Some children with disabilities have no parent available to sign consent, review an evaluation, or sit at the IEP table. Federal law requires the school system to appoint someone who can, and it sets rules about who that person may be.
A caseworker opens a new file and finds a fifteen year old in state custody who has an IEP, a pending reevaluation, and no adult with education decision-making authority. A shelter worker meets a seventeen year old sleeping in the family room who mentions the resource class he used to attend. In both situations, the paperwork the school needs signed has nowhere to go.
Federal law treats that gap as the agency's problem to solve rather than the child's problem to survive.
Under 34 C.F.R. § 300.519(a), each public agency must ensure that a child's rights are protected in four circumstances. No parent, as the term is defined in § 300.30, can be identified. The agency cannot locate a parent after reasonable efforts. The child is a ward of the state under that state's laws. The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act, 42 U.S.C. § 11434a(6).
Each public agency must ensure that the rights of a child are protected when— (1) No parent (as defined in § 300.30) can be identified; (2) The public agency, after reasonable efforts, cannot locate a parent; (3) The child is a ward of the State under the laws of that State; or (4) The child is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(6)).
34 C.F.R. § 300.519(a)
The definition in § 300.30 is broader than many people expect, covering biological and adoptive parents, foster parents, guardians, and individuals acting in the place of a parent such as a grandparent or stepparent with whom the child lives. A relative already raising the child may therefore qualify as the parent under IDEA without any surrogate appointment.
Section 300.519(b) makes assigning an individual to act as a surrogate part of the agency's duty, and it requires the agency to have a method for two separate determinations: whether a child needs a surrogate parent, and how a surrogate parent gets assigned to that child. A district that handles this case by case with no written method is missing something the regulation requires.
Section 300.519(h) sets the timeline. The state educational agency must make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after a public agency determines that the child needs one. The 30 days run from the determination, so the date the agency recognized the need is the date worth writing down and referring back to.
For a child who is a ward of the state, § 300.519(c) offers a second route. The judge overseeing the child's case may appoint the surrogate parent instead, provided that person satisfies the requirements in paragraphs (d)(2)(i) and (e). Caseworkers and attorneys working a dependency case can raise the appointment in court rather than waiting on the district to act.
Section 300.519(d)(2) requires the agency to ensure that the person it selects is not an employee of the state educational agency, the district, or any other agency involved in the education or care of the child, has no personal or professional interest that conflicts with the interest of the child the surrogate represents, and has knowledge and skills that ensure adequate representation of the child. Section 300.519(d)(1) otherwise lets the agency select a surrogate in any way state law permits.
Section 300.519(e) closes a loophole that would otherwise defeat the rule. A person who is otherwise qualified does not become an employee of the agency merely because the agency pays that person to serve as a surrogate parent, so districts can compensate trained volunteers without disqualifying them.
Section 300.519(f) creates a targeted exception for unaccompanied homeless youth. Appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to the employee restriction in paragraph (d)(2)(i), until the agency appoints a surrogate who meets all of the paragraph (d) requirements. A shelter worker who already knows the young person can therefore step in immediately, and that appointment is temporary by design rather than permanent.
Section 300.519(g) gives the surrogate parent authority to represent the child in all matters relating to the identification, evaluation, and educational placement of the child, and the provision of a free appropriate public education to the child. In practice that covers consenting to evaluation, reviewing records, participating in IEP team meetings, agreeing or refusing to agree to a proposed placement, requesting an independent educational evaluation, and pursuing dispute resolution.
The authority is real and it carries the same procedural safeguards a parent holds, including the right to receive Prior Written Notice under 34 C.F.R. § 300.503 whenever the district proposes or refuses an action.
Ask the district in writing whether the child has an assigned surrogate parent and, if not, whether the district has determined that the child needs one. Put the date of your request in the email, because the 30 day clock in § 300.519(h) starts at the determination and a written trail establishes when the question reached the district.
If you are a relative or foster parent, ask whether you already meet the definition of parent under § 300.30, since that answer may make the surrogate question unnecessary. If you are shelter or program staff working with an unaccompanied youth, name § 300.519(f) in your request, because temporary appointment of program staff is exactly what that paragraph contemplates.
This post is general information rather than legal advice, and a special education attorney, a child's court-appointed advocate, or your state's Parent Training and Information Center can advise on a specific child's circumstances.
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Assistance to States for the Education of Children With Disabilities, 34 C.F.R. § 300.30 (2017).
Assistance to States for the Education of Children With Disabilities, 34 C.F.R. § 300.503 (2017).
Assistance to States for the Education of Children With Disabilities, 34 C.F.R. § 300.519 (2017).
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (2004).
McKinney-Vento Homeless Assistance Act, 42 U.S.C. § 11431 et seq. (2015).
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