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Printed on: 07/31/2021
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Printed on: 07/31/2021
Please always refer to the online version for the most current up-to-date information.
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Chapter 9: Information on Interagency Services (AB 3632)
(9.1) What are interagency related services?
Interagency related services for special education are sometimes referred to as Assembly Bill (AB) 3632 services or Government Code Chapter 26.5 services. The most common name for these services, AB 3632, is the name that will be used in this chapter to refer to any of the interagency-related services. In 1986, the California Legislature decided to use state and county agencies — other than the school district — to provide certain related services to maximize and better coordinate public resources to support students with disabilities.
Rather than have districts responsible for certain health services, the Legislature decided to enter into interagency agreements with other state agencies to provide services to students. The primary interagency related services are physical and occupational therapy (PT/OT), which are offered by California Children’s Services (CCS).
(9.2) The county Community Mental Health agency used to provide outpatient mental health therapy, day treatment placements and residential placement services under AB 3632. Who is responsible for those services now?
Until October 2010, the scope of AB 3632 services also included mental health services through County Mental Health (CMH) agencies. These services are no longer provided through AB 3632. The school district is responsible for assessment and provision of special education services such as education in a small mental health setting or residential treatment setting and services and related services (or designated instruction and services in California law) such as psychological services, when they are necessary for a child to benefit from her special education. Some school districts have developed interagency agreements with county mental health agencies so that CMH can continue to provide outpatient mental health therapy and day treatment services through the IEP process. Contact your school district to ask how such services are provided in your district and county. See Chapter 5, Information on Related Services.
(9.3) Where can I find the laws for interagency related services?
The laws are contained in California Government Code (Cal. Gov. Code) Sections (Secs.) 7570 - 7588, and in Title 2 of the California Code of Regulations (C.C.R.) Sections 60000-60610. In addition, school districts are required to develop interagency agreements with local CCS agencies. These agreements must contain the details necessary to facilitate provision of services. Parents and advocates having difficulty accessing services should get a copy of the interagency agreement. Interagency agreements cannot be inconsistent with state or federal law — nor provide any less in the way of services.
(9.4) Is AB 3632 the only way a California special education student can receive occupational or physical therapy?
No. School districts are responsible for providing these related services if not provided by other agencies and are needed in order for a student to benefit from special education. Districts cannot refuse to include services in an IEP just because a funding source has not been identified. [Cal. Gov. Code Sec.
7572(c).] AB 3632 specifically states that when CCS finds OT/PT services are not needed for medical reasons, those services must be provided by the local school if the services are necessary for the child to benefit from special education. [Cal. Gov. Code Sec. 7575(a)(2).] When CCS agencies will not provide OT/PT services because of their own rules or eligibility requirements, these services must be provided by school districts if they are necessary for a child to benefit from special education. [34 C.F.R. Sec. 300.34(a); Cal. Ed. Code Sec. 56031.] OT/PT are, and have always been, listed among the special education related services available under state law [Cal. Ed. Code Secs. 56363(b)(6) & (10)] and federal law [34 C.F.R. Secs. 300.34(c)(6)(9) & (10)] when they are necessary for educational reasons.
If other agencies that are supposed to provide these services stop providing them for any reason, the school district must assume responsibility. [20 U.S.C. Sec.
1412(a)(12)(B)(ii).] In addition, federal law requires that during periods of disputes over services that a non-educational agency had been providing, the state must ensure that the services continue. [20 U.S.C. Sec. 1412(a)(12)(A).] You should always try to have these services identified in the IEP as educationally necessary — or necessary for a student to benefit from special education. It is ultimately the responsibility of the Superintendent of Public Instruction to ensure that state interagency services are carried out. [Gov. Code Sec. 7570.]
For any of these related services, a parent may always obtain and submit an independent evaluation to the school district. It must be considered by the IEP team. [Gov. Code Sec. 7572(d)(2).] For information on how to obtain an independent evaluation at public expense, see Chapter 2, Information on Evaluations/Assessments.
(9.5) How do school districts participate in this process when other agencies are involved in providing services?
After referral by the IEP team, the appropriate CCS agency conducts an assessment in accordance with the special education timelines required under state and federal law. When the assessment is completed, the district holds an IEP meeting for the student. The school district should invite the representatives of CCS to attend so they can explain assessment results and discuss service needs. If the other agency representative cannot attend in person, the representative must provide a written recommendation concerning the need for the service. Conference calls, together with written recommendations, are acceptable forms of participation. If the other agency cannot participate, the district must provide a qualified substitute to explain and interpret the assessment. [Cal. Gov. Code Sec. 7572(d).] The district must adopt the recommendations of the CCS representative. [Cal. Gov. Code Secs. 7572(c)(1) & (2).]
(9.6) If CCS conducts an assessment, what should be included in the written report?
Non-educational agencies must follow the same federal and state special education laws, procedures and timelines and assessment timelines as school districts. California Education Code Section 56327 sets out requirements for special education assessment reports. It requires that the assessment report shall include, but it is not limited to, all of the following:
- Whether the student may need special education and related services;
- The basis for making the determination;
- The relevant behavior noted during the observation of the student in an appropriate setting;
- The relationship of that behavior to the student’s academic and social functioning;
- The educationally relevant health and development and medical findings, if any;
- For students with learning disabilities, whether there is such a discrepancy between achievement and ability that cannot be corrected without special education and related services;
- A determination concerning the effects of environmental, cultural, or economic disadvantage, where appropriate; and
- The need for specialized services, materials, and equipment for students with low incidence disabilities.
Not all of these factors will be appropriate to include in AB 3632 assessments for related services and reports prepared by CCS. The CCS report must be based on the student’s individual needs. See Chapter 2, Information on Evaluations/Assessments.
(9.7) How does CCS participate in the development of a child’s IEP?
CCS must review and discuss assessment results with the parent and appropriate members of the IEP team before the IEP meeting. If there is disagreement between the parent and CCS about that recommendation, the parent shall be notified in writing and can require that the person who conducted the evaluation attend the IEP meeting. [Cal. Gov. Code Sec.7572(d)(1).] Similarly, if a parent obtains an independent evaluation, that evaluation must be considered by the person conducting the CCS evaluation. The person who reviewed the independent assessment can also be required to attend the IEP meeting if requested by the parent. [Cal. Gov. Code Sec. 7572(c)(2).]
(9.8) Do the special education due process and compliance complaint procedures apply to disagreements or problems with CCS?
Disagreements between you and CCS concerning your child’s eligibility for the CCS’s services (or the amount or kind of services offered by the CCS), may be resolved through the special education due process system. [Cal. Gov. Code Secs. 7572(c)(3) & 7586(a).] All due process hearing requests shall result in one hearing with all responsible state or local agencies joined as parties. [Cal. Gov. Code Sec. 7586(c).]
For failures of the non-educational agency to comply with interagency regulations or to provide services specified in a student’s IEP, you can use the Compliance Complaint process. [2 C.C.R. Sec. 60560; 5 C.C.R. Sec. 4650(a)(7)(D).] See Chapter 6, Information on Due Process/Compliance Procedures.
In addition, when a service listed in your child’s IEP is not being provided because of a dispute about which agency should provide or pay for the service, you can file a notification of that failure to provide the service with either the Superintendent of Public Instruction or with the Secretary of the Health and Human Services Agency. [Cal. Gov. Code Sec. 7585.]
Superintendent of Public Instruction California Department of Education
1430 N Street
Sacramento, CA 95814
Secretary of the California Health and Human Services Agency
1600 Ninth Street, Room 460
Sacramento, CA 95814
You should give the school district a written notification of a failure to provide services in your child’s IEP. In your letter, be specific about which service has not been provided to your child. Enclose a copy of the IEP (or mediation agreement or due process hearing decision) with the notification of failure. When either agency receives the notification, it must transmit it to the other agency and the two must meet within 15 days to resolve the issue. You must receive a written resolution within 10 days of that meeting. If you are not satisfied with that resolution, you can appeal to the Director of the Office of Administrative Hearings (OAH).
If the agencies cannot resolve the issue, they must submit their dispute to the Director of OAH. The Director has 30 days to issue a decision that is binding on all parties. If your child has been receiving services from one of the agencies at the time you file your notification, the services must continue pending resolution of the dispute. [Cal. Gov. Code Sec. 7585; 2 C.C.R. Secs. 60600 & 60610.] The entire process must be completed within 60 days from receipt of notification by either agency. When the service is included in the IEP without the recommendation of the non-educational agency, the dispute is only between you and the school district. The above notification process cannot be used. Instead, you must use the Compliance Complaint process discussed above.
(9.9) Can a non-education agency (CCS) change a service written into my child’s IEP without obtaining my consent?
No. Your written consent is required before your child’s services can be changed or stopped. An IEP meeting must be held in order to change or stop services contained in a signed IEP. [Cal. Ed. Code Sec. 56343(b).] In addition, federal law requires that a public agency (including a school district or CCS) must give a reasonable notice before it proposes to initiate or change the identification, evaluation, or educational placement of your child, or the provision of a “free appropriate public education” or FAPE (including related services). [34 C.F.R. Sec. 300.2.] The “prior written notice” must:
- Describe the action the agency proposes to take and why it is taking that action;
- Describe what alternatives were considered and why they were rejected;
- Provide a description of each evaluation, procedure, test, record or report on which the proposed action is based; and,
- Provide a description of your right to challenge the proposed action which may include reduction or termination of a service. [34 C.F.R. Secs. 300.503 & 300.504.]
Any proposed change of services is then subject to the IEP process and due process procedures if necessary. While due process procedures are pending, your child must continue to receive the services that were being provided before the proposed change. [20 U.S.C. Sec. 1415(j); 34 C.F.R. Sec. 300.518(a); Cal. Ed. Code Sec. 56505(d).] See Chapter 4, Information on IEP Process.
(9.10) Which students receive their occupational or physical therapy services from CCS?
If, after a district has evaluated a student, an IEP team suspects she may need occupational or physical therapy for both medical and educational reasons, the team will likely refer her to CCS for an OT or PT assessment. [Cal. Gov. Code Secs. 7572(a) & 7575(a)(1).] Only students who are found to need one of these therapies for medical reasons will receive the services from CCS. If the IEP team does not think there is a medical need for therapy or if CCS does not believe the student needs therapy for medical reasons, the student will receive therapy from the district if it is educationally necessary. Both CCS and the school district must conduct appropriate assessments prior to recommending or rejecting OT/PT services. [Cal. Gov. Code Sec. 7575(a)(2).]
Medical necessity means that the therapy is needed to achieve or prevent further loss of functional skills or reduce the incidence and severity of physical disability. [2 C.C.R. Sec. 60300(n).] In addition to having a medical need for therapy, your child must also meet CCS medical condition eligibility requirements. The most common conditions for special education students are: cerebral palsy, neuromuscular diseases that produce muscle weakness and atrophy, such as poliomyelitis, myasthenias, and muscular dystrophy, and chronic musculoskeletal diseases, deformities or injuries, such as osteogenesis imperfecta, arthrogryposis, rheumatoid arthritis, amputation, and contractures resulting from burns. [2 C.C.R. Sec. 60300(j).] Other conditions eligible for OT or PT treatment by CCS are listed in the regulations. [22 C.C.R. Secs. 41515.1 and following.]
The CCS assessment focus will be on addressing functional life skill deficits or physical limitations, not necessarily on academic or other educational tasks. For some special education students these skills and tasks may often overlap. It is important to first assess and, then, discuss these overlapping skills in an IEP meeting so appropriate annual goals and objectives/benchmarks can be developed by the IEP team including CCS.
Federal and state special education laws have broader eligibility criteria for OT/PT than CCS. Under the so-called “educational necessity” standard, OT/PT shall be provided when required to help a student “benefit from special education.” [34
C.F.R. Sec. 300.34(a).] Physical therapy is simply defined by federal law as services provided by a qualified physical therapist. [34 C.F.R. Sec. 300.34(c)(9).] Occupational therapy is defined by federal law as services provided by a qualified occupational therapist and includes improving, developing or restoring functions impaired or lost through illness, injury, or deprivation; improving ability to perform tasks for independent functioning if functions are impaired or lost; and preventing, through early intervention, initial or further impairment or loss of function. [34 C.F.R. Sec. 300.34(c)(6).]
(9.11) What are the interagency services a student might receive from CCS?
CCS services include: 1) Treatment — individual or group occupational or physical therapy; 2) Consultation — occupational or physical therapist provides information and instruction to parents, caregivers, school staff, or other medical service providers regarding therapy activities; and 3) Monitoring — regular re- evaluation of the student’s physical status and review of the therapy activities provided by parents and school staff, and updating of the therapy plan. [2 C.C.R. Sec. 60300(k).]
(9.12) How can my child get CCS referral, assessment and services?
Once a referral is made to CCS by an IEP team, CCS must determine if the student is eligible for CCS services and, if eligible, CCS must follow special education assessment procedures and timelines. If CCS finds he is ineligible, the CCS evaluation process stops. However, the school district is then required to assess a student to determine if services are needed for educational purposes.
If the therapy assessment determines your child needs CCS program services, the agency prepares a report and a therapy plan for discussion at an IEP team meeting.
The report and plan must include the following information:
- Statement of your child’s present level of functional performance;
- The proposed functional goals to achieve a measurable change in function or recommendations for services to prevent loss of present function and documentation of progress to date;
- Specific related services required by your child, including the type of therapy, intervention, treatment, consultation, and monitoring;
- Proposed initiation, frequency, and duration of the services; and,
- Proposed date of medical evaluation. [2 C.C.R. Sec. 60325(a).]
The district then convenes an IEP meeting. If the parent agrees with the CCS report and therapy plan, the CCS recommended services will be included in an IEP. In addition, the team will write IEP goals related to the activities identified in the report. [2 C.C.R. Sec. 60325.] The service initiation date, frequency, location, and duration must also be written into the IEP. [20 U.S.C. Sec. 1414(d)(1)(A)(i)(VII); 34 C.F.R. Sec. 300.320(a)(7); Cal. Ed. Code 56345(a)(7).]
If CCS determines that your child does not need OT or PT for medical reasons, it must provide you and the district a copy of the assessment report which explains the reasons for that determination. [2 C.C.R. Sec. 60320(i).] In addition, CCS must give you five days written notice of any decision to increase, decrease, stop, or change the services and an IEP meeting must then be held. [2 C.C.R. Sec. 60325(c).]
If you obtain a private physician’s referral of a child for a therapy assessment, any private referral must contain the following information:
- The diagnosed neuromuscular, musculoskeletal, or physically disabling condition;
- The referring physician’s treatment goals and objectives;
- The basis for determining those goals and objectives, including how they will improve or ameliorate the student’s condition;
- The relationship between the student’s medical condition to his need for special education and related services; and
- Any relevant medical records. [Cal. Gov. Code Sec. 7575(b).]
(9.13) Can children with disabilities ages 0 - 5 receive services under AB 3632?
Yes. Districts cannot refuse to refer children to CCS — and CCS cannot refuse to evaluate children simply because they are very young. Children younger than three years old (through Part C of the IDEA) and three to five years old (through Part B of the IDEA) are considered eligible for purposes of AB 3632 services. [Cal. Gov. Code Sec. 7584; Cal. Ed. Code Sec. 56026(c).] Whether a child of that age actually needs OT/PT services in order to receive educational benefit is a question to be addressed by the CCS assessment and determined by the IEP team.
(9.14) Once AB 3632 services are written into the IEP, can CCS delay providing those services?
No. Related services must begin “as soon as possible.” [34 C.F.R. Sec. 300.323(c)(2); Cal. Ed. Code Sec. 56344(b).] If OT/PT services are specified in your child’s IEP and CCS refuses to provide the services, federal law requires that the district provide the services. [20 U.S.C. Secs. 1412(a)(12)(A) & (B).] Disagreement between CCS and the district regarding responsibility for initiating services can be resolved through interagency dispute procedures. [Cal.
Gov. Code Sec. 7585.] In addition, CCS may not delay services based on the acuteness (severity or intensity) of the student’s disability. A student whose IEP specifies that she is to receive OT/PT services is entitled to receive those services without delay. [34 C.F.R. Sec. 300.323.]
(9.15) My child was placed in a facility in another state by a public agency but not through the school district or other educational agency. Who is responsible for his educational, residential, and treatment costs?
Any public agency, other than an education agency, that places your child with a disability (or one who is suspected of having a disability) in a facility out of state without the involvement of the school district, special education local plan area (SELPA) or county office of education in which the parent or guardian resides, must assume all financial responsibility for your child’s residential placement, special education program, and related services costs in the other state — unless a state or local agency in the other state assumes responsibility. [Cal. Gov. Code Sec. 7579(d).]
(9.16) My child is temporarily placed in a psychiatric hospital in another county and may need a residential treatment setting. Who is responsible for educational services?
Special education students who are placed in a public hospital, state licensed children’s hospital, psychiatric hospital, proprietary hospital or a health facility for medical purposes are the educational responsibility of the school district, SELPA, or county office of education in which the hospital or facility is located. [Cal. Ed. Code Sec. 56167.] A SELPA may be made up of a district, a collection of districts, or a county office of education.
(9.17) If a student needs residential treatment to benefit from education, must he be made a ward or dependent of the court? Does the parent have to pay for part of the cost of residential treatment?
No. It is a violation of federal law to require that your child be made a ward or dependent of the court if he needs residential care in order to benefit from educational services. [See, Christopher T. v. San Francisco Unified School District, 553 F. Supp. 1107 (N.D. Cal. 1982).] Also, a parent cannot be required to pay for any part of the cost of residential treatment if the placement is made through the IEP process and is necessary to provide special education and related services. [34 C.F.R. Sec. 300.104.]
(9.18) How will a court-ordered residential placement for my child be different from an IEP placement?
If your child is a dependent or a ward of the court, the court, not you, will make the decision where to place your child. The court, at its discretion, may allow you to retain educational rights so that you may participate in the IEP process at the residential site if your child is in special education. As part of the dependency process, you may lose your parental rights for the duration of the placement.
There is a critical difference in the financial responsibility for the cost of the placement. A placement through the IEP process is at no cost to the parent. A court placement is at the cost of the court. However, the court must seek reimbursement from the parents in the form of a support order based upon the court’s determination of the parents’ ability to pay. [Cal. Welf. & Inst. Code Sec. 903.] This may result in a substantial financial burden to any parent, unless the family income is minimal. If the residential placement was needed for educational purposes, these actions would violate the “at no cost” requirement of federal law. [20 U.S.C. Sec. 1401(9)(A) and 1401(29).]
If your child is placed in residential treatment through the IEP process, all student and parental rights and protections guaranteed by law will be available to you. No placement or services can be provided to your child without your approval and written consent.
Responsibility for implementing the IEP of a court-placed child is with the school district where the child is placed, not the parent’s district. The responsibility for an IEP-placed child is with the district that made the placement, which typically is the parent’s school district and/or county.
(9.19) My child’s case is pending before the juvenile court. Can I do anything to avoid or minimize the consequences of a court-ordered residential placement?
Yes. You may be able to convince a judge to delay placement pending the IEP process. You can argue that an IEP placement will not only be in your interest, but also in the court’s as well – allowing it to avoid financial and legal responsibility for your child. You could also tell the judge that court placement may delay or prevent the implementation of services. It would be helpful if you have already made the appropriate referral for residential placement to the school district.
If the judge insists on placing your child, you can at least try to convince the court to allow you to retain educational rights so you can continue to participate in the educational planning for your child. If the judge has already placed a dependent or ward, you may file a petition to change or modify the residential placement order if there are changed circumstances. Anyone can file this petition.
Since your child is currently involved in the court system, these arguments are best made by a private attorney or public defender who is knowledgeable about the IEP process or who has help from a special education advocate.
(9.20) My child has been placed in a juvenile facility by the court. Who is responsible for providing services to him?
The county office of education is responsible for the administration and operation of juvenile court schools, juvenile hall, juvenile homes, day centers, ranches or camps, and county community schools. [Cal. Ed. Code Secs. 48645.2 & 56150.] The county superintendent of schools may contract with the county board of supervisors for this responsibility. In addition, each SELPA must develop a local plan that describes the process for coordinating and providing services for students placed in juvenile court schools or county community schools. [Cal. Ed. Code Sec. 56195.7(g).] You should obtain a copy of the local plan.
If special education law or the SELPA plan is not being followed or the SELPA does not address the coordination and provision of services, you can file complaints against the county with CDE to compel compliance. You may also wish to consider due process proceedings against counties and/or SELPAs. See Chapter 6, Information on Due Process/Compliance Procedures.
(9.21) If my child is committed to the California Youth Authority, will she continue to receive her special education services?
Yes. A juvenile court may not order a special education student to the Division of Juvenile Justice (formerly known as the California Youth Authority) until the student’s IEP has been given to the Division of Juvenile Justice. In addition, the court must ensure that the student’s probation officer communicates with appropriate staff at the juvenile court school, county office of education, or SELPA to make sure that the IEP is transferred. [Cal. Welf. & Inst. Code Sec. 1742.]
(9.22) Can a court help me get special education services for my child?
If and when a child is made a dependent of the court (in cases of parental abuse or neglect), the judge may make any and all reasonable orders for the care, supervision, custody, maintenance and support of the child. The judge cannot unilaterally order the school district to make a student eligible for special education services. However, the judge may also order the appearance in court of any agency, such as a school district, she has determined has failed to meet a legal obligation to provide services to a child – such as the right to special education services or compliance with the provisions of AB 3632. [Cal. Welf. & Inst. Code Secs. 362 & 727.]
(9.23) Will AB 3632 services end when my child turns 18?
No. Under federal and state special education law, a student is eligible for special education and related services (such as services from CCS) until the student reaches 22 years of age or receives a high school diploma. CCS must use the same age eligibility requirements as the school district. [34 C.F.R. Secs. 300.2(b)(1)(iii) & 300.102; Cal. Ed. Code Sec. 56026; Cal. Gov. Code Sec. 7584; 2 C.C.R. Sec. 60010(q).]
(9.24) Who makes decisions for a special education student whose parents’ rights have been terminated or who has no parent involved in his life?
When there is no one to act as a parent for a student with disabilities, the school district or the juvenile court must appoint a responsible adult to make educational decisions. Under AB 3632, the responsible adult is known as a “surrogate parent”.
This individual, usually a volunteer, is appointed by the school district to represent students in the IEP process if one or more of the following is true:
- The student is a dependent or ward of the court; the court has limited the parent or guardian’s rights to make educational decisions; and the court has not appointed a responsible adult to represent the student in the IEP process.
- No parent for the student can be identified.
- After reasonable efforts, the district cannot locate a parent.
The district must make “reasonable efforts” to appoint a surrogate parent within 30 days of determining that a surrogate parent is necessary. In addition, the responsible adult appointed by the district cannot have any conflict of interest with the student. A conflict means any interest that might restrict or bias the ability to advocate for all of the services required to ensure that the student has FAPE. [Cal. Gov. Code Secs. 7579.5(a) & (i).]
If the student is subject to the authority of the juvenile court, the judge appoints someone to make educational decisions for a dependent or ward of the court. The court may leave decision-making authority with the parent if that parent is still part of the student’s life. However, it has the power to limit the parent’s authority regarding educational decisions through a court order, but only to the extent necessary to protect the student.
If the court limits a parent’s educational rights, it must also appoint a responsible adult to make educational decisions until the following occurs:
- The student turns 18 (unless she chooses to assign her educational decision-making authority to someone else or is the court finds the student to be “incompetent”);
- Another responsible adult is appointed to make educational decisions;
- The parent’s rights to make decisions are restored;
- A guardian or conservator is appointed for the student; or
- The student is placed in long-term foster care and the foster parent is given educational decision-making authority.
Just like the school district, the court must also appoint a responsible adult who does not have any conflict of interest with the student. For the court, a conflict of interest means any interest that might restrict or bias the ability to make educational decisions. The adult cannot receive compensation or attorneys’ fees for making these decisions. [Cal. Welf. & Inst. Code Secs. 361(a) & 726(b).]
(9.25) Who can serve as a surrogate parent and what are their responsibilities?
The district must appoint a surrogate parent for students who are not wards of the court if no parent can be identified or if the district, after making reasonable efforts, cannot locate the parent. [34 C.F.R. Sec. 300.519(a); Cal. Gov. Code Secs. 7579.5(a)(2) & (3).] The district must first appoint a relative caretaker (such as an grandparent or other relative if they are parenting the child) as the surrogate parent. If there is no relative caretaker, the district must look to a foster parent or court-appointed special advocate (CASA) willing and able to serve. If there is no foster parent or CASA, the district may choose the surrogate parent. If the student’s surrogate parent has been a relative caretaker or foster parent and leaves the home of that surrogate parent, the district must appoint a new surrogate parent, if necessary, to ensure adequate representation. [Cal. Gov. Code Sec. 7579.5(b).]
The law allows retired teachers, social workers or probation officers, who do not work for a public agency involved in the education or care of the student, to be appointed as surrogate parent. An employee of a private agency may be appointed as long as the agency does not provide educational services to the student. A person otherwise qualified to be a surrogate parent is not considered an employee of the district even if the district pays the surrogate parent for his services. [Cal. Gov. Code Sec. 7579.5(j).]
A district may not appoint a surrogate parent if he has a conflict of interest with the student. A conflict of interest means any interest that might restrict or bias the ability to advocate for all of the services required to ensure that the student receives FAPE. If practical, the surrogate parent should be culturally sensitive to his assigned student. [Cal. Gov. Code Secs. 7579.5(e) & (i).]
A surrogate parent has all the powers of a parent or guardian of a special education student. He may consent to IEPs, non-emergency medical services, mental health treatment, and occupational or physical therapy services. [Cal. Gov. Code Sec. 7579.5(c).]
Although the surrogate parent is given complete parental authority, he is only required to meet with the child once. To competently fulfill the role, the surrogate parent should meet with the student more than once, attend IEP meetings, review student records and consult with teachers and others involved in the student’s education. All of these interactions and activities are permitted under law. The surrogate parent must comply with federal and state student record confidentiality laws and use discretion when sharing information with appropriate persons. [Cal. Gov. Code Secs. 7579.5(d) & (f).]
(9.26) How long should an appointed surrogate parent serve?
The surrogate parent may represent the student until she no longer needs special education or turns 18; until another responsible adult is appointed to replace the surrogate parent; or, the parent’s right to make educational decisions is restored. [Cal. Gov. Code Sec. 7579.5(k).] However, if at age 18, a student chooses not to begin making her own educational decisions or a court finds her to be “incompetent” to make these decisions, the surrogate parent may remain in place or the student could designate another adult as an educational representative. The district must replace a surrogate parent if she is not properly performing the duties or has a conflict of interest with the student. [Cal. Gov. Code Secs. 7579.5(h) & (i).]
If some individual in the student’s life — such as a care facility operator, social worker, probation officer, foster parent or other advocate — believes that a surrogate parent is not acting in the student’s interest, but rather acting more in the interests of the school district or another agency serving the student; he may ask that the district appoint a different surrogate parent. If the district refuses, the law allows a student (who is a ward or dependent of the court, an emancipated minor, or for whom no parent can be identified or located) to file for due process to challenge the appropriateness of the surrogate parent. However, the student can file only after an Administrative Law Judge determines that the district has either not appointed a surrogate parent or has appointed one who has a conflict of interest. [Cal. Ed. Code Sec. 56501(a).]
(9.27) I am a foster parent for a special education student. What are my rights?
Both state and federal law recognize a foster parent’s right to act in place of a parent in the IEP process if the parent’s educational rights have been terminated. [34 C.F.R. Secs. 300.30(a)(2) & (b); Cal. Ed. Code Sec. 56028(a)(2).] In addition, California law makes it clear that a foster parent must be given preference — after a relative caretaker and before a CASA — when a district appoints a surrogate parent. [Cal. Gov. Code Sec. 7579.5(c).]
(9.28) I am a special education student’s grandparent and the child lives with me. Am I authorized to act as the “parent” in the special education process?
If your grandchild lives with you, a grandparent is authorized to act as the parent in the IEP and other special education processes under federal and state law. In fact, any individual acting in the place of a biological or adoptive parent with whom the child lives, may also assume this role. This includes a stepparent, other relative caretaker, a guardian, etc. [34 C.F.R. Sec. 300.30(a)(4); Cal. Ed. Code Sec.56028(a)(4).] A parent or guardian may designate another adult to represent the student. [Cal. Gov. Code Sec. 7579.5(n).]
(9.29) Can probation officers or social workers attend IEP meetings without parental consent?
Probation officers and social workers are not among those individuals specifically listed as mandatory members of the IEP team. [20 U.S.C. Sec. 1414(d)(1)(B); 34 C.F.R. Sec.300.321; Cal. Ed. Code Sec. 56341.] However, if in the view of the person inviting them, they have special expertise or knowledge regarding your child; they can attend the IEP if invited by the school district or the surrogate parent. [Cal. Ed. Code Sec. 56341(b)(6).]
(9.30) Can an active probation officer or social worker serve as a surrogate parent and authorize services for my child on an IEP?
No. California allows only “retired teachers, social workers, and probation officerswho are not employees of any agency that is involved in the care of the child” to be surrogate parent. [Gov. Code Sec. 7579.5(j).] If the legislature excluded social workers and probation officers from being appointed by school districts to be surrogate parent, it is unlikely the legislature intended that courts appoint these individuals as substitute decision makers for special education students either.
Moreover, both state and federal special education law prohibit the state, when the child is a ward of the state, from acting in the role of the parent. [Cal. Ed. Code Sec. 56028(c); 34 C.F.R. Secs. 300.30(a)(3) & 300.519(d)(2).]
(9.31) Other than CCS agencies, are there any other interagency services for special education students under AB 3632?
For Medi-Cal eligible students who would otherwise have to be educated at home, the Medi-Cal program can provide life-supporting medical services through a home health aide to enable a child to attend school. The time for this service is limited to the time the child is in school or traveling to or from school. The student’s condition must be such that he/she requires the personal assistance or attention of a nurse, home health aide, or parent (or some other specially trained adult) in order to be effective. For purposes of this service, the child must need “life supporting medical services.” This means that the child is dependent on a medical technology or device that compensates for loss of the normal use of vital bodily function and who requires daily skilled nursing care to avoid further disability or death. [Cal. Gov. Code Sec. 7575(e); 2 C.C.R. Sec. 60400.]