OS Compliance: This Weeks Top Question

This week’s top question concerns the role of foster parents and other individuals who may act in the role of a parent.

For various reasons, students may find themselves in living arrangements that do not involve their biological parents (foster care, homeless, court ward, etc…). First and foremost, it is critical that public schools assure eligible students are provided with FAPE regardless of parental status. FAPE belongs to the student and must be provided without undue delay.

The biological parent is the legal authority for the student unless this authority is assigned to another individual. IDEA defines parent as:

Sec. 300.30 Parent.

(a) Parent means--

(1) A biological or adoptive parent of a child;

(2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent;

(3) A guardian generally authorized to act as the child's parent, or authorized 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, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or

(5) A surrogate parent who has been appointed in accordance with Sec. 300.519 or section 639(a)(5) of the Act.

(b) (1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.

(2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (4) of this section to act as the "parent" of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the "parent" for purposes of this section.

MARSE defines parents as:

R 340.1701b Definitions; I to P.

(d) “Parent” means any of the following:

(i) A biological or adoptive parent of a child.

(ii) A foster parent, unless state law, regulations, or contractual obligations with a state or local entity prohibit a foster parent from acting as a parent.

(iii) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child, but not the state if the child is a ward of the state.

(iv) An individual acting in the place of a biological or adoptive parent, including a grandparent, stepparent, or other relative, with whom the child lives, or an individual who is legally responsible for the child’s welfare.

(v) A surrogate parent who has been appointed in accordance with R 340.1725f.

(vi) Except as provided in paragraph (vii) of this subdivision, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraphs (i) to (v) of this subdivision to act as a parent, shall be presumed to be the parent unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.

(vii) If a judicial decree or order identifies a specific person or persons under paragraphs (i) to (iv) of this subdivision to act as the parent of a child, or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the parent.

(viii) The affected student or youth with a disability when the student or youth with a disability reaches 18 years of age, if a legal guardian has not been appointed by appropriate court proceedings.

If the biological parent is not available to act as the parent for purposes of special education decision making, it is critical to contact the child’s caseworker (in the event of foster care) or court for documentation of reassigned parental authority.

Under some circumstances, it may be necessary to appoint a surrogate. Here’s the link to the MI state Policy for the Appointment of Surrogate Parents for Special Education Services.