VIII. Checklists and Practice Tips

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The following lists may serve as a starting point or a quick reference.

A. Identification and Evaluation

• Identify children in foster care with disabilities.¹
• Talk with the child to determine the child’s feelings about special education.²
• Where appropriate, advocate for the child to receive services through the school system
• Determine who the educational decision-maker is and if a surrogate parent is needed.³
• Consider if a young child should be screened for early intervention services under Part C of IDEA.
• Consider Section 504 eligibility for children with disabilities who are not eligible for services under IDEA.⁴
• Consider if a child is eligible for services under NCLB.

B. IEP

Preparation for an IEP meeting for parents or advocates:

• Consider what the child should accomplish in the next year;
• Bring relevant documentation;
• Ask for copies of records and evaluations from the school; and
• If you are an attorney, notify the school that you will be attending the meeting. The school then has the right to have its attorney present.⁵

At the IEP meeting:

• Participate and listen;
• Taping can be a good way to review and document what is said. Be sure to notify the school in advance;
• The parent or educational surrogate parent should not sign the IEP until he or she understands and agrees;
• For an initial IEP, services cannot begin until the document is signed. The school must provide services under an IEP from a previous school until the new one is ready.⁶ The school can implement a revised IEP without the parents’ signature unless parents file for due process.

C. Section 504

• Section 504 violations are not always taken seriously, because there is no federal funding under Section 504, but the Office of Civil Rights will investigate a case thoroughly.
• Requesting an administrative hearing or filing a civil action is also possible under Section 504.⁷

D. Early Education

• Advocate for Head Start or Early Head Start enrollment.⁸ Certain health care services are available through Head Start as well.⁹
• Advocate for EPSDT if needed, and if the child is eligible, make sure all facets of care available under EPSDT are provided.¹⁰
• Determine if early services under IDEA, such as under Part C, are appropriate for young children who have disabilities, developmental delays, or the high probability of developmental delays. Work with the school system to obtain screening and services.¹¹
• Make Part C referrals for screening when there has been a finding of substantiated abuse or neglect.¹²
• Determine the educational decision-maker, and if an educational surrogate parent is needed.¹³
• Work on providing smooth transition from Part C services to Part B services.¹⁴

E. NCLB

• Keep track of schools in the district that may be “in need of improvement” and how long they have had the status. Also keep track of schools identified as “persistently dangerous.”¹⁵
• Explore outside tutoring programs that meet the state standards.¹⁶
• Advocate for school transfers, and/or additional services if students are entitled to them under NCLB.¹⁷

F. Parents/ Surrogate Parents

Under IDEA, a child must have a parent or educational surrogate parent to access services. Although an advocate can request an evaluation of special education needs, only a parent or an educational surrogate parent (ESP) can consent to the evaluation and to services.

For a child with special needs, someone involved with the child should be able to do each of the following if needed:

• give permission for an educational evaluation;
• give permission for special education services;
• attend parent-teacher conferences;
• request modifications to an IEP; and
• perform other functions of a parent under IDEA.

To identify a person who can perform these roles, the following steps may be helpful.

• See if anyone fits the definition of “parent” under IDEA.¹⁸
• Incarcerated parents can be given the opportunity to participate in IEP meetings by telephone.
• Someone should take the responsibility of advocating at the school when a parent cannot be present.
• If educational rights have been extinguished, a foster parent may act as the parent under certain circumstances.
• If a parent is unavailable or is unlikely to consent to what the child needs, an educational surrogate parent (ESP) may be needed.¹⁹
• Possible ESPs: foster parent, relative, court appointed special advocate (CASA), guardian ad litem ("GAL").²⁰ It is best if an ESP knows the child and knows about the child’s needs.²¹
• Where the child has been determined to have no disabilities, these same persons could act as an educational decision-maker.
• When there is ambiguity, a judge should make a clear appointment of an ESP or educational decision-maker, as needed.

G. Foster Care

• If there is time before a placement, gather information about the child’s educational status, particularly if there is an IEP.²²
• Make sure the child’s attorney, the caseworker, and the foster parent are invited to the IEP annual review meeting and any other IEP meetings.
• Determine who will take the lead in meeting the child’s educational needs. This can vary depending upon if the family will be reunited, whether biological parents or foster parents have the ability to play that role, who is knowledgeable about general and special education, and who has a good relationship with school staff.²³
• Keep school districts informed when a child changes schools or placements, both to make sure the child’s records are transferred smoothly, and so that the right school district (rather than the child welfare agency) is held responsible for special education costs.²⁴
• Consider whether the child should change schools, and how McKinney-Vento applies.

Judges can consider questions about the child’s educational status:

• “Has the child been identified with a disability by the school?
• Does the child have an IEP?
• What services are being provided?
• How is the child performing academically?”²⁵

Judges can take the following actions:

• order an evaluation of the child, either with parental consent, or overriding parental consent (but a judge cannot order that services be provided under IDEA unless an evaluation discloses a disability and there is parental consent);
• use a court/school liaison to speed information exchange when appropriate; and²⁶
• appoint an educational advocate/consultant/attorney to pursue services if none of the other parties can pursue educational needs for the child.²⁷

H. Transition

• Caseworkers, attorneys, and child advocates should become familiar with programs and financial supports available in the community and should discuss them with their clients.
• Judges can encourage youth to think about their futures and make positive decisions.²⁸
• Judges can use the Dependent Youth Aging Out of Foster Care: A Guide for Judges.²⁹
• Use the NSTTAC Checklist listed in Resources for preparing an IEP that adequately addresses transition.³⁰ It takes a parent or advocate through the process step by step with a series of questions.
• For incarcerated juveniles, identify the person responsible for transition under NCLB.

I. School Discipline

• When a child who has a disciplinary issue is in foster care, make sure school authorities account for the fact, particularly because administrative officials have discretionary power in determining discipline sanctions.³¹
• Consult with the child before revealing personal details to school personnel.³² Foster children, for instance, may not want personal information shared with the school system.³³
• If a child who has misbehaved may have an identified disability, request an evaluation under IDEA.
• If there are behavioral problems, work with the school to explore accommodations that include behavioral modification techniques and interventions. Include these in the IEP.³⁴
• The best time to have a Functional Behavioral Assessment and Behavioral Intervention Plan is before there has been a discipline problem.³⁵
• If a child with an IEP or § 504 plan has been suspended more than ten consecutive days, or ten days total in the school year, be sure a manifestation determination meeting is scheduled, and if not, request one in writing.³⁶
• Request a manifestation determination if the school knew, or should have known, the child has a disability under IDEA or Section 504.³⁷
• If there is a disciplinary hearing or manifestation determination, have an attorney represent the child. Be aware of the interaction between the school hearing process and any criminal charges.³⁸
• Consider having caseworkers, therapists, medical providers, or other advocates at the manifestation meeting.³⁹

Questions for a manifestation determination meeting:

• Was there an appropriate IEP?
• Was the IEP fully implemented?
• Was there a nexus between the behavior and the disability?⁴⁰
• If the child is placed in an interim alternative education setting, or is suspended or expelled, be sure the IEP is still being implemented.

J. Delinquency Proceedings

See the excellent and comprehensive protocol developed by Brad Bittan. Juvenile Delinquency: A Protocol for Youth With Disabilities.

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1. Kathleen McNaught, Learning Curves:Education Advocacy for Children in Foster Care24 (ABA Center on Children and the Law 2004).

2. Id.

3. Id.

4. Id.

5. Id. at 60.

6. Id.

7. Id. at 24.

8. Id. at 29.

9. Id. at 69.

10. Id. at 29.

11. Id. at 30.

12. Id. at 78.

13. Id. at 30.

14. Id. at 79.

15. Id. at 27.

16. Id.

17. Id.

18. Id. at 43.

19. Id.

20. Id.

21. Id. at 76.

22. Angela J. Herrick & Helen D. Ward, Advocating for the Educational Needs of Children in Out-of-Home Care 2-6 Colorado Department of Human Services.

23. Id. at 2-8.

24. Id. at 4-19.

25. McNaught, supra note 1 at 45.

26. Id.

27. Id.

28. Id. at 9.

29. Jennifer Pokempner and Lourdes M. Rosado, Dependent Youth Aging out of Foster Care: A Guide for Judges, Juvenile Law Center (2003), available at http://www.JLC.org under Publications (viewed Oct. 30, 2010).

30. National Secondary Transition Technical Assistance Center A Checklist for Improving Your Annual Performance Report for Indicator 13 (May 2007) http://www.nsttac.org/?FileName=indicator13_checklistt.aspx (viewed Oct. 30, 2010).

31. McNaught, supra note 1 at 26.

32. Id.

33. Id. at 100.

34. Id. at 94.

35. Id. at 97.

36. Id.at 99.

37. Id.

38. Id. at 95.

39. Id. at 99.

40.Id.