Unlocking Potential! Meeting the Needs of Students with Disabilities Who Are Homeless or in Out-of-Home Care Patricia A. Popp, Ph.D. Past President, NAEHCY Project HOPE-VA, The College of William and Mary Patricia Julianelle Pro Bono Counsel, NAEHCY Program Specialist, NCHE Kathleen McNaught Assistant Director ABA Center on Children and the law

True or False?  Any student with a disability is eligible for special education services.  Once a student is determined eligible for special education, (s)he will remain in special education until graduation.  The parent is a key contributor in determining a child’s eligibility for special education.  Students who are homeless are twice as likely to be identified as having a learning disability than housed peers.  If a student moves during the special education referral and assessment process, the referral is void and assessment must cease. A new referral must be made in order to proceed with testing.

Individuals with Disabilities Education Act (IDEA)  Federal legislation (2004) ED Regulations (Part B -2006; Part C - ?) OSEP/OSERS Policy Letters/Memos  State Regulations  Litigation

Who is eligible to receive services under IDEA? Children who need special education and related services by reason of their disability. 20 USC 1401(3); 34 CFR 300.8

What is special education? Specially-designed instruction, at no cost to parents, to meet the unique needs of a child with a disability. 1401(29);

What are related services? Transportation and developmental, corrective, and other supportive services required to assist a child with a disability to benefit from special education, including:  speech-language services  audiology services  interpreting services  psychological services  physical and occupational therapy   early identification   counseling services   school health services   social work services   parent counseling and training 1401(26);

What are disabilities? ­ Learning disabilities ­ Mental retardation ­ Emotional disturbance (disability or disorder) ­ Other health impairment ­ Orthopedic impairment ­ Severe disabilities ­ ­ Autism ­ ­ Traumatic brain injury ­ ­ Hearing impairment or Deafness ­ ­ Visual impairment or Blindness ­ ­ Multiple disabilities ­ ­ (Developmental delay) 1401(3); 300.8

Possible Interventions Prior to Special Education  Classroom interventions  Mentors, tutoring  School counselors  Consult special education team  Behavior management interventions

Starting the Process 1. The student must be age 3 – 21 (Part B); suspected of having a disability; who may need special education and related services. 2. The “parent” must request a special education evaluation, in writing. 1414(a)(1); (b) 3. The parent should keep a signed, dated copy of the request.

Managing the Process 4. The parent should work with school staff to ensure the student receives all needed evaluations, promptly. Um, what does promptly mean? IDEA now says within 60 days or within state timeframes. 1414(a)(1)(c); (c)

Those timeframes apply to students who change LEAs while evaluations are pending, UNLESS (i) the new LEA is “making sufficient progress to ensure a prompt completion of evaluations,” AND (ii) “the parent and the LEA agree to a specific time when the evaluation will be completed.” 1414(a)(1)(C)(ii); (d)(2)

ALSO, schools must coordinate with prior schools “as necessary and as expeditiously as possible to ensure prompt completion of full evaluations.” 1414(b)(3)(D); (c)(5)

Group I: Initiating and Expediting Evaluations What will you do to:  help parents know their rights and initiate evaluations?  coordinate the evaluation process with prior and subsequent school districts?  ensure evaluations are completed within time limits for students transferring into and out of your district?  collaborate with your special education team, and to maintain a strong collaboration?  assist if the child is in child welfare agency custody?

The Dreaded IEP 5. If evaluations show that the student needs special education and related services due to a disability, the school must develop an Individualized Education Program (IEP) for the student within 30 days. The IEP is the blueprint for the student’s education. 1414(d); , Parents should ensure the IEP is fully and consistently implemented.

How are IEPs implemented when a child changes LEAs?  If the IEP is current, the new LEA must immediately provide appropriate services. 1414(d)(2)(C)(i); (e) What does “appropriate services” mean?  “Services comparable to those described” in the previous IEP,  In consultation with parents. 1414(d)(2)(C)(i); (e)

The new LEA must promptly obtain the child’s records from the previous school, and the previous school must promptly respond to records requests. 1414(d)(2)(C)(ii); (g) SEAS (Special Education Automation System): private web-based data system

Appropriate services are in place, now what? The new LEA can either adopt the old IEP, or develop a new one. If it’s a new state, the LEA can conduct new evaluations. 1414(d)(2)(C)(i); (e)

Tips to Consider to Ensure Appropriate Services  “Lack of instruction” is not grounds to refuse to evaluate a student; it must be considered as part of the evaluation process (SLD) or part of the eligibility determination. 1414(b)(5) ,  Be prepared for the IEP meeting; know what you want and why. Consider videoconferencing or a conference call if necessary; the parent has the right to be there. 1414(f); ,

Tips, continued  Get independent evaluations, if necessary.  Be familiar with all your procedural safeguards. Communicate concerns verbally and in writing. Know the “chain of command” for your communication. If that doesn’t work, the IDEA contains strong dispute resolution procedures (e.g., mediation and due process).  Work with a lawyer or advocate, if necessary.

Group D: Implementing IEPs for Transfer Students What will you do to:  determine if enrolling students are special education students?  ensure special education students enrolling in your district receive “appropriate services” immediately?  facilitate records transfer between prior and subsequent school districts?  collaborate with your special education team, and to maintain a strong collaboration?

Who can be a “parent” for special education purposes?  parent,  foster parent,  guardian,  person who is acting in the place of a parent and with whom the child is living; can be a non-relative ( “include”),  a person legally responsible for the child. 1401(23); (a)(4)

What if more than one person meets that definition of parent?  When the biological or adoptive parent is “attempting to act” as the parent, and another person(s) meets the definition of parent, the birth or adoptive parent will be presumed to be the parent, UNLESS  They don’t have legal authority to make education decision for the child; or  A judicial decree or order specifies another person who fits the parent definition to be the parent

How does federal law define ward of the state? Ward of the State means a child who, as determined by the state, is:  A foster child  A ward of the State; or  Is in the custody of the child welfare agency EXCEPT:  It does not include a foster child what has a foster parent who meets the IDEA definition of parent

For Wards of the state, when is parental consent NOT required for initial evaluations? For Wards of the State an LEA must still make reasonable efforts to obtain consent from parent, EXCEPT when:  Parent’s whereabouts unknown;  Parent’s rights have been terminated under state law; or  Parent’s education decision making authority has bee limited by a judge. In this case consent must be given by an individual appointed by the judge.

Um, what if a student doesn’t have any of those people? The LEA must assign a “surrogate parent” within 30 days, if:  no “parent” can be identified,  no “parent” can be located,  the student is a ward of the State, or  the student is an unaccompanied youth under McKinney-Vento. 1415(b)(2);

When can a surrogate be appointed? The LEA must determine whether a “surrogate parent” is needed, and if so assign one within 30 days, if:  no “parent” can be identified,  no “parent” can be located,  the student is a ward of the State under the laws of that state, or  the student is an unaccompanied youth under McKinney-Vento. For wards of the state, the juvenile court can alternatively appoint the surrogate 1415(b)(2);

Who can be a surrogate? Surrogate parents appointed by LEA  can’t be employees of SEAs, LEAs, or other agencies involved in the education and care of the child (i.e., can’t be the caseworker),  can’t have any conflicting interests  They must have knowledge and skills necessary to be a good surrogate. Surrogate parents appointed by Judge can’t be employees of SEAs, LEAs, or other agencies involved in the education and care of the child (i.e., can’t be the caseworker), 1415(b)(2);

BUT for unaccompanied youth, the following people can be temporary surrogates:  Staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs;  State, LEA, or agency staff involved in the education or care of the child ; preamble to regulations

Group Activity: Implementing IDEA for children and youth in homeless situations in your district Group I: Initiating and Expediting Evaluations Group D: Implementing IEPs for Transfer Students Group E: Assigning Temporary Surrogates for Unaccompanied Youth Group A: Identifying and Serving Infants and Toddlers with Disabilities

Child Find  The State must ensure that all students with disabilities residing in the State who need special education are identified, located, and evaluated.  This requirement specifically applies to students experiencing homelessness and children who are wards of the state, including infants and toddlers. 1412(a)(3)(A), 1435;

Aligning IDEA with MV  IDEA now specifically defines “homeless children” to include all children and youth considered homeless by McKinney-Vento. 1402(11);  IDEA now specifically requires each public agency to ensure that the rights of unaccompanied homeless youth are protected (a)  Any state receiving IDEA funds must comply with the McKinney-Vento Act for all children with disabilities who are homeless. 1412(a)(11)(A)(iii); (a)(3)

The Little Ones: IDEA Part C  Provides services to infants and toddlers under age 3 who have a disability (includes developmental delay, physical or mental condition likely to produce a developmental delay, and those at-risk for developmental delays, at a state’s discretion). 1434

 School must do a multidisciplinary evaluation and needs assessment, including the family’s needs and goals.  School must promptly develop and implement an individualized family service plan (IFSP), evaluated once a year and reviewed every 6 months, or more often as appropriate. 1436

What services might be available?  family training, counseling, and home visits;  speech-language services;  occupational and physical therapy;  psychological and social work services;  service coordination services;  health services necessary to enable the infant or toddler to benefit from the other early intervention services;  social work services;  assistive technology devices and services; and  transportation and related costs that are necessary to enable an infant or toddler and family to receive another service.

 Part C programs must make services available to infants and toddlers with disabilities who are homeless, and their families and wards of the state. 1434(1)  There is a right to a hearing, confidentiality, and to decline any services.  Surrogate parent rules also apply to Part C. 1439

Group A: Identifying and Serving Infants and Toddlers with Disabilities What will you do to:  find and identify children under 3 who may need special education services?  help their parents know their rights and initiate evaluations?  ensure evaluations are completed and IFSPs are implemented promptly?  ensure IFSPs are continuously implemented when children transfer school districts?  collaborate with your local Part C team, and to maintain a strong collaboration?

Resources  NASDSE (  Project FORUM (1999 proceedings)  2004 QTA Brief:  CEC (  CEC Today – March 2003  Project HOPE-VA (  Information briefs – special ed., ECSE  National Dissemination Center for Children With Disabilities  (Includes fact sheets)  NAEHCY, NCHE and NLCHP  Individuals with Disabilities Education Improvement Act (IDEA) of 2004: Provisions for Children and Youth with Disabilities Who Experience Homelessness;

Resources (cont’d)  Legal Center for Foster Care and Education   Parent Training and Information Centers  (888)  The Child Advocate   Free legal resources for students with disabilities  National Disability Rights Network (   Resources for parents of students with disabilities, from USDE   USDE Office of Special Education Programs   USDE Office for Civil Rights 

Group E: Assigning Temporary Surrogates for Unaccompanied Youth What will you do to:  determine if an unaccompanied youth may need special education services?  determine if an unaccompanied youth has a “parent” available?  identify potential temporary surrogates if no “parent” is available,?  collaborate with your special education team, to implement a process for immediate assignment of temporary surrogate parents, and to maintain a strong collaboration?