Current through Register Vol. 40, No. 16, March 25, 2024
A. Role of surrogate parent. The surrogate
parent appointed in accordance with this section represents the child in all
matters relating to the identification, evaluation, or educational placement of
the child; or the provision of a free appropriate public education to the
child. ( 34 CFR
300.519(g) )
B. Appointment of surrogate parents.
1. Children, aged two to 21, inclusive, who
are suspected of having or determined to have disabilities do not require a
surrogate parent if the parent(s) or guardians are allowing relatives or
private individuals to act as a parent.
2. Unless the exception outlined in
subdivision 1 of this subsection applies, the local educational agency shall
appoint a surrogate parent for a child, aged two to 21, inclusive, who is
suspected of having or determined to have a disability when: (
34 CFR
300.519(a) )
a. No parent, as defined in
8VAC20-81-10, can be
identified;
b. The local
educational agency, after reasonable efforts, cannot discover the whereabouts
of a parent;
c. The child is a ward
of the state and either subdivision 2 a or 2 b of this subsection is also met;
or
d. The child is an unaccompanied
homeless youth as defined in § 725(6) of the McKinney-Vento Homeless
Assistance Act ( 42 USC § 11434a(6) ) and § 22.1-3 of the Code of
Virginia and either subdivision 2 a or 2 b of this subsection is met.
3. The local educational agency
shall appoint a surrogate parent as the educational representative for a child
who reaches the age of majority if the local educational agency has received
written notification that the child is not competent to provide informed
consent in accordance with
8VAC20-81-180 C 3 or C 4 and no
family member is available to serve as the child's educational
representative.
4. If the child is
a ward of the state, the judge overseeing the child's case may appoint a
surrogate parent as the educational representative of the child. The appointed
surrogate shall meet the requirements of subdivision E 1 c of this section. (
34 CFR
300.519(c) )
C. Procedures for surrogate
parents.
1. The local educational agency
shall establish procedures in accordance with the requirements of this chapter,
for determining whether a child needs a surrogate parent. (
34 CFR
300.519(b) )
2. The local educational agency shall
establish procedures for assigning a surrogate parent to an eligible child. The
surrogate parent shall be appointed by the local educational agency
superintendent or designee within 30 calendar days of the determination that a
surrogate parent is necessary. (
34 CFR
300.519(b) and (h) )
a. The appointment having been effected, the
local educational agency shall notify in writing:
(1) The child with a disability, aged two to
21, inclusive, as appropriate to the disability;
(2) The surrogate parent-appointee;
and
(3) The person charged with
responsibility for the child.
b. The surrogate parent serves for the
duration of the school year for which the surrogate parent is appointed unless
a shorter time period is appropriate given the content of the child's
IEP.
c. If the child requires the
services of a surrogate parent during the summer months, the local educational
agency shall extend the appointment as needed, consistent with timelines
required by law.
d. At the
conclusion of each school year, the appointment of surrogate parents shall be
renewed or not renewed following a review by the local educational
agency.
3. Each local
educational agency shall establish procedures that include conditions and
methods for changing or terminating the assignment of a surrogate parent before
that surrogate parent's appointment has expired. Established procedures shall
provide the right to request a hearing to challenge the qualifications or
termination if the latter occurs prior to the end of the term of appointment.
The assignment of a surrogate parent may be terminated only when one or more of
the circumstances occur as follows:
a. The
child reaches the age of majority and rights are transferred to the child or to
an educational representative who has been appointed for the child in
accordance with the procedures in
8VAC20-81-180;
b. The child is found no longer eligible for
special education services and the surrogate parent has consented to the
termination of services;
c. Legal
guardianship for the child is transferred to a person who is able to carry out
the role of the parent;
d. The
parent(s), whose whereabouts were previously unknown, are now known and
available; or
e. The appointed
surrogate parent is no longer eligible according to subsection E of this
section.
D.
Identification and recruitment of surrogate parents.
1. The local educational agency shall develop
and maintain a list of individuals within its jurisdiction who are qualified to
serve as surrogate parents. It may be necessary for the local educational
agency to go beyond jurisdictional limits in generating a list of potentially
qualified surrogate parents.
2.
Individuals who are not on the local educational agency list may be eligible to
serve as surrogate parents, subject to the local educational agency's
discretion. In such situations, the needs of the individual child and the
availability of qualified persons who are familiar with the child and who would
otherwise qualify shall be considerations in the local educational agency's
determination of surrogate eligibility. Other factors that warrant the local
educational agency's attention include:
a.
Consideration of the appointment of a relative to serve as surrogate parent;
and
b. The appropriateness of the
child's participation in the selection of the surrogate parent.
E. Qualifications of
surrogate parents. ( 34 CFR
300.519(d), (e), and (f) )
1. The local educational agency shall ensure
that a person appointed as a surrogate:
a. Has
no personal or professional interest that conflicts with the interest of the
child;
b. Has knowledge and skills
that ensure adequate representation of the child;
c. Is not an employee of the Virginia
Department of Education, the local educational agency, or any other agency that
is involved in the education or care of the child; and
d. Is of the age of majority.
2. A person who otherwise
qualifies to be a surrogate parent is not an employee of the agency solely
because the person is paid by the agency to serve as a surrogate
parent.
3. If the child is an
unaccompanied homeless youth, appropriate staff of an emergency shelter,
transition shelter, independent living program, or street outreach program may
be appointed as a temporary surrogate even though the staff member is an
employee of an agency that is involved in the education or care of the child.
The temporary surrogate shall otherwise meet the qualifications of a surrogate,
and may serve only until a surrogate parent meeting all of the qualifications
outlined in this section can be assigned.
F. Rights of surrogate parents. The surrogate
parent, when representing the child's educational interest, has the same rights
as those accorded to parents under this chapter. (
34 CFR
300.519(g) ).
Statutory Authority
§§ 22.1-16 and 22.1-214 of the Code of
Virginia.