B.  Educational Surrogate Parent (ESP) under IDEA and Regulations






20 U.S.C. § 1415(b)(2)(A) (2005);
34 C.F.R. § 300.519;
42 U.S.C. § 11434a(6) (2002);
 Rule 2.13.
When a child has a disability under IDEA, an educational surrogate parent (ESP) may be appointed if:
  1. The parents of the child are not known or cannot be located;
  2. The child is a ward of the state; or
  3. The child is an unaccompanied homeless youth under the McKinney-Vento Homeless Assistance Act. 



Rule 2.53(1) and (2);
20 U.S.C. § 1401(36).
This may be necessary if no one fits one of the definitions of a parent under IDEA.

A ward of the state, in Colorado, is a foster child or in the custody of a public child welfare agency. However, if the foster parent meets the definition of “parent” discussed above, the child is not a ward of the State under IDEA/ECEA.












Rule 6.02(8)(e)(iii);
34 C.F.R. § 300.519(d)(2)(ii) and (iii).
1.  Definition and Duties of Educational Surrogate Parent (ESP)

In Colorado, an ESP is defined as a person who:

  • is not an employee of: the Department of Education, the administrative unit of attendance or residence, a state-operated program, or any other public agency involved in the education or care of the child;
  • has no personal or professional interest that conflicts with the interest of the child; and
  • has knowledge and skills to ensure adequate representation.
Rule 6.02(8)(i);
34 C.F.R. § 300.519(g).
The duties of an ESP are to represent the child in all matters relating to the “identification, evaluation, and educational placement of the child” and to make certain a free appropriate public education (FAPE) is provided to the child. This includes filing for mediation or due process if necessary.



Rule 6.02(8)(c).
2. Appointing an Educational Surrogate Parent (ESP)

Primary responsibility for determining whether a child needs an ESP, and for appointing one, is with the administrative unit of attendance or state-operated program.  


34 C.F.R. § 300.519(h).
The state educational agency must make reasonable efforts to assign ensure the assignment of an ESP within thirty days after the determination that a child needs an ESP.



Rule 6.02(8).
In Colorado, the Special Education Director of the administrative unit is responsible for the actual assignment.

Rule 6.02(8)(b).
The Colorado Department of Education maintains a registry of each child with a disability needing an ESP and the person assigned to that child.

Interview with Laura Writebol, Colorado Department of Human Services (May 14, 2008).
Note that, because school districts are locally controlled and act independently, the rules for appointing an ESP may vary from district to district.
20 U.S.C. § 1415(b)(2)(A)(i);
 34 C.F.R. § 300.519(c);
Rule 6.02(8)(d).
In addition, the 2004 reauthorization of IDEA specifically allows judges to appoint ESPs. Therefore, the ESP may be appointed either by the Department of Education or, if the child is in the legal custody of the Colorado Department of Human Services (DHS), by the court overseeing the child’s care. 

Herrick & Ward, supra note 7 at 4-6.
Typically, the ESP is selected through the special education office of the school district, which asks the Colorado Department of Education to appoint that person officially.  An ESP appointed in this way will have been trained, but will probably not know anything about the child.

Reference
Best practice is that an ESP is someone, such as a guardian ad litem (GAL), who knows and has a relationship with the child.
 
Herrick & Ward, supra note 7 at 4-5.
A Court may be in a better position to identify such a person, or alternatively, those working with the child may suggest to the school district an appropriate ESP. A guardian ad litem may be the ideal person to serve as an ESP, if the court assigns the GAL responsibility for educational decision-making in a written order.

Reference
If the court is considering appointing an ESP, it should check with the Exceptional Student Leadership Unit (ESLU) to see if the child already has an ESP. If the court does appoint an ESP, it should let the ESLU know for its registry.

34 C.F.R. § 300.519(f).
In the case of unaccompanied homeless youth, appropriate staff of emergency shelters and similar facilities may be appointed as temporary ESPs until a permanent ESP can be appointed.

20 U.S.C. § 1439(a)(5) (2005).
An ESP may also be assigned for an infant or toddler under Part C of IDEA.

20 U.S.C. § 1415(b)(2)(A);
34 C.F.R. 300.519(d)(2)(i).
Because the ESP may not be an employee of the state educational agency or any other agency involved in the education or care of the child, a case worker or social worker employed by DHS may not be an ESP. 

Reference
However, a social worker can still attend and participate in the IEP meeting.





















Email from Keith J. Kirchubel, Principal Consultant, Dispute Resolution, Colorado Department of Education, to Theresa Sidebotham (March 17, 2008, 3:40 p.m.)(on file with author).
3.  Training for ESPs

The Colorado Department of Education trains ESPs. Best practice is for an ESP to participate in the CDE training, if not already knowledgeable about the following areas:

  • Understand ESP responsibilities (which are to learn about the student’s educational needs, participate in school meetings, give consent for assessment and initial placement, monitor delivery of services and the student’s development, and represent the student when necessary)
  • Learn about relevant laws (IDEA, FERPA, Section 504, NCLB, ADA, Colorado Exceptional Children’s Educational Act (ECEA));
  • Learn about the special education process (referral, assessment, IEP development, implementation of services, revision of IEP);
  • Learn to communicate with schools (methods, preparation, procedural safeguards and dispute resolution, meeting with other parents);  and
  • Understand special education terminology and abbreviations.

A court could choose an ESP from the list maintained by the Colorado Department of Education, or a person who already has a relationship with the child could request the training.



McNaught, supra note 19 at 9.
4.  Children Without Disabilities

Note that, if a child does not have disabilities, and is not suspected of having disabilities, the court may need to appoint an educational decision maker, but the process is not nearly as complicated. A general educational decision maker does not have to meet the specific requirements of IDEA, and need not be an ESP. 


Id. at  17.
For instance, a caseworker could be an educational decision maker. 

Id. at 16.
The school district does not appoint educational decision makers.



20 U.S.C. § 1232h(c)(6)(D) (2002).
5.  Contrast with “Parent” As Defined Under FERPA

Under FERPA, a parent “includes a legal guardian or other person standing in loco parentis (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the welfare of the child).” 


Reference
This is a broader definition of “parent” than under IDEA, and child welfare workers may be considered parents to access students’ educational records. 

Herrick & Ward, supra note 7 at  2-11.
Usually, in Colorado, school districts will allow caseworkers to sign a release for school records under FERPA. 

McNaught, supra note 6 at 22.
However, the natural parents also retain rights under FERPA unless the court has revoked those specific rights.

To see how a person who is not a parent, such as an advocate, may obtain educational records, see the section on FERPA.