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Effective: 6/14/2023

4.28.2 Providing Educational Services Under the Individuals with Disabilities Act (IDEA)

Legal Authority

Introduction

​​​​​​​​​​​​​​​​​​​​​​​​​​Over fifty percent (50%) of children in the custody of the Cabinet for Health and Family Services (Cabinet/CHFS) are receiving special education services under the Individuals with Disabilities Education Act (IDEA)​. IDEA is a federal law that ensures services to children with disabilities. IDEA governs how states and public agencies provide early intervention, special education, and related services to eligible infants, toddlers, children, and youth with disabilities.

The Early Intervention Program​, created by IDEA, is a program for children from birth to their third (3rd) birthday who are experiencing developmental delays, or who have a physical or mental condition with a high probability the condition will result in a delay. Services for eligible children are explained in an individualized family service plan (IFSP) developed collaboratively by the family, the evaluator, and early intervention professionals.

An IFSP is a written plan for providing early intervention services to eligible children. The plan is based on a First Steps​ evaluation and assessment completed following the initial referral. A meeting to develop the initial IFSP is conducted within forty-five (45) working days of the completed assessment. IFSPs are reviewed at least every six (6) months but may be held more frequently as needed or at the family’s request.

IFSP services are administered through First Steps​. First Steps is a statewide early intervention program that provides services to children with developmental disabilities. This program offers comprehensive services through a variety of community agencies and is administered by the Department for Public Health (DPH) in the Cabinet​.

Part B of IDEA establishes a federal entitlement for eligible children age three (3) through twenty-one (21) with disabilities to receive a free appropriate public education (FAPE). It also establishes a federal framework for states to identify and evaluate children with suspected disabilities to provide services to eligible children. The law identifies a child’s parent as an equal and key participant in their child’s education and establishes procedural safeguards to ensure that all parents are included in the educational decision-making process. The law requires school districts to designate a multidisciplinary team to conduct comprehensive evaluations of children and develop an individualized education plan (IEP) for those who are eligible for services. An IEP is a child specific, written plan of action that describes the individualized services, modifications, and accommodations to be provided to a child to ensure successful involvement in the general education curriculum. ​

Practice Guidance

  • Under IDEA, parental consent is requested by the school prior to: 
    • Conducting an initial evaluation, including evaluation for early intervention services and an IEP; 
    • Initial provision of special education and related services; and 
    • Re-evaluation. 
  • Under IDEA part C, parental consent is required for the provision of early intervention services and approval of the ISFP.
  • The local education agency must assign a person to act as a surrogate parent for a child when: 
    • No parent can be identified; 
    • After reasonable efforts, the whereabouts of a parent cannot be discovered; or 
    • Parental rights are terminated. 
  • The agency is not permitted to provide copies of a termination of parental rights (TPR) order to a school or to First Steps as documentation regarding the appointment of a surrogate, unless ordered by the court. However, the SSW may provide a confidential statemen​t, on agency letterhead, that parental rights have been terminated. It is permissible that the date of TPR and the presiding court be included in this statement. 
  • If the birth parent agrees to allow the foster/adoptive parent to co-serve as parent in regards to educational decisions on behalf of the child, the birth parent: 
    • Completes and signs the DPP-330-Educational Advocacy Request Form stating his/her intentions to grant the foster/adoptive parent the ability to make educational decisions at the ten (10) calendar day case planning conference; and 
    • ​Has the ability to rescind the DPP-330 at any point he/she chooses. 
  • ​Although the SSW may not make educational decisions for a child, it is recommended that the SSW: 
    • Attend or be included in the admissions and release committee (ARC) or IFSP meeting for the purpose of facilitating the provision of services identified by the ARC or IFSP. ARC or IFSP members include birth parents, surrogate parents (when applicable), school principal, general education teacher, special education teacher, special education facilitator, speech pathologist, guidance counselor, and other evaluators as required; 
    • Request notification when changes or modifications are made in the child’s IEP or IFSP; 
    • Obtain a copy of the child’s IEP or IFSP developed during the ARC of IFSP meeting; 
    • Obtain a copy of any other school records regarding the child’s educational progress. The Uninterrupted Scholars Act​ created a new exception to the Family Educational Rights and Privacy Act (FERPA)​ that makes it easier for schools to release educational records to child welfare agencies; and 
    • ​Retain a copy of the IEP or IFSP and additional educational records in the child’s case.

Procedure

The SSW:
  1. May not make educational decisions or serve as a surrogate parent for a child in the custody of the Cabinet that qualifies for IDEA; 
  2. During the initial case planning conference, recommends to the birth parent(s) that the foster/adoptive parent be approved to co-serve as a parent with respect to educational decisions, (i.e., ARC meetings, IFSP meetings, and decisions regarding the child’s IEP and IFSP) in the event that the birth parent cannot attend meetings to ensure that a child’s educational needs are not disrupted while the child is placed in out-of-home care (OOHC); 
  3. Explains that the birth parent must grant permission, in writing, for the foster/adoptive parent to make educational decisions on the parent’s behalf; 
  4. Informs the birth parent that signing the DPP-330 Educational Advocacy Request Form does not negate the birth parent’s status as the primary authority to make, change, or alter educational decisions; 1 
  5. Ensures that the status of the DPP-330 is reassessed at each case planning conference; 
  6. Completes one (1) of the following tasks if unable to locate the birth parent(s), or the parent(s) does not attend the initial case planning conference: 
    1. Presents the option to the birth parent to complete the DPP-330 as quickly after this date as possible; or 
    2. Requests the court assign the child’s foster/adoptive parent as the child’s educational surrogate; 
  7. Ensures that the foster/adoptive parent provides a completed copy of the DPP-330 to school personnel once the form is completed by the birth parent.
    ​

Contingencies and Clarifications

  1. For all children, birth to age three (3), who are involved with a substantiated case of abuse or neglect, the SSW makes a referral to First Steps. 2

Footnotes

  1. Whenever the birth parent and foster/adoptive parent attend an ARC or IFSP meeting together, the birth parent remains the primary authority to make educational decisions on behalf of the child. 
  2. ​​Parental consent is not required to make a referral for a First Steps evaluation.

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Documents

Revisions

​3/21/23 Additions: 

  • Conducting an initial evaluation including evaluation for early intervention services and an IEP;