SECTION 89.1047. Procedures for Special Education Decision-Making for Students in Foster Care

(a) A foster parent may act as a parent of a child with a disability, in accordance with 34 Code of Federal Regulations (CFR), §300.30, relating to the definition of parent, if requirements of Texas Education Code (TEC), §29.015(a), are met, including the completion of the training program described in subsection (c)(1) of this section.

(1) For a foster parent to serve as a student's parent, a school district must ensure that the foster parent has received training described in subsection (c)(1) of this section. The foster parent must complete the training program before the student's next scheduled admission, review, and dismissal (ARD) committee meeting, but not later than the 90th day after the foster parent begins acting as the parent for the purpose of making special education decisions.

(2) The training program can be conducted or provided by the Texas Department of Family and Protective Services (TDFPS), a school district, an education service center, or any entity that receives federal funds to provide Individuals with Disabilities Education Act (IDEA) training to parents. Once an individual has completed the training, the individual may not be required by any school district to complete additional training in order to serve as the parent or the surrogate parent for the student or other students with disabilities who are in foster care. School districts may provide optional ongoing or supplemental training.

(b) If a school district denies a foster parent the right to serve as a parent, the school district must provide the foster parent with written notice of such denial within seven calendar days after the date on which the decision is made. The written notice must:

(1) specifically explain why the foster parent is being denied the right to serve as the student's parent; and

(2) inform the foster parent of his or her right to file a complaint with the Texas Education Agency in accordance with 34 CFR, §§300.151-300.153, relating to special education complaint procedures.

(c) Except as provided by Texas Family Code, §263.0025, which authorizes a court to appoint a surrogate parent, if a district cannot locate or identify a parent, if the foster parent is unwilling or unable to serve as a parent, or if the student does not reside in a foster home setting, the school district must assign a surrogate parent to make special education decisions on behalf of the student. An individual assigned by a school district to act as a surrogate parent for a student with a disability, in accordance with 34 CFR, §300.519, and TEC, §29.0151, relating to surrogate parents, must comply with the requirements specified in TEC, §29.001(10).

(1) Pursuant to TEC, §29.001(10)(A), a foster parent serving as a parent or an individual assigned by a school district to act as a surrogate parent must complete a training program in which the individual is provided with an explanation of the provisions of federal and state laws, rules, and regulations relating to:

(A) the identification of a student with a disability;

(B) the collection of evaluation and re-evaluation data relating to a student with a disability;

(C) the ARD committee process;

(D) the development of an individualized education program (IEP), including the consideration of transition services for a student who is at least 14 years of age;

(E) the determination of least restrictive environment;

(F) the implementation of an IEP;

(G) the procedural rights and safeguards available under 34 CFR, §§300.148, 300.151-300.153, 300.229, 300.300, 300.500-300.520, 300.530-300.537, and 300.610-300.627, relating to the issues described in 34 CFR, §300.504(c);

(H) where to obtain assistance in understanding the provisions of federal and state laws, rules, and regulations relating to students with disabilities; and

(I) the duties and responsibilities of surrogate parents as required under TEC, §29.0151(d).

(2) The training program described in subsection (c)(1) of this section must be provided in the native language or other mode of communication used by the individual being trained.

(3) To serve as a student's surrogate parent, a school district must ensure that the surrogate parent has received training described in subsection (c)(1) of this section. The individual assigned by a school district to act as a surrogate parent must complete the training program before the student's next scheduled ARD committee meeting but not later than the 90th day after the date of initial assignment as a surrogate parent.

(4) The training program can be conducted or provided by the TDFPS, a school district, an education service center, or any entity that receives federal funds to provide IDEA training to parents. Once an individual has completed the training, the individual may not be required by any school district to complete additional training in order to serve as the surrogate parent or the parent for the student or other students with disabilities who are in foster care. School districts may provide optional ongoing or supplemental training.

(d) A surrogate parent appointed by a school district may not be an employee of the Texas Education Agency, the school district, or any other agency involved in the education or care of the child and may not have any interest that conflicts with the interests of the child. Each school district or shared services arrangement must develop and implement procedures for conducting an analysis of whether a potential surrogate parent has an interest that conflicts with the interests of his or her child. Issues concerning quality of care of the child do not constitute a conflict of interest. Concerns regarding quality of care of the child should be communicated, and may be statutorily required to be reported, to TDFPS.

(e) If a court appoints a surrogate parent for a child with a disability under Texas Family Code, §263.0025, and the school district determines that the surrogate parent is failing to perform or is not properly performing the duties listed under TEC, §29.0151(d), the district must consult with TDFPS and appoint another person to serve as the surrogate parent for the child.

Source Note: The provisions of this §89.1047 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129; amended to be effective February 15, 2018, 43 TexReg 763; amended to be effective March 14, 2021, 46 TexReg 1466