thought-to-be eligible child in matters relating to the identification, assessment, educational placement, and the provision of FAPE. This is a long-standing provision and is intended to describe the areas in which a surrogate parent may represent the child. Federal regulations provide a legal definition of a surrogate parent and delineate the requirements that must be met when a public agency selects and assigns a surrogate parent for a child. Specifically, federal law requires SEAs, IUs, and LEAs to establish and maintain procedures for assigning a surrogate parent to a child whenever the location of the parent or guardian of the child is not known or available, the child is an unaccompanied homeless youth, or the child is a ward of the State. The surrogate parent must not be an employee of any public agency involved in the education or care of the child. For more information on this topic see Chapter 3. A surrogate parent is an individual who meets specific qualifications and volunteers to perform the duties of a parent or guardian in the special education process. Surrogate parents can be appointed by a judge or a public agency to make decisions related to the provision of special education services for IDEA-eligible children or thought-to-be eligible children. Who Can Appoint a Surrogate Parent to fulfill the IDEA requirement? An IDEA-eligible or thought-to-be-eligible child s school district of residence or the public charter school is responsible for providing FAPE, and in most cases for appointing a surrogate parent when needed. When a non-resident child is in a non-educational placement in a residential facility, the LEA in which the facility is located is responsible for FAPE and for appointing surrogate parents to children, when necessary. For IDEA-eligible or thought-to-be-eligible children in the dependency system who are considered wards of the state under the IDEA (i.e., a foster child who does not have a foster parent, a child in the custody of a public child welfare agency, or a ward of the state as determined by Pennsylvania law), the judge overseeing the case has the authority to appoint a surrogate parent for any child who comes within the court s jurisdiction who is in child welfare s custody and who is not living with a foster parent or a guardian. As more fully described in Chapter 3 under the heading How are Wards of the State Assigned Surrogate Parents?, when a Court makes the appointment of a surrogate parent for a ward of the state it does not need to comply with all of the same criteria for selection of a surrogate as an LEA would for appointing a ward of the state. Can the Foster Parent Act as a Parent? The definition of parent includes foster parents (34 CFR ). In instances where the foster parent is acting as the child s parent, there is no need to appoint a surrogate parent. The IDEA regulations do qualify that if State law, regulations or contractual obligations with a State or local entity prohibit it, a foster parent may not act as a parent. Currently no such impediments exist in Pennsylvania. Can a Guardian Make Educational Decisions? A guardian with a limited appointment that does not authorize the individual to act as the educational decision maker of the child generally, or does not authorize that individual to make educational decisions for the child, should not be considered to be a parent within the meaning of the regulations. In some cases, the role of the guardian is limited to representing the interests of the child in court proceedings and acting as an advisor to the court on the child s behalf. The extent of a guardian s authority to act as an educational decision-maker is limited by the terms of his or her appointment. What are the Parental Rights After a Surrogate Parent is Selected? There is nothing in IDEA that terminates the rights of the student s natural or adoptive parents from participating in the educational process of their child after a surrogate parent is appointed unless there is a court order terminating the parent s rights. Where there is a biological or adoptive parent attempting to make educational decisions, he or she must be considered the parent for purposes of the IDEA, unless there is a court order designating someone else. 3

10 Who Cannot Serve as a Surrogate Parent? Federal regulations prohibit employees of the SEA, LEAs, or any other agency involved in the education or care of the child from serving as a surrogate parent. Additionally, any individual who has personal or professional interests that conflict with the interest of the child cannot serve as a surrogate parent. Specifically, public and private agency caseworkers cannot make special education decisions for children with disabilities. Neither public nor private agency caseworkers can be appointed as a surrogate parent for children in the care of the agency. While caseworkers may have relevant information related to the student, the caseworker may not complete special education documents and sign as a parent. Probation officers cannot be appointed as surrogate parents for those children they supervise. Also, staff for residential facilities that are involved in the care of the child may not serve as surrogate parents for those children. Persons in parental relation shall not include any county agency or person acting as an agent of the county agency in the jurisdiction of a dependent child defined under 42 Pa. C.S and 24 PS (related to Compulsory Attendance). A dependent child is a child who has been adjudicated dependent by the Court. The IDEA s definition of the term parent precludes the head of a governmental agency from making educational decisions for children who are wards of the State. There may be a conflict between the interest of the child and the employee of the agency because some educational decisions might have an impact of whether the SEA or other governmental agencies possessed funding responsibility. Who Can Serve as a Surrogate Parent? A surrogate parent appointed by the LEA shall: Not be an employee of a public agency or private agency involved in the education or care of the child; Have no interest that conflicts with the interest of the child who he or she represents; and Have the knowledge and skills that ensure adequate representation of the child. Federal regulations do not address the length of time that a surrogate parent must serve. To ensure minimum disruption to the child, however, the LEA should take steps to ensure that the individual appointed as a surrogate parent can serve in that capacity over the period of time that the child needs a surrogate parent, and, whenever possible, continue to serve as the child s surrogate parent if the child moves to another school district, at least until a new surrogate parent is appointed. Pursuant to 34 CFR (f), in certain cases, the LEA can appoint a surrogate parent for an IDEA-eligible or thought-to-be-eligible child who is an unaccompanied homeless youth without regard to the requirements in 34 CFR (d)(2)(i) that the surrogate parent not be an employee of any agency involved in the education or care of the child. Specifically, appropriate staff of emergency shelters, transitional shelters, independent living programs and street outreach programs may be appointed as temporary surrogate parents until a surrogate parent who meets the requirements of 34 CFR can be appointed. While not mandated, some additional qualifications for a surrogate parent may include, being a resident of Pennsylvania or residing in close enough proximity to the LEA to assure that he or she will be available to make educational decisions for the child and being at least 18 years old. All individuals who are appointed as surrogate parents MUST, however, successfully complete the surrogate parent training in order to serve as a surrogate parent. When Must a Surrogate Parent be Appointed? The LEA must make a reasonable effort to discover the whereabouts of a parent (as defined in 34 CFR ) before assigning a surrogate parent. If the LEA cannot locate a parent, a surrogate parent must be appointed. The SEA must make a reasonable effort to ensure that a surrogate parent is assigned not more than 30 calendar days after the public agency determined that the child needs a surrogate parent. Any IDEA-eligible or thought-to-be eligible child must have a parent or surrogate parent. Reasonable efforts to locate a parent include, but are not limited to the following: 1. Documented telephone calls 2. Letters 3. Certified letters with return receipts 4. Documented visits to the parents last known address 4

11 5. Documented visits to the parents last known place of employment 6. Request, if applicable, a copy of the court order that terminated parental rights Students eligible for special education in State correctional facilities do not have an automatic right to a surrogate parent solely by reason of their confinement at a correctional facility. Public agencies must make a case-by-case determination in accordance with 34 CFR to determine whether the student has a parent to act as an IDEA decision maker. When a student confined in a State correctional facility is considered to be a ward of the State pursuant to the IDEA, that child s rights must be protected through an appointment of a surrogate parent. However, all rights accorded to parents under the IDEA transfer to a child with disabilities who has attained the age of majority and who is incarcerated in an adult or juvenile State or local correctional institution and who has not been found to be incompetent. 34 CFR (a)(2). If there is some doubt about who should act as a surrogate parent or whether a student requires a surrogate parent, the LEA or public agency should consult with its solicitor regarding the unique facts related to the individual child s status. The surrogate parent mandate applies to IDEA-eligible or thought-to-be eligible students. LEAs should not assume that a student in regular education can never have a surrogate parent appointed. If child has no parent, as defined by the IDEA, a surrogate parent should be appointed for children who are thought-to-be eligible and need an evaluation to determine whether they have a disability and require specially designed instruction. Who Can Request or Challenge the Appointment of a Surrogate Parent? Anyone who believes that a child with a disability or thought-to-be eligible child is in need of a surrogate parent can request that one be appointed, including caseworkers or probation officers. There is no legal requirement that the LEA must grant this request if it does not believe that the IDEA standards are met. It is up to the LEA to determine whether a surrogate parent is needed. If the LEA refuses to appoint a surrogate parent, anyone can file a written complaint with the Bureau of Special Education, Pennsylvania Department of Education. Under Chapter 14 and Chapter 711 of the Pennsylvania Code, the LEA of residence owes FAPE, which includes IEP development, notices of placement, and, if necessary, appointment of a surrogate parent. However, if the child is in a non-educational placement in a residential setting, the school district in which the facility is located has all of these responsibilities including appointing a surrogate parent when one is needed. What is the Age of Majority for Consent Requirements in IDEA? For all students, the age of majority in Pennsylvania is 21. Once a student reaches the age of 21, he or she can make his or her own educational decisions subject to the limitations contained in 34 CFR

12 CHAPTER 2: Rights, Responsibilities, and Requirements of Surrogate Parents What is the Surrogate Parent s Role? The surrogate parent s role is the same as the role of a parent to represent the rights of the student in the special education process. The surrogate parent must ensure that the rights of IDEA-eligible or thought-to-be eligible children are protected. What is the Authority of the Surrogate Parent? The surrogate parent represents the child in all matters relating to identification, evaluation, and educational placement, as well as the provision of FAPE, including submitting a dispute to mediation or due process for resolution. It is important to note that a surrogate parent for the purposes of IDEA is not a replacement for a parent in any other sense or for non-idea decision-making. What is the Relationship of the Surrogate Parent to Other Agencies? There is nothing in the IDEA that would prohibit a public agency from collaborating with judges and child advocates in establishing a process for assigning surrogate parents. However, where public agencies involve other parties in determining whether a surrogate parent is needed, the public agency must ensure that the confidentiality of personally identifiable data, information, and records collected, maintained, and used by the SEA and LEAs are protected according to the provisions of the Family Education Rights and Privacy Act (FERPA). What are the Rights of the Surrogate Parent to Access Educational Records? State and federal regulations protect confidentiality of all student records and limit the disclosure of such records. However, state and federal regulations permit the surrogate parent to consent to the release of personally identifiable information. Since the surrogate parent has the same right under the IDEA of the birth or adoptive parent or guardian, the surrogate parent can consent to the release of student information. Also, the surrogate parent must be given access to all educational records. The surrogate parent has the right to review and inspect any records collected, maintained, and used by an agency to make decisions affecting the child s educational program and has the same authority as a birth or adoptive parent to correct records when appropriate. What are the Rights of the Surrogate Parent Regarding Suspension and Expulsion? The surrogate parent who represents an eligible or thought-to-be-eligible child who is being considered for suspension or expulsion is entitled to participate as the parent. The LEA must adhere to the procedural safeguards and federal and State regulations related to suspension and expulsion, including those set out in the IDEA and Chapters 14 and

13 CHAPTER 3: When to Appoint Surrogate Parents What are the Basic Criteria for Appointing a Surrogate Parent? Each public agency must ensure that an IDEA-eligible or thought-to-be eligible child, including unaccompanied homeless youth and wards of the State, has a parent to represent him or her in all matters relating to the identification, evaluation, educational placement and provision of FAPE. The public agency must ensure that the rights of the child are protected when: No parent, as defined in 34 CFR , can be identified; The public agency, after reasonable efforts, cannot locate a parent; The child is a ward of the State; or The child is an unaccompanied homeless youth, as defined in section 725(6) of the McKinney- Vento Homeless Assistance Act (42 U. S. C (a)(6)). How are Wards of the State Assigned Surrogate Parents? Ward of the State for the IDEA purposes is defined in 34 CFR A ward of the State is a child who, as determined by the State where the child lives, is: 1. a foster child; 2. a ward of the State; or 3. in custody of a public child welfare agency Public agencies must assign a surrogate parent to an IDEA ward of the State as defined by the IDEA even if there is a birth or adoptive parent who can be identified. Courts overseeing a child s case can also appoint surrogate parents for wards of the State whose birth or adoptive parent can be located. When a Court makes the appointment not all of the criteria for selection of a surrogate apply. The person selected still cannot be an employee of an agency involved in the education or care of the child, but the other criteria regarding who can be appointed that apply to LEAs do not apply to appointment by courts. In any case, whether the appointing authority is the court or an LEA, the surrogate parent cannot be: An employee of the SEA; An employee of the LEA; or An employee of any other agency that is involved in the child s education or care. How are Surrogate Parents Assigned to Children Residing in Group Homes, Residential Treatment Facilities, and Institutions? Decisions by the courts, child welfare agencies, and parents to place a child in a residential facility can occur outside the scope of the IEP team. Children can be placed in many types of congregate care settings which include group homes, residential treatment facilities, juvenile justice facilities, county prisons, or State correctional institutions. The LEA in which these residential facilities are located is responsible for the educational program. Children who are in the custody of a public child welfare agency placed in congregate care settings are wards of the State under the definition in IDEA(34 CFR (a)(3) and the rules for appointment of surrogate parent apply (34 CFR (c). The LEA must provide FAPE in the least restrictive environment, usually in its own public schools, unless 1) a court order requires that the child be educated at the residential facility; 2) a current IEP and NOREP, or a service agreement under 22 PA Code Chapter 15, dictates a different placement; 3) the child is currently expelled from his or her last educational placement due to a weapons offense (see, 24 P.S (e.1)) or 4) the child is in an interim alternative educational setting in which he/she has been placed in accordance with the IDEA. The LEA can provide educational services or enter into a written agreement with a private contractor or the intermediate unit; however, the final responsibility to provide FAPE rests with the LEA in which the facility is located. Therefore, the LEA in which the facility is located is also the LEA responsible for appointing a surrogate parent when the conditions described above are met. 7

14 How are Unaccompanied Homeless Youth Assigned Surrogate Parents? The term unaccompanied homeless youth is defined as a homeless youth not in the physical custody of a parent or guardian. A surrogate parent may be appointed for an IDEA-eligible or thought-to-beeligible child who is an unaccompanied homeless youth. The surrogate parent could include appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs until a surrogate parent can be appointed who meets all the appointment requirements. The Act does not specify how long a surrogate parent can represent the child. The need for a surrogate parent will depend on the specific circumstances and unique problems faced by each unaccompanied homeless youth. The federal McKinney-Vento Act covers all children and youth who meet its definition of homelessness. This means those children who lack a fixed, regular, and adequate nighttime residence. The examples listed in the law include children and youth who: Share the housing of other persons due to loss of housing, economic hardship, or similar reasons; Live in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; Live in emergency or transitional shelters; Are abandoned in hospitals; Are awaiting foster care placement ; Have a primary nighttime residence that is a public or private place not designated for or ordinarily used as a regular sleeping accommodation for human beings; Live in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and Are migratory children who otherwise fit the definition of homelessness. 8

15 CHAPTER 4: The Appointment Process What are the Steps in Getting Started? The duty of the LEA includes the assignment of an individual to act as a surrogate parent to an IDEA-eligible or thought-to-be eligible child. This must include a method to ensure the assignment of a surrogate parent not more than 30 calendar days after the LEA determines that the child needs a surrogate parent. Any child who has been referred for an initial evaluation because of a suspected disability, who is already eligible for special education services, or who is enrolled in special education may need a surrogate parent. If documented reasonable efforts do not locate the parent, current foster parent, guardian, relative caregiver (relative with whom the child lives), or the child is an unaccompanied homeless youth or ward of the State, a surrogate parent appointment would be in order. 4. Documented visits to the parents last known address 5. Documented visits to the parents last known place of employment 6. Request, if applicable, a copy of the court order that terminated parental rights If reasonable efforts to locate a parent described above fail to locate the parent or to obtain parent status notification from the placing agency, a surrogate parent appointment is necessary. The appointment of a surrogate parent would facilitate timely consent for a special education assessment, timely IEP development, and educational placement. Step 1: Contacting Parents Efforts to locate the parent should begin immediately upon referral. Time is important. First, a series of actions with specific timelines begin upon the referral related to identification, assessment, educational placement, and provision of FAPE. Since a parent must participate in those decisions, the determination of the need for a surrogate parent should be made within 30 calendar days of the referral. LEAs should continue to send notices to the parent whose educational rights may still be intact, even during the process of appointing a surrogate parent. If the parent is located, the surrogate parent appointment should be terminated. Reasonable efforts to contact the parent include but are not limited to the following: 1. Documented telephone calls 2. Letters 3. Certified letters with return receipts Step 2: Selecting Surrogate Parents When appointing a surrogate parent, the LEA should give first preference to a relative, friend, or court-appointed advocate. If none of these individuals is willing or able to act as a surrogate parent, the LEA must be prepared to appoint another qualified responsible adult to act in that capacity. The child welfare caseworker may be a source for identifying a surrogate parent who already knows and has a relationship with the child. To serve as a surrogate parent, the individual must have received surrogate parent training. Step 3: Surrogate Parent Application Appropriate community groups should be contacted for purposes of recruiting surrogate parents. It is recommended that such groups be given a clear explanation of the roles and responsibilities of educational guardian, as well as an overview of the time commitments involved in representing children who have special and 9

16 sometimes unique needs. They must be willing to be trained to act as educational representatives for students requiring a surrogate parent. Some examples of community groups could include the following: Big Brothers/Big Sisters Fresh air groups Local Parent-Teacher organizations Local Task Force Mental Health/Mental Retardation Agency Retired business men s organizations Women s organizations Retired educators groups Service clubs The application process should provide the public agency with specific information related to the applicant: Facts that show that the applicant does not have any interests that will conflict with the student s area in special education; Assurance that the applicant has or is willing to acquire knowledge about the special educational interest of the student and the qualities and skills necessary to fulfill the role of educational representative; Facts that show that the applicant is not an employee of a public, non-public, or private agency involved in the education or care of the student; and Assurance that the applicant is willing to commit the time and energy necessary to effectively present and advance the best interest of students in educational matters. Step 4: Screening for Conflict of Interest The LEA must ensure that a person selected as a surrogate parent: Is not an employee of the SEA, LEA, or any other agency that is involved in the education or care of the child; Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and Has knowledge and skills that ensure adequate representation of the child. Group homes and other residential facilities that are not operated within the licensee s residence are considered businesses and viewed as having a financial conflict of interest. Employees and officers of such agencies should not be considered for appointment as a surrogate parent. (NOTE: A person who is qualified to be a surrogate parent is not an employee of the agency solely because he or she is paid by the agency to serve as a surrogate parent.) Step 5: Training of Potential Surrogate Parents While LEAs are responsible for the recruitment, selection, training, and assignment of surrogate parents, IUs, in most instances, performs these functions. The surrogate parent training must provide each individual with the knowledge and skills to adequately represent the child in all aspects of the special education process. The training sessions must be comprehensive and, at least, include the following areas: 1. Legal rights and responsibilities Introduction to the IDEA and State Special Education Laws Introduction to the surrogate parent provisions of State and Federal laws Responsibilities of educational agencies to students and surrogate parents 2. The Special Role of the Surrogate Parent Rights and responsibilities of the surrogate parent Building relationships with the child and school staff Monitoring and recording student progress Obtaining and reviewing student records (confidentiality) Discussion of resources available to support surrogate parents, including reimbursement, technical assistance, and legal assistance 10

17 3. Developing an Effective Special Education Program Identification: Understanding the student s disability/disabilities Evaluations: Preparing for the evaluation process and development of the Individualized Education Program (IEP) IEP: Developing goals and objectives and other sections of the IEP Special program concerns: Behavior support, assistive technology, transition services, and related services 4. Understanding Procedural Safeguards. Mediation, and Due Process Overview of IDEA and state procedural safeguards Mediation and other dispute resolution alternatives Administrative complaint procedures and due process 5. Questions and Responses Review and receipt of the Surrogate Parent Manual Questions and responses Final remarks Once volunteers have been trained to act as surrogate parents, usually the IUs maintain a list of qualified surrogate parents. The LEAs contact IU staff when a surrogate parent is needed. Step 6: Additional Procedures LEAs must: Have a process to determine whether a student requires a surrogate parent; Develop methods to recruit surrogate parents; Ensure that there is an adequate number of surrogate parents to represent students where necessary; Ensure that surrogate parents are afforded the same educational rights as other parents of students with disabilities in the LEA; Review the training provided to surrogate parents to ensure that surrogate parents have an adequate knowledge to serve in this capacity; and Ensure that surrogate parents are appointed within 30 calendar days of the determination that a surrogate parent is necessary to represent the student. It is suggested that the following procedures be considered: Match the student s needs to the strengths of the potential surrogate parent; Introduce the student and the potential surrogate parent; Obtain a written agreement from the surrogate parent to serve the specific student in his or her IEP process and to maintain the student s and the family s rights to confidentiality; and Inform all involved persons and agencies responsible for the residential care and education of the student of the surrogate parent s appointment. 11

18 CHAPTER 5: Appointment Terms and Dismissal of a Surrogate Parent When Should Surrogate Parents Be Dismissed? The surrogate parent shall not represent the child when any of the following are determined: The child is no longer in need of special education; The child reaches the age of majority and has not been determined to be incompetent under state law; Another responsible adult is appointed to make educational decisions for the child; The rights of the parent or guardian to make educational decisions for the minor are fully restored; or A child with no birth parent moves from a residential setting (such as a group home) to a foster family placement, and the foster parent takes over from the surrogate parent as the child s education decision maker. A surrogate parent assignment may be carried over to a new LEA if the new LEA is in agreement. The surrogate parent can continue to serve when a child moves from one LEA to another unless and until a new surrogate parent is appointed. The LEA shall terminate the appointment of the surrogate parent if either of the following applies: The person is not properly performing the duties of a surrogate parent; or The person has an interest that conflicts with the interest of the child for whom he or she is appointed as surrogate parent. What is the Role of Public Non-Educational Agencies and Foster Care Providers? While prior to placing an IDEA-eligible child or thought-to-be eligible child, the placing agency should notify the LEA in which the student is being placed and the receiving agency to which the child is being transferred if the child is in need of a surrogate parent. How are the Parents Educational Rights Determined? In the case of a child in a non-educational placement, if parental rights have not been limited or revoked by the courts, the placing agency should provide any additional information related to the address, telephone numbers, and location of the parents. If the placing agency does not provide this information, the LEA should specifically request it. The LEA should make a reasonable effort to contact the parents. While the surrogate parent is responsible for participation in educational matters, the placing agency representative remains responsible for all other aspects of the placement including the provision of day-to-day supervision, care, and services as agreed upon by the placing agency. How are State Complaints and Due Process Complaints Handled? A surrogate parent can file a compliance complaint pursuant to 34 CFR If the SEA receives a written complaint as per federal regulations, the SEA must follow through in a timely manner. The surrogate parent can also request mediation or file a due process complaint on behalf of the student. The LEA shall not terminate the appointment of a surrogate parent because it disagrees with the decisions of the surrogate parent. 12

19 CHAPTER 6: The Role of the Intermediate Unit in the Surrogate Parent Process What is The Role of the Intermediate Unit in the Surrogate Parent Process? According to 24 PS (4), Classes for Exceptional Children The intermediate unit shall have power, and it shall be its duty, to provide, maintain, administer, supervise, and operate such additional classes or schools as are necessary or to otherwise provide for the proper education and training for all exceptional children who are not enrolled in classes or schools maintained and operated by school districts or who are not otherwise provided for The Pennsylvania Department of Education has arranged for intermediate units to assist with the appointment of surrogate parent mandate. In assisting with the surrogate parent requirements, the IU participates in the following areas: Assigning a surrogate parent coordinator Developing policies and procedures for the surrogate parent process Developing materials and forms Securing district personnel contacts Developing a monitoring procedure Developing plans for district referrals Developing local interagency agreements among districts and agencies Developing and implementing an ongoing surrogate recruiting process Conducting public awareness activities Screening potential surrogate parents Providing training for district staff Developing and training surrogate parents Monitoring surrogate parents Providing school districts with a list of surrogate parents Maintaining up-to-date records 13

20 CHAPTER 7: Conclusion and Attachments Conclusion The surrogate parent plays an important role in the special education process. The surrogate parent is, in essence, the parent for a special education student for whom a parent is not available or cannot be located. The surrogate parent has the same rights as the biological parent or guardian in all aspects of the special education process. For additional information related to the surrogate parent process or requirements, you may contact: Malcolm Conner, Ed.D. Bureau of Special Education Pennsylvania Department of Education 333 Market Street Harrisburg, PA Attachments 1. Agreement to Serve as a Surrogate Parent 2. Application for Surrogate Parent 3. Notification of Assignment as Surrogate Parent 4. Surrogate Parent Referral Form 14

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