Join us on 6/1 for an afternoon of fun, entertainment, and connection. Sign up now for Outdoors for Autism!

IncludeNYC logo

Special Education Rights for Foster Children, Parents, and Foster Parents

Published
August 25, 2022

Parental rights of biological/adoptive parents*

  • To be informed by the school when a referral for special education has been made. Within 10 calendar days of the initial request, the principal of the school must either: 
    • Request that the birth parent consent for evaluation, and/or 
    • Offer the parent a meeting to discuss the request if the parent didn’t make the initial request
  • To be allowed to obtain student records
  • To attend parent-teacher conferences
  • To participate in the student’s education and IEP meetings
  • To consent to special education evaluations and services, unless:
    • There is a court order naming someone else as decision-maker
    • The parent names someone else as decision-maker 
    • The parents’ whereabouts or identities are unknown, and a surrogate must be appointed (see Surrogate Parents tip sheet)

* Unless a court order says otherwise

Student’s rights

A student in foster care has the right to:

  • Child Find: Public schools must look for, find and evaluate students who need special education
  • Free and Appropriate Public Education (FAPE, under IDEA)
  • Least Restrictive Environment (LRE, under IDEA)
  • Attend their own IEP meeting
  • A Student-Centered IEP meeting
  • Services comparable to those offered to other students
  • School Stability: A right to stay in their current school
  • Enroll in a new school if it has been determined that it is not in their “best interest” to stay at their original school (“Best Interest Determination”)
  • Transportation services

Resource for Special Education NYC: Family Guide to Special Education

What foster parents should know

  • Referrals for special education may be made by parents or persons authorized to act as the parent, by authorized school officials, or by foster care agencies.
  • When a birth parent’s consent for special education is not required:
    • When parents’ rights have been terminated by the courts, a foster parent is authorized to sign consent.
    • When biological parents can’t be identified or the parent(s) whereabouts are unknown despite reasonable efforts to locate them, a “surrogate parent” must be appointed. This person may be and usually is the foster parent.
  • Release of educational records by the school: 
    • Under an amendment to FERPA, foster care agencies don’t need a release to get student education records or information. 
  • Once special education services are determined on the IEP, foster parents have a duty to observe the student’s progress to ensure they are appropriately addressing the student’s academic and social/emotional needs. If they are not, foster parents should address this with the case planner or the education liaison.

Resource for Foster Parents: Foster Parent’s Guide to Education

INCLUDEnyc provides information, individual assistance, and training to youth, families, and professionals. It does not provide legal advice or representation. If you are a foster or surrogate parent, please consult with your case manager or foster agency.