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

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.