The role of the surrogate parent in education is to assure that a student in special education receives a free appropriate public education. The surrogate parent has the same rights and interests of the parent as defined through both state and federal regulations. There are regulations governing the identification, qualifications, and appointment of surrogate parents. The information in this packet outlines those regulations and how they are implemented in WashingtonState. It is based on the Individuals with Disabilities Education Act (IDEA) and the Washington Administrative Code (WAC) 392-172.
The following definitions are important in the discussion of surrogate parents and their role relating to special education:
- Adult Student is a special education student who is eighteen years of age or older and who has not been judged incapacitated by a court of law [WAC 392-172-035 (4)].
- Special Education Student is any student, enrolled in school or not, (i) who has a disability, (ii) whose disability adversely affects his/her educational performance, (iii) and who is in need of specially designed instruction [WAC 392-172-035 (2)].
- Parent is a natural or adoptive parent, a guardian, an adult person acting as a parent, or a surrogate parent. The term includes a person acting in the place of a parent, such as a grandparent or stepparent with whom the student lives, as well as persons who are legally responsible for the student’s welfare. The state cannot be a surrogate parent, if the student is a ward of the state. A foster parent is considered the parent if he/she has been appointed as the surrogate parent [WAC 392-172-035 (5)].
- Permanent Ward of the Court is a student, whose parents have had their parental rights terminated in court.
- Surrogate Parent is an individual appointed by the school district or other public agency providing special education to a non-adult student to assure that his/her rights are protected, when the parent cannot be identified, cannot be found or parental rights have been terminated.
WHICH STUDENTS NEED SURROGATE PARENTS?
All non-adult special education students have the right to be represented by a parent or guardian throughout the decision-making process. If a parent or legal guardian is not available, cannot be found, or parental rights have been terminated, then the school district, or public agency providing special education, must appoint a surrogate parent. More specifically, the district or agency must assign a surrogate parent when:
- The student needs, or is suspected of needing, special education and related services because of his/her disability; and
- The student is between the ages of 3 and 18; and
- The student is without a parent to represent him/her when decisions are being made regarding identification, evaluation, program, and placement. Students who fall into any one or more of the following categories are considered to be without parent representation:
- Students whose parents are unknown or cannot be identified;
- Students whose parents are unavailable or cannot be located;
- Students who are permanent wards of the court.
Adult students (those who are ages 18 – 21) must be legally declared incompetent before a surrogate parent can be assigned to them by the school district. If a student is not legally declared incompetent, (s)he may represent him/herself or request surrogate parent representation.
Students who need surrogate parents generally live in one of the following places:
- Foster homes
- Nursing homes
- Public or private group homes
- State hospitals
- Correctional facilities
Most of the students with disabilities who live in one of these five types of places attend public school programs within their local communities. Some, however, attend school in the group home, or on the state hospital or correctional facility grounds. Either way, any special education student who meets the criteria stated above must be assigned a surrogate parent.
What does it mean to say that the student’s parent is unknown or cannot be identified?
A student’s parents are considered to be unknown if their identity cannot be determined from a thorough review of the student’s educational and other agency records.
A student with a disability who is not represented by a parent, guardian, or someone acting as a parent must be assigned a surrogate parent for all decision-making within special education. Because the regulations specifically prohibit the State or an employee of a state agency from qualifying as a parent, students for whom the State or a state agency is acting as a guardian will require the assignment of a surrogate parent. If a private individual, such as a neighbor or friend with explicit written approval of the student’s parent or guardian, is caring for the student, the appointment of a surrogate parent would not be required.
The term guardian refers to private individuals who have been given the legal custody of a child by an appropriate court. If the individual has been granted full guardianship (s)he is considered to be the student’s parent and a surrogate parent appointment is not required. In some cases, a state agency may have full guardianship of a student with a disability. In this case, the student requires the assignment of a surrogate parent. If the court has assigned only limited guardianship of a student with a disability to an individual or state agency, it will be necessary to clarify in writing who will be acting on the student’s behalf. The guardianship papers should state exactly what is covered by the guardianship.
In cases where the administrator of an institution is also the legal guardian for a student, a surrogate parent must be appointed. No student can be represented in the educational decision-making process by an employee of any public agency involved in the education or care of that student due to a possible conflict of interest.
Foster parents are considered as “a person acting as a parent” and therefore can serve as surrogate parents. Because they are only reimbursed for their services, they are not considered employees of the state or placement agency. They need to be appointed as the surrogate parent by the school district, unless they are the legal guardians of the student.
What does it mean to say the student’s parents are unavailable?
A student’s parents are considered to be unavailable if they cannot be located even after the school district or educational agency has exerted a reasonable effort to locate them. A reasonable effort includes some combination of the following: documented telephone calls, letters, certified letters with return receipts, visits to the parents’ last know address, or agency records that clearly indicate the enactment of a court order which terminates parental rights.
A certified letter from the school district should include a description of parents’ rights in the special education decision-making process and a form allowing the parent to state his/her availability to represent the interests of the student. The certified letter is one appropriate method for this process. It should be used together with other methods mentioned previously, because some people will not sign for a certified letter.
A parent is also considered to be unavailable if (s)he is unable to participate in the student’s program for reasons such as distance or incarceration. If the parent lives outside of the school district where the student attends program (e.g. the student who is placed in a residential treatment center and parental rights have not been terminated), the school or educational agency should attempt to contact the parents with the help of their home school district to determine their availability. If these parents choose to surrender their education rights and responsibilities to a surrogate parent, such authorization should be in writing. If a parent is too ill to participate at a meeting, either in person or by phone, that parent has the option of giving another individual the ability to act for them. This should be done in writing.
An uncooperative or uninvolved parent is not the same as an unavailable one. A surrogate parent cannot be assigned to a student whose parents have chosen not to participate in his/her educational program unless the school or educational agency can document that the parents are, in fact, unavailable or that their parental rights have been terminated. It is also necessary for the school or educational agency to show that they have made the required attempts to involve the parents and they have chosen to be uncooperative or uninvolved.
When is the student a permanent ward of the court?
A student is considered a permanent ward of the court if parental rights have been terminated through a judicial process. This judicial process is called a dependency hearing. Parental rights are terminated for a number of reasons, as stated in RCW 13.34. Once parental rights have been terminated and the student becomes a permanent ward of the court, a surrogate parent must be appointed by the school or educational agency.
What is the duty of the school or educational agency?
It is the responsibility of the local education agency to identify students who are in need of a surrogate parent appointment. Assistance in identifying students in need of surrogate parents can also be sought from the care facility or agency responsible for the student, such as the Department of Social and Health Services, the Department of Corrections, or the Division of Mental Health
WHO CAN BE A SURROGATE PARENT?
A person, recruited as a surrogate parent, must have the following qualifications:
- Be an adult 18 or over;
- Have no vested interest that conflicts with the student’s educational interests;
- Be committed to learning about the child’s educational needs and about the special education system in which the child is enrolled; and
- Have knowledge, special training, and skills to insure adequate representation of the child.
Currently, the State of Washington states that the following individuals are considered the parent and do not need to be appointed as a surrogate parent: natural or adoptive parent, guardian or an adult acting as a parent. It also clearly notes that a foster parent can be included if (s)he is appointed as the surrogate parent. [WAC 392-172A-035(5)] It is important that the foster parent tells the school or educational agency if (s)he is the guardian of the student or needs to be appointed as the surrogate parent.
Depending on the child’s status and other circumstances in his/her life, an eligible child is assigned a surrogate parent from one of the following three categories of people:
- Foster Parents – If the child lives in a foster home and you are his/her foster parent, you are eligible to be appointed as his/her educational surrogate parent also, as long as you meet the qualifications and would like to serve in this role. You should be appointed as the surrogate parent in order to have the rights and responsibilities involved.
- Volunteers – For children who do not live in foster homes, volunteers are recruited from the community in which the child lives. If you are a volunteer serving as a surrogate parent and you meet the above qualifications, you will most likely be assigned to a child who lives in a nursing home, group home, state hospital or correctional facility.
- 3. Parents, Legal Guardians, or other family members – Some children with disabilities are permanent wards of the court but have parents or guardians and other family members who are able and would like to be involved in their special education programs. In these cases, the child’s parents or guardians or other family members may be assigned as his/her surrogate parents. Once again, if you fit into this category, you must meet the qualifications and you should be appointed as your child’s surrogate parent.
In addition, a surrogate parent cannot be an employee of the Office of the Superintendent of Public Instruction, a local education agency, nor a public institution involved in the education of the child or any public agency involved with the care of the child. For example, a special education teacher cannot be a surrogate parent for a student in his/her classroom. There could be concern that the school district (the teacher’s employer) may recommend one thing for the student and the teacher may feel the student needs something else. If this happened, the surrogate parent (teacher) might feel obligated to accept the district’s recommendation. A special education teacher could be a surrogate parent for a child in another district, but the potential conflict of interest issue must be carefully discussed beforehand.
For the same reason, surrogate parents cannot be employees of the state or any local government, or public educational or human resources agency responsible for or involved in the education or care of the child. For example, DSHS caseworkers and juvenile justice officers cannot be surrogate parents since they are governmental employees. However, if surrogate parents are paid for their services, they are not to be considered employees of the state or other agency solely because they are paid by the agency to serve as surrogate parents.
Other considerations for matching a surrogate parent with a student include:
- A relative who is familiar with the student’s background and needs, and who is willing to complete the required training, should be given the option of being appointed the student’s surrogate parent.
- The surrogate parent must be committed to becoming thoroughly acquainted with the student and his/her educational needs. In other words, in addition to the required knowledge of special education, the surrogate parent must be willing to devote sufficient time to adequately represent the student. Most surrogate parents will not have more than one or two students assigned to them to allow adequate time for appropriate representation. By agreeing to be a surrogate parent, you are not obligated to accept every assignment requested of you.
- The surrogate parent should be of the same racial, cultural, and linguistic background as the student. The surrogate parent should be able to communicate with the student in his/her primary language and share some of the same cultural values in order to fully understand the student.
- The surrogate parent should reside in the same geographical area as the student. Obviously, the surrogate parent needs to be accessible to both the student and the school; geographic proximity will minimize the problem of accessibility.
SURROGATE PARENT TRAINING
According to IDEA and WAC 392-172-308(3) (b), the school district shall assure that a person appointed as a surrogate parent has knowledge and skills that assure adequate representation of the student. Since there are no other guidelines, procedures for “…assuring that the person chosen as surrogate have adequate knowledge and skills…” vary widely. In general, surrogate parents should be familiar with the State and Federal special education regulations, rights and responsibilities of surrogate parents, the educational decision-making process, and procedural safeguards. Surrogate parents should also be familiar with the nature of the student’s disability.
Some volunteers may not need to participate in a formal training process. Comparable experience in lieu of training may include one of the following:
- Valid State Board of Education certification in the area of special education;
- Completion of at least six (6) hours of college level courses in special education within the last three (3) years;
- Attendance at a minimum of five (5) hours of parent training/inservice training workshops on special education and parents’ rights within the last three (3) years;
- Parent of a student who has received special education services for at least one (1) year; and/or
- Other appropriate training or experiences as determined on an individual basis.
Whether formally trained or not, appointed surrogate parents may also require one-to-one information/assistance as they learn about their assigned students and the educational programs being provided for them. This assistance is important since no surrogate parent can be expected to know all details about special education and the many different disabilities that could affect students. The student’s teacher, school principal, special education administrator, and Educational Service District (ESD) special education personnel can all be resources in this regard.
Currently, classes are available from Washington PAVE, which would satisfy the training requirements to become a surrogate parent.
RIGHTS AND RESPONSIBILITIES OF A SURROGATE PARENT
Being a surrogate parent involves many rights and responsibilities as far as the student’s special education needs and services are concerned. However, unless you are also the child’s foster parents, you only have responsibility for representing the child when decisions about his/her educational program are being made. You do not have a commitment for the child’s care and financial support.
Surrogate Parent Rights
A surrogate represents the student in all matters relating to the identification, evaluation, educational placement of the student and the provision of a Free, Appropriate, Public Education (FAPE) to the student [WAC 392-172-308(5)].
By law, you have the same rights that biological parents or guardians have in the educational process, including the right:
- To a free appropriate public education for your student in accordance with an individualized education program (IEP);
- To inspect and have a copy of all records with regard to your student’s educational program;
- To request changes if inaccurate or inappropriate information is contained in your student’s records;
- To appropriate and nondiscriminatory educational assessment for your student in his/her primary language;
- To be fully informed about the evaluation procedures, tests and all results;
- To give informed consent for the initial evaluation and/or re-evaluation of your student;
- To seek an independent educational evaluation of your student if you think the school’s evaluation methods and/or results were inappropriate;
- To participate fully in the planning of your student’s individualized education program;
- To know about the special education services available for your student;
- To have your student educated with his/her non-disabled peers, if appropriate;
- To question the appropriateness of your student’s educational program;
- To decide if a proposed special education placement is appropriate for your student;
- To talk with the people involved in your student’s education and to receive regular progress reports and other communications routinely given to parents;
- To give informed consent before any major change is made in your student’s educational placement;
- To call for a parent/school conference, new evaluation, or planning meeting whenever necessary;
- To have people attend any school meeting with you and to ask your student to attend, if appropriate;
- To be notified in writing when:
- Your student has been referred for an evaluation;
- Your student will be tested;
- A change in placement is being considered;
- A change in your student’s educational plan is being considered; or
- An educational planning meeting is called.
- To be informed of and initiate due process procedures; and
- To participate as an equal partner with school personnel in planning your student’s individualized education program.
Remember, these are the same rights that all parents have in the special education process. If you ever hear the term “parents’ rights”, this also refers to “surrogate parents’ rights”. In the long run, the real goal is student’s rights.
Surrogate Parent Responsibilities
As a surrogate parent, you have the responsibility to act on behalf of your child to make sure that (s)/he receives an education designed specifically to meet his/her needs and abilities. In order to do this, you will:
- Know your rights as a surrogate parent and be prepared to participate actively;
- Review the last evaluation done on your child and request copies of the results. Make sure the evaluation is current and complete. Ask for an explanation of the results if anything is unclear.
- Review your child’s last individualized education program and prepare to participate in developing his/her next one. Investigate other school programs and placements, if appropriate.
- Attend all parent/school meetings and conferences to plan and/or review your child’s educational program. Make specific requests for services if necessary. Set up a regular means for communication with the school. If appropriate, invite your caseworker to attend these meetings with you. If he/she doesn’t attend, communicate the results of the meetings to him/her.
- Make a decision regarding consent for your child’s placement into an education program. Approve or disapprove the program that you have helped to develop.
Working for Change
If you feel that your child’s educational program is not appropriate or is not being followed, you may need to work for change through one or more of the following procedures:
- Talk with your child’s teachers, therapists, principal, etc. Try to resolve any problems at this level first.
- Request that another educational planning meeting be held to discuss specific issues and concerns. Look over other school programs and services, if necessary.
- Write a letter to request a meeting with the director of special education for your school district.
- Initiate complaint, mediation or due process fair hearing procedures.
Under the regulations of the Family Education Rights and Privacy Act (FERPA), as well as IDEA and WACs, it is your responsibility to keep confidential any information that you gather from your child’s records and from talking with teachers and others involved in his/her education. Because you will be asked to share some of this information with school and agency people, you must be able to use discretion and report only the information that is pertinent to the planning and implementation of your child’s educational program. Surrogate parents are not given access to all of the personally identifiable data about the child’s family or background.
If your choose not to continue as a surrogate parent or if your child is no longer eligible for a surrogate parent, you will be asked to return copies of the educational records and all other written information that you have collected while you were assigned.
LIMITATIONS OF THE SURROGATE PARENT
The surrogate parent has no authority or responsibility for the care, maintenance, or financial support of the student. While the surrogate parent may participate with the an agency in the discussion of appropriate foster or group home placement for the student, the surrogate parent has no authority or responsibility to approve a non-educational placement in such a home. The surrogate parent, as appointed by the school district, only makes decisions regarding the provision of a free appropriate program for the student.
The role of a surrogate parent may be somewhat different when assigned to a student with a disability who is between the ages of 18 and 21. According to IDEA, all students with disabilities between the ages of 3 and 21 must be afforded all of the procedural safeguards that are spelled out in the regulations, including the assignment of a surrogate parent if they meet the eligibility criteria. Students age 18 and over who have been determined incompetent by a court of law, continue to require the assignment of a surrogate parent for educational decision-making purposes.
There is currently no guarantee that attempts will never be made to hold surrogate parents liable for their actions. However, it is highly unlikely that they could be held liable for any decisions about the student that were made in good faith. Therefore, their only liability would be for gross misconduct or willful negligence, which is improbable as long as they can demonstrate their “knowledge and skills” and are “acting in good faith”.
Likewise, school districts who, “in good faith”, implement a sound surrogate parent program are unlikely to be held liable for their actions in this regard. There is far greater liability in either failure to implement a program or failure to assign a surrogate parent to an eligible student when needed.
QUESTIONS AND ANSWERS
Why can’t the school or public care facility take care of being the surrogate parent?
In the past, the school and the public agency legally responsible for the child made the educational decision about students in special education. There were two main problems with this: 1) neither party could be completely objective in representing the child’s needs; and 2) neither party could spend time learning all that was necessary about one child. A surrogate parent is not bound by either of these constraints.
Must a foster parent become the surrogate parent for a special education student in his/her care?
As previously stated, unless the foster parent is the legal guardian of the student, then he/she would have to be appointed as the surrogate parent in order to make educational decisions. In this situation the foster parent must meet all the qualifications ser forth for all surrogate parents.
However, not every foster parent must be the surrogate parent for his/her child in special education. The foster parent may not want to be the surrogate parent because of time constraints, short-term placement, or many other reasons. In these situations, the school district must appoint a surrogate parent.
How much time does it take to be a surrogate parent?
By becoming a surrogate parent, you are assuming responsibility for giving parent input at all educational planning meetings and for monitoring your child’s program. At a minimum, each year this includes attending an annual IEP review meeting and 2 or 3 parent/teacher meetings. It may also include meetings with social workers and others at the child’s place of residence. Although the amount of time you spend will vary with the needs of your particular child, the job usually involves a minimum of 5 meetings and visits to the school and residence each year.
Do I have a choice about the child to whom I’m assigned?
Yes. You may accept or refuse an assignment to a child with a special disability, of a certain age group, etc. For example, you may already have a good understanding about a certain disability, have been involved with a school and its operation, or have background information that would be of benefit when serving as a surrogate parent for a particular child but not another.
What if a student over the age of 18 needs a surrogate parent?
Students between the ages of 18 and 21 who have been declared incompetent in court are assigned a surrogate parent who has all of the rights and responsibilities of any surrogate parent. For students who haven’t been declared incompetent, the services of a surrogate parent “advisor” could be offered – someone who will help make decisions but the final say rests with the student. If you are serving as an “advisor”, remember that the student also has the right to control access to his/her own educational records.
Who has the final say about my child’s educational program? What is the role of the child’s caseworker, hospital superintendent, etc?
As a surrogate parent, you are the person who has been officially designated to work with the school in planning and monitoring your child’s school program. Although caseworkers, other public agency social workers, care facility personnel and others will (and should) continue to be involved with your child’s special education program, it is your role to assure that the student receives an appropriate program.
What should/shouldn’t I sign?
As a surrogate parent, you will sign all forms relating to your child’s special education. This will include evaluation, IEP, and placement forms. You should not sign for anything for which you could be held liable such as permission for driver’s education, school fees, field trips, etc.
How often can I visit my child’s classroom?
As often as is necessary. You may need to visit your child’s classroom several times in order to get to know him/her and start to develop a profile of his/her needs and abilities. You will also need to visit during the year in order to monitor how the program is working. You should feel free to visit at other times as well. Make sure that you go through the necessary steps to set up each visit by contacting the teacher or principal. (Check to see what the procedure is in your child’s school.) If you would like to talk with any therapists that work with your child, make separate appointments to see them as well.
Is it okay to get more involved with my child than just participating in his/her school program?
Some volunteer surrogate parents choose to become more involved: by visiting the child at home, taking the child on outings, etc. This is a decision that needs to be made jointly by you and the personnel at your child’s home, who may or may not feel that this additional involvement would be beneficial to the child. Remember though, you can be a very effective surrogate parent even if you choose not to become involved outside the area of education. As a surrogate parent, your only obligation to the child is in the area of special education.
Can I be held liable if I make a wrong decision about my child?
Currently, there is no legislation that specifically protects surrogate parents from being held liable. However, you have been appointed as a surrogate parent under the guidelines of federal and state law. Unless your actions are grossly negligent, it is highly unlikely that you could be held liable for any decisions that you make in the best interests of your child.
How much do I need to know about my child’s disability? How can I learn more about it?
You can be a very effective surrogate without knowing a lot about your child’s disability, provided that you know a lot about your child. However, it may be helpful for you to learn about some of the special needs that children with certain disabilities often have. Ask your child’s teacher for materials or contact the appropriate state and national organization. The internet is often a good source of information, especially the sites maintained by disability support groups. Your public library may also be useful. NICHCY (the NationalInformationCenter for Children and Youth with Disabilities) has packets of written information about disabilities that have been written especially for parents.
Will the school be evaluating my activities as a surrogate parent?
Schools are responsible for monitoring the activities of each surrogate parent to make sure he/she is doing his/her job. They may do this in written form or verbally by talking with teachers and others who have been in contact with you. The school will use this information to help decide whether or not to reassign you each year.
What if I have a question after I’m assigned as a surrogate parent? Whom do I ask?
Start by asking your child’s teacher, therapist, principal, etc. They can probably answer most of your questions. You can also contact the Parent Training Project of Washington PAVE, the federally funded parent training and information center for the state of Washington.
What if the school terminates my surrogate parent assignment?
There are several reasons that the school may discontinue your assignment:
- the child changes schools;
- the child reaches age 18;
- the child’s status changes and he/she is no longer eligible for a surrogate parent; or
- the school feels that you have not done a adequate job as a surrogate parent.
If you feel that your assignment was unfairly discontinued, you may file a complaint with the Office of the Superintendent of Public Instruction, Special Education Operations. Call PAVE if you need more information.
As a volunteer surrogate parent, what is my role at my child’s place of residence?
As a surrogate parent you legally have “control” only over educational decisions about your child. You do not have the authority to make decisions about services that your child receives at his/her residence. It is important, however, to talk with all persons involved with your child, especially in his/her home environment, in order to get a full picture of the child’s strengths and needs. Make sure that social workers and others at the residence understand your role as a surrogate parent and strive to attain their cooperation in securing an appropriate educational program for your child.
The PAVE Parent Training and Information Program may include information on State or Federal laws regarding the rights of individuals with disabilities. While this is provided to inform or make one aware of these rights, legal definitions, or laws/regulations, it is not providing legal representation or legal advice. The recipient understands that this is information is to educate them not to provide them with legal representation.