Q&A From the Field

Special Education

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IDEA gives rights to the parent, not the student. In a situation like this where the parent’s rights have not been terminated or otherwise legally limited, and the parent is acting as a parent through the special education process, the school must follow the parent’s wishes for anything related to IEPs and special education services, or enter into a mediation/dispute situation. For other education issues, you would follow the McKinney-Vento Act, which recognizes the youth’s rights and actually requires the school to prioritize an unaccompanied youth’s wishes. This is an area where IDEA and the McKinney-Vento Act can clash.

You can be creative to try to support the youth while still following the parent’s wishes related to special education. For example, there’s nothing to prevent the school from providing the youth with additional services the youth wants and needs. On the other hand, I’m not sure what the consequences would be if you offer the youth the services on his IEP, and the youth just doesn’t participate. I’m certainly not advising you to violate IDEA or ignore the IEP. But given that the McKinney-Vento Act requires you to remove barriers to enrollment and retention in school for the unaccompanied youth, you definitely should try to accommodate the youth’s needs and wishes as much as you can without crossing the line under IDEA.

This document goes into more detail and may help, too.

Yes. The alternative school is the school in which the student was last enrolled, and the school the student attended when permanently housed. 42 USC §11432(g)(3)(I). The McKinney-Vento Act, and the definition of school of origin, apply regardless of accreditation. A school district placed the student at the alternative school through the IEP process, so it was considered the appropriate place to meet her special education needs. Many schools go in and out of accreditation and it doesn’t impact their McKinney-Vento status. Unless the district that created the IEP and placed the student revises the placement based on the school’s lack of accreditation, the placement stands.

Yes. The private school is the school of origin, and as long as it is in the student’s best interest to attend the school of origin, and it is what the parent wants, the student has the right to attend there. 42 USC §§11432(g)(3)(A)-(B). Given that the student’s IEP team placed the student there, both IDEA and the McKinney-Vento Act provide a strong presumption that the school is in the student’s best interest. Also, the district of origin and the district where the child is currently staying share the responsibility to provide transportation to the school of origin.

You could start by connecting with the Special Education Department, as the student has an IEP. It appears that his disability will prevent him from getting to school if no one is able to transport him from the apartment to the bus. Therefore, his IEP team probably needs to develop a solution, quickly. It would appear that specialized transportation, including some way to get the student up and down stairs, would have to be part of the child’s IEP, or else he won’t be able to benefit from a free, appropriate public education.

In addition, this barrier would also arguably have to be removed under the McKinney-Vento Act. It is a barrier to full participation in school, and it is clearly related to his homelessness. 42 U.S.C. 11432(g)(1)(I).

There are likely some accepted, careful ways to get a student in a wheelchair up and down a flight of stairs–methods that would be considered the standard for “reasonable care,” keeping the student safe, and helping protect the school district from liability. This is another reason to start with the special ed team, as they should have access to experts who can ensure the transportation is safe and appropriate. Whether this is part of an IEP or pursuant to McKinney-Vento, the school definitely will want to address it with reasonable care.

Yes. Parents and youth can bring advocates to IEP meetings, whether those advocates are professionals or simply friends.

In addition, the person with whom the youth is living may meet the definition of “parent” and be able to sign the youth’s IEP.  That depends on a number of factors that are explained in this publication from NASDSE.

We have some brand new federal guidance on that question.  It’s new Question J-12 of the McKinney-Vento Guidance update issued on March 3, 2017.

When crossing state lines, the allocation of transportation costs should follow the McKinney-Vento Act’s requirements, even for students with transportation as a related service on their IEPs. McKinney-Vento states that the 2 LEAs involved must “agree upon a method to apportion the responsibility and costs for providing the child or youth with transportation to and from the school of origin. If the local educational agencies are unable to agree upon such method, the responsibility and costs for transportation shall be shared equally.” 42 USC 11432(g)(1)(J)(iii)(II).

Therefore, the 2 LEAs can enter into any cost-sharing agreement they wish. In fact, the Guidance states that when an LEA is being reimbursed for a portion or all of the cost of providing transportation as a related service, or if McKinney-Vento or Title IA funds permit, the SEA may “recommend or offer that this LEA pay more than half of the cost.” In the absence of an agreement, the LEAs split the cost evenly.

The new Guidance also notes that “some States may have policies that further clarify how LEAs within that State must pay for transportation for homeless students with disabilities whose IEPs include transportation as a related service or require attendance at a particular school. These State policies must be consistent with all Federal laws and regulations. Therefore, such State policies may apply only to situations in which a homeless student moves from one LEA to another within that particular State and not when a student moves from an LEA in one State to an LEA in another State.”

So for inter-district issues within a state, you would look at how your state regulations allocate financial responsibility and follow those.

The mother retains her rights under IDEA even while the daughter is living somewhere else and they are not in touch. Unless a court intervenes to restrict the mother’s rights (which is extremely unlikely at this point), she remains the mother legally. If the school/district were to give IDEA rights to the grandmother or surrogate parent in the situation as you have described it, the district could be at risk of an administrative complaint or even lawsuit from the mother. Once the student turns 18, the rights transfer to her. Also, if after a reasonable period of time the mother is not responsive to the school’s requests to contact her regarding the student’s IEP, it could become appropriate for the school to appoint a surrogate parent. More details can be found here.

Yes. When a local educational agency does an IEP and places a student in a public or private school, school of origin applies.  So if a McKinney-Vento student was placed in a certain school last year due to special needs, and the student is still McKinney-Vento eligible this year, the student has the right to remain in that school (dependent upon the best interest of the student and the wishes of the parent, guardian or unaccompanied youth). It is the school of origin. The student also could enroll in a school in the attendance area where the student actually is living.  Usually, unless the distance is just too far, or there are health issues related to commuting, special needs students benefit from the stability the school of origin provides, and it is in their best interest to stay in the school of origin.

This is fairly complicated, but a step-by-step answer is available in this publication.

The U,S. Department of Education has emphasized that highly mobile children should have timely and expedited evaluations and eligibility determinations. The Department also has clarified that “once parental consent has been obtained for an initial evaluation to determine if the child needs special education and related services, the school district must not delay the completion of the evaluation because an RTI [Response to Intervention] process is pending. Rather, the school district must adhere to the relevant evaluation time frame described in 34 CFR 300.301, unless extended by mutual written agreement of the school district and the child’s parents.” July 19, 2013 letter from OSERS to State Directors of Special Education.

When students miss school or move frequently, it certainly can impact their achievement in ways that may raise concerns about a possible disability.  If a parent (or surrogate parent) requests an evaluation, that evaluation must move forward as quickly as possible, and certainly within regulatory time frames. As part of the special education evaluation and eligibility process, the special education team will determine whether the child’s difficulties are due to a disability or due to other factors such as mobility and attendance.

This is a good question, as it can be complicated under special education law and regulations. A detailed publication about this issue is available here.

The very short answer is that dad’s friend can make special education decisions, since he essentially meets the IDEA’s definition of “parent” at this point. Your district’s Designation of Responsible Adult form probably helps to make that official for education purposes.

A liaison should not make special education decisions, as it could be seen as a conflict of interest (a school district employee making decisions about costly special education services— you could see where the appearance of a potential conflict could arise). However, liaisons can function as “temporary surrogate parents”, just for unaccompanied youth, while the district goes about designating an appropriate surrogate parent.

No. That is not a correct interpretation of the Individuals with Disabilities Education Act (IDEA). School attendance patterns are important considerations when determining whether a student has a disability. LEAs cannot find a student eligible for special education “if the determinant factor for such determination is lack of appropriate instruction in reading… [or] lack of instruction in math….” 20 USC §1414(b)(5); 34 CFR §300.306. However, IDEA clearly states that such issues must be considered “upon completion of the administration of assessments and other evaluation measures.” 20 USC §1414(b)(4). They do not relieve the LEA of its statutory obligation to conduct an evaluation.

Therefore, although lack of instruction (absences) may be considered in determining eligibility for special education and related services, it is not a reason to refuse evaluation. The appropriate venue for that consideration is at the eligibility conference, once all assessments and evaluations have been completed.

There also is a letter from the Department of Education that touches on this issue in the context of Response to Intervention. The letter emphasizes that once a parent consents to an evaluation, it must not be delayed.

Yes. The school should work with the parent to start special education evaluations immediately. The Dept. of Education encourages expedited evaluations for McKinney-Vento students. See this letter. While evaluations are underway, the school can put appropriate interventions in place. Keeping the student out of school violates both the McKinney-Vento Act and the Individuals with Disabilities Education Act. Also, McKinney-Vento students can ride a special education bus even without being evaluated or determined eligible for special education yet. See this letter.