14 Del. Admin. Code § 926-19.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 926-19.0 - Surrogate Parents

19.1 Definition: As used in this section,

"Educational Surrogate Parent, "Surrogate Parent" and "ESP" all mean a person appointed by the DOE to represent a child who receives, or may be in need of, special education and related services in all educational decision making pertaining to the identification, evaluation, and educational placement of the student and the provision of FAPE to the child.

19.2 General: The DOE shall determine a child's eligibility for a surrogate parent. The DOE shall appoint a surrogate parent when:

19.2.1 No parent as defined in 14 DE Admin. Code 922, Section 3.0 can be identified;

19.2.2 The public agency, after reasonable efforts, cannot locate a parent. Reasonable efforts shall include, but not be limited to, telephone calls, letters, certified letter with return receipt, or visit to the parents' last known address;

19.2.3 The parental rights of the child's parents have been terminated and legal responsibility of the child has not been granted by a court of law to an individual, not to include a State agency, and the child has not been adopted;

19.2.4 The child's parent has consented voluntarily, in writing, to the appointment of an educational surrogate parent. Such consent is revocable by the parent at any time by written notice to the DOE;

19.2.5 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)); or

19.2.6The child is in the custody of the Department of Services for Children, Youth, and their Families and in need of an educational surrogate parent.

19.3 The DOE shall make reasonable efforts to appoint a surrogate parent within 30 days after a request is submitted by an LEA or other public agency.

19.4 A surrogate parent shall not be required for a child who receives, or may be in need of, special education and related services when the child is living in the home of a relative who agrees to act in the place of the parent and for whom a Caregiver's School Authorization executed in compliance with 14 Del.C. § 3132 is on file.

19.5 A child between the ages of 18 and 22 shall remain eligible for the services of a surrogate parent appointed by the DOE, and unless declared incompetent by a court of law, such child shall have the right of access to a surrogate parent; the right to refuse the appointment of a surrogate parent; the right to participate in the selection of a surrogate parent; and the right to terminate the services of the surrogate parent.

19.6 Duties of LEAS and public agencies: All LEAs and public agencies responsible for providing special education and related services to children with disabilities have a duty to:

19.6.1 Identify and locate children who may be in need of surrogate parents;

19.6.2 Develop procedures to identify and locate children who may be in need of surrogate parents; and

19.6.3 Promptly submit a written request to the DOE to appoint a surrogate parent for each child who may be in need of a surrogate parent under these regulations.

19.6.4 For a child in the custody of the Department of Services for Children, Youth and Their Families (DSCYF) who may be in need of a surrogate parent, the DSCYF shall promptly make a written request to the DOE to appoint a surrogate parent. The Family Court may, in the exercise of its proper jurisdiction, order the DSCYF to make a referral.

19.7 Candidacy of surrogate parents:To serve as a surrogate parent, each candidate shall:

19.7.1 Be at least 18 years of age;

19.7.2 Be a legal resident of the United States;

19.7.3 Be competent to represent the child;

19.7.4 Not be an employee of the DOE, an LEA or any other public or private agency responsible for, or involved in the education or care of the child;

19.7.5 Have no interest that conflicts with the interest of the child he or she may represent, including, but not limited to, any professional or personal interest that might restrict or bias his or her ability to advocate for all of the services required to ensure a free, appropriate public education the child;

19.7.6 Receive training about Delaware and federal law and regulations, including due process procedures, disability conditions, educational programs, and special education services for children with disabilities, as required by the DOE in consultation with the Office of the Educational Surrogate Parent Program.

19.7.7 Be able to converse in the primary communication mode used by the child whenever possible; and

19.7.8 Have knowledge and skills that ensure adequate representation of the child.

19.8 Non employee requirement: compensation: A person otherwise qualified to be a surrogate parent under subsection 19.7 is not an employee of the agency solely because he or she is paid by the agency to serve as a surrogate parent. Nor are foster parents considered employees for purposes of these regulations.

19.9 Unaccompanied homeless youth: In the case of a child who is an 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 subsection 19.7.4, until a surrogate parent can be appointed that meets all of the requirements of subsection 19.7.

19.10 Surrogate parent responsibilities: Each surrogate parent shall be responsible for:

19.10.1 Representing the child in all matters relating to the identification, evaluation, and educational placement of the child, and the provision of FAPE to the child;

19.10.2 Becoming thoroughly acquainted with the child's educational history and other information contained in school records and reports relating to the child's educational needs;

19.10.3 Granting or denying permission for initial evaluation or placement, and safeguarding the confidentiality of all records and information pertaining to the child to comply with State and federal regulations, including the use of discretion when sharing information with appropriate people for the purpose of furthering the interests of the child;

19.10.4 Participating in the development of an IEP for the child;

19.10.5 Reviewing and evaluating special education programs pertaining to the child and other such programs as may be available;

19.10.6 Initiating mediation, complaint, hearing, or appeal procedures when necessary regarding the identification, evaluation, or educational placement of the child, and seeking qualified legal assistance when such assistance is in the best interest of the child; and

19.10.7 Participating in training provided or required by the DOE, in consultation with the Office of the Educational Surrogate Parent Program, concerning Delaware and federal laws and regulations related to the education of children with disabilities.

19.11 Termination of Surrogate parent services

19.11.1 Voluntary Termination: If the surrogate parent wishes to terminate his or her services, he or she shall notify the DOE in writing, at least 30 days prior to the termination of such services.

19.11.2 Other Termination: The DOE may terminate a surrogate parent's appointment when it determines that the child no longer qualifies for surrogate parent services under subsection 19.2. The DOE may also terminate a surrogate parent's appointment for cause, including the failure of the surrogate to discharge his or her duties or to maintain the child's confidentiality.

19.12 Compensation

19.12.1 The DOE shall compensate surrogate parents for all reasonable and necessary expenses incurred in performance of their duties, including, but not limited to,

19.12.1.1 Mileage for attendance at meetings concerning the child being represented by the surrogate; long distance telephone calls to the school in which the child is being served; and photocopying of the child's records.

19.13 Liability of the Surrogate Parent

19.13.1 A person appointed by the DOE as surrogate parent shall not be held liable for actions taken in good faith on behalf of the child in protecting the special education rights of the child.

(Authority: 20 U.S.C. 1415(b)(2); 14 Del.C. §§ 3110, 3132)

14 Del. Admin. Code § 926-19.0

14 DE Reg. 1065 (04/01/11)
26 DE Reg. 847 (4/1/2023) (Final)