Special Education and Surrogate Parents

             Joanna was frustrated. She had just been assigned to be the social worker for a three year old girl with fetal alcohol syndrome who was in the hospital. The little girl was scheduled to be assessed by the school district to determine if she should receive special education services. Joanna knew that the girl’s parents had to sign and consent to the assessment, but the father was unknown and she hadn’t been able to find the mother. The school district said they needed someone to consent to the assessment but that, legally, Joanna could not. Joanna was sure that there was something more the school district had to do to resolve this dilemma, but she wasn’t sure what. 

            While educational and early childhood services under the Individuals with Disabilities Education Act (IDEA) are provided to children, a child’s right to those services is generally enforced by parents. But some children with disabilities do not have parents or their parents cannot be found. Who looks out for children without parents? The IDEA has a process that appoints a surrogate parent to protect the rights of children with disabilities who don’t have parents. 

           Whenever the parents of a child are unknown, can’t be located, or the child is a ward of the State, an individual must be assigned to act as a surrogate parent for the child in the educational process. The surrogate parent has the rights that any parent would have to make sure that the child with a disability receives appropriate educational services. Thus, the surrogate parent can consent to a child being assessed and placed in special education. The surrogate parent can review the child’s school records and attend individualized educational program (IEP) meetings. Finally, if there is a disagreement between the surrogate parent and the school district regarding the child’s school program, the surrogate parent has the authority and the responsibility to use dispute resolution procedures. Surrogate parents, however, are only appointed to protect the child’s rights in the education process. So, the surrogate parent does not have the authority to act on behalf of the child outside that process.  For example, the surrogate parent cannot consent to medical care or make other treatment decisions for the child that are not educational decisions.   

          Since the surrogate parent is responsible for making educational decisions for the child, the surrogate parent must have the skills and knowledge needed to be able to support the child in the educational process. The surrogate parent should. therefore, know about the child’s rights under the IDEA and the child’s educational needs. School districts and state departments of education often provide training to prospective surrogate parents so they can learn about the IDEA. And, once appointed, a surrogate parent has the right to meet the child, look at the child’s school records, and talk to teachers and other professionals to learn about the child’s educational needs.  

           It is important that the surrogate parent not have personal or professional interests that might conflict with the child’s best interests. For example, if the surrogate parent also worked for the school district serving the child, the surrogate parent’s judgment might be affected by that working relationship. So, to ensure objectivity, the surrogate parent cannot be an employee of the state department of education, the school district, or any other agency that is involved in the child’s education or care. 

            Children with disabilities who do not have parents are often in the care of departments of social services and similar agencies. Since those agencies are involved in the care of the child, social workers cannot be surrogate parents for children served by their agency. That does not mean that a social worker could not attend an IEP meeting or other educational meetings. In fact, the social worker would likely be very helpful in the educational planning process. But the social worker cannot be the surrogate parent.              In some circumstances a child may have been assigned a guardian ad litem. A guardian ad litem is a person, usually an attorney, appointed by a court to act in the best interests of a child. If a court has given the guardian ad litem specific authority  to make educational or early childhood service decisions for the child, then the guardian ad litem fulfils the role of parent in that process. Consequently, a  surrogate parent is not necessary.  

           Anyone who believes that a child with a disability may need a surrogate parent can contact the appropriate school district to have a child’s need for a surrogate parent determined.  If you believe a child may need a surrogate parent, or you would like to be a surrogate parent for a child, you should contact the director of special education for the school district or contact your state department of education. The surrogate parent requirement also applies to Part C of the IDEA providing early intervention services to children with disabilities under age three. If you are concerned about appointing a surrogate parent for a child under the age of three, then you should contact your state’s lead agency that is responsible for providing Part C services.

             Being a Surrogate Parent  

           Being a surrogate parent involves getting to know the child, reviewing school records and other information, and talking with teachers and other service providers. It involves participating in IEP meetings. The surrogate parent, like any parent, makes points and asks questions in these meetings to make sure the child is receiving appropriate services. And, if the surrogate parent believes the child is not receiving appropriate services, the surrogate parent should use the IDEA’s dispute resolution procedures to enforce the child’s right to a free appropriate public education. Being a surrogate parent means providing a valuable service protecting the educational rights of children with disabilities who do not have parents.    

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3 Responses

  1. [...] including the right to informed consent to evaluation and services, appeal rights, and provides for surrogate parents for children without parents. Connecting infants and toddlers who have been abused or neglected to [...]

  2. I am a disability activist and am wondering if you could help me with some problems I am having with ADA violations which are going on in my community. Some of the major ones concern handicap transportation. I am not able to leave my home because the county and state governments will not provide handicap accessible transportation for me or other low income people with disabilities. I am not able to get transportation to physical therapy appointments, which my primary physician has prescribed because the county dept. of human services claims that they are “recreational”. My doctors have written letters, etc. stating that the physical therapy is NOT recreational. My right leg is beginning to atrophy as a result of the problem. Also, I am not able to get home modifications. I am wheelchair bound but my home care management company has stalled for about two years now in providing a roll-in shower. I have not been able to bathe in my own home for about two years. I am suffering skin eruptions and infections. The installation of a ADA compliant wheel chair ramp has been repuested repeatedly for about three years now. Is there anything that can be done about any of these problems?

  3. Jane,
    Thank you for your comment. I beleive there is an appeal process for departments of human services denying transportation that is “medically necessary”. If your doctors have written letters of support, that might be very effective in an appeal. Without more information, I don’t know if the home care management company is required to provide the roll in shower and ramp, If you are in Colorado, my offiice The Legal center for People with Disabilities and Older People may be able to assist you with these issues.Please feel free to contact me at rchapman@thelegalcenter.org so we might discuss further.

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