Parent Surrogates and Transfer of Rights
Legal Requirements for the Appointment of a Parent Surrogate
Maryland law defines a parent surrogate as a person who is appointed by the local school superintendent, (or designee) to act in place of a parent of a child in the educational decision-making process. A parent means the natural or adoptive parent; guardian; person acting as a parent, such as a relative or stepparent with whom a child lives; a foster parent who has been granted limited guardianship for educational decision-making purposes by a court; or any other individual legally responsible for a child's welfare.
MCPS ensures students' rights are protected through determining the need for and facilitating the assignment of a surrogate parent. A surrogate parent is a person appointed by MSDE or the local school superintendent to act in place of a parent on behalf of a child with a disability in the early intervention and special education decision-making process.
MCPS shall request that the superintendent appoint a parent surrogate to represent a child at any point in the educational decision-making process if it is suspected that the child may be disabled and if:
No parent can be identified;
The public agency, after reasonable efforts, cannot locate a parent;
The child is a ward of the State under the laws of that State; or
The child is an unaccompanied homeless youth, defined as a child who lacks a fixed, regular, and adequate nighttime residence. McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11434a(6)).
Upon appointment, the parent surrogate shall participate in all IEP meetings and is responsible for advocating for the identification, evaluation, educational placement, and the provision of FAPE for the student. The parent surrogate has all authority that a parent would have advocating on behalf of the student, including, but not limited to, signature authority to consent for assessments and the provision of initial IEP services, the right to file for mediation or due process, or to include other participants in IEP meetings who may be knowledgeable about the student.
MCPS may appoint a parent surrogate in any way permitted under Maryland law and must ensure that the person selected to serve as a surrogate:
is not an employee of MSDE, MCPS, or any other agency that is involved in the education or care of the child;
has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and
Has knowledge and skills that ensure adequate representation of the child.
Maryland Education Article 8-412(a)(5)(ii) states that a "parent" does not include a social worker or other employee of a public agency responsible for educating or caring for a child in its custody.
Prior to the appointment of a parent surrogate, MCPS must document efforts made over the course of 15-business days to identify the parent of the student, if known, or to locate the parent of the student, if unavailable. At a minimum, MCPS shall use telephone directory searches and certified mail to attempt to locate the parent. Once MCPS has determined that the parent is unavailable or unknown, reasonable efforts shall be made to ensure the assignment of a surrogate not more than 30 days after there is a determination by the agency that the child needs a surrogate.
Application for Transfer of Special Education Rights:
IDEA requires that at least one year prior to reaching the age of majority, in accordance with state law; the parents/guardians and the student are to be informed of their rights under IDEA, if any, which will transfer to them. Rights under IDEA do not transfer to students with disabilities under Maryland State law. In certain limited circumstances, all rights accorded to the parents/guardians under IDEA shall transfer to a student with a disability. This transfer occurs when the student reaches age 18 if the student has not been adjudged incompetent under state law and there is documentation that the parents/guardians:
are unavailable or unknown, and the student requests that the parental rights be transferred to the student rather than have a parent surrogate appointed.
have not participated in the special education decision-making process for the student after repeated attempts by the public agency to involve them over the previous year.
have affirmatively rejected participation in the special education decision-making process.
cannot participate in the special education decision-making process due to prolonged hospitalization, institutionalization, serious illness, or infirmity of one or both of the parents/guardians and they have consented to the transfer of rights to the student.
cannot participate in the special education decision-making process due to extraordinary circumstances beyond their control and they have consented to the transfer of rights to the student; or
the student is living outside of their home and is not in the care or custody of another public agency.
If the parents/guardians of a student with a disability with whom the student resides do not consent to the transfer of rights to the student at age 18 and the student has not been adjudged incompetent under state law, the student may file for due process hearing to determine whether the rights should be transferred.
If a parent surrogate, in accordance with federal and state laws and regulations has represented a student with a disability, the public agency shall provide any written notice required under federal and state laws and regulations to both the student and parent surrogate. All other rights afforded the parent surrogate under IDEA shall transfer to the student if the student has not been adjudged incompetent under state law and the student requests that their rights transfer.
Legal Authority
34 C.F.R. §300.519; COMAR 13A.05.01.06; Education Article §8-412.1