Protection from Retaliation

       Sometimes individuals are intimidated or harassed because they are trying to enforce or help others to enforce the right to be free from disability based discrimination under Section 504 and  the Americans with Disabilities Act (ADA). Both of these laws protect individuals with disabilities from discrimination. Additionally, these laws prohibit retaliation against a person with a disability (or persons who are acting on behalf of a person with a disability) for trying to enforce their rights under these civil rights laws. Individuals with disabilities and their families are often dependant on service providers such as schools and others for their services. Individuals are often reluctant to question how services are delivered because they fear they will face a reduction or termination of services as payback.

     The anti-retaliation provisions of section 504 and the ADA help allay that fear of payback so that individuals are not as afraid to enforce their rights or the rights of their family members and associates with disabilities.  The anti-retaliation provisions of Section 504 (note Section 504 applies the retaliation protections in Section 102 of Title I of the Civil Rights Act of 2004) and the ADA is very broad. It is a violation of Section 504 and the ADA to intimidate, threaten, coerce, or discriminate against an individual who has engaged in a protected activity. Protected activities include filing a complaint, testifying, assisting in, or participating in an investigation or hearing under Section 504 or the ADA. The key elements in a complaint for retaliation are:

1.     The person making the retaliation claim engaged in a protected activity (they asserted a right, filed a complaint, testified, assisted or participated in an investigation or hearing under Section 504 or the ADA);

2.     The entity that it is alleged to have retaliated knew the person engaged in a protected activity;

3.     That entity took some action against the individual making the complaint and that action was at the same time that individual engaged in the protected activity; and

4.     A causal connection can be reasonably inferred between the retaliatory action taken by the entity and the person engaging in the protected activity. 

    

A good example of retaliation is the Ninth Circuit Court of Appeals case of Settlegood v. Portland Public Schools . In that case, Pamela Settlegood was hired by the Portland Public Schools as an adapted P.E. teacher, on a probationary basis, to teach students with disabilities in various schools in the school district. She soon became concerned about how her students were treated. As an itinerant teacher, she had trouble finding a place to teach her students, she often lacked material and equipment, and the equipment she did find was often inadequate and unsafe. After she complained in writing to her supervisors that her students were not getting services they were entitled to under the IDEA and Section 504, her evaluations became more negative and her probationary contract was not renewed. 

      Ms Settlegood then successfully sued the school district for retaliating against her for trying to protect the rights of her students with disabilities. She was able to show that (1) she engaged in a protected activity (aggressively complaining about the lack of appropriate services and equipment for her students with disabilities); (2) the school district knew she had engaged in that activity; (3) the school district took action against her by school personnel giving her poor evaluations and not renewing her contract; and (4) it can be reasonably be inferred that her poor evaluations and the non renewal of her contract was caused by her efforts to enforce the rights of her students with disabilities. 

     As noted, individuals with disabilities and their family members who depend on others for services, are often reluctant to enforce their rights because they fear their services might be terminated or reduced.  Anti- retaliation legislation deters agencies from retaliating against individuals who try to enforce their civil right and helps assure individuals that they may safely pursue their rights without risking losing their services. For more information about the ADA, Section 504, protection from retaliation and how to file complaints see the Office for Civil Rights (OCR) within the Department of Education, OCR within the Department of Health and Human Services, and the Equal Employment Opportunity Commission. Some states also have laws protecting individuals with disabilities from retaliation, so it might be important to check your state statutes.

What if we don’t work it out? Due Process Hearings Under the IDEA 2004

     Sometimes mediation, the resolution session, or other efforts do not resolve the dispute and parents or the school district still wish to have a due process hearing. In order to have a hearing, the side requesting the hearing  must have filed a due process complaint notice with the other side in the hearing.  

Timeline for requesting a hearing 

     The IDEA 2004 established a two year timeline for requesting a hearing. Generally, the parent or the school district must request a hearing within two years of the date the parent or district “knew or should have known” about the violation that is the basis for the hearing request.  This timeline, however, will not apply to a parent if the parent was prevented from requesting a hearing because (1) the school district specifically misrepresented that it had resolved the problem, or (2) the school district withheld information from the parent that the district was required to give the parent.

     Finally, the IDEA’s two year timeline will apply unless the state has its own explicit timeline for requesting a hearing. Thus, parents, advocates, and attorneys should always check to their state’s laws and regulations.  

Qualifications of the hearing officer 

     The hearing will be heard and the dispute decided by an impartial hearing officer.  The hearing officer must be qualified and impartial. In order to be considered impartial, the hearing officer cannot have a personal or professional interest that conflicts with their objectivity at the hearing. Thus, the hearing officer cannot be an employee of the State Education Agency or the local education agency (school district) that is involved in the care or education of the student or have other interests that would affect their objectivity. 

      To be qualified, the hearing officer must know and understand the IDEA, its regulations, and legal interpretations of the law and regulations by the courts. The hearing officer must also know how to conduct hearings and be able to make and write decisions according to standard legal practice. 

Rights in the Hearing Process 

     Both sides to a hearing, parent and school district, have the following rights in the hearing:

• the right to be accompanied and advised by a lawyer and by individuals with special knowledge or training with respect to the problems of children with disabilities;

• the right to present evidence and confront, cross examine, and compel the attendance of witnesses;

• the right to prohibit the introduction of any evidence that has not been disclosed at least five business days before the hearing;

• the right to a written, or at the option of the parents, electronic verbatim record of the hearing;

• the right to written, or at the option of the parents, electronic findings of fact and decisions.     

Additionally, parents have the right to have the child present at the hearing, have the hearing open to the public, and have the record of the hearing, the findings of fact, and the decision at no cost to the parents. So, parents can obtain a transcript of the hearing at no cost. This is important because if the result of the hearing is appealed, it is likely that the entity hearing the appeal will want a copy of the hearing transcript.

 Timeline for the decision 

     Generally, there is a 45 day timeline for the hearing officer to make a decision. But the school district has 30 days from the time it receives the parents request for a hearing to try to resolve the dispute. Thus the 45 day timeline for the hearing to be conducted and a decision issued may not begin until after that 30 day time period expires. But if the parents and the school district agree in writing to waive the resolution session or agree in writing that it isn’t possible to reach an agreement through mediation or the resolution session, the 45 day hearing timeline will begin the day after that written agreement is reached. 

Appeal Process 

     Either side may appeal the hearing officer’s decision. If the hearing was conducted locally by the school district or by an agency other than the State Education Agency, then the decision can be appealed to the State Education Agency. In that event the State Education Agency must conduct an impartial review of the hearing officer’s decision and then make its own independent decision. This is considered a two tiered hearing process. The first tier hearing is conducted by the school district and the State Education Agency review is the second tier. The second tier decision will be the final agency decision but can be appealed to state or federal district court.

     Some states have a one tiered process with the State Education Agency, not the local school district, conducting the hearing. In that case the state is not required to have an additional state level review and the State Education Agency decision will be the final agency decision.

     Once the state has made its final decision (whether the state conducts the hearing or reviews an appeal of a hearing conducted by the school district) that decision can be appealed by either the parents or the school district filing  a civil action (lawsuit) in state or federal district court. 

 Concluding Thoughts Regarding Due Process Hearings 

     Generally, due process hearings are contentious, adversarial, costly, and unpleasant for all involved. The hearing itself is often like a trial. Attorneys for both sides present evidence, examine their witnesses, cross examine the other side’s witnesses, and make oral and written legal arguments. The hearing officer presides over the hearing like a judge presides over a trial. Because the hearing is costly and unpleasant, everyone involved is usually very interested in resolving the disagreement so that a hearing can be avoided. Thus, in most cases in which a due process complaint notice is filed, the issue is settled before the hearing occurs. That is good.

    But, having said that hearings are generally costly, contentious, adversarial, and unpleasant, they are sometimes very necessary. There are times in which the issues are significant and do not get resolved. In those circumstances, a due process hearing may be necessary to ensure that a student receives a free appropriate public education.      

We Can Work it Out Part III: Using the Resolution Process to Resolve Disputes Under The IDEA 2004

    As yet another way to resolve disputes before a due process hearing, the IDEA 2004 added a resolution process. Once a due process complaint notice is filed, the school district is required to convene a resolution meeting between the parents and the relevant members of the IEP team. The purpose of the resolution meeting is for the parents to discuss the due process complaint and give the school district an opportunity to resolve the dispute.

     The relevant members of the IEP team are those members of the team who have specific knowledge about the facts identified in the due process complaint. The parents and the school district will mutually determine which members of the IEP team are relevant. Additionally, the meeting must include a representative of the school district who has the authority to make decisions on behalf of the school district.  

      The meeting, however, may not include an attorney representing the school district unless the parents bring an attorney to the meeting. So, the parents have an opportunity to meet with school staff without the school district’s attorney being present. If parents choose to bring an attorney to the resolution meeting, then the school district may also bring its attorney.  

     Moreover, should parents choose to be represented by an attorney at the resolution meeting, the parents may not be awarded attorneys’ fees for their lawyer’s time  attending the meeting. The resolution meeting is required unless the school district and the parents agree in writing to waive it or the two sides agree to use mediation instead. If the dispute is resolved through the resolution meeting, the parents and the school district will develop and sign a written settlement agreement. Similar to the mediation agreement, the resolution settlement agreement is enforceable in State court or United States district court. But, either the parents or the school district have three business days after the agreement is signed to void, or get out of, the agreement.  

     Finally, from the parent’s perspective, the resolution session is essentially another IEP meeting but, perhaps, without the school district’s attorney. On the other hand, the mediation process involves an outside person, the mediator, who can help facilitate resolving the dispute. For that reason, parents and the school district might choose to use the mediation process instead of the resolution process. Using either process will be beneficial if disputes are resolved without the need for a due process hearing.

We Can Work it Out Part II: Using Mediation to Resolve Disputes Under The IDEA 2004

 The last post began a short series of articles on dispute resolution under the IDEA 2004. That article ended with the requirements for filing a due process complaint notice. This post covers mediation and next week’s post will cover the new resolution process.

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       Mediation is a process in which an objective and impartial third party (the mediator) works with both sides of a dispute to help them reach an agreement to resolve the dispute. Unlike a hearing officer, the mediator does not weigh evidence and resolve legal issues. Under the IDEA, the mediator’s job is to help the parents and school district reach an agreement. In that process the mediator will meet with each side to the dispute, separately or together (depending on the style of the mediator) and try to resolve disagreement.

       For the mediation process to work, the participants need to be able to speak freely. Thus, the discussions that occur in mediation under the IDEA are confidential.  Prior to the IDEA 2004, mediation agreements resolving special education disputes were not legally binding. The agreements were voluntary and each side relied on the other’s good will to comply with the agreement. Congress, however, received comments that since mediation agreements could not be legally enforced, parents and school districts were sometimes reluctant to use the process. Thus, in the IDEA 2004, Congress required that if an agreement is reached in mediation, it can be enforced in State court or a United States district court.  

Mediation can be used to resolve any special education issue, including issues that occur before a due process complaint notice is filed. So, mediation can be used to resolve disagreements without requesting a due process hearing or it can be used to settle disputes after a hearing has been requested. Moreover, to encourage mediation, the IDEA requires that the state education agency  maintain a list of qualified mediators and bear the cost of the mediation process.

So, mediation does not cost the parents or the school districts other than their time in the mediation. Mediation is voluntary and both parents and the school district must agree for the mediation to occur. Additionally, the state education agency must assure that mediation is not used to deny or delay a parent’s right to a due process hearing. Thus, by agreeing to mediation neither the parents nor the school district give up the right to pursue a due process hearing if the mediation is unsuccessful.

      Finally, while this article focuses on resolving disputes regarding children with disabilities under Part B of the IDEA (services for children aged three to twenty-on), mediation can also be used to resolve disagreements under Part C (services for infants and toddlers from birth through age two).  

We Can Work it Out: Using the IDEA 2004 to Resolve Disputes Before They Get to Hearing

My posts this week and next week will cover the IDEA 2004 formal procedures for resolving disputes prior to a due process hearing. This week I’ll cover the due process complaint notice and next week discuss mediation and the resolution process. A subsequent post will cover the due process hearing.   

Since 1975 the Education for All Handicapped Children Act (now the Individuals with Disabilities Education Act or IDEA) has provided parents the right to a due process hearing to resolve disagreements over special education services to children with disabilities. A due process hearing is a very formal procedure to resolve disputes. In a due process hearing an impartial hearing officer (IHO) makes a decision in favor of the parents or the school district after each side has presented evidence at the hearing. Parents and school districts have very specific rights or safeguards in due process hearings including the right to present evidence and to be advised by an attorney. 

      Thus, due process hearings, similar to a trial, are formal, can be costly, adversarial, and time intensive. To avoid the cost, time, and stress of due process hearings, parents and school districts resolve most special education disputes before they go to a hearing. In fact, in 2003 the General Accounting Office (GAO) issued a report stating that because most due process hearing requests are withdrawn or the parties settle the dispute before the hearing, the number of special education hearings nationally was low. For example, in the year 2000 the GAO found that there were only about 5 hearings per 10,000 special education students. In 2004, to further encourage resolving special education disputes, Congress amended the IDEA by adding to the dispute resolution process a due process complaint notice, a resolution process, and made mediation agreements legally binding.  

 Due Process Complaint Notice

      The IDEA requires that whenever a party, either a parent or a school district, wishes to request a due process hearing to resolve a special education dispute, they first must provide the other side with a due process complaint notice. The due process complaint notice tells the school district (or the parent if the school district requests the hearing) who the student is, the school the student attends, what the issues are, and suggests ways to resolve the dispute. As the IDEA 2004 was being drafted, some school administrators commented to Congress that districts frequently received requests from parents for a due process hearing when the districts were unaware that a dispute even existed.     

Thus, the due process complaint notice gives the school district information about the dispute and a chance to resolve the disagreement. While parents may feel it is burdensome to have to draft this notice in order to have a hearing, putting the problem and possible resolution in writing can help focus the issues and might lead to a resolution.

      The content of the due process complaint notice is very important because issues cannot be raised at the due process hearing if they were not identified in the due process complaint notice. This is true unless the other side in the hearing agrees to let the new issues be addressed at the hearing. There is a process for amending the due process complaint notice to add new facts and issues. Moreover, if a parent wanted to add issues that were not in the due process complaint notice and the school district did not agree to let those new issues into the hearing, the parent could request a separate hearing on the new issues.  In that event, the school district might agree to let the issues be heard in the original hearing rather than having two hearings. 

     Finally, State education agencies are required to develop model forms to help parents and school districts file due process complaint notices, but using those model forms is not required so long as the notice contains the information required by the IDEA.  

       In summary, the due process complaint notice requirment was added to the IDEA to avoid school districts being surprized when they recive a request for a hearing from a parent. It is hoped that by letting the school district know the nature of the disagreement and a possible resolution, the dispute can be resolved and a hearing avoided. Thus, the due process notice must be sent or a hearing cannot occur.  

Avoiding Stormy IEP Meetings:Tips for Chairing an IEP Meeting

  Principal Fife was the captain of the good ship HMS Middle School. He knew his mission, keep the school ship shape, hatches battened down, and sailing straight. Through twenty years serving in her majesty’s local education agency he’d successfully weathered the storms sent his way. Why then had the IEP meeting he just chaired been such a disaster? He was assigned to act as the designee for the Director of Special Education and, though he had attended many IEP meetings, this was the first time he scheduled, planned, and chaired an IEP meeting for a student with a disability.

 He thought he’d run a tight meeting. He invited only the essential professionals. To keep the meeting on time as well as non adversarial, he kept discussion to a minimum and discouraged the questioning of the professionals. After all, each professional was an expert in their area of service provision and their recommendations shouldn’t be second guessed by others.  Thanks to him the meeting was completed in ninety minutes (thirty minutes past the one hour he had announced at the outset as the time allotted for the meeting). So, what was the deal? Why did the parents leave angry and threatening to see a lawyer? 

  In the above scenario Principal Fife wanted to have a productive Individualized Educational Program (IEP) meeting. He wanted to develop to a good program for the student, but his emphasis on efficiency sacrificed quality and unnecessarily angered the student’s parents. Sure, there are going to be disagreements in IEP meetings. Educational programming is not an exact science. You should expect that, at times, parents will disagree with the recommendations of the educational professionals and educational professionals will disagree with one another. But proactively seeking parent input in the IEP process can help you avoid unnecessary disagreements and help make those disagreements that may be necessary less disagreeable. 

Eight Tips for Planning and Chairing an IEP Meeting 

1.      Schedule the meeting at a time reasonably convenient for the parents. The IDEA requires this and it makes good sense. Let the parents know in writing when the meeting is scheduled and make sure they know they can reschedule for another time and who to contact if they wish to reschedule. Then, if they ask, reschedule. You do not want parents to call the wrong person and be told the date is set, etched in stone, and cannot be changed. 

2.  Tell the parents, in writing, who the school district is inviting to the IEP meeting and what their role is. The parent may not know what role each professional plays in their child’s life. You don’t need to provide a biography of each IEP team member, but include their title and be sure the parents know they can find out more information if they wish. 

 3.  Make sure all of the right people are invited to the IEP meeting. For example, if the student will be transitioning from elementary school to middle school next year, it might be wise for you to include some of the middle school teachers in this year’s IEP. Or, if you expect a discussion regarding placing the student in a private or non district program, make sure appropriate staff from that program attend the meeting to describe the program and answer questions. Parents and other professionals cannot make a decision about a placement in a vacuum.  

4.  Ask the parents if they would like other individuals invited to the meeting. The IDEA requires that “not less than one of the student’s regular education teachers” attend the meeting, but students in middle school and high school often have more than one regular education teacher. The parent may want to have more than one regular education teacher. The IDEA also allows parents or school personnel to include on the IEP team other individuals who have knowledge or expertise about the child’s special needs. For example, the child may be seeing a therapist privately and the parent may want that individual invited to the meeting.. When it comes to IEP meetings more is not necessarily merrier, but too few is clearly not be enough. 

 5.  Do not set a time limit for the meeting. Try to schedule sufficient time, but if the IEP is not completed in that time, schedule another meeting to complete the IEP.  Be sure that the parents and other professionals know that this IEP will not be rushed to completion.   

6.  Facilitate open discussion among all members of the IEP team. Encourage parents to ask questions of the professionals and the professionals to ask questions of the parents and each other. 

 7.  Translate professional mumbo jumbo. Break down education speak so that all team members understand what is being said. 

 8.  Remember whose child it is. Listen to the parents and treat them as you wish to be treated: as a professional. Parents are members of the team. Remember, that while school professionals want what’s best for the child, they are not the parents. The professionals know the child as their student while at school and during the child’s school career. But the parents will be the child’s parents for life. 

  Using these tips will tell parents that you and the other educators in the IEP meeting really want what is best for their child and value the parents’ input. If parents think that you are not open to their ideas, they can become frustrated and angry. Refusing to reschedule meetings or to invite individuals that the parents would like at the meeting sends a message that you don’t really care. Since you do care, don’t send that message. Also, listening to the parents, having the right people at the meeting, and facilitating open discussion will help ensure that a good plan is developed. There will be disagreements in IEP meetings. That’s’ OK. There are times when IEP meetings may become rancorous and adversarial. That’s OK too. But you don’t want the meeting to become needlessly adversarial because you didn’t seek parent input into putting the IEP team together and  you didn’t respectfully listen to the parents concerns .       

Protecting Infants and Toddlers with Disabilities from Abuse: Connecting CAPTA with the IDEA

      Congress originally passed the Child Abuse Prevention and Treatment Act (CAPTA) in 1974 to provide federal funding to states to support Child Protective Service Agencies to help prevent child abuse. Over the years, CAPTA has been amended several times, most recently in 2003 by the Keeping Families and Children Safe Act. Additionally, research has found that children who are abused or neglected often have physical, mental, or emotional problems requiring specialized intervention. Thus, the 2003 CAPTA amendments require that states that receive CAPTA funds develop procedures to refer children who are under the age of three and are involved in a substantiated case of abuse or neglect to Early Intervention Services under Part C of the IDEA. The IDEA’s Part C requires that states have a coordinated interagency program of early intervention services for children with disabilities from birth through age two. Moreover, when the IDEA was amended in 2004, Congress also required ,through Part C, that states have procedures for referring a child who is under the age of three and who is involved in a substantiated case of abuse or neglect for early intervention services under Part C.    

Historically, child welfare workers and early intervention providers have done their good work from within their respective systems, often unaware of how the other system worked. There are differences in the two systems. Child welfare services’ mission is generally keeping children safe. To that end, child welfare workers may work to strengthen families, but their primary focus is protecting the child. Unlike early intervention services, child welfare services may require court involvement, termination of parental rights, and many abused or neglected children are placed out of the home in foster care. Again, while child welfare workers may try to support the family, their mission is to keep the child safe, not to ensure family input and choice in the child protection process.

   On the other hand, under the IDEA Part C early intervention services focus on working cooperatively with families to ensure that infants and toddlers with disabilities receive the early intervention services they need. Under Part C, early intervention services are designed with family involvement and provided through an Individualized Family Service Plan (IFSP). Part C emphasizes family choice and input. Moreover, Part C contains specific procedural safeguards for families 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 Part C early intervention services requires that the two systems, child welfare and early intervention providers, work together. It is important, therefore, that child welfare workers and early intervention service providers understand how both systems work. 

   To that end, many states have developed interagency agreements between the state child welfare agency and lead agency for Part C early intervention services to ensure cooperation between the two systems. Moreover, many state and local representatives of the two systems have provided conferences, regularly scheduled meetings, and cross trainings to help their colleagues understand how the systems can work together on behalf of children. For information on what is happening in your state you can contact your state child welfare agency through the Child Information Gateway website and/or your state’s Part C lead agency which you can find at the National Early Childhood Technical Assistance Center (NECTAC) website.           

New Jersey Places IDEA Burden of Proof on School Districts

  Yesterday New Jersey’s Governor Corzine signed into law state legislation placing the burden of proof in all special education due process hearings on the school districts regardless of whether the parents or the school district requested the hearing. Similar to New York’s legislation passed last fall, this bill rectifies the Supreme Court decision in Schaffer v Weast placing the burden of proof on the side challenging the IEP. In the Schaffer decision the Supreme Court did not discuss whether a state could pass legislation overriding this rule. The New Jersey legislation went into effect immedialtley upon Governor Corzine’s signing.

Denying Qualified Students with Disabilities Access to Accelerated Programs Violates Section 504 and Title II of the ADA

  Apparently, some schools or school districts have refused to allow qualified students with disabilities the opportunity to participate in challenging academic programs such as Advanced Placement or Baccalaureate classes or other accelerated programs. Moreover, some schools and school districts have required that students with disabilities give up their specialized services in order to participate in these accelerated programs. Thus, on December 26, 2007 the Office for Civil Rights (OCR) issued a Dear Colleague letter advising educators that these actions violate Section 504 and Title II of the Americans with Disabilities Act and if reported will be investigated by OCR. 

  Both Section 504 and Title II of the ADA protect qualified students with disabilities from discrimination based on disability. Schools, therefore, may not use criteria or administer programs in a manner that has the effect of discriminating against students with disabilities.  To be sure, schools are not required to admit students, including students with disabilities, to accelerated programs who do not meet the criteria for acceptance into the program. But if a student with a disability meets the criteria, denying admission based on disability violates 504 and the ADA.  

  The OCR letter also makes the point that participation by a student with a disability in an accelerated program would generally be considered part of regular education or regular classes under Section 504 or the Individuals with Disabilities Education Act (IDEA). Thus, if a student needed related aids and services to participate in the regular accelerated program, the school cannot deny the student those services. For example, if the student needed Braille materials, extended time on tests, or the use of assistive technology, like a computer in order to take notes, the support services must be provided. 

  Finally, the OCR letter clarifies that if a student needs special education or related aids and services, schools may not require students to give up those services in order to participate in the accelerated program. Both Section 504 and the IDEA require an individualized determination of a student’s educational needs. That determination may result in a decision that the student requires related aids and services in order to participate in the accelerated program. Schools may not ignore the student’s individual needs and automatically deny the student the needed services in an accelerated class or program.

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.