1. Working Together Works! Serving Children With Disabilities Who Are Homeless or in Out of Home Care NAEHCY Annual Conference Denver, Colorado November 2009 Kathleen McNaught, J. D. – Center on Children and the Law, ABA Patricia A. Popp, Ph.D. – Project HOPE-VA

2. 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.

3. Agenda The Special Education Process Evaluation and Service Delays – complications of mobility & poverty Decision Making – aka, who is the parent?? Part C – our littlest ones Questions as we go

4. Individuals with Disabilities Education Act (IDEA – Parts B & C)  Federal legislation (2004) ED Regulations (Part B -2006; Part C - ?) OSEP/OSERS Policy Letters/Memos www.wrightslaw.com/idea/law.htm www.taalliance.org/idea/index.htm OSERS Q&A (NAEHCY response)  State Regulations (Where is your state in the process?)  Litigation

5. Aligning IDEA with MV IDEA now specifically defines “homeless children” to include all children and youth considered homeless by McKinney-Vento. 1402(11); 300.19 IDEA now specifically requires each public agency to ensure that the rights of unaccompanied homeless youth are protected. 300.519(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); 300.149(a)(3)

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

7. What are disabilities? ­ Specific learning disability ­ Speech or language impairment ­ Mental retardation ­ Emotional disturbance (disability or disorder) ­ Other health impairment ­ Orthopedic impairment ­ ­ Autism ­ ­ Traumatic brain injury ­ ­ Hearing impairment ­ ­ Deafness ­ ­ Visual impairment or Blindness ­ ­ Deaf-blindness ­ ­ Multiple disabilities ­ ­ (Developmental delay) 1401(3); 300.8

8. FYI National December 1, 2001count: 8.9 percent of 6-21year olds received special education services under IDEA Homework: How many students are identified as homeless in your district? How many homeless are also SWD?

9. 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); 300.39

10. 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, but not limited to: 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); 300.34

11. Possible Interventions Prior to Special Education Classroom interventions Mentors, tutoring School counselors Consultation with special education team Behavior management interventions Work with youth/family to provide interventions Response to Intervention (RtI)

12. What are Coordinated Early Intervening Services (CEIS)? Means to address over-representation of certain groups of students in special education Part B funds can be used to support activities for students not identified for special education LEAs may use up to 15% of IDEA funds LEAs with “significant disproportionate representation” MUST use 15% of IDEA funds for CEIS RtI is a CEIS

13. Lack of Instruction, Disadvantage and RTI A child must not be determined to be eligible for IDEA services if the determinant factor is “lack of instruction” “environmental/economic disadvantage” or “limited English proficiency.” Lack of instruction, environmental/economic disadvantage or limited English proficiency are not grounds to refuse to evaluate a student and must be considered as part of the evaluation process or eligibility determination. RTI strategies are tools that enable educators to target instructional interventions to children’s areas of specific need as soon as those needs become apparent. RTI (used for instructional purposes) can be used for ANY special education student prior to, during, and after the evaluation process (unless using RTI is inconsistent with the IEP). Parents retain their right to request an evaluation at any time. The LEA may use data gathered through RTI strategies in its evaluations and reevaluations of children with specific learning disabilities.

14. 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, including infants and toddlers. 1412(a)(3)(A), 1435; 300.103 Homework: “Find” your Child Find contacts.

15. Child Find The State must ensure that all students with disabilities who need special education are identified, located, and evaluated: specifically includes students experiencing homelessness, including infants and toddlers. 1412(a)(3)(A), 1435; 300.111 Since McKinney-Vento liaisons must identify children and youth who are homeless, this is an excellent area for cross-program collaboration

16. Starting the Process 1. The student must be age 3 through 21 (Part B); suspected of having a disability; who may need special education and related services. 2. The “parent” or public agency must request a special education evaluation, and the “parent” must consent. 1414(a)(1); 300.301(b) 3. Specific process may vary slightly depending on state laws/regulations. Note: The parent should keep a signed, dated copy of the request.

17. Managing the Process 4. Parents and school staff should work together to ensure the student receives all needed evaluations, promptly. Um, what does promptly mean? IDEA now says within 60 days or within state timeframes. (“Day” means calendar day unless otherwise specified.) 1414(a)(1)(c); 300.301(c) Homework: Check your state’s timeline.

18. (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); 300.301(d)(2) Those timeframes apply to students who change LEAs while evaluations are pending, UNLESS

19. 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); 300.304(c)(5)

20. The IEP 5. The meeting to develop the Individualized Education Program (IEP) must take place within 30 days of the eligibility determination. 1414(d); 300.320, 300.323 6. Parents and school staff should work together to ensure the IEP is fully and consistently implemented. 7. Special education placements must be as close as possible to the child’s home, unless the IEP (including parent input) requires some other arrangement and considers any potentially harmful effect on the child or quality of services s/he needs; the right to attend the school of origin remains in effect. 300.116

21. How are IEPs implemented when a child changes LEAs? If the IEP is current, the new LEA must immediately provide a free appropriate public education (FAPE), including services comparable to the IEP from the previous LEA. 1414(d)(2)(C)(i); 300.323(e) What does “appropriate services” mean? “Services comparable to those described” in the previous IEP, In consultation with parents. 1414(d)(2)(C)(i); 300.323(e)

22. The new LEA must promptly obtain the child’s records from the previous school, and the previous school must promptly respond to records requests. 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, but during the interim, the LEA must provide FAPE. 1414(d)(2)(C); 300.323(e),(g)

23. Strategies to Avoid Access Challenges Coordinate use of CEIS funds among liaisons, special education, LEP, and Title I coordinators Integrate classroom record sharing (progress monitoring) into school record transfers when students move Ensure interventions are documented and kept current to inform a new teacher immediately of current functioning

24. Homework What will you do to initiate and expedite evaluations? What will you do to implement IEPs for transfer students? Who are the key contacts You have already identified You need to identify Any tips for getting these key contacts to the table?

25. “Parent”

26. Special Education Decisionmaker Why does state law matter? Many of the key IDEA definitions and provisions include elements of state dependency law. This can result in many of the IDEA rules working quite differently in different states depending on the answer to certain state law questions.

27. Key State Law Questions: Whether foster parents can serve as IDEA parents Whether the judge has the authority to limit education decisionmaking rights of a parent and appoint an “ educational guardian ” to make education decisions (and under what standard) State definition of Ward of the State (this can affect how and when education agencies can appoint surrogate parents) Whether state law requires Surrogate Parents for all children who are state wards of the State (even those with birth or adoptive parents)

28. The IDEA Parent The IDEA Parent is the person who can make education decisions for a child in care with a disability or who might have a disability The IDEA Parent has many rights: To consent in writing to the initial evaluation of the child. To consent in writing to services beginning. To receive notice of and participate in IEP meetings; To get notice of and agree with a school district’s proposal To request a special education hearing; and lots more.

29. Key Definition #1: Who can be an IDEA parent under Parts B and C? Birth or adoptive parent, foster parent unless prohibited by state law, guardian generally authorized to act as the child ’ s parent or to make educational decisions for the child (but not the state if a child is a ward of the state), person who is acting in the place of a parent and with whom the child is living; can be a non- relative, a person legally responsible for the child. a surrogate parent 34 C.F.R. §300.30

30. When is the birth or adoptive parent the IDEA parent? When the biological or adoptive parent is “ attempting to act ” as the parent, the school district must treat the birth or adoptive parent as the IDEA parent UNLESS a court has decided that the parent doesn ’ t have legal authority to make education decisions for the child. 34 C.F.R. §300.30(b)(1)

31. And if the parent is not “attempting to act”? the education agency can treat one of the other persons on the list as the IDEA parent. However, if a judicial decree or order specifies another person, either as a surrogate parent or a guardian, the education agency must accept that person as the IDEA parent. Caution: If the child is a “ ward of the state under the laws of the state ” sometimes an education agency can appoint a surrogate parent even if there is a birth or adoptive parent who is “ attempting to act ” – more about this later

32. Key Definition #2: Who is an IDEA ward of the State? Ward of the State for Part B and C means a child who is: A foster child A ward of the State under the laws of the state, or In the custody of the child welfare agency. EXCEPT: It does not include a foster child who has a foster parent who meets the IDEA definition of parent (that means the state ’ s law does not bar or limit the foster parent from serving as an IDEA parent). 34 C.F.R. §300.45

33. Why is it important to understand which children are IDEA wards of the State in your state? A court can only appoint a surrogate parent for a child who is an IDEA ward of the State. Courts can select someone to authorize an initial evaluation only for a child who is an IDEA ward of the State.

34. How do you figure out who is an IDEA ward of the State in your state? Determine whether foster parents in your state are barred or limited from serving as IDEA parents. If they are permitted to serve as IDEA parents, IDEA wards of the State are limited to children in care who are not in foster care.

35. So how does that work? For example: In PA, where there is no state law, regulation, or contractual obligation that prohibits a foster parent from being an IDEA parent, an IDEA ward of the State is any child in the custody of a child welfare agency who does not have a foster parent – everyone else has a foster parent who can serve as an IDEA parent and therefore is not an IDEA ward of the state. In Vermont, where state law prohibits foster parents from serving as IDEA parents, every child in state care is an IDEA ward of the State.

36. When is parental consent not required for an initial evaluation of an IDEA ward of the State (Part B only)? For an IDEA ward of the State who is not living with her parents, an education agency must still make reasonable efforts to obtain consent from the parent, EXCEPT when: Parent ’ s whereabouts unknown; Parent ’ s rights have been terminated under state law; or Parent ’ s education decision making authority has been limited by a judge, and the judge has appointed another person to give consent to the evaluation. NOTE: The person appointed by the court is not automatically the surrogate parent and cannot give consent for services to begin if the child is eligible.

37. When and by whom should a surrogate parent be appointed? A public agency (usually a school district or the state education agency) must determine whether a “ surrogate parent ” is needed, and should assign one within 30 days, if: no IDEA parent can be identified or located, the child is a ward of the State under the laws of that state, or the student is an unaccompanied youth under McKinney- Vento. For IDEA wards of the State, the juvenile court can alternatively appoint the surrogate parent. Note: Surrogate parents are required under Parts B and C. The 30 day rule and the authorization to courts to appoint surrogate parents apply to Part B only. § 300.519

38. What happens when a state’s law says no children are wards of the state under state law? For example: PA law does not have a concept of ward of the state under the laws of the state. Therefore, an education agency can appoint a surrogate parent only if there is no IDEA parent or the child is an unaccompanied homeless youth.

39. What happens when state law says that all children in care are wards of the state under state law? In a state where all dependent children are wards of the state under state law, some states require education agencies to appoint surrogate parents whenever a child enters care – even if the child has a birth or adoptive parent who is “ attempting to act. ” Other states with the same state law require that the education agency appoint a surrogate parent only if there is no active birth or adoptive parent. Outcome depends on state ’ s interpretation of §300.519 and §300.30(b)(1).

40. Who can be a surrogate? Surrogate parents appointed by LEA can ’ t be employees of state or local education agencies or other agencies involved in the education and care of the child (i.e., can ’ t be the public or private caseworker or a school official), 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 or school staff)

41. 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 or local education agency or agency staff involved in the education or care of the child.

42. When can a judge appoint an educational “ Guardian ” for a child? A judge can appoint an educational “ Guardian ” to make special education decisions for a child whenever and to whatever extent such a decision is permitted by state law. For example, in PA this is whenever such a decision is in the “ best interest ” of the child. A judge can appoint a Guardian even when the child has a foster parent, and even if the child has been adjudicated dependent but is not in the custody of the child welfare system. The Guardian cannot be the child ’ s caseworker. A Guardian appointed by a Court is the IDEA parent even if there is another IDEA parent available (for example, a foster parent).

43. When would you want the court to appoint a guardian rather than a surrogate parent? A Court can only appoint a surrogate parent when the child is an IDEA ward of the State – which means when the child does not have a foster parent who is permitted to serve as the IDEA parent. If the child has a foster parent who could be the IDEA parent, but that person is not the best choice, the court can appoint a guardian who will supersede the foster parent.

44. Infants and Toddlers

45. The Little Ones: IDEA, Part C Provides appropriate services to infants and toddlers under age 3 who need early intervention services due to a developmental delay or a diagnosed physical or mental condition with a high probability of resulting in a developmental delay and their families Can include those at-risk for developmental delays, at a state’s discretion. 20 USC 1432(5) Administered by State and local Part C agencies.

46. The Process Preliminary screenings can indicate if an evaluation is needed Parents refer their children for evaluations and assessments “Primary referral sources” also can refer for evaluations: Schools, child welfare, health care providers, shelters, social service agencies… NPRM 303.302-3

47. The Process (cont.) Agency will do a comprehensive multidisciplinary evaluation and needs assessment, including the family’s needs and goals 1436 If the child is found eligible for services, the agency must promptly develop and implement an Individualized Family Service Plan (IFSP), with parent’s participation Proposed regs: Evaluations and IFSP must be completed within 45 days of obtaining parental consent

48. The Process (cont.) IFSP describes specific services for the child and family and must be reviewed every 6 months (or more often as appropriate) IFSP must name a specific service coordinator 1436, NPRM303.320(e), 303.342(a), 303.344(g)

49. 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.

50. Transition Resources National Center on Secondary Education and Transition www.ncset.orgwww.ncset.org National Post-School Outcomes Center www.psocenter.org www.psocenter.org University of Kansas, Transition Coalition http://transitioncoalition.org/transition/index.php http://transitioncoalition.org/transition/index.php

51. Resources Center on Children and the Law www.abanet.org/child/education National Association for the Education of Homeless Children and Youth www.naehcy.org National Center on Homeless Education www.serve.org/nche National Law Center on Homelessness & Poverty www.nlchp.org National Network for Youth www.nn4youth.org Project Forum projectforum.org

52. Resources (cont’d) Project Forum at NASDSE 1999 Proceedings Document 2004 QTA Brief Implications of the CAPTA Requirement CEC (www.cec.sped.org/)www.cec.sped.org/ CEC Today – March 2003 Project HOPE-VA (www.wm.edu/hope)www.wm.edu/hope Information briefs – special ed., ECSE NAEHCY, NCHE & NLCHP – collaborations (visit NCHE) Individuals with Disabilities Education Improvement Act (IDEA) of 2004: Provisions for Children and Youth with Disabilities Who Experience Homelessness; Navigating the Intersections of IDEA and McKinney-Vento: A Problem-Solving Process

53. Resources (cont’d) National Dissemination Center for Children With Disabilities www.nichcy.org (Includes fact sheets) www.nichcy.org Parent Training and Information Centers (888) 248-0822 The Child Advocate www.childadvocate.net/educational.htm Free legal resources for students with disabilities National Disability Rights Network (www.napas.org) www.nls.org/paatstat.htm Resources for parents of students with disabilities, from USDE www.ed.gov/parents/needs/speced/resources.html USED Office of Special Education Programs www.ed.gov/offices/OSERS/OSEP USED Office for Civil Rights www.ed.gov/offices/OCR

54. RtI Resources www.rti4success.org www.projectforum.org www.ideapartnership.org www.nasdse.org http://iris.peabody.vanderbilt.edu/rti01_overvi ew/chalcycle.htm http://iris.peabody.vanderbilt.edu/rti01_overvi ew/chalcycle.htm www.rtinetwork.org