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Surrogate Parents

Published
August 25, 2022

What is a surrogate parent? 

Under state and federal law, school districts must appoint surrogate parents for students with disabilities who have no parent to participate in special education decision-making. Students in foster care, various residential settings, and unaccompanied homeless youth are those most likely to need surrogate parents, depending on their circumstances. 

Who is considered a parent?

In order to determine if a child needs a surrogate parent, school, CSE, or CPSE staff must look to see if the child has a parent, as defined under state and federal law, to make special education decisions for him or her. In New York State, “parent” is defined broadly and includes the following individuals:

  • A birth or adoptive parent;
  • A legal guardian;
  • A person in parental relation to the child (such as a relative with whom the child lives);
  • An individual designated by the parent as a person in parental relation;
  • A foster parent, under certain circumstances (when parental rights have been terminated/surrendered; parents are deceased);
  • A person appointed by a judge to make educational decisions; or
  • A surrogate parent

When is a surrogate parent required?

When a child has no parent, as outlined above, to make special education decisions for them, a surrogate parent must be appointed. This may occur when:

  • Both of the student’s parents are deceased;
  • The parents’ identities are unknown;
  • After reasonable efforts, the DOE cannot discover the whereabouts of the parents; or
  • Parental rights have been legally terminated or surrendered.

Surrogate parents should only be assigned to a student when there is no one else in the student’s life who can assume the role of parent. For example, a student being cared for by her aunt after her parents’ death does not need a surrogate parent; her aunt assumes the role of parent.

Who CANNOT be considered a surrogate parent for a foster child?

  • Employees of the DOE
  • NY State Education Department employees
  • ACS staff
  • Foster care agency staff
  • Staff of any other agency involved in the care or education of the student 
  • CSE Parent Members

There’s an exception to this rule: In the case of a child who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents until another surrogate parent meeting the above requirements can be appointed.

Refer to 2011 Guidelines and Procedures for the Assignment of Surrogate Parents

Eligibility Requirements

In order to serve as a surrogate parent, an individual must:

  • Have no other interest that could conflict with their primary allegiance to the child as a surrogate parent;
  • Have the knowledge and skills necessary to ensure adequate representation of the student;

and

  • Be committed to representing a student’s best interests with the strictest confidentiality.
  • The surrogate parent should also be able to communicate with the student in the student’s primary language.

Rights and Responsibilities of a surrogate parent with a foster child with special education needs

A surrogate parent represents a child’s best interests and has all of the due process rights of a parent. 

The NYC Department of Education (DOE) has the duty to ensure that all students’ rights are protected and must appoint surrogate parents for students whenever they are needed for any part of the IEP process including:

  • Meeting with the student
  • Review educational and clinical records
  • Considering and consenting to proposed evaluations and placements, as appropriate
  • Exercising due process rights on behalf of the student
  • Serving as a surrogate parent for as long as required, but at least through the first year

Is there compensation or pay for surrogate parents?

Foster parents who are assigned as surrogate parents for their foster children cannot be reimbursed for expenses.

Foster parents assigned to represent students who are not their foster children are entitled to reimbursement in the same manner as other surrogate parents in the district list. Reimbursement will occur for expenses incurred when performing duties representing their students, such as transportation and meals. For more information refer to this document.

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.