Center for Children’s Advocacy December 15, 2009.

Educational Advocacy for Youth In Foster

CareCenter for Children’s Advocacy

December 15, 2009

Assessing Educational Needs Ensuring provision of adequate services Discipline and School Arrests Transition/Aging out services School Mobility and new Federal Law

TOPICS

Between a third and half of school-age children in the foster care system receive special education services, compared to only 11% of all school-age children.

Statistics

How is the child performing in school? Accessing child’s educational records. Has the child ever been evaluated for

special services? Has the child ever received extra help in

school?

Assessment

John’s story

Assessment

Multi-disciplinary Evaluation Release for school records Appointment of educational decision-maker Review educational needs at treatment

planning conference

Assessment

Who can make educational decisions on behalf of a child in foster care?

Decision-Making

A birth or adoptive parent. Another qualified person.

OR any of the following individuals can be the IDEA Foster parent unless barred by state law from serving as an IDEA A guardian (both a general guardian or a guardian specifically authorized to make education decisions) A person acting in the place of the parent with whom the child

lives A person legally responsible for the child’s welfare A surrogate parent (more on this below) A person designated by the judge (what if child is under an

OTC?)

IDEA Parent

Sec. 10-94g. Commissioner of Education to appoint surrogate parent. Procedure for objection to or extension of said appointment. (a)(1) When in the opinion of the Commissioner of Education or a designee of said commissioner, (A) a child may require special education, or a child who required special education no longer requires such education but requires or may require services under Section 504 of the Rehabilitation Act of 1973, as amended from time to time, and (B) the parent or guardian of such child cannot be identified, the whereabouts of the parent cannot be discovered after reasonable efforts to locate the parent have been made, such child is a ward of the state or such child is an unaccompanied and homeless youth, both as defined in 42 USC 11434a, as amended from time to time, the commissioner or a designee of said commissioner shall appoint a surrogate parent who shall represent such child in the educational decision-making process

Surrogate: CT law

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Parent Teacher Conferences Student Support Team (SST)

◦ Convened when student is not making expected progress

◦ Implement interventions

- Tutoring - Classroom accommodations, e.g., preferential seating- Different teaching strategies

Regular Education Interventions

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Special Education: Getting ServicesStep 1: Referral

Connecticut has even more specific requirements for “child find” than federal law :

“. . . Provision shall be made for the prompt referral to a planning and placement team of all children who have been suspended repeatedly or whose behavior, attendance or progress in school is considered unsatisfactory or at a marginal level of acceptance.” CT State Reg. 10-76d-7

Key Questions/Red Flags for advocates when a youth is not receiving services

Has the youth ever been diagnosed with a disability?

Has the youth ever had PPT meeting? (for referral or services)

Has the youth been absent from school for more than 20 days of the school year?

Special Education: Red Flags


Has the youth been suspended for more than 10 days, expelled, or getting into continuous trouble in school?



Has the youth ever been hospitalized for mental health reasons or placed in a clinical day treatment program?

Is the youth not getting access to basic mental health care?

Does it appear that the youth does not have a thorough evaluation or proper diagnosis of his/her mental health/emotional problems by the school system?


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Special Education: Getting ServicesStep 2: Referral PPT

•The first PPT, called a referral PPT or a PPT-1, determines what evaluations should be conducted

•The duty to evaluate is in all areas of suspected disability including, if appropriate, health, vision, hearing, social & emotional status, general intelligence, academic performance, communicative status and motor abilities.

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Special Education: Getting ServicesStep 2: Referral PPT

Types of Evaluations: - Educational- Psychological - Psychiatric - Speech & Language- Neuropsychological- Sexual Abuse- And others

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45 school days from the initial request for referral to Special Education & consent by parent

When additional evaluations requested subsequent to initial identification, they must be completed within a reasonable time period

Must be in dominant language of student

Evaluation Timeline

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If IDEA parent disagrees with evaluations, or does not believe complete:◦ Can request independent evaluation ◦ If school denies, pursue Due Process

Eligibility Determination

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Disability categories in CT:- Autism - Deaf-blindness- Deafness- Developmental delay- Emotional disturbance - Hearing impairment - Intellectual disability (mental retardation) - Multiple disabilities - Orthopedic impairment

Child with a “disability”

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- Other health impairments, e.g., ADHD- Specific learning disability - Speech or language impairment - Traumatic brain injury - Visual impairments, incl. blindness

**Must have a negative impact on student’s ability to

learn**

Child with a “disability”

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Supportive services, including assistive technology, required to assist a child with a disability to benefit from special education

Examples: ◦ Speech & language services◦ Transportation◦ Social work services◦ Teaching the caregiver about the disability

Related Services

Counseling Social skills instruction Small group instruction Door to door transportation Tutoring Resource room Additional evaluations

John’s Story: services he may benefit from

Ask for a copy of the education records (from district or DCF)

Ensure that child is receiving an annual PPT and that child welfare agency is aware of ongoing educational needs

Make sure that educational performance and other related issues are covered in the treatment plan process.

John’s Story

Discipline and Special Education

Discipline

It is possible to discipline special education students, but special education students are entitled to significant protections not available to regular education students.

◦If a student’s disability contributes to behavior problems, the IEP must include a Functional Behavior Assessment (FBA).

◦The FBA leads to the creation of a Behavior Intervention Plan (BIP), also a part of the IEP.

Before an Incident Occurs

Determine whether the discipline was a change in placement.◦ The child was moved to another educational

setting, either inside or outside the school; AND ◦ The removal was for more than 10 consecutive

days; OR ◦ The child was subjected to a series of shorter

removals that constitutes a pattern and amounts to more than 10 days during a school year.

If yes, the school must hold aManifestation Determination

After An Incident Occurs

Manifestation determination must occur within 10 days of the change in placement

PPT determines whether the conduct for which discipline is imposed is◦ a result of the student’s disability, or◦ the direct result of a failure to implement the IEP

If yes, the district must return the child to the placement from which the child was removed. ◦ Exception: Interim Alternative Educational Setting

for 45 days for behavior involving weapons, drugs, serious bodily injury

If no, the district can change child’s placement, but child must still receive FAPE.

As with any other PPT decision, if parent disagrees, can appeal.

Manifestation Determination

Beginning on the 11th day that a child with a disability is removed from their current placement, the district must provide those services necessary for the child to-Appropriately progress in the general curriculum and-Appropriately advance toward achieving their IEP goals

•School personnel determine where the services will be provided

The 11th day

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Interim Alternative Setting

Even if the behavior was a manifestation of the student’s disability, a student can still be moved to an “interim alternative setting” for 45 days if the student:◦ Brought a weapon to school or a school

function◦ Possessed or used illegal drugs or sold or

solicited the sale of drugs at school or at a school function

◦ Inflicted serious bodily injury upon another person at school or at a school function

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If a special education student is expelled or placed in an interim alternative educational setting, the student shall:

◦ continue to receive the services he/she needs to continue to make educational progress

◦ receive, as needed, a functional behavioral assessment, behavioral intervention services, and modifications, designed to keep the behavior from occurring again.

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What if the district decides the interim alternative educational setting is homebound?

Any decision to place a special education student on homebound instruction should be made by a PPT, not unilaterally by the district.


Even if child is not identified as special education, can access these protections if the district had knowledge that the child had a disability

District is considered to have “knowledge” if◦ Parent has expressed concern in writing to

supervisory or administrative personnel, or a teacher of the child, that the child was in need of special education and related services; or

◦ The teacher of the child, or other personnel of the LEA, had expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the Director of Special Education or to other supervisory personnel of the agency.

“Knowledge” Provides Protection

If the parent of the child has not allowed an evaluation of the child

If the parent has refused services If the child has been evaluated and

determined not to be a child with a disability

In such cases, regular disciplinary measures apply.

No “Knowledge” Situations

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State statute limits total number of days student can be suspended to 50, occurring in batches of no longer than 10 consecutive school days

This is true for both reg. ed. & spec. ed.

Some Key Discipline Points

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School-Based Arrests

Another way that schools use the juvenile justice system to address disciplinary issues is through school-based arrests.

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School Based Arrests and Special Needs

Too often students are referred to law enforcement for conduct that could be a manifestation of their disabilities, and their Behavior Intervention Plans (BIPs), which were developed and approved by their planning and placement teams (PPTs) are disregarded.

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School-Based Arrests and Special Education

◦ IDEA does not prohibit a school district from reporting a crime committed by a child with a disability to law enforcement.

◦ IDEA does require that, when such a crime is reported, the district “shall ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.”

◦ However, any disclosure of records must also comply with the Family and Educational Rights and Privacy Act (FERPA), which states that educational records can only be shared if parent consents in writing.

◦ BUT: “health and safety exception”: if the district decides there is a “significant and articulable threat” to the student or others’ health or safety, the records can be disclosed to anyone who needs that information to protect that student’s or others’ health or safety

Kim’s Story Begin following child’s 15th birthday Discuss transition from school to adult life Youth attends the PPT IEP must include appropriate measurable post-

secondary goals

IMPORTANT: Transition Services

Transition services needed to assist child in reaching goals

May require district to get other agencies involved (DDS, DMHAS, Vocation and Rehabilitation Services, BRS)

Transition Services

IEP must consider1. child’s strengths2. Guardian’s concerns3. Recent evaluations4. Academic, developmental and functional

needs of child

Transition Services

If participating agency fails to provide necessary services, the buck stops with the school district

Transition Services

Transition services are a coordinated set of activities that promote movement from school to such post-school activities as post-secondary education, vocational training, employment, adult services, independent living and community participation.

They must be based on the individual student's needs, taking into account his or her preferences and interests.

Transition services must include instruction, community experiences, and development of employment and other post school adult living objectives. If appropriate, daily living skills and functional vocational evaluation may also be included.

Legal Requirements under IDEA

If the IEP team determines an individual student does not need services in one or more of these areas the IEP must contain a statement to that effect and the basis upon which the determination is made.

Before the student leaves school the IEP must also contain, if appropriate, a statement of each public agency's and each participating agency's responsibilities or linkages (including financial) for the transition activities (34 CFR 300.346(d) and comment).

Transition Services

The IEP meeting must include a representative of the public agency providing and supervising the transition activities and, if appropriate, representatives of other participating agencies.

In almost all situations the familiar district representative required for all IEP meetings would qualify as this representative.

If appropriate, the student should also be there to ensure her or his needs, preferences, and interests are addressed. It is difficult to imagine circumstances where it would not be appropriate for a student who has a learning disability to be at the meeting. If the student cannot attend, other methods of participating must be used (34 CFR 300.344(c)(3)).

Transition Services

The ultimate responsibility for providing transition services rests with the school district (or state education agency if district fails) and there is no provision for a waiver of this requirement.

Thus it applies to all public agencies to whom IDEA applies and, if a participating agency defaults on service provision, it is the school that must find an alternative way to provide the service.

Transition Services

DCF youth entitled to treatment planning Entitled to Adolescent Plan under federal

law Fostering Connections underscores

transition plan requirement Child welfare agency must ensure that

school district providing appropriate transition services

Kim’s Story

Permanency Plan should address. If plan is independent living, court must make finding that agency made/is making reasonable efforts to achieve that goal.

Advocate for community based learning; experiential learning; vocational assistance.

Kim’s Story

What if youth is not receiving adequate orappropriate services?

Due Process Hearing Request Mediation Request Administrative Complaint If in Juvenile Court, bring school district in as a

necessary party

Special Education Services

What if youth is not receiving adequate orappropriate services? Is there a surrogate Is DCF educational consultant involved? Is court aware of educational issues? Do DCF court updates address educational issues and

services

Special Education Services

What if youth is not receiving adequate orappropriate services? Does permanency plan address educational

needs and issues? Does DCF treatment plan address

educational needs Does DCF/DMHAS transition team include

requisite district representative?

Special Education

What if youth is not receiving adequate orappropriate services? Mandate that PPT be held and that client be

invited to participate in discussion of transition goals and services.

DCF and surrogate and, if appropriate, DMHAS rep, should be present at PPT.

Special Education

Jose’s Story

Advocating for client’s rights

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Initiated by either IDEA Parent or Board Options include Hearing, Mediation,

Advisory Opinion, Administrative Complaint. “Stay-Put”: District required to maintain

student in current program until conclusion of the process, unless another agreement is reached

Due Process

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Request for hearing Resolution meeting 45 day timeline begins Written decision issued Stay put provision

Due Process

See handout

School Mobility

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McKinney-Vento Act addresses problems homeless children and youth have accessing education.

Homeless students may continue to attend the school that they are attending before becoming homeless, including pre-school.

Homeless students are entitled to transportation to home school.

McKinney-Vento Act

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McKinney- Vento applies to all children and youth who do not have a fixed, regular and adequate residence, including those who are:◦ Staying with friends or relatives because they lost

their housing;◦ Runaways or “throwaways”◦ Awaiting foster placement (ie: a DCF shelter, PDC,

or temporary foster home)◦ Living in emergency or transitional shelters,

motels, domestic violence shelters, campgrounds, inadequate trailer parks, cars, public spaces, abandoned buildings and bus/train stations.

McKinney-Vento Act

Q: What is the Fostering Connections to Success and Increasing Adoptions Act of 2008?

Fostering Connections

A: On October 7, 2008, the Fostering Connections to Success and Increasing Adoptions Act of 2008 (P.L. 110-351, Fostering Connections Act) was signed into law. This law amends parts B and E of Title IV of the Social Security Act to help hundreds of thousands of children and youth in foster care by promoting permanent families for them through relative guardianship and adoption and improving education and health care.


Q: How does this law affect education stability for children in out-of-home care?


A: Fostering Connections requires child welfare agencies to include “a plan for ensuring the educational stability of the child while in foster care” as part of every child’s case plan. As part of this plan, the agency must include assurances that:

the placement of the 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; and

the state child welfare agency has coordinated with appropriate local educational agencies to ensure that the child remains in the school in which the child is enrolled at the time of placement.


Additionally, Fostering Connections requires that if remaining in such school is not in the best interest of the child, the case plan must include assurances by the child welfare agency and the local educational agencies that:

provide immediate and appropriate enrollment in a new school; and

provide all of the educational records of the child to the school.


Center for Children’s Advocacy: www.kidscounsel.org

ABA Center on Children and the Law Legal Center for Foster Care and Education

http://www.abanet.org/child/education/publications/fosteringconnections.html

Resources

http://www.kidscounsel.org/





Center for Children’s Advocacy December 15, 2009.

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