An Overview of Special Education Law, Part Ii
| Jurisdiction | Colorado,United States |
| Citation | Vol. 38 No. 3 Pg. 59 |
| Pages | 59 |
| Publication year | 2009 |
2009, March, Pg. 59. An Overview of Special Education Law, Part II
March 2009
Vol. 38, No. 3 [Page 59]
Juvenile Law articles are sponsored by the CBA Juvenile Law Section and generally are intended to apprise practitioners of substantive and procedural information concerning the field of juvenile law. Readers who are interested in submitting articles should contact the Coordinating Editors.
Coordinating Editors
Barbara Shaklee, Denver, (720) 944-2965, barbara. shaklee@dhs.co.denver.co.us; Linda Weinerman, Denver, (303) 860-1517, lindaweinerman@coloradochildrep.org
About the Author
Theresa Sidebotham is a fourth-year law clerk for the Colorado Court of Appeals, and works for Hon. David M. Furman. After her clerkship ends in August 2009, she will practice law with Rothgerber Johnson & Lyons LLP, theresa.sidebotham@gmail.com.
Special education law is relevant and important for children in the child welfare and juvenile justice systems. This article focuses on special education considerations for these children, and how they apply in practicing juvenile law.
Part I of this article, which was published in the January 2009 issue of The Colorado Lawyer,(fn1) provided an overview of the special education process, focusing primarily on the Individuals With Disabilities Education Improvement Act of 2004 (IDEA), and to some extent on Section 504 of the Rehabilitation Act. Part II examines aspects of special education law that apply particularly to child welfare and juvenile delinquency.
Foster children are more likely to have a disability than children in the general population. A high percentage, 30 to 40 percent, of foster children are in the special education system. This is a significantly higher percentage than for non-foster care children.(fn2) Children born with disabilities are more often abused and more often relinquished to the child welfare system than children without disabilities.(fn3) Disabilities may be caused by abuse, and approximately 25 percent of developmental disabilities are estimated to be caused by abuse.(fn4) Children with disabilities also remain in foster care longer.(fn5)
On the other hand, children in foster care sometimes are over-identified as special education students because they are troubled, and may be removed from the general school population.(fn6) Special education is not a solution for problems not related to disability, and segregation into a special education program can be damaging.
Both youths with disabilities and youths in foster care are more likely to drop out of school. Both are at high risk of failing to make successful transition to adulthood.(fn7)
Youths in the juvenile justice system are far more likely than other juveniles to have both identified and undiscovered disabilities. Studies show varying results. Seventy percent of juveniles in the juvenile justice system may suffer from disabling conditions.(fn8) A recent estimate in Colorado was that one-fourth to one-third of juvenile cases studied in 2002 involved mental health issues.(fn9) Juveniles with disabilities are more likely to make poor decisions that lead to involvement in crime, are more likely to get caught, may have social skill deficits that result in harsher treatment in the justice system, and may have learning difficulties that make it more difficult for them to be rehabilitated.(fn10)
Disabilities should be considered and addressed not only because of statutory rights, but also because society benefits if a juvenile deals with underlying problems and becomes a productive citizen. For a juvenile with disabilities, justice and rehabilitation goals can be best served by pursuing solutions within the special education framework, as well as through the juvenile justice system. Even a juvenile who has dropped out of school is eligible for special education services under IDEA until he or she reaches 21 years of age.(fn11)
Certain aspects of special education law are particularly applicable in child welfare. These are discussed below.
In Colorado, interested persons initiating a referral for a special education evaluation must work with the parents or the appropriate administrative unit or state-operated program.(fn12) If the child is a ward of the state, the agency must "make reasonable efforts to obtain the informed consent from the parent . . . for an initial evaluation to determine whether the child is a child with a disability."(fn13) However, the agency is not required to obtain informed consent from the parents if: (1) the agency cannot discover where the parents are; (2) the rights of the parents have been terminated; or (3) the parents' right to make educational decisions has been removed by a judge in accordance with state law, and an individual appointed by a judge to represent the child has consented to an initial evaluation.(fn14)
An accurate diagnosis of the disability is essential. For example, many foster children are diagnosed as having attention deficit hyperactivity disorder (ADHD), which has symptoms similar to post-traumatic stress disorder (PTSD). The three types of trauma most likely to cause PTSD are rape, childhood physical abuse, and childhood neglect, meaning that large numbers of foster children suffer from the disorder.(fn15) Unfortunately, although the symptoms can be quite similar, the treatment, including the medication therapy, is different, so that treating a PTSD sufferer for ADHD can be ineffective or even detrimental.(fn16)
Related services under IDEA can include, among other things, social work services at home and in school; parent training and counseling; therapy (including psychological, occupational, and physical); and recreation services.(fn17) Children who have experienced abuse, neglect, and the trauma of being removed from the home may need psychological services. For children in out-of-home care, related services under IDEA may provide some stability and equality of opportunity.(fn18)
Under Part C, early intervention services must be available to infants and toddlers with disabilities who are homeless or who are wards of the state.(fn19) Effective August 5, 2008, House Bill (H.B.) 1366 reorganized and recodified statutory provisions related to early intervention services, clarifying the division of responsibilities between the department of human services and the department of education, and coordinating payment.(fn20) State policy may include "a referral for evaluation for early intervention services of a child who experiences a substantiated case of trauma due to exposure to family violence."(fn21)
Under the Child Abuse Prevention and Treatment Act (CAPTA), child welfare caseworkers can make referrals for early intervention services for substantiated abuse and neglect cases.(fn22) For that matter, anyone involved with the child can request a referral.(fn23)
All Medicaid-eligible children from birth through 18 years can receive comprehensive health services under Early and Periodic Screening, Diagnosis, and Treatment (EPSDT). This includes all foster children.(fn24) Children receive medical, vision, hearing, and dental screens. Medical screens should include physical exams, including developmental assessments.(fn25) EPSDT also covers "necessary health care, diagnostic services, treatment, and other measures . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening service."(fn26)
When a disabled child is involved in dependency and neglect proceedings, educational needs should be considered, and someone should be prepared to make educational decisions on the child's behalf. Determining this person can be complicated, and may require intervention from the courts. Usually, the person would be a parent.
Typically, a parent's educational decision-making rights are terminated only at the final termination of parental rights. If parents are willing to make educational decisions in the child's best interests or can be educated and supported to do so as part of a treatment plan, no other action is required. However, if reasonable parental cooperation with a treatment plan is unlikely or is not happening, a court could consider terminating educational decision-making rights. A clear appointment of educational decision-making rights by the court would assist the school districts in meeting the child's special needs.(fn27)
The authority to make educational decisions is defined more restrictively under IDEA than for general educational decision making. Moreover, special education law is structured in such a way that it is crucial that someone act as a "parent." Foster children experience routine lack of compliance with special education laws, partly because they often do not have the protection of a parental advocate.(fn28) Therefore, if no one can be identified as a parent under IDEA rules and regulations, an educational surrogate parent (ESP) should be appointed.
"Parent" under IDEA and accompanying regulations. A "parent" under the Colorado State Board of Education Rules means:
1) a biological or adoptive parent of a child;
2) a foster parent, unless a foster parent is prohibited from acting as a parent by state law, regulations, or contractual obligations;
3) a guardian generally authorized to act as the child's parent or to make educational decisions for the child, but not the state if the child is a ward of the state;
4) an individual acting in the place of a biological or adoptive parent, including a grandparent, step-parent, or other relative with whom the child lives, or an individual who is legally responsible...
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