Section 147. Educational Decision Maker

A. Generally. At any proceeding or upon motion, the court shall appoint an educational decision maker for the juvenile if it determines that:

1) the juvenile has no guardian; or

2) the court, after notice to the guardian and an opportunity for the guardian to be heard, has made a determination that it is in the juvenile’s best interest to limit the guardian’s right to make decisions regarding the juvenile’s education.

B. Notice of hearings. The educational decision maker shall receive notice of all proceedings.

C. Duties and responsibilities. The educational decision maker shall:

1) make appropriate inquiries and take appropriate actions to ensure that:

a) issues concerning school discipline matters are addressed;

b) the juvenile is receiving appropriate education that will allow the juvenile to meet state standards, including any necessary services concerning special education in the least restrictive environment, or remedial services;

c) the juvenile, who is receiving services concerning special education, is engaged in transition planning with the school entity beginning no later than the school year in which the juvenile turns fourteen;

d) the juvenile approaching discharge from a delinquency placement will be promptly enrolled in an appropriate program of instruction that addresses the juvenile’s educational needs; and

e) any other educational matters, as appropriate in the juvenile’s best interest, are addressed.

2) address the juvenile’s educational needs by:

a) meeting with the juvenile at least once and as often as necessary to make decisions regarding education that are in the juvenile’s best interests;

b) participating in special education and other meetings, and making decisions regarding all matters affecting the juvenile’s educational needs in a manner consistent with the juvenile’s best interests;

c) making any specific recommendations to the court relating to:

i) the timeliness and appropriateness of the juvenile’s educational placement; and

ii) services necessary to address the juvenile’s educational needs;

d) appearing and testifying at court hearings when necessary; and

e) having knowledge and skills that ensure adequate representation of the juvenile.

Comment

A juvenile is to have a clearly identified, legally authorized educational decision maker. This is a particular concern for juveniles who are adjudicated delinquent, may be returning from delinquency placements, and may not have a parent available and able to perform this function. An educational decision maker’s responsibilities may include, but are not limited to: ensuring that the juvenile is promptly enrolled in an appropriate educational program while in placement and upon discharge; see 42 Pa.C.S. § 6301(b)(2) and 55 Pa. Code § 3130.87; ensuring educational stability as applicable pursuant to 42 U.S.C. § § 675(1)(G) and 11431 et seq.; facilitating access to a full range of school programs; advocating for the juvenile in school discipline matters; ensuring meaningful transition planning as required by 42 Pa.C.S. § 6351 and 42 U.S.C. § 675(5)(H); and for a juvenile eligible for special education, ensuring access to appropriate services including transition planning beginning no later than age fourteen. See 24 P. S. § § 13-1371, 13-1372 and 20 U.S.C. § 1400 et seq. See paragraphs (A) and (C).

An educational decision maker appointed pursuant to this rule who represents a juvenile who is also adjudicated dependent is to review Rule 1147 for additional information concerning educational laws and entitlements applicable to children in dependent care.

A court is not to appoint an educational decision maker if there is a parent, guardian, or other authorized person (e.g., foster parent, relative with whom the juvenile lives or surrogate parent appointed under the IDEA) who is competent, willing, and available to make decisions regarding the juvenile’s education and who is acting in the juvenile’s best interest regarding all educational matters. See Individuals with Disabilities Education Act (‘‘IDEA’’), 20 U.S.C. § 1400 et seq. (2004). A court should limit the authority of a parent to make decisions regarding the juvenile’s education only to the extent necessary to protect the juvenile’s interest and can reinstate the parent or change the educational decision maker at any time.

Unless limited by the court in its appointment order, an educational decision maker: 1) is responsible for making all decisions concerning education, including special education, for the juvenile; and 2) can consent to or prohibit the release of information from the juvenile’s school records as a parent in accordance with the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g and 34 C.F.R. § 99.3 (1974). The educational decision maker may be a family member, a family friend, a mentor, a foster parent, a former foster parent, a Court Appointed Special Advocate, or, if an educational decision maker for special education is not needed, a child welfare professional. Except as otherwise provided by the IDEA, it is within the discretion of the court to appoint an educational decision maker and whom to appoint. In all cases, however, an educational decision maker appointed by the court should be familiar with a juvenile’s educational rights or is to agree to be trained regarding these issues.

If the juvenile is or may be eligible for special education, an educational decision maker is to be appointed in accordance with the standards and procedures set forth in federal and state laws concerning special education. See IDEA, 20 U.S.C. § § 1400, 1401(23), and 1415(b)(2); 34 C.F.R. § § 300.30, 300.45, and 300.519. The IDEA recognizes a court’s authority to appoint persons to make decisions concerning special education for a juvenile. However, such decision makers cannot be the State or employees of any agency that is involved in the education or care of the juvenile. 34 C.F.R. § 300.519(c), (d)(2)(i).

The authority of the court to appoint an educational decision maker is derived from the broad powers of the court to issue orders that ‘‘provide for the care, protection, safety, and wholesome mental and physical development of children.’’ 42 Pa.C.S. § 6301 (b)(1.1). The IDEA also requires that each juvenile who is eligible for special education has an active parent or other identified person who can participate in the process concerning special education. See IDEA, 20 U.S.C. § § 1401(23) and 1415(b)(2); 34 C.F.R. § § 300.30, 300.45, and 300.519.

Official Note

Rule 147 adopted April 29, 2011, effective July 1, 2011.

Committee Explanatory Reports:

Final Report explaining the provisions of Rule 147 published with the Court’s Order at 41 Pa.B. 2413 (May 14, 2011).

The provisions of this Rule 147 adopted April 29, 2011, effective July 1, 2011, 41 Pa.B. 2413.