Foster Care and Special Education

• Not being identified as needing special education services

• Mobility, waitlists, and other factors that hinder the timely identification and evaluation of special education needs

• Gaps in special education services from a previous Individualized Education Plan (IEP) due to transition period when transferring schools or limitations at the new school

• Delays in the transfer of educational records, particularly IEPs, when transferring schools

Two federal laws work to mitigate educational barriers faced by foster care students with disabilities: the Individuals with Disabilities Education Act (IDEA) and the Every Student Succeeds Act (ESSA). IDEA guarantees that all children with disabilities receive a free, appropriate, and public education to further prepare them for higher education, employment, and living on their own. ESSA requires that foster care students have equal access to a free, appropriate, and public education, including special education services. To receive services under both IDEA and ESSA, a student must be in the foster care system (or awaiting placement) and have a disability that requires specialized instruction. 

IDEA Rights

Special education instruction

• General classroom

• Special education classroom

• Specialized school, home, or institution

Educational support

• Academic/behavioral support

• Psychological services

• Vocational education

• Physical therapy

Medical services

• When related to diagnosis or evaluation

ESSA Special Education Requirements

Collaboration between LEAs and CCYAs

• Ensure the right to special education services and participate in the special education process when necessary

School Placement BIDs

• Staff familiar with the student must participate in BID meetings to speak on the student’s progress in their current special education program and how changing schools might impact that progress

• When transferring to the school of foster residence, that LEA must provide services comparable to those in the previous IEP until the old IEP is adopted or a new one is implemented 20 U.S.C. § 1412(d)(2)(C)

Immediate enrollment

• Full participation in school even when lacking records required for enrollment, including IEPs

• Swift transfer of educational records when changing schools, including IEPs

Special education services within an LEA normally rely on the involvement of parents, as they fulfill the role of their child’s educational decision-maker (EDM). Under IDEA, the definition of a parent/who can serve as an EDM includes:

• A biological or adoptive parent. 

• A foster parent.

• A guardian authorized to act as the student’s parent, or to make educational decisions on their behalf.

• An individual acting in the place of the biological or adoptive parent (including a grandparent, stepparent, or other family member) who lives with the student, or an individual who has legal custody of the student. 

• An appointed surrogate parent (per IDEA standards). 

The individual fulfilling the role of an EDM for foster care students with special education needs depends on each student’s situation, including any existing court orders. For many students in formal foster care placements, the judge overseeing their case designates the individual who will serve as the EDM. This individual could be the biological or foster parent or an appointed surrogate parent. Typically, no person who works for an agency involved in the education or care of the student can be appointed as a surrogate parent. This means that CCYA caseworkers, group home “parents,” and staff within residential placements cannot act as surrogate parents. Examples of individuals who can serve as surrogate parents for foster care students include:

• Any adult relative or friend already present in the student’s life

• Community agency staff that know and can advocate for the student (e.g., Court Appointed Special Advocates (CASA), Big Brothers Big Sisters, local parent-teacher organizations, retired educator organizations)

When there is no court-appointed surrogate parent or any other individual who can serve a parent/EDM under IDEA, it is the LEA’s responsibility to appoint a surrogate parent. It is important to note that the lack of a parent under IDEA for foster care students in need of initial special education evaluations can be a major barrier to prompt provision of services. LEAs in Pennsylvania are permitted to conduct initial evaluations without parental consent for students in the custody of their CCYA when:

• The parents cannot be located.

• Parental rights are terminated.

• Parental educational rights are suspended by a judge, and no individual has been appointed to consent to the initial evaluation.

(Pennsylvania Department of Education, 2014)