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Education Advocacy 102: Eight Keys To Improving Educational Outcomes For Children in Care A Guide for CASAs


Education Advocacy 102: Eight Keys To Improving Educational Outcomes For Children in Care A Guide for CASAs Maura McInerney, Esq. Education Law Center – PowerPoint PPT presentation

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Title: Education Advocacy 102: Eight Keys To Improving Educational Outcomes For Children in Care A Guide for CASAs

Education Advocacy 102Eight Keys To
Improving Educational Outcomes For Children in
CareA Guide for CASAs
  • Maura McInerney, Esq.
  • Education Law Center
  • June 2010

What We Know
  • Almost half of youth in foster care in
    Pennsylvania do not complete high school.
    (Philadelphia 70)
  • Only one-third graduate in four years.
  • They are far more likely to repeat a grade.
  • Score lower on standardized tests. Average youth
    in care reads at a seventh grade level after
    completing 11th grade.
  • Lower grade point averages
  • Fewer credits toward HS graduation

Barriers to Educational Achievement
  • Delayed enrollment
  • Lack of school stability
  • Children in care with special education needs
    fail to access services
  • Over-representation in alternative education
    programs and inappropriate placements
  • Confusion about legal rights absence of active
    involved advocates and decision makers
  • Lack of remedial services
  • Lost credits/diploma requirements

Improving Education Improving Lives
  • Poor academic performance affects lives
    dramatically and contributes to higher than
    average rates of homelessness, criminality, drug
    abuse and unemployment.
  • Maryland Public Policy Institute, Focus Group
    Study Foster Care Families, Children, and
    Education, December 2006, at
    ib/20061130_FosterCareFocusGroupStudy.pdf (April
    10, 2007).

A High School Drop Out Is . .
  • Eight times more likely to be incarcerated
  • 40 more likely to be on public assistance
  • Far more likely to be unemployed
  • More likely to become a drug addict
  • Estimated cost of a youth who drops out and turns
    to crime drugs -- 1.7 to 2.3 million

Reasons for HopeEducational Success
  • Studies indicate that when youth in care have
    stable home placements, stable school attendance
    and the support they need educational outcomes
    improve dramatically
  • One school placement Twice as likely to
    graduate from high school
  • One-to-one tutoring Average increases in reading
    level by 1.7 years in six months.
  • ww.http//

Blueprint for Change Educational Success for
Children in Care
  • 8 Goals for Youth
  • Benchmarks for each goal indicating progress
    toward achieving education success
  • National, State, and Local Examples

  • Goal 1 Educational Stability Youth remain in
    their school of origin whenever possible and in
    their best interests.
  • Goal 2 Youth are guaranteed smooth
    transitions between schools.
  • Goal 3 Young children in foster care enter
    school ready to learn.
  • Goal 4 Youth have access to and opportunities
    to participate successfully in all academic
    and non-academic aspects of the school
    experience, including support services.

  • Goal 5 Youth in care have dropout, truancy and
    school discipline rates equal to or less than
    those of other children.
  • Goal 6 Youth are involved and engaged in all
    aspects of their education and educational
    planning and are empowered to be self advocates
    for their education needs and pursuits.
  • Goal 7 Each youth has at least one significant
    adult consistently involved in his or her life
    and education.
  • Goal 8 Youth in care enter into and complete
    post- secondary education pursuits at rates at
    least comparable to those not in care.

Goal 1 School StabilityYouth remain in School
of Origin when possible and in their best
Why Is School Stability Important?
  • On average, a child in foster care changes
    schools two to three times per year.
  • With each school move, a child falls four to six
    months behind their classmates.
  • Academic difficulties are more likely to go
    unnoticed records misplaced, credits lost and
    academic placements are more likely to be
  • See Fact Sheet on School Stability at

What Research Tells Us
  • Frequent school changes are associated with an
    increased risk of failing a grade in school and
    behavior problems.
  • A University of Chicago study found that, by the
    6th grade, students who had changed schools 4 or
    more times had lost approximately one year of
    educational growth.
  • In a national study of 1,087 foster care alumni,
    youth who had one fewer placement change per year
    were almost twice as likely to graduate from high
    school before leaving care.

Importance of School Stability in Pennsylvania
  • PDEs new BEC on Enrollment of Students
    specifically urges school districts to provide
    school stability
  • Children placed in foster care often move from
    one foster home to another and such moves may
    involve school changes as well. In order to
    minimize the impact of change upon these
    children, school districts are strongly
    encouraged to develop policies or agreements to
    enable a student who is in foster care to remain
    in the educational program in the same school or
    school district even if that student is moved to
    a residence in another school attendance area
    within the district in in another school

  • Making School Stability a Reality
  • McKinney-Vento Homeless Assistance Act
  • Fostering Connections to Success and Increasing
    Adoptions Act
  • Additional Tools in Pennsylvania

Right to Stay in Same School Comparing
McKinney-Vento to Fostering Connections
  • McKinney-Vento Act (Education Law NCLB)
  • Requires school districts to ensure school
    stability, provide transportation to school of
    origin, pendency in school of choice while
    disputes are resolved, immediate enrollment, help
    of school liaisons to enroll, access to Title I,
    comparable services etc.
  • Fostering Connections (Child Welfare Title IV-E)
  • Requires caseworkers to consider proximity and
    appropriateness of prior school in placing
    children AND to ensure school stability unless
    remaining in same school is not in childs best
    interest. Transportation is more limited no
    liaisons, no clear mandate on Education
    HOWEVER, they have a duty to cooperate to ensure

STEP ONE Is the Child Homeless Under McKinney
  • Definition of homeless includes children
    awaiting foster care placement
  • and includes those who live in
  • shelters or
  • emergency, interim or respite foster care
  • kinship care
  • evaluation or diagnostic centers
  • placements for the sole purpose of evaluation
  • AND . . . .
  • Definition added in 2001 PDE added PA
    definition in 2008, BEC on Homeless Youth

AND . . .
  • Local school officials should consult with their
    county CY agencies whenever necessary to
    determine if a child meets the definition
    including, on a case-by-case basis, whether a
    child who does not clearly fall into on of these
    categories is nevertheless a child awaiting
    foster care placement.
  • See PDE BEC AND OCYF Bulletin http//www.pccyfs.or

In Pennsylvania . . .
  • PDE BEC Education for Homeless Youth OCYF
    Bulletin Educational Stability and Continuity for
    Children in Substitute Care underscores that the
    awaiting placement provision applies to
  • any placement not likely to become permanent.

Rights Under McKinney-Vento 42 U.S.C.11434A(2)
  • Homeless students have the right to
  • ? Remain in school of origin
  • ? With Transportation
  • ? Right to appeal (includes written explanation
    from school district, notice of right to appeal
    assistance in dispute process)
  • ? Immediate enrollment
  • ? Comparable services/equal access
  • Right to free school privileges from either the
    school district in which they are located or the
    school of origin.
  • Right to equal access to the same free,
    appropriate public education, including a public
    preschool education, as provided to others. 

How It Works
  • Notify school district that child qualifies as
    homeless under PDE definition
  • School choice school of origin
  • Prior school OR
  • School child attended when last permanently
    housed If child seeks to remain in school of
  • Transportation School districts agreement or
    cost is split
  • Right to remain in school while any dispute is
    pending . . .

How To Solve McKinney-Vento Problems
  • For either enrollment or school selection
    disputes, child is entitled to a written
    explanation of schools decision with notice of
    right to appeal.
  • Ask to speak to School District homeless liaison,
    then the M-V Homeless Regional Coordinator
  • If enrollment/school choice is denied, send a
    complaint to State Coordinator Sheldon Winnick at
    PA Department of Education or PDEs Legal Office.
    See ELC Guide
  • During the dispute, the child must be immediately
    admitted to the school he/she is seeking to
  • Under Homeless Students BEC, PDE has 20 business
    days to resolve dispute. May be appealed to
    federal court.
  • Contact ELC

Troubleshooting under McKinney-Vento Common
  • Child must receive a written explanation of
    schools decision with notice of right to appeal.
    42 U.S.C. 11432(g)(3)(E).
  • School district and State have a duty to PROMPTLY
    resolve disputes.
  • Unaccompanied youth MUST receive help from school
    district liaison to file a dispute.
  • During the dispute, the child must be immediately
    admitted to the school he/she is seeking to
    attend. 42 U.S.C. 11432(g)(3)(E)(ii).


Fostering Connections to Success
  • Enacted in Oct 2008
  • Amends Part B and E of the Social Security Act
  • Important provisions promoting education
    stability and enrollment for youth in care
  • Changes child welfare law, but cannot be realized
    without collaboration from education

Staying in Same School under Fostering
  • The case plan must include assurances that the
    county agency has coordinated with the LEA
  • to ensure that the child remains in the school
    in which the child is enrolled at the time of
  • unless remaining in the same school is not in
    the best interest of the child. 42 U.S.C
    675(1)(G)(ii), (iii).
  • Child welfare agency may seek reimbursement for
    transportation through Title IV-E administrative
    or maintenance dollars

Appropriateness and Proximity
  • The childs case plan must include assurances
    that the placement of a child in foster care
    takes into account the appropriateness of the
    current educational setting and the proximity to
    the school in which the child is enrolled at the
    time of placement.

School Stability
  • The childs case plan must include
  • (I) an assurance that the state or local child
    welfare agency has coordinated with appropriate
    local education agencies to ensure that the
    child remains enrolled in the school in which the
    child was enrolled prior to placement
  • Unless moving is in the childs best interest
    in which case go to part II.

School Stability Determination
  • How is best interest determined/what are factors
    to address?
  • Who ultimately decides best interest?
  • How will disputes be resolved?
  • How will child welfare and education collaborate?

Key Questions to Consider When Making a School
  • How long is the childs current placement
    expected to last?
  • What is the childs permanency plan?
  • How many schools has the child attended over the
    past few years? How many schools has the child
    attended this year? How have the school transfers
    affected the child emotionally, academically and
  • How strong is the child academically?
  • To what extent are the programs and activities at
    the potential new school comparable to or better
    than those at the current school?
  • Does one school have programs and activities that
    address the unique needs or interests of the
    student that the other school does not have?
  • Which school does the student prefer?

Key Questions to Consider When Making a School
  • How deep are the childs ties to his or her
    current school?
  • Would the timing of the school transfer coincide
    with a logical juncture such as after testing,
    after an event that is significant to the child,
    or at the end of the school year?
  • How would changing schools affect the students
    ability to earn full credits, participate in
    sports or other extra-curricular activities,
    proceed to the next grade, or graduate on time?
  • How would the length of the commute to the school
    of origin impact the child?
  • How anxious is the child about having been
    removed from the home and/or any upcoming moves?
  • What school do the childs siblings attend?
  • Are there any safety issues to consider?

Enrolling in a New School
  • If remaining in the same school is not in the
    best interest of the child, the childs case plan
    must include
  • (II) assurances by the State agency and the
    local education agencies to provide immediate and
    appropriate enrollment in a new school, with all
    of the education records of the child provided to
    the school. 42 U.S.C.A. 675(1)(G)(ii).

Enrollment In New School issues
  • How are immediate and appropriate defined?
  • Requires collaboration between school and child
    welfare agency
  • How to ensure records follow student?

  • The term foster care maintenance payments
    includes reasonable travel for the child to
    remain in the school in which the child is
    enrolled at the time of placement.

Transportation issues
  • Permissible use, does not establish a right
  • Applies only to IV-E eligible children
  • Requires state to fund match for IV-E eligible
    children and all transportation for non IV-E
    eligible children.
  • Unclear how reimbursement can be calculated

  • State plan attendance requirement states must
    provide assurances in their state plan that all
    IV-E eligible children of beginning at the
    minimum age for compulsory school attendance are
    enrolled in school. 42 U.S.C.A. 671.
  • Includes
  • School
  • Home schooled
  • Independent study program
  • Unless medical condition precludes participation
  • Must comply with compulsory school laws, state
    enrollment laws, and relevant federal laws such
    as IDEA, ADA.

Transition Plan
  • Requires that transition plan be developed for
    youth 90 days prior to youths exit from care.
    42 U.S.C. 675(H).
  • Must include plan for education.
  • NOTE A preexisting IV-E requirement is that case
    plans include an independent living plan where
    appropriate for youth ages 16 and older. 42
    U.S.C. 675 (1)(D)

Other Older Youth Provisions
  • Gives state option to extend eligibility for
    Independent Living Services and Education
    Training Vouchers (ETVs) to youth who enter
    kinship guardianship or were adopted at age 16 or
    older. 42 U.S.C. 677
  • Gives states option to keep youth in care until
    age 21 as long as youth is in educational
    program, employed, or meets other requirements.
    42 U.S.C. 675(8)(A)
  • ETVs had already been available to youth adopted
    over 16 under prior law.

Goal 2 Youth are guaranteed seamless
transitions between schools and school districts.
What We Are Seeing
  • Children in care lose ground due to enrollment
    delays, the failure of prior schools to locate
    records and to transfer all credits. Lost time
    can be devastating to a youths educational
  • Like homeless children, youth in care need a
    liaison to help them make a smooth transition by
    addressing enrollment, ensuring appropriate
    placement and expanding access to school

Benchmarks of Success
  • Guarantee immediate enrollment in new school
  • Legally mandate timely transfer of records and
  • Children are not penalized for lost school time
    or work missed due to court dates or child
    welfare-related activities and such time is
  • Children in placements receive credit for
    educationally appropriate curriculum.
  • All crucial education documents are maintained in
    case file (including enrollment docs, IEPs,

  • PA law allows foster parent or caseworker to
    enroll a child in care.
  • Enrollment must be prompt
  • School must enroll child within 5 business days
    of receiving required documents
  • If New School asks Old School for records, must
    be sent within 10 business days
  • From 22 Pa Code 11.11(b)

Enrollment Rules (contd)
  • Child has legal right to attend school where
    foster family lives, regardless of where birth
    parent resides.
  • 24 P.S. 13-1301 BEC on Enrollment of
  • Non-resident children in foster care must be
    treated in the same manner as resident children.
    Nancy M. v. Scanlon, 666 F. Supp. 723 (E.D.Pa.
  • A nonresident child in paid foster care is
    entitled to all free school privileges accorded
    to resident children of the district. . . in the
    same manner as though such child were in fact a
    resident child of the district.

What You Should Know
  • Enrollment Rules - Law requires proof of
  • AGE
  • Birth certificate, notarized statement by the
    parent, etc. TIP try old school records if you
    have them
  • Can be oral assurance from old district or a
    doctor with the record to follow later
  • Agency letter of placement foster parent
    provides proof that he or she is a resident
  • From 22 Pa Code 11.11(b) PDEs BEC on
  • Signer can say to best of my knowledge if not
  • From 22 Pa CS 13-1304-A (Act 26) PDEs BEC
    on Enrollment

What You Should Know
  • Schools CANNOT request ANY other records
  • Social security number
  • Photo ID
  • Visa/immigration documents
  • Court order concerning placement or guardianship
  • Reasons the child is living in district
  • Affidavit from biological parents

A School Cannot Refuse to Enroll A Child Because
. . .
  • It is difficult to determine grade/class
  • There is a delay in getting old school records.
    (The prior school has 10 days to provide
  • The child is too old and could seek a GED
    instead. (Youth have a right to attend school
    until age 21.)
  • There are only a few weeks left in the school
  • The child has a disciplinary record. Exception
    If a child is currently expelled for a weapons
    offense he may be assigned to an alternative
    placement for the length of the expulsion.

What You Should KnowEnrollment Rules in
Discipline Cases
  • School district cannot refuse to educate the
    child based on disciplinary record
  • Exception If child is currently expelled for a
    weapons offense, the district may assign that
    student to an alternative assignment or provide
    alternative education services for the duration
    of the expulsion
  • From 24 P.S. 13-1317.2(e.1)

Special Rule for Children in Care
  • Pennsylvania Department of Educations policy on
    truancy and attendance prohibits a school
    district from counting a child as truant or an
    absence as unexcused if the child is
    participating in court-related activities or
    County CY meetings.
  • See 24 P.S. 13-1327 and Compulsory
    Attendance and Truancy Elimination Plan

Know the Law Protect a Child
  • (1) Does the school have an obligation to enroll
    the child if the records from a prior school have
    not been transferred?
  • (2) Does the school have an obligation to enroll
    the child if he/she is over 18?
  • (3) What happens if the child did not complete
    the coursework in his/her prior grade?
  • (4) What happens when a child is transferring
    from a residential treatment facility?

Answers to FAQ
  • (1) Yes!
  • (2) Yes! Under Pennsylvania law, a child is
    entitled to attend public school up to age 21 OR
    until he/she graduates. 24 P.S. 13-1301
  • (3) This depends on the school district. In
    some schools, children have been permitted to
    test into a grade where placement is unclear.
  • (4) RTF should write a letter for the childs

Resolving Enrollment Disputes in Pennsylvania
  • Person trying to enroll child can complain to
  • Dr. Linda Rhen, Director
  • School Services Unit, Pa Department of
    Education333 Market Street Harrisburg, Pa
    19126-0333(717) 787-4860 or 783-3750 phone
    (717) 783-6802 fax
  • Within 5 business days, PDE will request the
    districts position. It must respond in 5
    business days.
  • If enrollment is denied, PDEs Office of Chief
    Counsel may choose to intervene.

What You Can Do in Pennsylvania
  • Maintain enrollment and educational records in
    case file (including IEPs). (Under the law, CY
    case records must include current educational
    records updated every 6 months.)
  • Call the prior school and ensure prompt transfer
    educational records (IEP/Eval) within 10 days.
  • Ensure that all earned credits are transferred.
  • Review graduation requirements with youth.

Goal 4 Youth have access to and
opportunity to participate successfully in all
academic and non-academic aspects of the school
experience, including all support services needed.
The Right School Placement
  • Appropriate grade
  • Appropriate classroom placement
  • Credits earned needed
  • Equal Access to charters, Voc tech, AP
  • Access to ALL remedial services
  • Extra-curricular activities
  • Graduation plan
  • Transition plan

The Problem
  • Between a third and half of school-age children
    in the foster care system need special education
    services, compared to only 11 of all school-age
  • Foster children often need supplemental support
    due to lost time in school. A 2003 study found
    that 26 to 40 of youth in care repeat one or
    more grades.
  • Foster children are often placed in the wrong
    class or denied access to AP or voc-tech classes.
  • Foster children face significant barriers to
    participating in non-academic school activities.
  • Terry L. Jackson Eve Müller, Foster Care and
    Children with Disabilities (National Association
    of State Directors of Special Education, Inc.,
    Forum, February 2005), available at

What You Should KnowAlternative Education
  • Commonwealth court has made clear that a school
    district cannot automatically place a child in an
    alternative education program based on prior
    conduct. There is no full faith and credit
  • Court reasoned that 24 P.S. 5-510 empowers
    school districts to regulate conduct of students
    "during such time as they are under the
    supervision of the board of school directors" or
    "during the time they are in attendance" (
  • Hoke v. Elizabethtown Area School District, 833
    A.2d 304, 310 (Pa. Commw. Ct. 2003), appeal
    denied, 847 A.2d 59 (Pa. 2004).

Benchmarks of Success
  • Legal entitlement to participate in all academic
    and extra-curricular programs, including AP and
    vocational programs
  • School policies encourage participation of
    children who enter school late because of
    placement issues
  • State and districts give students in foster care
    priority for NCLB supplemental education
    services, tutoring after-school programs
  • State and district disaggregate and make public
    the performance of students in care on
    achievement tests by school, district, and state.
  • Mentoring, tutoring, and counseling services are
    provided to children in care
  • Professionals working with children in care are
    trained to work with children who have
    experienced trauma

What You Should Know
  • Under Federal law, school districts cannot refuse
    to accommodate any nonresident eligible child,
    placed in foster care, merely because that child
    may have disabilities.
  • A child cannot be denied accommodation due to
    the additional burdens involved in evaluation and
    education of eligible school-age persons. Such
    denial would constitute exclusion on the basis of
  • Nonresident exceptional school-aged persons
    should be afforded the same rights to an
    appropriate program of special education as are
    resident exceptional school-aged persons.
  • 24 P.S. 13-1371 et seq. and 22 Pa. Code Chapter

What You Should Know Pennsylvania
  • Pa Dept. of Ed. Tutoring Grants
  • Eligibility K 9th grade who
  • Score at basic or below basic on the PSSA or
  • In the bottom half on a state-approved test
  • Educational Assistance Program Provides extended
    learning opportunities and is designed to boost
    student achievement and help all students
  • Supplemental Educational Services This is a
    federal program that offers tutoring to eligible
  • Local School District Check with your local
    school districts to see if they offer a tutoring
    program to their students

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

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

School Services for Students with Disabilities
  • Special Education (IEPs)
  • and
  • Section 504 (service agreements)

Special Education (IEP) Eligibility (2-part
test) From 34 CFR 300.7
  • STEP 1 Child must have a disability
  • Orthopedic impairments
  • Autism
  • Traumatic brain injury
  • Specific learning disabilities
  • Multiple disabilities
  • Other health impairment
  • Mental retardation/
  • developmental delays
  • Hearing impairments
  • Speech or language impairments
  • Visual impairments
  • Serious emotional disturbance

Important Definition
  • Serious Emotional Disturbance
  • Exhibits 1 of following for long time
  • Inability to learn not explained by intellectual,
    sensory or health factors
  • Inappropriate relationships with peers/teachers
  • Inappropriate behavior in normal circumstances
  • Pervasive unhappiness or depression
  • Physical symptoms or fears associated with
    personal or school problems
  • Includes schizophreia
  • But not socially maladjusted

Important Definition
  • Other Health Impairment
  • Having limited strength, vitality or alertness
  • Includes heightened alertness to environmental
    stimuli that reduces alertness to the educational
  • So ADHD may qualify BUT
  • Remember this is a two-part test (See next

Special Education (IEP) Eligibility
  • Part 2 As a result of the disability, the child
    requires special education related services
  • for example special instruction methods,
    modified curriculum, speech therapy
  • If the child does not meet Part 2 but has a
    disability that substantially impairs a major
    life activity, the child is protected by Section
    504 / Chapter 15
  • Non-discrimination, equal access law

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

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

FLOW CHART(from 34 C.F.R. Part 300 22 Pa. Code
Chapter 14)
  • Step 1 Request an Evaluation
  • Must be in writing
  • Parents must sign a Permission to Evaluate Form
    (PET form)
  • District has 60 calendar days to complete the
    evaluation and issue the Eval. Report (ER)
  • Count time from the date of the PET form
  • Charter schools have 60 calendar days
  • KEEP A COPY of all papers you send or sign

FLOW CHART contd(from 34 C.F.R. Part 300 22
Pa. Code Chapter 14)
  • Step 2 Evaluation
  • Must be free, non-discriminatory and assess the
    child in all areas of suspected disability
  • Not just an IQ test
  • In language most likely to give accurate info.
  • Foster Parents are members of the evaluation team
    must be allowed input in eligibility decision
  • Consider sharing private evaluations or
    evaluations by the child welfare agency (if get
  • Independent Educational Evaluation
  • Can be at public expense if parent disagrees with
    schools evaluation (or school must go to a
    hearing to avoid paying)
  • But only one IEE per school evaluation

Purposes of Evaluations
  • Determine eligibility for special education
  • Two-part test
  • Provide recommendations to develop appropriate
    program for child

FLOW CHART contd(34 C.F.R. 300.320 - .328
22 Pa. Code Chapter 14)
  • STEP 3 Individualized Education ProgramIf
    student is found eligible
  • Team must meet within 30 calendar days of
  • Team must include the parent
  • School must document efforts to include the
    parent including records of phone calls, copies
    of letters, records of visits to parents home or
    place of employment!
  • If parent cant attend, school must use other
    methods (phone calls) to ensure parent
  • Parent can bring people with expertise on child
    (CW agency)
  • IEP a document outlining childs special
    education program and related services tailored
    to childs unique needs a contract of services

FLOW CHART contd(from 34 C.F.R. Part 300 22
Pa. Code Chapter 14)
  • Types of Services in an IEP
  • Specially designed instruction in academics Phys
    Ed, travel vocational training
  • Related Services transportation, speech therapy,
    physical therapy, counseling, etc.
  • Transition Services starting with IEP in effect
    at age 16 (can always plan for this earlier)
  • Assistive Technology (devices/services) to
    increase functional capabilities of the child
  • Ex wheelchair, communication devices, etc.

FLOW CHART contd(from 34 C.F.R. Part 300 22
Pa. Code Chapter 14)
  • Step 4 Placement Decision
  • Placement should be decided after IEP written
  • Key least restrictive environment in which IEP
    can be implemented successfully using
    supplementary aids/services
  • Parent must be part of team deciding the
  • Same rules for meeting participation as IEP
  • Parents must be given prior written notice of IEP
    Placement before it starts
  • Parents can disagree with the IEP and/or
  • If parents disagree, child remains in
    last-agreed-to placement pending resolution of
    the dispute process

FLOW CHART contd(from 34 C.F.R. Part 300 22
Pa. Code Chapter 14)
  • Implementing/Revising IEPs
  • Must be implemented w/in 10 school days
  • IEP team must meet at least annually
  • Parents may request IEP meeting at any time
  • Reevaluations must occur
  • Every 3 years (2 years if child with MR) or
  • If parent requests a reevaluation or
  • If school believes conditions warrant
  • BUT school need not agree to gt one a year

What to do if there is a disagreement with the
  • Division of Compliance Complaint
  • When school isnt following the IEP or a clear
    legal rule (ex timelines, procedures, etc.)
  • Who A parent or organization may file a
    complaint on behalf of a student
  • How Call 800-879-2301 to get the form or visit
    our website for the form
  • Must send a copy of complaint to the school
  • Certain required information must be in the
    complaint (name, address, facts about the
    problem, proposed resolution)
  • Limit only violations in past calendar year
  • 60 days to investigate and issue report
  • See 34 C.F.R. .151-.153

What to do if there is a disagreement with the
  • Mediation
  • Free voluntary
  • No lawyers allowed
  • Discussions are confidential
  • New Legally binding agreement (in court)
  • How? call Office of Dispute Resolution at

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

Who makes special education decisions for
children in foster care?
  • Parent definition
  • Parent includes biological, adoptive, foster
    parent and guardian.
  • When there is more than one category of parent
    under IDEA, school must presume that the
    biological or adoptive parent is the parent if
  • Bio./adoptive parent still has legal authority
  • Bio./adoptive parent is attempting to act as the
  • If a judicial decree or order identifies someone
    to act as the parent, then school must
    recognize that persons authority
  • See 34 C.F.R. 300.30(b)

When are bio./adoptive parents attempting to
act as a parent?
  • Comments to Regulations say (71 FR 46566-68)
  • Nothing requires the bio./adoptive parent to
    assert their rights affirmatively
  • School must document efforts to engage parent
    accommodate their schedule for IEP meetings, etc.
    before allowing another parent to act on the
    childs behalf
  • Or have the judge appoint a decision-maker
    (school must use)

When Does a Child Need a Surrogate Parent?
  • School district must appoint a surrogate if
  • No parent can be identified
  • School, after reasonable efforts, cant locate
  • Child is a ward of the state under laws of that
  • Child is unaccompanied homeless youth
  • School cant appoint a surrogate just because the
    bio./adoptive parent is uncooperative or wont
    attend a meeting (71 FR 46689)
  • School must have methods to decide if a child
    needs a surrogate and for assigning surrogate
  • Must make reasonable efforts to appoint in 30

Who can make special education decisions?
  • The Individuals with Disabilities Education Act
    (IDEA) defines a parent as
  • A natural or adoptive parent
  • A foster parent
  • A guardian but not the State (thus no
  • A person acting in the place of a parent
  • Such as a grandparent or stepparent with whom the
    child lives, or a person who is legally
    responsible for the childs welfare or
  • A surrogate parent

Who can you ask to appoint a surrogate
parent?From 20 U.S.C. 1415(b)(2)
  • Ask the school district
  • Should appoint within 30 days
  • You may be able to suggest who they appoint (for
    example an aunt, the foster parent, or a CASA)
  • Phila. SD /215-400-6086
  • If child is in custody of a child welfare
    agency, can also ask the juvenile judge
  • The court should enter a clear order appointing a
    surrogate (may also have to temporarily suspend
    the parents right to make special education
  • The school must honor the judges selection

Surrogate Parents (continued)
  • Who may not be a surrogate parent?
  • Employees of school district or Pa Dept. of Ed.
  • Employees of any agency that is involved in the
    education or care of the child
  • DHS, Children Youth or Private Agency workers
  • Other rules for School-appointed surrogates
  • Cant have a conflict of interest
  • Rule does not apply to judge-appointed surrogates
  • Conflict is defined by U.S. Dept. of Ed as
    coming from the employer relationship (e.g.,
    cant be teacher in another school district, or
    in the group home where child is living)
  • Must have knowledge and skills to represent child
  • Rule does not apply to judge-appointed
    surrogates, so school cant force them to them to
    attend the schools surrogate class

Other Surrogate Parent rules34 C.F.R. 300.519
  • Who may request a surrogate parent?
  • Anyone who believes one is needed
  • A birth parent might want to request a surrogate
    if he or she lives far away, is incarcerated,
  • If so, ask in writing can revoke request at any
  • Nothing in the law requires school to honor
  • Can a school fire a surrogate?
  • Probably not if they are appointed by the judge
  • But duty to replace a surrogate who isnt
    carrying out responsibility to represent child
    in all identification, evaluation, placement and
    FAPE decisions for child
  • School cannot fire surrogate for exercising
    rights of the child (i.e., by disagreeing with
    the school)
  • Why? Violates laws against retaliation for
    exercising civil rights
  • 71 FR 46712

Initial Evaluations Youth in Care
  • Wards of the State
  • (children in the custody of a child welfare
    agency who do not have a foster parent with the
    power to make special education decisions)
  • School districts may conduct initial evaluations
    without parental consent if
  • The school district cant locate the parents
    after making reasonable efforts
  • The birth parents rights are terminated (TPR)
  • Or a judge removes the birth parents educational
    rights (temporarily or permanently) consent is
    given by an individual the judge appoints
  • School/judge should appoint surrogate in the

What if the child moves during the Initial
  • Timeline for initial evaluations
  • 60 school days (60 calendar days if charter
  • If child moves to a New district 34 CFR
    300.301(d, e)
  • The timeline may be extended, but ONLY IF
  • Parent and school agree to a new specific time
  • New school ensures prompt evaluation
  • Exception Schools do not have to meet the
    timeline if parent repeatedly fails or refuses to
    produce child for the evaluation
  • TIP Caseworkers must help in coordination!

What if the child moves after an IEP is written
  • If a child with an IEP moves 34 C.F.R.
  • In-State Transfers new district must provide
    services comparable to those described in the
    previously held IEP ensure FAPE
  • Until district formally adopts the old IEP or
    negotiates a new IEP with the parent
  • Transfers from Another State same rule as above
    comparable services to previous IEP FAPE
  • Until district conducts a new evaluation (if
    needed) negotiates a new IEP with the parent

Other rules for children who move
  • Reevaluations
  • Old and new school districts (or charter schools)
    must coordinate all evaluations to ensure prompt
  • Remember Under state enrollment rules, if new
    school requests records from the old school (in
    Pa), they must be sent within 10 business days

What You Should Know
  • A child who may have special education needs has
    the right to be evaluated with parental consent.
    School districts may conduct initial evaluations
    without parental consent if
  • school district cant locate the parents after
    reasonable effort
  • parents rights are terminated or
  • Judge appoints decisionmaker who consents.
  • Evaluations must be conducted within 60 days of
    the request and IEPs must be implemented within
    30 days of an eligibility determination.
  • A child with a disability under the IDEA has a
    legal right to a free appropriate public
    education or FAPE in the least restrictive
    environment (LRE).

What You Should Know (Contd)
  • When a child changes schools, the law requires
    the new district to provide services comparable
    to those described in the prior IEP to ensure
    FAPE until the district formally adopts the old
    IEP or negotiates a new IEP with the parent or
    surrogate parent.
  • A foster parent, guardian or person acting is
    the place of parent (e.g., grandparent who cares
    for child) is considered a parent under the
    IDEA. However, a district will assume that the
    biological parent is the decisionmaker if they
    are attempting to act as parent.
  • A school district MUST appoint a surrogate parent
    if no parent can be identified or located or the
    child is a ward of the state or homeless. A
    judge can appoint a surrogate parent. That
    appointment must be honored by the school
  • A social worker CANNOT sign an IEP or request an
    evaluation! A surrogate parent CANNOT be a social
    worker, an employee of the school district or any
    agency involved in the care/education of child

What Can You Do?
  • Ensure that a child who may have special
    education needs is evaluated.
  • Ensure prompt implementation of an IEP when a
    child changes school.
  • Ensure that a child with special education needs
    has an appropriate and involved decision maker.
  • Learn more about the children in foster care and
    their unique learning needs.
  • Link special education goals to court objectives.

Goal 5 Youth in care have dropout,
truancy and school discipline rates equal to or
less than those of all other children.
What We Are Seeing
  • Many children drop out due to
  • time lost due changes in school placement
  • school discipline problems
  • long-term placement in alternative ed.
  • their need for additional educational support
  • Emotional and psychological needs
  • language barriers

Benchmarks of Success
  • Requirement of data collection on dropout,
    truancy, and discipline rates for foster children
    by school and school district.
  • Prioritize foster children for NCLB supplemental
    educational services.
  • Counseling and other supports are available for
    children in care with truancy and school
    discipline problems.
  • Child advocates are required to represent
    children in school discipline proceedings.

What You Should Know School Discipline Rules in
  • 20 U.S.C. 1415
  • 34 C.F.R. 300.530 - .537
  • 22 Pa. Code 14.143

Rights of Youth
  • The law does not allow a school to discipline a
    child for conduct outside of school unless it
    actually disrupts the school program
  • Children who are suspended, expelled or
    transferred have a right to due process
  • If a child is suspended for 4-10 days informal
  • Expelled (over 10 days) Formal Hearing
  • Transferred to alternative school Informal
  • If a child mistakenly brings a weapon to school
    (e.g. butter knife), the law requires a school
    district to use its discretion where appropriate.

Special Circumstances
  • The school may move the child to an alternative
    education setting for up to 45 days without
    parent permission if
  • Child carried a weapon to school /function
  • Child knowingly possessed, used or sold illegal
    drugs while at school/ function (or if the child
    sold Rx drugs)
  • Child inflicted serious bodily injury upon
    another person while at school/function

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 childs
    disability, and if the disciplinary sanction
    counts as a change in placement

What is a change in placement?
  • Any removal from school for a child with mental
  • A transfer to an alternative educational setting.
  • A school exclusion for
  • gt 10 school days in a row
  • gt 15 total school days in a year (except public
  • OR (for public charters)
  • The child has already been excluded from school
    for at least 10 schools days, and the proposed
    additional exclusion constitutes a pattern.
    Factors relevant to determining whether there is
    a pattern are, for example, the similarity of
    the behavior that has resulted in a sanction, and
    the number, length, and proximity of the

What if the school wants to change the childs
  • Schools proposing the discipline must
  • Give parents notice of the discipline
  • Inform parents of their rights
  • Hold a manifestation determination meeting
    within 10 school days

Manifestation Determination
  • The misbehavior IS a manifestation of the
    disability if it
  • Was caused by the disability
  • Had a direct substantial relationship to the
    childs disability
  • OR Was the direct result of the schools failure
    to implement the IEP

When School agrees the Conduct IS a
  • The school may NOT change the childs placement
    without parent consent
  • Unless it is an Exceptional Circumstance(See
    later slides)
  • The school must hold an IEP meeting within 10
    school days and
  • If the school district has not already done so,
    conduct a functional behavioral assessment
  • Develop, review, or revise a behavior plan

When the Conduct is NOT a Manifestation
  • The school district may discipline the child
  • Should decide punishment on a case-by-case basis
  • Cant be more severe punishment than
    non-disabled peers
  • If the school wants to expel the child
  • Requires a formal hearing (22 Pa. Code 12.8)
  • If expelled, school must provide services for
  • To participate in general curriculum
  • To progress toward IEP goals (20 USC
    1415(k)) NOTE this is more than regular
    education students (they only get provision
    for their education)

When parties disagree whether the conduct is a
  • The family can ask for a hearing to challenge the
    teams determination
  • In the meantime,
  • School can impose the discipline it would impose
    on non-disabled students (includes transfer to
    alternative schools, suspensions, expulsions)
  • Child must receive enough services to participate
    in the general curriculum and make progress
    towards IEP goals
  • Expedited Hearing process
  • If family wins, child must be returned to
    previous educational setting (unless its an
    exceptional circumstance)

Children Not Yet Found Eligible for Special
  • The protections apply if, prior to the incident
  • Parent stated in writing to a supervisor,
    administrator or a teacher that child might need
    special education, or
  • Parent requested an evaluation, or
  • Teacher / staff expressed specific concerns about
    childs pattern of behavior directly to director
    of special ed. or other supervisory person
  • Exceptions
  • If child previously evaluated found ineligible
  • Parent refused special education/evaluation in

Special Education Transfers requiring a hearing
  • School may ask a hearing officer to place the
    child in an alternative setting for up to 45 days
  • School must show that maintaining child in the
    current placement is substantially likely to
    result in injury to child or others
  • After any of these 45-day placements, child must
    be returned to the previous placement
  • Unless a hearing officer orders a new 45-day stay
    in the alternative school based on dangerousness

Gifted Education An overlooked option for
children in care
Chapter 16 Rules
  • Before found eligible
  • Right to a free evaluation (limit 1/year)
  • Right to review results of evaluation
  • Right to have independent evaluations (that you
    pay for) considered by the district
  • Right to written notice of eligibility decision
  • To request an evaluation write to the principal
    of the school (keep a copy)
  • School has 45 school days to complete the

What You Should Know About ELL
  • Children who are English Language Learners have a
    legal right to
  • Complete a home language survey
  • Be tested to determine ability level
  • Receive ESL (English as a Second Language) PDE
    guidelines state that a child should receive
    2-3hrs (no English) 2hrs (beginner) 1-1.5 hrs
    (intermediate) and 1 hr (advanced)
  • In addition, a school must adjust a students
    classes and accommodate them for tests and
  • Evaluate a students progress on an ongoing

What You Can Do To Decrease The Drop Out Rate
  • Ensure school stability for child in care.
  • Advocate for child to receive support services in
    and after school.
  • Work with the child to stay in school.
  • Work with child to obtain GED and to receive full
    credit for time in school.
  • Ensure that child has not lost credit.
  • Advocate for a state-issued diploma.

Promising Programs in Pennsylvania
  • RCEPs Regional Career Education Partnerships
  • Establishes work-based pathways, research-based
    programs that re-connect dropouts or youth aging
    out of foster care with high-quality educational
    programming, career and planning opportunities no
    later than 9th grade and lasting through their
    transition to a postsecondary opportunity.
  • PA Youth in Transition Project (PAYT)
  • collaborative effort among the education, welfare
    and youth agencies
  • Reconnect P
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