IV. Special Education and Child Welfare

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Dated March 15, 2012

Potential special education or disability issues should be considered both during dependency or neglect proceedings and in foster care to ensure the child has access to appropriate services.

A. Dependency or Neglect Proceedings

The question of whether special education law and principles are relevant for a particular child should be considered at various points in the course of dependency or neglect proceedings, especially in determining the child’s needs, forming the treatment plan, and obtaining services for the child. Although the following discussion is framed primarily in terms of foster care, the same legal and social principles apply to the entire course of child welfare proceedings.

1. Identifying the Educational Decision-maker/Parent

A child’s educational needs should be considered from the beginning of dependency or neglect proceedings. Whether or not the child has a disability, it is important that someone considering the child’s best interests make educational decisions. Because so many of the rights and procedures under IDEA involve the parent, identifying a parent or educational surrogate parent (ESP) is crucial when the child has a disability under IDEA.

Typically, a parent’s educational decision-making rights are terminated only at the final termination of parental rights. If parents are willing to make educational decisions in the child’s best interests, or can be educated and supported to do so as part of a treatment plan, no other action is required. However, if reasonable parental cooperation with a treatment plan is unlikely, or is in fact not happening, a court could consider terminating educational decision-making rights, which would allow a foster parent or other caregiver to serve as parent or allow an ESP to be appointed.

A clear appointment of educational decision-making rights by the court would assist the school districts in meeting the child’s needs.¹ Schools cannot provide services under IDEA without both parental consent for evaluation and for services (though the school district may be able to override lack of parental consent for evaluation with a due process request, in the unlikely event it is willing to invest the energy and money to do so).

2. Treatment Plan and Special Education

In creating a treatment plan, the court can consider ordering one or more of the following:

• regular educational updates;
• referral for a special education evaluation under Part B or Part C;
• parents’ agreement to allow at least a special education evaluation (or the court can limit parents’ educational decision-making rights);
• a copy of the IEP produced for the court; and
• parents’ attendance at IEP meetings. If a parent is incarcerated, a conference call is still a possibility.

3. Initial Placement in Foster Care

For non-emergency placement, the court or public agency is mandated to work cooperatively with both the child’s current school and the prospective school to ensure that appropriate special education services are available for the child.² Emergency placement for the safety of the child may be done without this coordination.³ However, “[i]n no event shall a child be placed in an eligible facility or an administrative unit that is unable to ensure the provision of special education services that are appropriate for the child.”⁴

B. Special Education and Foster Care

1. Disability Issues Among Children in Foster Care

Foster children are more likely to have a disability than children in the general population. Thirty to forty percent of foster children are in the special education system, a significantly higher percentage than for non-foster care children.⁵ Thus, between twenty and sixty percent of children entering foster care have developmental disabilities or delay, compared with about ten percent of the general population.⁶ Children with disabilities also remain in foster care longer.⁷ Moreover, there may be significant underreporting of youth with disabilities in foster care, unless all youth are screened, as the National Council on Disability recommends.⁸

A study of children in foster care in one state showed the following:

• 44% had learning problems.
• 35% had attention deficit disorder.
• 37% were slow learners.
• 16% had mental retardation or developmental delay.
• 18% had speech or language problems.⁹

A study of foster youth alumni found that over half had mental health problems.¹⁰ One in four foster alumni experienced post-traumatic stress disorder (PTSD) in a twelve month period, a rate approximately twice as high as for U.S. war veterans.¹¹

On the other hand, children in foster care are sometimes over-identified as special education students because they are troubled and may be removed from the general school population.¹² Special education is not a solution for problems not related to disability, and segregation into a special education program can be very damaging.

Both youth with disabilities and youth in foster care are more likely to drop out of school. Both are at high risk of failing to make a successful transition to adulthood.¹³ Youth in foster care with “unmet education needs are at higher risk for homelessness, poverty, public assistance, and juvenile or adult court involvement.”¹⁴ For instance, only about twenty percent of foster youth go to college, and only five percent complete college, compared to a twenty percent completion rate for adults under age twenty-five overall.¹⁵

The employment rate is lower for alumni from foster care, as compared to the general population. One study showed one-third of foster care alumni had household incomes at or below the poverty level (three times the national poverty rate), and more than one in five experienced homelessness after leaving foster care.¹⁶ Outcomes for foster youths with disabilities are significantly poorer than for their peers without disabilities.¹⁷

2. Interrelation Between Disability and Abuse

Children born with disabilities are more often abused and more often relinquished to the child welfare system than children without disabilities.¹⁸ One study shows that children with disabilities are abused at about twice the rate of children without disabilities, and other studies document an increased risk of abuse for children with disabilities between four and ten times that of the general population.¹⁹ Children who have disabilities may be at increased risk for abuse, partly because they may be more vulnerable.²⁰ Another factor is that children with certain disabilities may be very difficult to handle, causing extraordinary stress on parents and family. The presence of the disability can exacerbate existing dysfunctions in the family system and trigger inappropriate responses on the part of caregivers.

Child abuse can also cause disabilities, and in fact, is estimated to cause about twenty-five percent of all developmental disabilities. Over fifty percent of child victims of severe neglect sustain permanent disabilities.²¹ After foster care placement, the experience of former abuse continues to have a detrimental effect on the emotional, social, and physical development of children.²²

Recognizing that children who have been abused or neglected are at a higher risk for mental health or behavioral issues, Colorado has a pilot program to provide mental health screenings, evaluations, and services for any child ages four through ten, who has been the subject of a substantiated case of abuse or neglect.²³

3. General Education and Beyond

States must “address the educational needs of children in the child welfare system as one of the child well being indicators the federal government uses to measure states’ performance” under the Adoption and Safe Families Act (ASFA).²⁴

Extra services may be available to children through the school system. Among other possibilities, a school failing under NCLB may be required to provide supplemental services. Guidance counselors may be of great assistance. Sometimes special counseling groups, after school enrichment, or special classes may be available. Resources may exist in the community, such as tutoring or summer programs.²⁵

Colorado’s new Response to Intervention model may be helpful for students who are struggling, whether or not they have disabilities. RTI “involves multiple tiers of research-based instruction and services, including ones universally provided to all students, targeted interventions for those who are not able to make progress in general education and more intensive services for students with complex needs.”²⁶ With RTI, the student need not fail before intervention is provided. When any problem presents itself, the teacher uses an intervention, then collects data to see if the student is responding to the intervention. If not, the level of intervention is changed. RTI is expected to serve many children who are slow in learning, but do not have disabilities. As it is implemented throughout Colorado, RTI could help both to solve the problem of over-identification for special education and to provide more timely intervention for children with disabilities.²⁷ However, RTI may not be used to delay or deny a timely initial evaluation for children suspected of having a disability.²⁸

Specific interventions also exist for reading problems, whether or not they are related to disability. For instance, under the Colorado Basic Literacy Act of 1996, Colorado children in the early grades who test below grade level in reading are provided with an Individual Literacy Plan (ILP), which spells out goals and services the child will receive.²⁹ An ILP is provided whether or not the child has a disability.

A foster child may also be gifted and talented, either globally or in certain specific areas, and thus may qualify for special services as a gifted child. Developing a child’s gifts and talents can be life-transforming. Failure to identify giftedness can cause as much failure and frustration as failure to identify disabilities. Nor are the two exclusive. Many children are Twice Exceptional. Twice Exceptional students are gifted and also identified as having a disability.³⁰ These students need services in both areas to succeed.

Educational plans for foster children with disabilities should include higher education, where appropriate. Many of these children fall victim to low expectations.³¹ General and special education services can be designed to prepare students for college.

4. Services for Youth in Foster Care

Where children need to be served by multiple agencies, wraparound services are most effective, where the individualized plan is coordinated between agencies.³² Strong collaboration between the courts, child welfare, and health and mental health systems is essential to serve a foster child with disabilities.³³ Educational evaluations should be specific and thorough so that disabilities are not over-identified or wrongly identified.

Foster children experience routine lack of compliance with special education laws, partly because they often lack the protection of a parental advocate.³⁴ IDEA is designed around a parental advocate and cannot be implemented without one. Often, foster parents have no involvement in the special education process³⁵ or training in dealing with disabilities. Foster parents should be instructed in the basics of IDEA. Ideally, foster families should be trained in positive behavior supports for children with significant disabilities.³⁶

Related services under IDEA can include, among other things, social work services at home and in school; parent training and counseling; therapy (including psychological, occupational, and physical); and recreation services.³⁷ Children who have experienced abuse, neglect, and the trauma of being removed from the home may need psychological services. For children in out-of-home care, many of the related services may provide some stability and equality of opportunity.³⁸

An accurate diagnosis is essential. For example, many foster children are diagnosed as having attention deficit hyperactivity disorder (ADHD), which has symptoms similar to post- traumatic stress disorder (PTSD). The three types of trauma most likely to cause PTSD are serious sexual assault, childhood physical abuse, and childhood neglect, meaning that large numbers of foster children suffer from the disorder.³⁹ Unfortunately, although the symptoms can be quite similar, the treatment, including the medication therapy, is different, so that treating a PTSD sufferer for ADHD can be ineffective or even detrimental.⁴⁰

Each foster child should have an educational advocate, whether that is a parent, foster parent, an educational surrogate parent (ESP) appointed by the court or department of education, his or her caseworker, or a Court Appointed Special Advocate. Juvenile court judges should also consider the foster child’s educational needs.⁴¹ For instance, judges can ensure IDEA timelines are enforced for prompt evaluation and provision of services.

Child welfare workers, guardians ad litem, and Court Appointed Special Advocates ("CASA") workers should be sufficiently familiar with disabilities to know when a child needs screening, and with whom to collaborate in obtaining services.⁴² Children with disabilities are often more difficult to interact with and to understand, but need positive interaction even more than children without disabilities.

Although child welfare workers cannot serve as educational surrogate parents (ESPs), they can serve an important role as advocates for education, both with the IEP team and with the juvenile courts.⁴³ The caseworker may be the only person at the IEP meeting who knows the history of the child and may have useful strategies to include in the IEP to help reach its objectives.⁴⁴

5. Early Education and Foster Care

Forty percent of all children entering foster care are less than five years old.⁴⁵ Many of these children experience, or are at risk of experiencing, developmental delay, which makes them eligible for services under IDEA. Possible educational programs include Early Head Start, Head Start, and early intervention services under IDEA.⁴⁶

Child welfare agencies and attorneys should push for early identification, thorough assessments, and appropriate services and programs. Judges should ask whether developmental and mental health screening have been completed and about enrollment in early childhood programs.⁴⁷

All Medicaid-eligible children from birth through eighteen years can receive comprehensive health services under Early and Periodic Screening, Diagnosis, and Treatment (EPSDT). This includes all foster children.⁴⁸ Children receive medical, vision, hearing and dental screens. Medical screens should include physical exams, including developmental assessments.⁴⁹ EPSDT also covers “necessary health care, diagnostic services, treatment, and other measures . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening service.”⁵⁰

A court can order screening under EPSDT, including screening, diagnosis, and treatment services.⁵¹

Head Start provides full education services to low-income families. Head Start programs must also screen children, and if appropriate, arrange medical services and follow-up treatment. Children in foster care are automatically eligible for Head Start, though they may not have priority in enrollment. However, a provision in Head Start regulations requires that at least 10% of slots be set aside for children with special needs.⁵²

Early Head Start includes pregnant women and children up to age three.⁵³ Early Head Start will include screening for developmental disabilities and delays, as well as other problems.⁵⁴

IDEA Early Intervention under Part C may be appropriate for young children in foster care with disabilities or developmental delays or a high probability of developmental delays. These services are provided through the school system.⁵⁵ Determining the educational decision-maker for a foster child before exploring Part C services is crucial, because if a parent rejects services under Part C, there is no statutory procedure to override the parent’s decision.⁵⁶

6. Access to Educational Records

Access to accurate school records is necessary for all involved with children in foster care (courts, guardians ad litem, respondent counsel, caseworkers, foster parents, and other advocates).⁵⁷ A child’s grades and test scores are one of the best indicators of educational progress.⁵⁸

C.R.S. section 19-1-303(1)(a) addresses the exchange of information in delinquency and dependency and neglect cases and states:

(1)(a) The judicial department or any agency that performs duties and functions under this title with respect to juvenile delinquency or dependency and neglect cases or any other provision of this title may exchange information, to the extent necessary, for the acquisition, provision, oversight, or referral of services and support with the judicial department or any other agency or individual that performs duties and functions under this title with respect to such cases. In order to receive such information the judicial department or the agency shall have a need to know for the purposes of investigations and case management in the administration of their respective programs. The judicial department or the agencies shall exchange information in accordance with paragraph (b) of this subsection (1).

(b) The judicial department or agency described in paragraph (a) of this subsection (1) shall exchange information with the judicial department or similar agencies who have a need to know to the extent necessary for the acquisition, provision, oversight, and referral of services and support and if provided in the course of an investigation or for case management purposes.

C.R.S. section 19-1-302 specifically requires schools and school districts to share information with those charged with performing duties under Title 19 of the Children’s Code in both juvenile delinquency and dependency and neglect cases. This would include court appointed guardians ad litem,⁵⁹ court appointed CASA volunteers,⁶⁰ the department of human services,⁶¹ probation officers,⁶² the judicial department,⁶³ respondent counsel,⁶⁴ and defense counsel.⁶⁵

Colorado has various provisions to speed up transfer of records and enrollment for children in out-of-home placement, including special education notification.⁶⁶ Among other things, once the school has been notified of a transfer request from the Department of Human Services, it only has five school days to transfer the records.

Records should be maintained in the case files and included in the case plan. For instance, in one initiative begun by the Office of the Guardian Ad Litem in El Paso County, the GAL regularly files paperwork for each child so the GAL will be permitted to access Parent Connect and similar programs, which are online databases to monitor students’ grades and other information. The Office of the Guardian Ad Litem checks students’ grades and other academic information weekly to flag any signs of trouble. See Sample Order to the School District Authorizing Release of Educational Information.⁶⁷

The Order to the School District Authorizing Release of Educational Information allows the school to release the educational records to the following persons, agencies and their representatives who are connected to the case:

• the school district;
• El Paso County Department of Human Services;
• the Court Appointed Special Advocate ("CASA");
• the court-appointed guardian ad litem;
• the presiding judicial official;
• respondent counsel;
• defense counsel; and
• the child’s probation officer.

The order is presented to the school district. Those persons, agencies, and their representatives who are connected with the case are not only given access to the records but also have “authorization to exchange educational records and information” among themselves.

In conjunction with the forms, the Office of the Guardian Ad Litem in Colorado Springs also uses the following steps:

• Calls the school district: In El Paso County, a School District Communication Protocol established a single point of contact in each school district for requesting access to school internet systems such as Parent Connect.⁶⁸
• Faxes a cover letter requesting that the GAL be notified of attendance, grades, and behavior issues, attaching the Order of Appointment. (See Sample Form Letter to School Registrar Request for Internet Access.)⁶⁹

The school district will usually give contact information, such as PIN and password to log on to the internet system. Once the Office is working with the district, it is easier to access records in subsequent schools in the district.⁷⁰

The following are possible ways to release educational information so that the child can be better served.

• Get parental consent for the release of educational information for persons involved with the child (See Sample Informed Consent Release Regarding Educational Records);⁷¹
• Obtain records through the child welfare agency or the foster parents if they are viewed as the parents;
• Obtain a court order allowing access⁷² (See Sample Order Appointing Guardian ⁷³ (See Sample Order to the School District Authorizing the Release of Educational Information);⁷⁴
• Court order for the school to release records, such as report cards and education evaluations, to the court (See Sample Order Request for Completion of Educational Checklist);⁷⁵
• Court order for agency to bring records to the next hearing; and
• A educational surrogate parent ("ESP") (appointed by the court or the educational agency if the child is under IDEA and has no parent available to advocate), who commits to maintain educational records.

To serve the child better, schools and child welfare professionals should collaborate. Attorneys involved in a child welfare case can talk to school staff about the child (if there is consent from a parent, an educational surrogate parent, or a court order).

Where parents retain educational rights, they and their attorneys should consider cooperating with releasing information in child welfare proceedings. The child is more likely to receive appropriate academic programming when current caregivers have full knowledge. Moreover, it shows the parents’ concern and may aid their reunification case.⁷⁶

7. Education Liaisons

Either a school system or child welfare agency may appoint an education liaison, as is already done in Denver County. Schools can designate a staff member as a liaison between the child welfare system and the courts.⁷⁷

C.R.S. section 22-32-138 provides:

(2)(a) Each school district and the state charter school institute, created pursuant to section 22-30.5-503, shall designate an employee of the school district or the institute to act as the child welfare education liaison for the district or for state charter schools. In lieu of designating an employee, a school district or the state charter school institute may contract with an individual to act as the child welfare education liaison. The child welfare education liaison shall be responsible for working with child placement agencies, county departments, and the state department to facilitate the prompt and appropriate placement, transfer, and enrollment in school of students in out-of-home placements within the school district or who are enrolled or enrolling in institute charter schools.

According to section 22-32-138, the duties of the education liaison include:

• Working with social workers, juvenile probation officers and foster care parents on prompt school enrollment and prompt transfer of educational records (2)(a)(I);
• Ensuring that records are delivered to a student’s new school within five days of receiving a request from a county department (2)(a)(II).

In addition, an education liaison has typically performed some or all of the following functions:

• Arrange training for school staff on academic and social issues faced by children in out-of-home care;
• Give information to caseworkers navigating the educational system (including special education);
• Help develop agreements between systems at the local level (i.e. identifying who can sign permission slips);
• Serve on the anti-bullying committee at the school;
• Attend IEP meetings;
• Organize college and vocational tours for youth in care;
• Keep track of documents and ensure children who are changing school are enrolled promptly;
• Make sure records are timely transferred to the new school;
• Act as liaison to school staff who track attendance, to address truancy issues quickly;
• Support foster parents in helping children with education;
• Arrange peer support groups for children in out-of-home care;
• Help recruit foster parents; and
• Connect children in out-of-home care with tutoring and extracurricular opportunities.⁷⁸

8. Changing Schools

Foster children change schools frequently, which “reinforces a cycle of emotional trauma and abandonment and repeated separations from adults and friends.”⁷⁹ Foster children may lose four to six months of educational progress every time they change schools.⁸⁰ Foster children with disabilities change foster home placements more often than foster children without disabilities,⁸¹ and thus it is likely that they change schools more often as well. If records transfer is delayed, a new school may not be aware that a student has an IEP and may not provide special education services.⁸²

Those working with foster children should consider school stability as an important goal. Keeping a school placement may be the only stability the child has. Children awaiting foster care placement may be protected from changing schools under the McKinney-Vento Homeless Assistance Act.⁸³ It may be possible for a child to stay enrolled even if placed outside the school’s jurisdiction.⁸⁴ After a foster home is found, the Act requires school districts to allow the child to finish the school year in the old school. Discuss the situation with the McKinney-Vento liaison at the school district.⁸⁵

C.R.S. section 19-3-213(1)(d), dealing with foster placement, requires that:

Prior to the change of placement of a child, all parties shall attempt to promote educational stability for the child by taking into account the child’s existing educational situation and, to the extent possible and in accordance with the child’s best interests, selecting a change of placement that enables the child to remain in the existing educational situation or to transfer to a new educational situation that is comparable to the existing situation.

Colorado School Choice law may allow a child to be enrolled in a school outside the neighborhood but does not require the school district to provide transportation.⁸⁶ The NCLB Act may allow the child to be transferred to a different school if the neighborhood school has been designated a “poorly performing school” for two consecutive years, or is a “persistently dangerous school.”⁸⁷ If the new school is performing poorly, or if it is dangerous, the child may be able to remain in the old school with the new school providing transportation to and from the foster home.⁸⁸

Judges should question the educational impact of moving a child and carefully weigh the potential negative impact of a changed school placement.⁸⁹

The following are steps that may be taken to avoid changing schools:

• First, ask children what they would prefer;
• Address any safety issues with the new school, whether the child can be protected, and whether that is a reason to stay in the old school;
• Try to locate a foster home in the same neighborhood;
• Try to keep children in the same school under the applicable laws;
• See if the child can at least finish the school year;
• Be creative in looking for before/after school care, if that is the problem; and
• Be creative in dealing with the problem of foster parents dropping students at multiple schools that start at the same time. Child supervision may be needed for only a few minutes.⁹⁰

If the child must change schools, make sure the new school keeps the timelines required under IDEA.⁹¹

When a child with an IEP changes schools, the new school has several options:

• If a copy of the IEP is provided, the school could provide all services immediately;
• Provide the child with interim services agreed to by the statutory parent and Director of Special Education while waiting for a copy of the IEP; and
• Refer the child for a complete assessment and planning and, in the meantime, provide interim services according to the last IEP or as agreed.⁹²

Significant delay is not permitted under IDEA.

9. Mental and Emotional Disturbance

Many children with serious emotional disturbances do not receive the services to which they are entitled under IDEA. “Under IDEA, children with emotional or behavioral disabilities that interfere with their ability to learn are entitled to special education services, including any related mental health services and supports that enable them to benefit from their education.”⁹³

For foster children and others eligible for Medicaid, the Early Periodic Screening, Diagnosis and Treatment (EPSDT) is an ideal vehicle for screening for and treating mental health problems.⁹⁴

10. Institutionalized Foster Care

Children in group homes and other institutional settings experience more problems than those in family foster care settings. The latter attain higher levels of education, have fewer problems with the law and substance abuse, and generally experience a more positive outcome. Although it cannot be determined that residential placement causes negative characteristics and outcome, most child welfare experts believe that foster children with disabilities should be placed in non-institutional environments when possible.⁹⁵ For instance, even for children with severe emotional disabilities, therapeutic foster care may be beneficial.⁹⁶

Although some children are properly placed in non-public schools, which provide special education services to students on the basis of their IEPs, studies have shown that children with disabilities are over-identified as needing this type of placement, which is quite restrictive.⁹⁷ Foster children with disabilities experience more restrictive special education placements compared to other children with disabilities.⁹⁸

Undue institutional isolation of persons with disabilities, such as mental disabilities, is a form of discrimination. “First, institutional placement of persons who can handle and benefit from community settings perpetrates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”⁹⁹ “Second, confinement in an institution severely diminishes the everyday life activities of individuals. . . .”¹⁰⁰ Thus, children should be placed in the least restrictive setting appropriate for their disabilities, as is required under IDEA.¹⁰¹

11. Adoption of Children with Disabilities

An adoption subsidy may be available to help meet the special needs of children with disabilities, based on the needs of the child and the circumstances of the adoptive family.¹⁰² Although this can normally be no higher than the amount the child is eligible for under foster care, it may be higher if the child is eligible for “specialized foster care,” if that form of care is available in the state.¹⁰³

Federal adoption assistance may be an entitlement if certain criteria are met:

• The child was eligible for one of two federal programs; foster care or adoption assistance under Title IV-E or Supplemental Security Income;
• The child has special needs (which may include disabilities or membership in certain groups);
• The child could not be placed without the subsidy; and
• There has been a judicial determination that the child should not be returned home.¹⁰⁴

Adoption subsidies usually consist of a monthly payment and medical assistance. In certain circumstances, agencies and families negotiate about medical services beyond what Medicaid covers, such as mental health services, educational services, respite care, specialized day care, or in house support.<¹⁰⁵

_________________________________________

1. Telephone interview with Keith Kirchubel, Principal Consultant, Dispute Resolution, Colorado Department of Education in Denver Colorado (March 2008).

2. State Bd. of Educ. Rule 9.02(1)(a), 1 Code Colo. Regs. 301-8 (2009).

3. Rule 9.02(1)(b).

4. Rule 9.02(2).

5. National Council on Disability, Youth with Disabilities in the Foster Care System: Barriers to Success and Proposed Policy Solutions, at 4 (2008) available at http://www.ncd.gov/newsroom/publications/2008/FosterCareSystem_Report.html (viewed Oct. 15, 2010).

6. Id. at 11.

7. Id.

8. Id. at 53.

9. Mason Burley and Mina Halpern, Educational Attainment of Foster Youth 8 (Washington State Institute for Public Policy 2001) available at http://www.wsipp.wa.gov/rptfiles/FCEDReport.pdf (viewed Oct. 15, 2010).

10. National Council on Disability, supra note 5 at 4.

11. Foster Care Alumni Studies, Improving Family Foster Care: Findings from the Northwest Foster Care Alumni Study 1, 32 (March 2005) available at http://www.casey.org/Resources/ (viewed Oct. 15, 2010).

12. Kathleen McNaught, Learning Curves: Education Advocacy for Children in Foster Care 11 (ABA Center on Children and the Law 2004).

13. National Council on Disability, supra note 5 at 32.

14. McNaught, supra note 12 at 2.

15. National Council on Disability, supra note 5 at 4.

16. Foster Care Alumni Studies, supra note 11 at 2.

17. Sarah Geenen and Laurie E. Powers, Are We Ignoring Youths with Disabilities in Foster Care? An Examination of Their School Performance 234, Social Work 51.3 (July 2006).

18. National Council on Disability, supra note 5 at 4.

19. National Resource Center for Respite and Crisis Care Services, Factsheet Number 36: Abuse and Neglect of Children with Disabilities, 1 (September 1994) available at http://www.archrespite.org/productspublications/arch.fact.sheets#FS_36 (viewed October 15, 2010).

20. Id.

21. Id. at 2.

22. Brandy Miller, Falling Between the Cracks: Why Foster Children are Not Receiving Appropriate Special Education Services, 5 Whittier J. Child & Fam. Advoc. 547, 566 (2006).

23. C.R.S. § 19-3-208.5.

24. Angela J. Herrick and Helen D. Ward, Advocating for the Educational Needs of Children in Out-of-Home Care I-4 Colorado Department of Human Services; See 42 U.S.C. § 675(1)(G) (2010).

25. McNaught, supra note 12 at 9-11.

26. Herrick and Ward, supra note 24 at 3-19.

27. Interview with Laura Writebol, Colorado Department of Human Services in Denver, Colorado (May 14, 2008).

28. Office of Special Education Programs, January 21, 2011, http://library.constantcontact.com/download/get/file/1102276898441-66/OSEP+RTI+memo+01-21-11.pdf (viewed February 19, 2011).

29. Herrick and Ward, supra note 24 at 3-11.

30. Rule 12.01(22).

31. National Council on Disability, supra note 5 at 30.

32. Id. at 18.

33. Id. at 48.

34. Geenen and Powers, supra note 17 at 234.

35. Id. at 233.

36. National Council on Disability, supra note 5 at 20.

37. Miller, supra note 22 at 566.

38. Cynthia Godsoe, Caught Between Two Systems: How Exceptional Children in Out-of-Home Care are Denied Equality in Education, 19 Yale L. & Pol’y Rev. 81, 95 (2000).

39. Miller, supra note 22 at 569.

40. Id. at 570.

41. National Council on Disability, supra note 5 at 31.

42. Id. at 48.

43. Id. at 26.

44. Herrick and Ward, supra note 24 at 4-11.

45. McNaught, supra note 12 at 6.

46. Id. at 7.

47. Id.

48. Id. at 29.

49. Id. at 28.

50. 42 U.S.C. § 1396d(r)(5) (2010).

51. McNaught, supra note 12 at 29.

52. Herrick and Ward, supra note 24 at 6-4.

53. McNaught, supra note 12 at 29.

54. Id. at 69.

55. Id. at 30.

56. Id.

57. Id. at 2.

58. Miller, supra note 22 at 554.

59. C.R.S. §19-3-203.

60. C.R.S. §19-1-206.

61. C.R.S. §19-3-100.5.

62. C.R.S. §19-2-913.

63. C.R.S. §19-1-303(1)(a).

64. C.R.S. §19-1-105.

65. C.R.S. §19-2-706.

66. House Bill 08-1019, C.R.S. § 22-32-138.

67. Provided by El Paso County Best Practices Court Education Committee f/k/a El Paso County Model Court Education Committee and the El Paso County Model Court Steering Committee.

68. Magistrate Regina Walter, Chairperson of the El Paso County Model Court Truancy Committee, established the contacts in each school district.

69. Created and provided by Sherri Piccione, Legal Secretary, El Paso County Office of Guardian ad Litem.

70. Interview with Ed Rodgers, Office of the Guardian ad Litem, in Colorado Springs, CO (March 19, 2008).

71. Written and contributed by Ed Rodgers, Office of the Guardian ad Litem, El Paso County.

72. Kathleen McNaught, Mythbusting: Breaking Down Confidentiality and Decision-Making Barriers to Meet the Education Needs of Children in Foster Care 13 (American Bar Association 2005) available at http://www.abanet.org/child/education/other-pub.shtml (viewed May 5, 2008).

73. Written and contributed by Ed Rodgers, Office of the Guardian ad Litem, El Paso County.

74. Provided by El Paso County Best Practices Court Education Committee f/k/a El Paso County Model Court Education Committee and the El Paso County Model Court Steering Committee.

75. Provided by El Paso County Best Practices Court Education Committee f/k/a El Paso County Model Court Education Committee and the El Paso County Model Court Steering Committee.

76. McNaught, supra note 12 at 6.

77. Id. at 3-4.

78. Herrick and Ward, supra note 24 at 2-2, 2-3.

79. National Council on Disability, supra note 5 at 28; citing Sarah Woodward, California Moves to Improve Group Home Schools, XXV, 4 Youth Law News (National Center for Youth Law), October-December 2004, Executive Summary at vi.

80. Mason Burley and Mina Halpern, Educational Attainment of Foster Youth 9 (Washington State Institute for Public Policy 2001) available at http://www.wsipp.wa.gov/rptfiles/FCEDReport.pdf (viewed Oct. 15, 2010).

81. Geenen and Powers, supra note 17 at 238.

82. Andrea Zetlin, The Experiences of Foster Children and Youth in Special Education 163, Journal of Intellectual & Developmental Disability 31.3 (Sep. 2006).

83. 42 U.S.C. § 11431, et seq.

84. McNaught, supra note 12 at 5.

85. Herrick and Ward, supra note 24 at 3-5.

86. Id. at 3-4, 3-5; C.R.S. § 22-36-101; § 22-32-116(e).

87. Id. at 3-5.

88. Id.; C.R.S. § 22-1-122.

89. McNaught, supra note 12 at 6.

90. Herrick and Ward, supra note 24 at 3-3, 3-4.

91. Id. at 3-9.

92. Id. at 4-20.

93. Testimony of the National Council on Disability, Juvenile Detention Centers: Are They Warehousing Children with Mental Illness? 4 (July 7, 2004) available at http://www.ncd.gov/newsroom/testimony/2004/juvenile_07-07-04.htm (viewed Oct. 15, 2010).

94. Id. at 4-5.

95. National Council on Disability, supra note 5 at 16-17.

96. Id. at 18.

97. Id. at 27.

98. Geenen and Powers, supra note 17 at 238.

99. Olmstead v. Zimring, 527 U.S. 581, 600 (1999).

100. Olmstead v. Zimring, 527 U.S. 581, 601 (1999).

101. 20 U.S.C. § 1412(a)(5) (2005).

102. 42 U.S.C. § 673(a)(2)(A) (2010); Cecilia Fiermonte and Jennifer L. Renne, Making It Permanent: Reasonable Efforts to Finalize Permanency Plans for Foster Children 109 (ABA Center on Children and the Law 2002).

103. Id.

104. Id. at 110-111; 42 U.S.C. § 673.

105. Id. at 112.