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

CareCare

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

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

(215) 238 – 6970(215) 238 – 6970Spring 2006Spring 2006

Topical OverviewTopical Overview Special Education vs. AccommodationsSpecial Education vs. Accommodations Special EducationSpecial Education

– Brief Special Education Overview Brief Special Education Overview – Parents and Surrogate Parents Parents and Surrogate Parents – Initial Evaluations for Children in CareInitial Evaluations for Children in Care– Transferring a Child’s IEP to a new school Transferring a Child’s IEP to a new school

districtdistrict– Discipline for Students with DisabilitiesDiscipline for Students with Disabilities

ConfidentialityConfidentiality

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

with Disabilitieswith DisabilitiesSpecial Education (IEPs)Special Education (IEPs)

and and Section 504 (service Section 504 (service

agreements)agreements)

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

(2-part test) (2-part test) From: 34 CFR § 300.8From: 34 CFR § 300.8

• Mental retardation/Mental retardation/• developmental developmental

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

impairmentsimpairments• Visual impairmentsVisual impairments• Serious emotional Serious emotional

disturbancedisturbance

• Orthopedic Orthopedic impairments impairments

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

disabilitiesdisabilities• Multiple disabilitiesMultiple disabilities• Other health Other health

impairmentimpairment

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

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

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

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

personal or school problemspersonal or school problems– Includes schizophreiaIncludes schizophreia– But notBut not: “socially maladjusted”: “socially maladjusted”

Important DefinitionImportant Definition ““Other Health Impairment”Other Health Impairment”

– Having limited strength, vitality or Having limited strength, vitality or alertnessalertness

– Includes heightened alertness to Includes heightened alertness to environmental stimuli that reduces environmental stimuli that reduces alertness to the educational environmentalertness to the educational environment

So ADHD may qualify *BUT*So ADHD may qualify *BUT*– Remember this is a two-part test… Remember this is a two-part test… – Must also “adversely affect … educational Must also “adversely affect … educational

performance”performance”

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

STEP 2:STEP 2: As a result of the disability, the As a result of the disability, the child must child must require special education & require special education & related servicesrelated services ( (e.g.:e.g.: specialized specialized instruction, modified curriculum)instruction, modified curriculum)

If child does If child does notnot qualify but has a qualify but has a disability that disability that substantially impairs a substantially impairs a major life activitymajor life activity, child protected by:, child protected by:– Section 504 of the Rehabilitation ActSection 504 of the Rehabilitation Act– See next slide for more informationSee next slide for more information

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

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

– Written Plan (called a 504 plan or a services Written Plan (called a 504 plan or a services agreement)agreement)

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

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

for ½ days without penaltyfor ½ days without penalty

Still has concept of LRE/FAPE (see below) but Still has concept of LRE/FAPE (see below) but other special education rules don’t applyother special education rules don’t apply

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

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

schoolsschools• Includes charter schoolsIncludes charter schools• States allowed to be more protectiveStates allowed to be more protective

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

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

FLOW CHARTFLOW CHART(from 34 C.F.R. § § 300.301 - .311)(from 34 C.F.R. § § 300.301 - .311)

Step 1: Request an EvaluationStep 1: Request an Evaluation– Must be in writing (keep a copy)Must be in writing (keep a copy)– In many states, parents must sign a In many states, parents must sign a

permission form (need informed consent)permission form (need informed consent)– School has School has 60 calendar days60 calendar days to complete the to complete the

evaluation and issue the Eval. Report (ER) evaluation and issue the Eval. Report (ER) States may set a different timeline (longer or States may set a different timeline (longer or

shorter) – so check state rulesshorter) – so check state rules For example: Pa has timeline of 60 school days for For example: Pa has timeline of 60 school days for

public schools. No timeline for charter schools, so public schools. No timeline for charter schools, so they must follow the 60-calendar-day rule.they must follow the 60-calendar-day rule.

FLOW CHART cont’dFLOW CHART cont’d(from 34 C.F.R. Part 300.301 - .311)(from 34 C.F.R. Part 300.301 - .311)

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

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

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

child welfare agency (if get consent)child welfare agency (if get consent)– Independent Educational EvaluationIndependent Educational Evaluation

Can be at public expense if parent disagrees with school’s Can be at public expense if parent disagrees with school’s evaluation (or school must go to a hearing to avoid paying)evaluation (or school must go to a hearing to avoid paying)

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

FLOW CHART cont’dFLOW CHART cont’d(from 34 C.F.R. § § 300.320 - .328)(from 34 C.F.R. § § 300.320 - .328)

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

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

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

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

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

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

FLOW CHART cont’dFLOW CHART cont’d(from 34 C.F.R. Part 300)(from 34 C.F.R. Part 300)

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

Phys Ed, travel & vocational trainingPhys Ed, travel & vocational training– Related Services:Related Services: transportation, speech transportation, speech

therapy, physical therapy, counseling, etc.therapy, physical therapy, counseling, etc.– Transition Services:Transition Services: starting with IEP in effect at starting with IEP in effect at

age 16 (can always plan for this earlier)age 16 (can always plan for this earlier)– Assistive Technology:Assistive Technology: (devices/services): to (devices/services): to

increase functional capabilities of the childincrease functional capabilities of the child Ex: wheelchair, communication devices, etc.Ex: wheelchair, communication devices, etc. Specifically excludes surgically implanted devices Specifically excludes surgically implanted devices

(cochlear implants, for example)(cochlear implants, for example)

FLOW CHART cont’dFLOW CHART cont’d(from 34 C.F.R. §§ 300.114 - .117, .500)(from 34 C.F.R. §§ 300.114 - .117, .500)

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

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

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

placement pending resolution of the dispute processplacement pending resolution of the dispute process

FLOW CHART cont’dFLOW CHART cont’d(from 34 C.F.R. § 300.303, .323 )(from 34 C.F.R. § 300.303, .323 )

Implementing/Revising IEPsImplementing/Revising IEPs Must be implemented “as soon as possible” following Must be implemented “as soon as possible” following

development of the IEP development of the IEP (state may have a timeline for this)(state may have a timeline for this)

ReevaluationsReevaluations must occur: must occur: Every 3 years (unless school and parent agree not to)Every 3 years (unless school and parent agree not to) If parent or teacher requests re-evaluation; orIf parent or teacher requests re-evaluation; or If school determines that child’s educational or related If school determines that child’s educational or related

services needs ”warrant” a reevaluationservices needs ”warrant” a reevaluation

BUT school need not agree to more than one a yearBUT school need not agree to more than one a year

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

Complaint to State Education AgencyComplaint to State Education Agency– Follow state rules for filing the complaintFollow state rules for filing the complaint– Federal rules include:Federal rules include:

Must send a copy of complaint to the schoolMust send a copy of complaint to the school Certain required information must be in the Certain required information must be in the

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

Limit: only violations in past calendar yearLimit: only violations in past calendar year– 60 days to investigate and issue report60 days to investigate and issue report

See 34 C.F.R. § § .151-.153See 34 C.F.R. § § .151-.153

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

Due Process:Due Process: usually for more complicated usually for more complicated disputes over eligibility, services, placementdisputes over eligibility, services, placement– How?How? File a “complaint” letterFile a “complaint” letter

Specific rules on information to include (sufficiency Specific rules on information to include (sufficiency challenges)challenges)

Must send a copy to the school and to the stateMust send a copy to the school and to the state Limit: only issues in past 2 years (only a few exceptions)Limit: only issues in past 2 years (only a few exceptions)

– Alternative Dispute Resolution:Alternative Dispute Resolution: Parent and school either agree to Parent and school either agree to mediationmediation or a or a resolution resolution

sessionsession within 15 days to work out their differences within 15 days to work out their differences– If parent doesn’t attend, complaint can be dismissedIf parent doesn’t attend, complaint can be dismissed

– After, go to hearing (maybe state-level appeal)After, go to hearing (maybe state-level appeal) Appeal to court within 90 calendar daysAppeal to court within 90 calendar days

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

In CareIn Care

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

The IDEA now defines a “The IDEA now defines a “parentparent” as” as– A A natural or adoptive parentnatural or adoptive parent– A A foster parentfoster parent (unless prohibited by state (unless prohibited by state

law)law)– A A guardianguardian but not the State but not the State

Thus no CW agency caseworkersThus no CW agency caseworkers– A A person acting in the place of a parentperson acting in the place of a parent

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

– A A surrogate surrogate parentparentSee 34 C.F.R. § 300.30(a)See 34 C.F.R. § 300.30(a)

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

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

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

parentparent””– If a judicial decree or order identifies someone If a judicial decree or order identifies someone

to act as the “parent”, then school must to act as the “parent”, then school must recognize that person’s authorityrecognize that person’s authority

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

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

Confusing IssuesConfusing Issues – Guardians Guardians ad lietmad lietm

Will only count as a parent if the appointment gives the Will only count as a parent if the appointment gives the GAL the power to act as the child’s parent generally or to GAL the power to act as the child’s parent generally or to make educational decisions for the child (make educational decisions for the child (71 FR 4656671 FR 46566))

– When are bio./adoptive parents “When are bio./adoptive parents “attempting to actattempting to act”?”? Nothing requires the bio./adoptive parent to assert their Nothing requires the bio./adoptive parent to assert their

rights affirmatively (rights affirmatively (71 FR 4656671 FR 46566)) But, comments say examples of a bio./adoptive parent But, comments say examples of a bio./adoptive parent

attempting to act include providing consent for an attempting to act include providing consent for an evaluation or attending an IEP meeting (evaluation or attending an IEP meeting (71 FR 4656771 FR 46567))

TIP: argue that school must document efforts to engage TIP: argue that school must document efforts to engage parent & accommodate their schedule before using other parent & accommodate their schedule before using other “parent”“parent”

– Some support at Some support at 71 FR 4656871 FR 46568

Surrogate Parents:Surrogate Parents:School ResponsibilitiesSchool Responsibilities

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

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

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

Surrogate Parents:Surrogate Parents:Court OptionCourt Option

For “For “wards of the Statewards of the State,” alternatively ,” alternatively surrogate may be appointed by the judgesurrogate may be appointed by the judge– QuestionQuestion: Who does this rule apply to?: Who does this rule apply to?

Can judges appoint surrogates for kids who have Can judges appoint surrogates for kids who have foster parents? foster parents?

– IDEA defines “ward of the State” to exclude kids in IDEA defines “ward of the State” to exclude kids in foster homes, does this exclude them from judge foster homes, does this exclude them from judge surrogates?surrogates?

– But surrogate parent rule says any kid who is a “ward of But surrogate parent rule says any kid who is a “ward of the State under the laws of the State” might need a the State under the laws of the State” might need a surrogate parent – so maybe judges can appoint for surrogate parent – so maybe judges can appoint for kids in foster carekids in foster care

Why matter? If foster parent does not want to be the Why matter? If foster parent does not want to be the child’s special education decisionmaker child’s special education decisionmaker (71 FR 46711)(71 FR 46711)

Surrogate Parents Surrogate Parents (continued) (continued)

Who may Who may notnot be a surrogate parent? be a surrogate parent?– Employees of school district or State Education AgencyEmployees of school district or State Education Agency– Employees of “any agency that is involved in the Employees of “any agency that is involved in the

education or care of the child” (i.e., child welfare workers)education or care of the child” (i.e., child welfare workers)– For School-appointed surrogates two more rules to follow:For School-appointed surrogates two more rules to follow:

Can’t have a conflict of interestCan’t have a conflict of interest Must have knowledge and skills to represent childMust have knowledge and skills to represent child

Unaccompanied Homeless YouthUnaccompanied Homeless Youth– Staff of emergency shelters, transitional shelters, Staff of emergency shelters, transitional shelters,

independent living programs, and street outreach independent living programs, and street outreach programs may be appointed as programs may be appointed as temporarytemporary surrogate surrogate parentparent

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

Surrogate parent rights:Surrogate parent rights:– Review education recordsReview education records– Receive notice of school district proposed Receive notice of school district proposed

actionsactions– Participate in IEP meetingsParticipate in IEP meetings– Accept or reject a proposed IEP and placementAccept or reject a proposed IEP and placement– Dispute school district decisions by filing a Dispute school district decisions by filing a

complaint or requesting mediation or a hearingcomplaint or requesting mediation or a hearing Surrogate parents do Surrogate parents do notnot have any rights have any rights

outside of the special education systemoutside of the special education system

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

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

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

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

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

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

71 FR 4671271 FR 46712

Initial EvaluationsInitial Evaluations General RulesGeneral Rules

– Districts must obtain consent from a Districts must obtain consent from a “parent” before conducting an initial “parent” before conducting an initial evaluationevaluation This means that a caseworker can’t sign This means that a caseworker can’t sign Schools might refer students to a “screening” Schools might refer students to a “screening”

program program butbut parents can request the special parents can request the special ed. evaluation At ed. evaluation At ANYANY time time

– If parent won’t consent to the evaluation, If parent won’t consent to the evaluation, school can go to a hearing to get an school can go to a hearing to get an order for the evaluationorder for the evaluation

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

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

foster parent with the power to make special education decisionsfoster parent with the power to make special education decisions ))– School districts may conduct initial evaluations School districts may conduct initial evaluations

withoutwithout parental consent if:parental consent if: The school district can’t locate the parents after The school district can’t locate the parents after

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

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

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

Initial Evaluations vs. Initial Initial Evaluations vs. Initial IEPIEP

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

child to be evaluatedchild to be evaluated

If parent won’t consent to initial IEP services?If parent won’t consent to initial IEP services?– School cannot go to a hearing to force servicesSchool cannot go to a hearing to force services– So, if a ward of the State is evaluated without So, if a ward of the State is evaluated without

parental consent, its very important to appoint a parental consent, its very important to appoint a surrogate in the meantime (through school or surrogate in the meantime (through school or juvenile judge)juvenile judge)

– Surrogate then decides whether to approve/refuse Surrogate then decides whether to approve/refuse the initial IEP services & placementthe initial IEP services & placement

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

Recall the timeline:Recall the timeline:– 60 school days (or any state-imposed timeline)60 school days (or any state-imposed timeline)

If child moves to a New districtIf child moves to a New district: : 34 CFR § 34 CFR § 300.301(d, e)300.301(d, e)– The timeline may be extended, but The timeline may be extended, but ONLY IF:ONLY IF:

““Parent” and school agree to a new specific time Parent” and school agree to a new specific time New school ensures New school ensures promptprompt evaluation evaluation

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

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

What happens when a child What happens when a child moves who has an IEP?moves who has an IEP?

If a child with an IEP movesIf a child with an IEP moves: : 34 C.F.R. 300.323(d)34 C.F.R. 300.323(d)– In-State TransfersIn-State Transfers: new district must provide : new district must provide

“services comparable to those described in the “services comparable to those described in the previously held IEP” & ensure FAPEpreviously held IEP” & ensure FAPE Until district formally adopts the old IEP or Until district formally adopts the old IEP or

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

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

needed) & negotiates a new IEP with the parentneeded) & negotiates a new IEP with the parent

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

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

schools) must coordinate all evaluations to schools) must coordinate all evaluations to ensure prompt completion ensure prompt completion 34 C.F.R. § 300.304(c)(5)34 C.F.R. § 300.304(c)(5)

RecordsRecords– New school must take reasonable steps to New school must take reasonable steps to

promptly obtain child’s records including IEP promptly obtain child’s records including IEP and supporting documentsand supporting documents

– Old school must take reasonable steps to Old school must take reasonable steps to promptly respond to the records requestpromptly respond to the records request NOTE: School records privacy laws allow schools to NOTE: School records privacy laws allow schools to

transfer records without parental consent in transfer records without parental consent in enrollment situationsenrollment situations

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

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

especially for kids in congregate careespecially for kids in congregate care

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

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

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

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

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

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

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

School Discipline for School Discipline for Children with DisabilitiesChildren with Disabilities

20 U.S.C. § 141520 U.S.C. § 141534 C.F.R. § § 300.530 - .53734 C.F.R. § § 300.530 - .537

School Discipline for School Discipline for Children with DisabilitiesChildren with Disabilities

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

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

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

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

A transfer to an alternative educational A transfer to an alternative educational setting.setting.

A school exclusion for:A school exclusion for:> 10 school days in a row> 10 school days in a row

OR OR The child has already been excluded from school The child has already been excluded from school for at least 10 schools days, and the proposed for at least 10 schools days, and the proposed additional exclusion constitutes a pattern. additional exclusion constitutes a pattern.

Factors (to decide if it’s a “pattern”):Factors (to decide if it’s a “pattern”):the similarity of the behavior that has resulted in a the similarity of the behavior that has resulted in a sanction, and the number, length, and proximity of the sanction, and the number, length, and proximity of the suspensions.suspensions.

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

placement?placement? Schools proposing the Schools proposing the

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

disciplinediscipline– Inform parents of their Inform parents of their

rightsrights– Hold a “manifestation Hold a “manifestation

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

Manifestation DeterminationManifestation Determination

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

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

school’s failure to implement the IEPschool’s failure to implement the IEPOld law had other protections, these are now gone

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

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

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

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

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

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

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

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

non-disabled peersnon-disabled peers

If the school wants to If the school wants to expelexpel the child the child– Must follow state rules for expelling all childrenMust follow state rules for expelling all children– School must provide services for child: School must provide services for child:

To participate in general curriculum &To participate in general curriculum & To progress toward IEP goals To progress toward IEP goals (20 USC § 1415(k))(20 USC § 1415(k))

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

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

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

School can impose the discipline School can impose the discipline – Includes transfer to alternative schools, suspensions, Includes transfer to alternative schools, suspensions,

and even expulsionsand even expulsions Child must receive enough services to participate Child must receive enough services to participate

in the general curriculum & progress in IEP goalsin the general curriculum & progress in IEP goals Expedited Hearing processExpedited Hearing process

– If family wins, child must be returned to previous If family wins, child must be returned to previous educational setting (unless its an exceptional educational setting (unless its an exceptional circumstance)circumstance)

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

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

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

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

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

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

Old law was much more protective

Automatic Exceptions– Automatic Exceptions– Regardless of Regardless of

Manifestation DecisionManifestation Decision The school may move the child to an The school may move the child to an

alternative education setting for alternative education setting for up toup to 45 days45 days without parent permission if: without parent permission if:

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

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

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

Exceptions requiring a Exceptions requiring a hearing:hearing:

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

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

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

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