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Tips for Lawyers Representing Children in Foster Care Who Need or Receive Special Education Services

Leslie Seid Margolis


  • Attorneys should confirm who is authorized to make educational decisions for the child and find a surrogate parent if this role isn't filled by the biological parent or guardian.
  • Regular assessment of the child's IEP is necessary, and attorneys might need to advocate for changes or additional assessments if the IEP is not meeting the child's needs.
  • Ensure all services outlined in the IEP are provided and assess if the child's disabilities have been correctly identified, especially if the child faces disciplinary actions related to their disability.
  • Seek assistance from special education experts and resources, including federally funded parent information centers and protection and advocacy agencies, for additional support and representation.
Tips for Lawyers Representing Children in Foster Care Who Need or Receive Special Education Services
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Many child welfare attorneys represent children with disabilities who need or receive special education services. Whether a child receives appropriate specialized services and supports can have a significant impact on the child’s status in the foster care system. But child welfare attorneys, often managing large caseloads, do not need to become experts in special education law in order to represent their clients effectively. Here, in no particular order, are several tips for addressing the special education needs of foster children with disabilities.

1. Identify the Education Decision Maker for the Child

Does the parent retain the right to receive notices and make decisions in the special education process? If not, who does? If the juvenile court has transferred guardianship for education decision-making to the department of social services or to the department of juvenile services, the department must obtain a surrogate parent for the child. The agency responsible for placing the child cannot also exercise education decision-making for special education purposes.

Action: You should ensure that your client has an education decision maker for special education purposes, preferably one with whom your client has a relationship. If a surrogate parent is needed, you should ensure, advocating in juvenile court if necessary, that the department of social or juvenile services requests one from the local school system. Alternatively, you can request that the juvenile court appoint a surrogate. If your client is in a stable foster home or has a relative or other interested adult willing to serve as the education decision maker, you can try to bypass the surrogate parent process by asking the juvenile court to directly designate that person to be the education decision maker for the child.

2. Ensure That Children Who Move from One Jurisdiction to Another Receive Timely Services

When a child moves from one jurisdiction to another, the receiving jurisdiction is responsible for serving the child and the sending jurisdiction is responsible for paying for the placement and for ongoing case management. Sometimes, children do not receive timely services because the receiving district does not know the child has moved into the district or does not know the child receives special education, or because records do not transfer or transportation does not get set up promptly.

Action: You can advocate with the school system or the department of social services, or you can even seek a court order, if necessary, in the following circumstances:

  • the department of social services does not notify the sending and receiving school districts of the child’s placement and need for record transfer;
  • a needed individualized education plan (IEP) meeting is not scheduled; or
  • if the school system does not arrange for prompt transportation of your client to and from school, you can ask the court to order that the department of social services transport or pay for transportation of your client until the school system begins providing transportation.

3. Assess Whether Your Client’s IEP Is Being Implemented and If Services Are Appropriate

Warning signs that a child may not be receiving appropriate services or that the child’s IEP may not be being implemented include lack of progress, the same IEP goals for several years in a row or revision downward of the goals, academic or behavior regression, or disciplinary removals.

Action: If the IEP team’s position is that your client is making progress, ask for the data the team is using to support its position. If the concern is that services are not being provided, ask for service provider logs or review records and see if the service dates and session notes are in the file. Advocate for meaningful and measurable goals and objectives and for extended school year services. Request, through an informal or formal complaint if necessary, compensatory services to redress any violations, such as services missed.

4. Verify That All IEP Services Have Been Received and Disabilities Properly Identified

If your client is referred to the delinquency system for school-related behavior, determine if the client received all the services on the IEP and if the client’s disability (or disabilities) had been properly identified. You may need to request an emergency IEP meeting to revise your client’s IEP or behavior plan, or your client may need to be evaluated for an as-yet unidentified disability.

Action: Request an emergency IEP meeting if warranted. Negotiate with the state’s attorney, if possible, to dismiss the charges and referral to juvenile services based on the school district’s failure to provide needed services.

5. Determine If Your Client May Have Unidentified Disabilities That Are Affecting the Client’s Educational Performance

All disabilities that affect educational progress need to be identified through appropriate assessments.

Action: If your client has never been in special education, refer or ensure referral to the school district’s Child Find process by your client’s education guardian, social services worker, or other service provider. If your client is already in special education, request an emergency IEP meeting to request additional assessments and revision of the IEP to address unmet education needs.

6. Advocate for Effective Transition Services for Students Aging Out of the Special Education System

For students with disabilities aging out of special education and the child welfare system, transition is a particularly important process. What is the goal for your client? Independent living or some other living arrangement? What role will the department of social services play? What academic courses are needed if your client is working toward a diploma? How is this trajectory affected by your client’s foster care placements? (Has your client had ample opportunity to earn credits, or have multiple placements disrupted your client’s education?)

Action: Include your client in the transition process; students have a right to participate in their transition meetings. Ensure that the department of social or juvenile services participates in IEP meetings at which transition will be discussed. Ensure that the juvenile court process and special education transition process are coordinated so that when your client exits both systems, your client will be as independent as possible and a seamless move to the adult service system can occur if continued agency involvement is needed, including applications to, and funding for, developmental disability services, vocational rehabilitation, needed equipment or assistive technology, health care, continued education, and work or community programs.

7. Seek Assistance from Special Education Experts If Needed!

Every state and territory has a federally funded parent information and training resource center (Center for Parent Information & Resources, Find Your Parent Center) that can provide information about the special education process, as well as a protection and advocacy (P&A) agency (National Disability Rights Network, Protection and Advocacy for People with Disabilities); most of the P&As provide special education representation and are often available to provide technical assistance to child welfare attorneys and others who are representing children with special education concerns. Additional resources may be available in many states.