POLICY LETTER: July 10, 2003 to New Hampshire State Director of Special Education Mary J. Ford

Dated July 10, 2003Dr. Mary J. FordDirector of Special EducationNew Hampshire Department of Education101 Pleasant StreetConcord, New Hampshire 03301-3860Dear Dr. Ford:This letter is in response to your E-mail to Lois Taylor regarding surrogate parent requirements under Part B of the Individuals with Disabilities Education Act (IDEA). Your questions and our responses appear below:If RSA 186-C:14, II(c) were changed to read as follows, would that comply with federal regulations?(c) Unavailable parent shall include a parent or guardian whose location is unknown or who is incarcerated, comatose or otherwise unable to act as the child's advocate in the educational decision-making process.As you are aware, RSA 186-C: 14,II(c) was repealed effective July 14, 2002, so this question is moot.Why is it that when a child is a ward of the state a surrogate parent may be appointed but the surrogate parent cannot be the foster parent unless the natural parents' rights to make educational decisions has [sic] been terminated by state law?Your question involves two different regulations under the Part B regulations implementing the IDEA and the distinction between a surrogate parent under 34 CFR 300.515 and a person acting as a parent under 34 CFR 300.20. The first part of your question, regarding the appointment of a surrogate parent for a child who is a ward of the State, involves 34 CFR 300.515(a). This regulation requires the public agency to ensure that the rights of a child are protected if 1) no parents (as defined in 300.20) can be identified, 2) the public agency, after reasonable efforts, cannot discover the whereabouts of a parent; or 3) the child is a ward of the State under the laws of the State. The duty of the public agency under 300.515(a) includes the assignment of an individual to act as a surrogate for the parents. The public agency must have a method for determining whether the child needs a surrogate parent and for assigning a surrogate parIn situations where a child who is a ward of the State has a foster parent who meets the requirements to act as a parent pursuant to 300.20(b) and the State permits the foster parent to act as the parent, there may be no need to appoint a surrogate. Because the child is a ward of the State, however, the public agency has a duty under 300.515 to determine if there is a need for a surrogate parent to ensure the rights of the child.We hope that this response has been helpful. If you need further assistance, please call Rex Shipp, the New Hampshire Part B contact, at 202-401-4061.Sincerely,/s/ Patricia J. Guard forStephanie S. LeeDirectorOffice of Special Education ProgramsPage PAGE 2 Dr. Mary J. Ford