Education Advocacy 102:
Eight Keys To Improving
Educational Outcomes
For Children in Care
A 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
www.mdpolicy.org/docLib/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 Hope:
Educational 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;
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
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.
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 postsecondary education pursuits at rates at least
comparable to those not in care.
Goal 1: School Stability
Youth remain in School of Origin when
possible and in their best interests.
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
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
PDE’s 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.”
 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 child’s best interest.
Transportation is more limited; no liaisons, no clear mandate on
Education – HOWEVER, they have a duty to cooperate to ensure
stability.
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 C&Y 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.org/dpw_ocyfs/OCYF_Bulletin
_3130-0801_Educational_Stability.pdf
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 origin,
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 school’s
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 PDE’s 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
Troubleshooting under McKinney-Vento:
Common Problems

Right to IMMEDIATE ENROLLMENT

Child must receive a written explanation of school’s 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:
–NEW TOOLS FOR SCHOOL
STABILITY & EDUCATIONAL
SUCCESS
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 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
Appropriateness and Proximity

The child’s 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 child’s 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 child’s 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 Selection







How long is the child’s current placement expected to last?
What is the child’s 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?
Key Questions to Consider When
Making a School Selection
How deep are the child’s 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 student’s ability
to earn full credits, participate in sports or other extracurricular 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 child’s 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 child’s
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?

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.”
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
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.
Transition Plan

Requires that transition plan be developed
for youth 90 days prior to youth’s 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 youth’s 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.
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 welfarerelated 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).
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)
Enrollment Rules (cont’d)

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.“
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) + PDE’s 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) + PDE’s BEC on Enrollment
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
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.
What You Should Know:
Enrollment 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 Education’s 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 C&Y 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 child’s file.

Resolving Enrollment Disputes in
Pennsylvania

Person trying to enroll child can complain to:
 Dr. Linda Rhen, Director
School Services Unit, Pa Department of Education
333 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 district’s
position. It must respond in 5 business days.
– If enrollment is denied, PDE’s 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, C&Y
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 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
What You Should Know:
Alternative 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).
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 & afterschool 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 disability.

Nonresident exceptional school-aged persons should be
afforded the same rights to an appropriate program of
special education as are resident exceptional schoolaged persons.
24 P.S. §13-1371 et seq. and 22 Pa. Code Chapter 14.
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
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_students
(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 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
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”
•
•
•
•
•
•
Mental retardation/
developmental delays
Hearing impairments
Speech or language
impairments
Visual impairments
Serious emotional
disturbance
•
•
•
•
•
•
Orthopedic
impairments
Autism
Traumatic brain injury
Specific learning
disabilities
Multiple disabilities
Other health
impairment
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 environment

So ADHD may qualify *BUT*
– Remember this is a two-part test…
(See next slide)
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 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
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 cont’d
(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 school’s
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 services:
– Two-part test
 Provide
recommendations to develop
appropriate program for child
FLOW CHART cont’d
(34 C.F.R. § § 300.320 - .328 & 22 Pa. Code Chapter 14)

STEP 3: Individualized Education Program
If 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 parent’s home or place of employment!
 If parent can’t 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 child’s special
education program and related services tailored to
child’s unique needs –a “contract” of services
FLOW CHART cont’d
(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 cont’d
(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 parent’s disagree, child remains in last-agreed-to
placement pending resolution of the dispute process
FLOW CHART cont’d
(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 > one a year
What to do if there is a
disagreement with the school

Division of Compliance Complaint:
– When: school isn’t 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 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”
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
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
person’s 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
child’s 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, can’t locate parent
 Child is a ward of the state under laws of that state
 Child is unaccompanied homeless youth
– School can’t appoint a surrogate just because
the bio./adoptive parent is “uncooperative” or
won’t 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
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 child’s
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: mandrews@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
parent’s right to make special education decisions)
– The school must honor the judge’s 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:
 Can’t 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., can’t 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 can’t
force them to them to attend the school’s surrogate class
Other Surrogate Parent rules
34 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 isn’t 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 can’t 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
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!
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
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
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 can’t 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 (Cont’d)

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
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
Pennsylvania
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
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.
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 child’s
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 retardation.
 A transfer to an alternative educational setting.
 A school exclusion for:

> 10 school days in a row
> 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.
What if the school wants to
change the child’s 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
Manifestation Determination

The misbehavior IS a manifestation of the
disability if it:
– Was caused by the disability
– Had a direct & substantial relationship to the
child’s disability
– OR Was the direct result of the school’s
failure to implement the IEP
When School agrees the
Conduct IS a Manifestation:
 The
school may NOT change the child’s
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
 Can’t 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)
When parties disagree whether the
conduct is a manifestation

The family can ask for a hearing to challenge the
team’s 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 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 child’s
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
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)
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 evaluation
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 student’s classes
and accommodate them for tests and
Evaluate a student’s progress on an ongoing basis.
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 Pennsylvania dropouts and youth aging out of foster
care to high quality educational options earning a high school
diploma, GED, or GED leading to postsecondary education
credential and careers.
Goal 6: Youth Are Self Advocates
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.
What We Are Seeing
Youth feel disenfranchised from the
educational process.
 Youth feel alienated and isolated in the
school community.
 Youth are not consulted about transfer
and placement issues and do not actively
participate in decision making.
 Youth are not educated about choices and
opportunities beyond high school.

Benchmarks
of Success

Court hearings and child welfare meetings
include input from youth.

Foster youth with disabilities are
supported in participating in IEP and
transition planning.

An Independent Living plan corresponds
to the youth’s transition plan.
What You Can Do

Ensure that youth have input at court hearings and in
child welfare meetings.

Empower youth in care with disabilities to participate in
IEP meetings and transition planning.

Encourage youth to join one school activity and to
identify themselves with something they do well.

Develop an Independent Living plan that corresponds to
the youth’s transition plan.

Expect success. Talk to them about the future and their
options.

See “It’s Your Life” series (Casey Family Programs). Tell
them about Youth Advisory Board.
Goal 7: Mentor Relationship
Youth have at least one significant adult
involved in their lives and education that
will remain engaged in their educational
pursuits after exiting the foster care
system.
What We Are Seeing
Youth who successfully transition to
adulthood have at least one significant
adult in their lives who remain involved in
their lives after they exit care.
Sadly, many children do not have any
adult helping them in this way.
Benchmarks of Success
Transition planning for youth exiting care
includes participants from child’s school,
representatives from child welfare system
and other significant adults in child’s life
 Child welfare system attempts to identify
family support who will remain engaged in
child’s educational pursuits
 Child welfare and educational system exists
for identifying education decision-makers

What You Can Do
Be a mentor
 Identify someone in their lives who can be
mentor them
 Reach out to Big Brothers/Big Sisters
 Explore Ementor: an internet mentoring
program
 Support the mentoring relationship

Goal 8: Post-Secondary Education
Youth in care enter into, and complete,
post-secondary education pursuits at
rates comparable to, or better than,
those not in care.
What We Are Seeing
•
Half of all youth in foster care are “ineligible” or
“unable” to attend college because they did not
complete high school.
• Youth eligible to attend college often face too many
hurdles: lack of financial aid, health insurance,
housing, and support and need for remedial help.
• Only 20% of college-qualified foster youth enroll in
postsecondary school, compared to 60% of the
college-qualified population.
• Less than 3% of foster care youth obtain a
bachelor’s degree or higher, compared to 27.5% of the
general population.
Major obstacles

Lack of financial resources
– The average 2002 income for students
attending private, four-year colleges was:
 $5,000 for foster care alumni
 $39,000 for other financially independent
undergraduates
 $63,000 for financially dependent traditional-age
undergraduates

Lack of Safety Net:
 Half of 18- to 24-year olds in this country live at home
 Nearly two-thirds of people in their early 20s receive
financial support from their parents
Other Barriers
 No health insurance
– 33% of emancipated foster youth have
no health coverage, compared to 18%
of adults ages 18 to 44 nationwide
 Difficulty
accessing safe,
affordable housing
– 13-26% of youth are homeless at least
once after “aging out”
– A 2005 Midwest study found only 25% of
foster youth had received instruction on
how to search for an apartment
Benchmarks of Success

Statutory provision of financial assistance to children
in foster care to attend post-secondary education

Requirement that publicly funded post-secondary
institutions provide housing for current & former
foster care youth during school breaks

State/County operate training programs to help
students in foster care apply to secondary schools.

States increase the maximum age at which
students can remain in foster care
What You Should Know

Youth who have aged out of care are eligible for
independent living services in PA until age 21.

Under the Juvenile Act – and now Fostering
Connections youth can choose to delay
emancipation and remain in care through age 21 if
they are in a program of treatment or instruction,
including postsecondary education

It is important to know that once a youth leaves
care in PA, she cannot return even if she is
experiencing difficulties
What You Can Do

Establish a system of outreach to encourage foster
youth to enroll in state postsecondary educational
institutions.

Help children who want to continue their education
remain in care until age 21 as they have the right to
do.

Provide information regarding financial assistance
and independent living options. There are many
resources:
http://www.independentlivingpa.org/scholarships.p
hp

Work with youth to address housing and health
insurance issues and other barriers to enrollment
and retention
.
What You Can Do:
Outreach
Educate youth about
– Federal Entitlements
– State and Other Resources
– Sources of Support
FINANCIAL ASSISTANCE:
What’s Out There?
Room and Board Assistance under the
Foster Care Independence Act
Doubled federal spending on independent living
programs, to $140 million
 Allows states to offer services up to age 21 for
those who have “aged out”
 States can spend up to 30% of money on room
and board for former foster youth
 Includes a requirement youth “participate directly
in designing their own program activities that
prepare them for independent living”

Financial Assistance:
What’s Out There?
Promoting Safe and Stable Families Act



Foster youth may receive the lesser of $5,000 per
year or the total cost of attending postsecondary
school
Any student who participates before her 21st
birthday can continue to receive funds to age 23
Available in Pennsylvania – you apply for an
Education and Training Grant (ETG)
Planning Assistance under the
Adoption and Safe Families Act
Financial Assistance:
What’s Else Is Out There?
Other types of federal assistance where
states have flexibility to use funds to
help foster youth:
Workforce Investment Act
 Temporary Assistance for Needy Families
 Medicaid
 Food Stamps

FAFSA: Say Yes to Question #53
For foster youth applying to college it is
extremely important to answer “yes” to
Question #53 on the Free Application for
Federal Student Aid (FAFSA)



This question asks if you are or were a ward or
dependent of the court; for all children who have
been in foster care, the answer is yes.
Answering “yes” means a youth does not have to
include her parents’ income and will be eligible for
grants and loans based only on her own income
and savings. Typically, this means maximum grant
and loan eligibility.
Applicants are required to document that they
are in care or were in care by obtaining a letter
from a caseworker.
Financial Assistance:
Resources in Pennsylvania
Independent Living PA has a website outlining
opportunities for financial assistance
 Chaffee - $5,000 each year of Chafee dollars
 The Orphan Foundation of America offers Casey
Family Scholarships of up to $10,000 for children
who were in care for at least 12 months and were
never adopted.
 The Taylor J. Ertel Foundation grants scholarships of
up to $2,000 per year to foster youth
 Sallie Mae offers a variety of scholarship
opportunities, among them Unmet Need
scholarships of up to $3,800 designed to
supplement a student’s financial aid package
Other Financial Resources in
Pennsylvania




The Pennsylvania State Foster Parent Association
also awards scholarships for postsecondary
education pursuits
The Education is Freedom National Scholarship
Program gives scholarships of $2,000 each year
If a foster youth is also a minority or the first in her
family to go to college, she is eligible for a variety
of other scholarships
Achieving Independence Center
All these scholarships and more can be accessed at:
http://www.independentlivingpa.org/scholarships.p
hp
Support Services:
Pennsylvania Resources

Each country in PA has an
Independent Living Coordinator who
can direct youth to resources; a list of
coordinators is available at
http://www.independentlivingpa.org
Promising Reform in Pennsylvania:
The Fostering Independence
Through Education Act
The proposed bill (H.R. 2032) is currently being
considered by out state legislature. This Act:

Grants a tuition waiver to foster youth for all tuition
and fees not covered by federal or state grants

Establishes a system of outreach to encourage
foster youth to enroll in state postsecondary
educational institutions

Addresses housing issues and barriers to enrollment
by creating a system of coordinated retention
services
What Can You Do To Make a
Difference?
You Are Already Doing It!
 Tell Us

– Problems you have encountered?
– Policies you think would help?
– Legislation that would make a difference?
Contact Information
Education Law Center
www.elc-pa.org
Maura McInerney
mmcinerney@elc-pa.org