Special Education Advocacy: A Guide for Attorneys

Vol 36 No 6

Children in foster care are more likely to receive special education services than their peers who are not in foster care. Several studies show that foster children are 2.5 to 3.5 times more likely to receive special education services.1 Knowing when a child may be eligible for special education services, understanding how to get the child evaluated, and effectively advocating in court for additional services is crucial to the child’s achievement. 

Special Education Overview

The federal Individuals with Disabilities Education Act (IDEA) requires that children with qualifying disabilities receive a free and appropriate public education (FAPE). Very young children, from birth to age three, are entitled to early intervention services under Part C of IDEA. Children with qualifying disabilities between ages three and 22 (or sooner, depending on state law) will receive special education services and related services under Part B of IDEA. These services are outlined in each child’s Individualized Education Program (IEP.) Under IDEA, “special education” is instruction specifically designed to meet the unique needs of a student with a disability.2

Not all children with disabilities require IEPs, but some may still require educational accommodation. Section 504 of the Rehabilitation Act of 1973, which includes a broader definition of the term “disability,” provides protections for students with a physical or mental impairment that substantially limits one or more life activities. For some students who do not qualify for IEPs, a 504 Plan may be created to provide accommodations needed for academic success.3

Identifying Children Who May Require Special Education Services

Some children may have disabilities that are easy to identify, but many disabilities are hard to recognize. Children’s attorneys should look for indicators that a child needs special education services. Other people who are in regular contact with the child should also be monitoring for signs a child needs to be evaluated, including caseworkers, teachers, and foster parents. The following “red flags” may indicate a child needs to be evaluated for special education services:

  • Consistently poor grades 
  • Delays meeting developmental milestones. 
  • Lack of interest in school. 
  • Frequent reports about the child’s misbehavior or truancy. 

Advocating for Special Education Services

Attorneys for children in care must be able to advocate for their clients’ special education needs in court and in the classroom. 

Educational Decision Makers

One of the first things an attorney must do is identify the child’s educational decision maker. Under the IDEA, a “parent” is the “natural”or adoptive parent, foster parent, guardian, individual acting in the place of a “natural” or adoptive parent with whom the child lives, or an individual assigned as the “surrogate parent.”4 Rules regarding whether foster parents, guardians, or relative caretakers may act as parents to consent to special education services or evaluations vary from state to state and should be studied closely.5 Educational decision makers appointed under IDEA only make decisions about special education. They may not make other legal decisions regarding the child, including consenting to medication or medical procedures. This is the case even if medication or medical needs impact the child’s education. 

Generally, unless there is good reason to have someone else act as the parent, biological parents should be their children’s educational decision makers, regardless of whether the child lives with them. They will know the most about the child’s academic history and can provide valuable information to the school as they evaluate the child for disabilities. 

If the biological parent’s rights have been terminated, the parent cannot be located, or the parent is not attempting to act as the parent, then foster parents, guardians, and caretakers may be considered, in compliance with state law. If state rules do not allow a foster parent, guardian, or caretaker to be the IDEA parent, a surrogate parent can be appointed by the school or the court.6 For more information about surrogate parents and special education decision makers, see The Legal Center on Foster Care and Education’s Identifying Special Education Decision Makers for Children in Foster Care: State Law Questions.

Advocacy in Schools

Advocating for Parents

To advocate effectively for students, attorneys must also be prepared to protect their parents’ rights. Schools, especially in areas where few children are in care, are often misinformed about rules regarding educational decision makers, so it is important to identify the correct person and notify the school promptly. IDEA requires that parents receive written notice from the school each time the school proposes changing the child’s services or placement.7 It is important to help schools provide this notice to the right person so the child’s evaluations or services are not delayed. 

Attorney Access to Educational Records

The federal Family Educational Rights and Privacy Act (FERPA) protects the privacy of student education records. To release educational information to anyone except the child’s family, schools must have written consent from a parent. If the parent does not provide written consent, an attorney can access a child’s educational records by getting a court order pursuant to a FERPA exception.8 The order should include the name of the attorney or organization and language specifically granting access to records. If possible, this language can be included in the attorney’s order of appointment to avoid delays. 

Obtaining school records and access to the child in the school gives attorneys an opportunity to piece together a child’s educational background —where they’ve attended school, how many schools they have attended, their academic performance, standardized test scores, and retention history. It is important to know a state’s retention policies. Many children are promoted to the next grade due to rules about how many times students may be retained. Promotion to the next grade is not proof that a child is performing at grade level. 

Response to Intervention

If a child’s grades are poor, examining the child’s educational history may shed light on appropriate next steps. It is common for students’ grades to drop after being placed in care, but if there is a history of poor grades, academic intervention may be warranted. Schools use a process with students who are struggling called Response to Intervention (RTI), an evidence-based, tiered instruction which is monitored to determine whether the child responds to increasingly intensive academic intervention. RTI is often used concurrently with special education evaluations. Sometimes students will respond to intensive intervention and will not require special education services. Previously, students who struggled were evaluated for IQ and made eligible for IEPs based on gaps in cognitive abilities and achievements. Now, schools use RTI data to determine whether a child has a learning disability. Supporters of the trend towards making special education determinations based on RTI data say RTI benefits children in foster care because it acknowledges learning disabilities are not the only cause of achievement gaps. Students may struggle for various reasons, including instability in placement or school changes. 

If a child’s grades are poor, there is a good chance the child is already receiving interventions. If not, a meeting must be held to discuss beginning intensive instruction. After the interventions begin, periodic meetings must be held to review the results and data and determine whether even more interventions are necessary. 

Evaluations

To get a special education evaluation for a child in foster care, the IDEA parent or anyone interested in the child’s education must submit a written request for evaluation. Upon receiving the request, the school must complete a comprehensive evaluation within the timeframe set by state law. Once the evaluation is complete, a meeting must be held to go over the evaluation results and determine whether the child is eligible for special education or related services. The IDEA parent must be given written notice of this meeting and allowed to participate in the decision to find the child eligible. 

If a student is eligible for special education services, the school will meet with the IDEA parent to build an IEP tailored to the child’s needs. 

Sharing Information with Schools

Many students in foster care may have already been evaluated for disabilities or mental health conditions as part of their dependency proceedings. Access to the evaluations of other professionals may help a school more accurately decide whether a child should receive special education services and, if so, which services a child needs. Depending on state law, schools may be given these evaluations, but it is best to discuss this with the parent before providing evaluations to the school. Names of other family members or people mentioned in the evaluations, certain medical conditions, and information regarding details about the abuse or neglect or the child’s criminal history should be redacted. 

School administrators and staff may be interested in or concerned about a foster child’s dependency case. It is important to make sure teachers and staff know a child is in foster care, as it provides context for the child’s classroom behavior and academic achievement. However, specific details about the case should not be divulged with the school unless necessary. Privacy laws for children in care vary from state to state. 

Enforcement of IEPs

If a child does not receive a special education evaluation when necessary, or if the child’s school does not provide services outlined within the child’s IEP, a due process action may be filed under the IDEA. A due process action may also be filed when an issue relates to the child’s school placement. School districts generally have dispute resolution procedures in place as required by state law. It is critical that the correct IDEA parent is identified for children in foster care because due process may not be filed by a child’s attorney without the parent’s consent. 

Courtroom Advocacy

Securing Educational Services 

Students with IEPs are entitled to receive many school services as outlined in their IEP. However, these IDEA services may be supplemented by services secured through the child welfare agency. For example, regardless of whether a child is eligible for special education services, the court may order child welfare agencies to provide tutoring and arrange afterschool programs. Children may be placed in educational summer camps to prevent losing academic skills over the summer. 

For children who struggle behaviorally, therapy should be provided in the foster home to stabilize the child’s behaviors at home and in school. In many states and school districts, mental health professionals and therapists can be granted access to the child in the school. Collaboration between providers secured by the child welfare agency and schools is key to maximize the benefit of services to children in care. 

Court’s Authority

Dependency court judges may order the child welfare agency to provide services for foster children and may make determinations regarding home placements. The courts typically do not order school districts to provide special education services. If a child is not receiving the services to which he is entitled, or is otherwise not receiving a FAPE under the IDEA, a due process action must be filed. This cannot be resolved by the dependency court. 

Courts may order the child welfare agency to refer a child for evaluations and services, which may help schools and educational decisions makers determine whether special education services are needed. Courts may also order an attorney to be appointed for the parent to pursue a referral for evaluation and services or to pursue due process action. 

When a child may need a change in his or her educational setting, these determinations must be made by the child’s educational team – school staff, administration, and the IDEA parent. If the educational team decides to change a child’s school setting, the school district will provide transportation for the child to and from school when transportation is written into the child’s IEP. When a child’s living placement changes, the local child welfare agency will typically be the agency to determine whether it is in the child’s best interest to remain in the same school and if so, the child will be transported to and from school. (For more information about school transportation for children in care, see Sidebar: When a Student Moves: Keeping Learning on Track) 

Conclusion

Children in care who require special education services need targeted advocacy. Children’s attorneys must know how provisions in federal education law and local and state education policies support clients’ special education needs to effectively advocate for clients in schools and in the courtroom.


Sneha Barve, JD, is a staff attorney at the American Bar Association Center on Children and the Law. She previously worked as a special education attorney for children in foster care in Florida. 


Endnotes

1. Legal Center for Foster Care and Education. National Fact Sheet on the Educational Outcomes of Children in Foster Care, 2014.

2. Individuals with Disabilities Education Act, 20 U.S.C. § 1400 (2004).

3. Rehabilitation Act of 1973, 29 U.S.C. §701 (1973).

4. Individuals with Disabilities Education Act, 20 U.S.C. § 1400 (2004), 34 C.F.R. § 300.30.

5. Legal Center for Foster Care and Education. Identifying Special Education Decision Makers for Children in Foster Care: State Law Questions, undated.

6. Ibid.

7. Individuals with Disabilities Education Act, 20 U.S.C. § 1400 (2004), 34 CFR §300.503

8. Family Educational Rights and Privacy Act, 20 U.S.C. § 1232 (1974).

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