Section 1147. Educational Decision Maker

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

1) the child 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 child’s best interest to limit the guardian’s right to make decisions regarding the child’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 the child’s educational stability are addressed;

b) school discipline matters are addressed;

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

d) the child, who is sixteen years of age or older, is receiving the necessary educational services to transition to independent living;

e) the child, 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 child turns fourteen; and

f) the child, who is aging out of care within ninety days, has a transition plan that addresses the child’s educational needs, and if applicable, the plan is coordinated with the child’s transition planning concerning special education under the Individuals with Disabilities Education Act.

2) address the child’s educational needs by:

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

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

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

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

ii) the timeliness and appropriateness of the child’s transitional planning; and

iii) services necessary to address the child’s educational needs;

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

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

Comment

A child in dependent care is to have a clearly identified, legally authorized educational decision maker. This is a particular concern for highly mobile children whose caregivers may change and whose guardian may be unavailable. An educational decision maker’s responsibilities may include, but are not limited to: ensuring educational stability as mandated by 42 U.S.C. § § 675(1)(G) and 11431 et seq.; ensuring prompt enrollment in a new school as required pursuant to 22 Pa. Code § 11.11(b); facilitating access to a full range of school programs; advocating for the child 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 child 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, 20 U.S.C. § 1400 et seq. See paragraph (A) and (C).

An educational decision maker appointed pursuant to this rule who represents a child who is also adjudicated delinquent is to review Rule 147.

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 child lives or surrogate parent appointed under the IDEA) who is competent, willing, and available to make decisions regarding the child’s education and who is acting in the child’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 education only to the extent necessary to protect the child’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 child; and 2) can consent to or prohibit the release of information from the child’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 child’s educational rights or is to agree to be trained regarding these issues.

If the child 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 child. However, such decision makers cannot be the State or employees of any agency that is involved in the education or care of the child. 34 C.F.R. § 300.519(c), (d)(2)(i).

The educational decision maker should refer to the Fostering Connections to Success and Increasing Adoptions Act of 2008 (P. L. 110-351) and the McKinney-Vento Homeless Assistance Act, 42 U.S.C. § 11431 et seq. (1989) for guidance in educational stability. Specifically, the educational decision maker is to: a) ensure the right to remain in the same school regardless of a change in placement when it is in the child’s best interest; b) facilitate immediate enrollment in a new school when a school change is in the child’s best interest; and c) ensure that school proximity is considered in all placement changes, 42 U.S.C. § § 675(1)(G) and 11431 et seq.

The educational decision maker is to also ensure: a) that the child receives an appropriate education, including, as applicable, any necessary special education, early intervention, or remedial services; see 24 P. S. § § 13-1371, 13-1372, 55 Pa. Code § 3130.87, 20 U.S.C. § 1400 et seq.; b) that the child receives educational services necessary to support the child’s transition to independent living pursuant to 42 Pa.C.S. § 6351 if the child is sixteen or older; and c) that the educational decision maker participates in the development of a transition plan that addresses the child’s educational needs pursuant to 42 U.S.C. § 675(5)(H) if the child will age out of care within ninety days.

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 child 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 1147 adopted April 29, 2011, effective July 1, 2011.

Committee Explanatory Reports:

Final Report explaining the provisions of Rule 1147 published with the Court’s Order at 41 Pa.B. 2413 (May 14, 2011).

The provisions of this Rule 1147 adopted April 29, 2011, effective July 1, 2011, 41 Pa.B. 2413.