CONSIDERATIONS FOR STUDENTS IN FOSTER CHILDREN �
Presented by
Debra Poulin
Law Office of Debra Poulin
dpoulin@poulinlawoffice .com
505-231-5554
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AGENDA
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COMMON BARRIERS TO FOSTER STUDENT ACHIEVEMENT
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PLACEMENT AND SCHOOL CHANGE
31%-75% of youth in foster care change schools when first entering care.
25%-34.2% of 17-18 years old youth in foster care experienced 5 or more school changes.
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PROFICIENCY DATA�HTTPS://WWW.NMVISTAS.ORG/STATEWIDE/STATEWIDE#MATHPROFICIENCY
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GRADUATION DATA�HTTPS://WWW.NMVISTAS.ORG/STATEWIDE/STATEWIDE#MATHPROFICIENCY
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THE IDEA�PARENTS, EDUCATIONAL DECISIONMAKERS, EVALUATIONS, IEPS, RECORDS
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WHO CAN MAKE DECISIONS FOR A STUDENT IN FOSTER CARE?
State and Federal Law
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NEW MEXICO CHILDREN’S CODE: EDUCATIONAL DECISIONMAKERS, �NMSA 32A-4-35�SUMMARY
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An educational decisionmaker should be appointed by the children’s court in all abuse and neglect cases.
The “respondent” (i.e., parent) is appointed as the educational decisionmaker unless the court determines that this is not in the child’s best interests.
The educational decisionmaker should be appointed at the custody hearing and reviewed by the children’s court at each subsequent stage of the proceeding. The educational decisionmaker can be changed upon motion filed by a party to the case at any time.
NEW MEXICO CHILDREN’S CODE PROVISIONS -1
A. In all matters involving children alleged by the state to be abused or neglected, including proceedings to terminate parental rights, the children's court shall appoint an educational decision maker in every case.
B. The children's court shall appoint an educational decision maker at the custody hearing; provided that the children's court:
(1) may change the appointment of an educational decision maker upon motion of a party at any stage of the proceedings; and
(2) shall review at each subsequent stage of the proceedings whether to continue or change the appointment of an educational decision maker for the child.
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NEW MEXICO CHILDREN’S CODE PROVISIONS -2
C. The children's court shall appoint a respondent as the child's educational decision maker, unless the children's court determines that doing so would be contrary to the best interests of the child.
If the children's court determines that no respondent should be appointed as the child's educational decision maker, the children's court shall appoint another qualified individual, ….
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NEW MEXICO CHILDREN’S CODE PROVISIONS - 3
Who is a qualified person?
(1) whether the individual knows the child and is willing to accept responsibility for making educational decisions;
(2) whether the individual has any personal or professional interests that conflict with the interests of the child; and
(3) whether the individual is permitted to make all necessary educational decisions for the child, including decisions related to whether the child is a child with a disability under the federal Individuals with Disabilities Education Act.
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THE IDEA AND NM LAW�SUMMARY
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Defines parent for purposes of student’s rights under IDEA
Defers to court orders on educational decisionmaking responsibility for students in foster care
If there is no court-appointed educational decisionmaker for a student in foster care, LEA should assign a surrogate parent.
Specific IDEA requirements for surrogate parents.
IDEA DEFINITION OF PARENT�34 CFR 300.30(a)
(1) A biological or adoptive parent of the child;
(2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent;
(3) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State);
(4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare;
(5) A surrogate parent who has been appointed in accordance with 34 CFR 300.519
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IDEA DEFERENCE TO COURT ORDERS�34 CFR 300.30(b)
(2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (4) of this section to act as the “parent” of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the “parent” for purposes of this section.
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SURROGATE PARENTS�34 CFR 300.519(a)
(a) General. Each public agency must ensure that the rights of a child are protected when—
(1) No parent (as defined in § 300.30) can be identified;
(2) The public agency, after reasonable efforts, cannot locate a parent;
(3) The child is a ward of the State under the laws of that State; or
(4) The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(6)).
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SURROGATE PARENTS�34 CFR 300.519(b)
((b) Duties of public agency. The duties of a public agency under paragraph (a) of this section include the assignment of an individual to act as a surrogate for the parents. This must include a method—
(1) For determining whether a child needs a surrogate parent; and
(2) For assigning a surrogate parent to the child.
(c) Wards of the State. In the case of a child who is a ward of the State, the surrogate parent alternatively may be appointed by the judge overseeing the child's case, provided that the surrogate meets the requirements in paragraphs (d)(2)(i) and (e) of this section.
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SURROGATE PARENTS�34 CFR 300.519(b)
(d) Criteria for selection of surrogate parents.
(1) The public agency may select a surrogate parent in any way permitted under State law.
(2) Public agencies must ensure that a person selected as a surrogate parent—
(i) Is not an employee of the SEA, the LEA, or any other agency that is involved in the education or care of the child;
(ii) Has no personal or professional interest that conflicts with the interest of the child the surrogate parent represents; and
(iii) Has knowledge and skills that ensure adequate representation of the child.
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SURROGATE PARENTS�34 CFR 300.519
(e) Non-employee requirement; compensation. A person otherwise qualified to be a surrogate parent under paragraph (d) of this section is not an employee of the agency solely because he or she is paid by the agency to serve as a surrogate parent.
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SURROGATE PARENTS�34 CFR 300.519(g) & (h)
(g) Surrogate parent responsibilities. The surrogate parent may represent the child in all matters relating to
(1) The identification, evaluation, and educational placement of the child; and
(2) The provision of FAPE to the child.
(h) SEA responsibility. The SEA must make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after a public agency determine that the child needs a surrogate parent.
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TRANSFER OF RIGHTS UPON AGE OF MAJORITY SPECIAL RULE�34 CFR 300.520(b)
(b) Special rule. A State must establish procedures for appointing the parent of a child with a disability, or, if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of the child's eligibility under Part B of the Act if, under State law, a child who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child's educational program.
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IDEA �AND TRANSFERS BETWEEN LEAS
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TRANSFER OF RIGHTS UPON AGE OF MAJORITY SPECIAL RULE�34 CFR 300.520(b)
(e) IEPs for children who transfer public agencies in the same State. If a child with a disability (who had an IEP that was in effect in a previous public agency in the same State) transfers to a new public agency in the same State, and enrolls in a new school within the same school year, the new public agency (in consultation with the parents) must provide FAPE to the child (including services comparable to those described in the child's IEP from the previous public agency), until the new public agency either—
(1) Adopts the child's IEP from the previous public agency; or
(2) Develops, adopts, and implements a new IEP that meets the applicable requirements in §§ 300.320 through 300.324.
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TRANSFERS FROM ANOTHER STATE�34 CFR 300.323
(f) IEPs for children who transfer from another State. If a child with a disability (who had an IEP that was in effect in a previous public agency in another State) transfers to a public agency in a new State, and enrolls in a new school within the same school year, the new public agency (in consultation with the parents) must provide the child with FAPE (including services comparable to those described in the child's IEP from the previous public agency), until the new public agency—
(1) Conducts an evaluation pursuant to §§ 300.304 through 300.306 (if determined to be necessary by the new public agency); and
(2) Develops, adopts, and implements a new IEP, if appropriate, that meets the applicable requirements in §§ 300.320 through 300.324.
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EVALUATIONS.�34 CFR 300.301
(d) Exception. The timeframe described in paragraph (c)(1) of this section does not apply to a public agency if—
(1) The parent of a child repeatedly fails or refuses to produce the child for the evaluation; or
(2) A child enrolls in a school of another public agency after the relevant timeframe in paragraph (c)(1) of this section has begun, and prior to a determination by the child's previous public agency as to whether the child is a child with a disability under § 300.8.
(e) The exception in paragraph (d)(2) of this section applies only if the subsequent public agency is making sufficient progress to ensure a prompt completion of the evaluation, and the parent and subsequent public agency agree to a specific time when the evaluation will be completed.
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RECORDS�34 CFR 300.323
(g) Transmittal of records. To facilitate the transition for a child described in paragraphs (e) and (f) of this section—
(1) The new public agency in which the child enrolls must take reasonable steps to promptly obtain the child's records, including the IEP and supporting documents and any other records relating to the provision of special education or related services to the child, from the previous public agency in which the child was enrolled, pursuant to 34 CFR 99.31(a)(2); and
(2) The previous public agency in which the child was enrolled must take reasonable steps to promptly respond to the request from the new public agency.
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RECORDS�34 CFR 300.323
Pursuant to 34 CFR Sec. 99.31(a)(2), an educational agency may transfer child records without parental consent when requested by another educational agency in which a child seeks or intends to enroll as long as the sending educational agency has included the proper notification that it will do so in its required annual FERPA notice to children and parents. In view of the importance of uninterrupted educational services to children with disabilities, each New Mexico public agency is hereby directed to include such language in its annual FERPA notice and to ensure that it promptly honors each proper request for records from an educational agency that has become responsible for serving a child with a disability.
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ESSA AND EDUCATIONAL STABILITY
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RESOURCES
Every Student Succeeds Act (ESSA) 2015, 20 U.S.C. § 6311(g)(1)(E)(i)
Providing Educational Stability and Support Students in Foster Care
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ESSA REQUIREMENTS
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WHAT IS THE SCHOOL OF ORIGIN?
The school that the student was attending at the time that they came into foster care.
The school of origin can change with subsequent placements.
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ESSA BEST INTEREST CONSIDERATIONS
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WHO CAN PARTICIPATE IN A BID MEETING?
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WHO MAKES THE BID DECISION?
With exception of Albuquerque Public Schools per MOU
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EMERGENCY REMOVAL
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CYFD notifies the LEA Point of Contact to inform the school of the child’s new school placement – one day after emergency removal
Formal BID may not be feasible
ESSA DISPUTE RESOLUTION
For Local Educational Agency –
For EDMs, Resource Parents, GALs, Youth Attorneys –
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WHO IS REQUIRED TO TRANSPORT TO SCHOOL OF ORIGIN?
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CONSIDER NO COST OR LOW COST OPTIONS
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�ATTENDANCE FOR SUCCESS ACT�
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Prevention of absences
Early intervention
Specialized support
Accurate daily attendance
Graduation support if disrupted education
ROOT CAUSES OF CHRONIC AND EXCESSIVE ABSENTEEISM
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SUPPORTS RELATED TO ATTENDANCE
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TIMELY GRADUATION AND SUPPORT�NMSA § 22-12A-14
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ATTENDANCE FOR SUCCESS ACT RIGHTS
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AFSA AND RECORDS�NMSA 22-12A-14(B)
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PARTIAL CREDITS�NMSA § 22-12A-14(E); 6.30.18.10 NMAC
6.30.18.10 DETERMINATION OF PARTIAL CREDIT: An adjudicated or mobile student shall receive credit for any work completed prior to the transfer.
A. Public schools shall award up to a maximum of one credit as follows for courses:
(1) 0.25 credit when a student was enrolled anywhere between ten and twenty-five percent of the total course;
(2) 0.50 credit when a student was enrolled anywhere between twenty-six and fifty percent of the total course;
(3) 0.75 credit when a student was enrolled anywhere between fifty-one and seventy-five percent of the total course; or
(4) one credit when a student was enrolled anywhere between seventy-six and one hundred percent of the total course.
B. Public schools shall award up to a maximum of a half credit as follows for semester long courses:
(1) 0.25 credit when a student was enrolled anywhere between five and fifty percent of the total course; or
(2) 0.50 credit when a student was enrolled anywhere between fifty-one and one hundred percent of the total course.
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NEW MEXICO FOSTER CHILD BILL OF RIGHTS
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PERSONAL RIGHTS OF A CHILD IN AN OUT OF HOME TREATMENT OR HABILITATION PROGRAM
NMSA 32A-6A-12(A)(13) a free public education. The child shall be educated in regular classes with nondisabled children whenever appropriate. In no event shall a child be allowed to remain in an out-of-home treatment or habilitation program for more than ten days without receiving educational services. If the child's placement in an out-of-home treatment or habilitation program is required by an individualized education plan that conforms to the requirements of state and federal law, the sending school is responsible for the provision of education to the child. In all other situations, the local school district in which the out-of-home treatment or habilitation program is located is responsible for the provision of educational services to the child. Nothing in this subsection shall limit a child's right to public education under state, tribal or federal law
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QUESTIONS?
Thank you for the opportunity to talk with you about these important considerations for students in foster care!
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