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

1
Education Advocacy 102Eight Keys To
Improving Educational Outcomes For Children in
CareA Guide for CASAs

• Maura McInerney, Esq.
• Education Law Center
• June 2010

2
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

3
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

4
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 www.mdpolicy.org/docL
  ib/20061130_FosterCareFocusGroupStudy.pdf (April
  10, 2007).

5
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

6
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.
• www.casey.org/NR/rdonlyres/E32D6828-9DD6-4304-842B
  -723AEA2EF029/1145/Casey_ExecSummary_NCLB.pdf
• ww.http//www.treehouseforkids.org/index.htm

7
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

8
GOALS

• 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.

9
GOALS

• 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.

10
Goal 1 School StabilityYouth remain in School
of Origin when possible and in their best
interests.
11
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
  inappropriate.
• See Fact Sheet on School Stability at
  http//www.abanet.org/child/education/Stability_Fa
  ct_Sheet.pdf

12
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.

13
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
  district.

14

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

15
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
  stability.

16
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

17
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
  g/dpw_ocyfs/OCYF_Bulletin_3130-0801_Educational_St
  ability.pdf

18
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.

19
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. 

20
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
  origin,
• Transportation School districts agreement or
  cost is split
• Right to remain in school while any dispute is
  pending . . .

21
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
  attend.
• Under Homeless Students BEC, PDE has 20 business
  days to resolve dispute. May be appealed to
  federal court.
• Contact ELC

22
Troubleshooting under McKinney-Vento Common
Problems

• Right to IMMEDIATE ENROLLMENT
• 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).

23

• FOSTERING CONNECTIONS
• NEW TOOLS FOR SCHOOL STABILITY EDUCATIONAL
  SUCCESS

24
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

25
Staying in Same School under Fostering
Connections

• 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
  placement
• 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

26
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.

27
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.

28
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?

29
Key Questions to Consider When Making a School
Selection

• 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
  physically?
• 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?

30
Key Questions to Consider When Making a School
Selection

• 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?

31
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).

32
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?

33
Transportation

• 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.

34
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

35
Attendance

• 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.

36
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)

37
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.

38
Goal 2 Youth are guaranteed seamless
transitions between schools and school districts.
39
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
  success.
• 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
  activities.

40
Benchmarks of Success

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

41
ENROLLMENT RULES

• 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)

42
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
  Students
• 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.
  1987).
• 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.

43
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
• IMMUNIZATIONS
• Can be oral assurance from old district or a
  doctor with the record to follow later
• RESIDENCY
• Agency letter of placement foster parent
  provides proof that he or she is a resident
• From 22 Pa Code 11.11(b) PDEs BEC on
  Enrollment
• SWORN STATEMENT OF DISCIPLINARY RECORD
• Signer can say to best of my knowledge if not
  sure
• From 22 Pa CS 13-1304-A (Act 26) PDEs BEC
  on Enrollment

44
What You Should Know

• Schools CANNOT request ANY other records
  including
• 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

45
A School Cannot Refuse to Enroll A Child Because
. . .

• It is difficult to determine grade/class
  placement.
• There is a delay in getting old school records.
  (The prior school has 10 days to provide
  records.)
• 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
  year.
• 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.

46
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)

47
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

48
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?

49
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
  file.

50
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
  [phone] 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.

51
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.

52
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.
53
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

54
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
  children.
• 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
  http//www.nasdse.org/publications/foster_care.pdf
  

55
What You Should KnowAlternative Education
Placements

• 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
  rule.
• 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" (
  13-1317).
• Hoke v. Elizabethtown Area School District, 833
  A.2d 304, 310 (Pa. Commw. Ct. 2003), appeal
  denied, 847 A.2d 59 (Pa. 2004).

56
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

57
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
  disability. 
• 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
  14.

58
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
  succeed.
• Supplemental Educational Services This is a
  federal program that offers tutoring to eligible
  individuals.
•  
• Local School District Check with your local
  school districts to see if they offer a tutoring
  program to their students

59
No Child Left Behind Act

• Unsafe School Choice (transfer rights)
• Victims of Violent Crimes at School
• Students in Persistently Dangerous Schools
• For more info http//www.pde.state.pa.us/svcs_stu
  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

60
For more info on NCLB

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

61
School Services for Students with Disabilities

• Special Education (IEPs)
• and
• Section 504 (service agreements)

62
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

63
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

64
Important Definition

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

65
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

66
Section 504 / Chapter 15 (Federal name / State
name)

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

67
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

68
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

69
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
  consent)
• 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

70
Purposes of Evaluations

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

71
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
  eligibility
• Team must include the parent
• School must document efforts to include the
  parent including records of phone calls, copies
  of letters, records of visits to parents home or
  place of employment!
• If parent cant attend, school must use other
  methods (phone calls) to ensure parent
  participation
• Parent can bring people with expertise on child
  (CW agency)
• IEP a document outlining childs special
  education program and related services tailored
  to childs unique needs a contract of services

72
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.

73
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
  placement
• Same rules for meeting participation as IEP
  meeting
• Parents must be given prior written notice of IEP
  Placement before it starts
• Parents can disagree with the IEP and/or
  placement
• If parents disagree, child remains in
  last-agreed-to placement pending resolution of
  the dispute process

74
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

75
What to do if there is a disagreement with the
school

• 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

76
What to do if there is a disagreement with the
school

• Mediation
• Free voluntary
• No lawyers allowed
• Discussions are confidential
• New Legally binding agreement (in court)
• How? call Office of Dispute Resolution at
  800-992-4334
• MUST BE A PARENT

77
What to do if there is a disagreement with the
school

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

78
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
  parent
• 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)

79
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)

80
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
  parent
• Child is a ward of the state under laws of that
  state
• 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
  days

81
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
  caseworkers)
• A person acting in the place of a parent
• Such as a grandparent or stepparent with whom the
  child lives, or a person who is legally
  responsible for the childs welfare or
• A surrogate parent

82
Who can you ask to appoint a surrogate
parent?From 20 U.S.C. 1415(b)(2)

• Ask the school district
• Should appoint within 30 days
• You may be able to suggest who they appoint (for
  example an aunt, the foster parent, or a CASA)
• Phila. SD mandrews_at_phila.k12.pa.us /215-400-6086
  
• If child is in custody of a child welfare
  agency, can also ask the juvenile judge
• The court should enter a clear order appointing a
  surrogate (may also have to temporarily suspend
  the parents right to make special education
  decisions)
• The school must honor the judges selection

83
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

84
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,
  etc.
• If so, ask in writing can revoke request at any
  time
• Nothing in the law requires school to honor
  request
• Can a school fire a surrogate?
• Probably not if they are appointed by the judge
• But duty to replace a surrogate who 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

85
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
  interim

86
What if the child moves during the Initial
Evaluation?

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

87
What if the child moves after an IEP is written
signed?

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

88
Other rules for children who move

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

89
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).

90
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
  district.
• 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

91
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.

92
Goal 5 Youth in care have dropout,
truancy and school discipline rates equal to or
less than those of all other children.
93
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

94
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.

95
What You Should Know School Discipline Rules in
Pennsylvania

• 20 U.S.C. 1415
• 34 C.F.R. 300.530 - .537
• 22 Pa. Code 14.143

96
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
  hearing
• Expelled (over 10 days) Formal Hearing
• Transferred to alternative school Informal
  Hearing
• 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.

97
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

98
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

99
What is a change in placement?

• Any removal from school for a child with mental
  retardation.
• 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
  charters)
• 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
  suspensions.

100
What if the school wants to change the childs
placement?

• 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

101
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

102
When School agrees the Conduct IS a
Manifestation

• 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

103
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
  child
• 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)

104
When parties disagree whether the conduct is a
manifestation

• 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)

105
Children Not Yet Found Eligible for Special
Education

• 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
  or
• Parent refused special education/evaluation in
  past

106
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
  (above)

107
Gifted Education An overlooked option for
children in care
108
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
  evaluation

109
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
  basis.

110
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.

111
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