To amend the Individuals with Disabilities Education Act to ensure that children with disabilities who are homeless or are wards of the State have access to special education services, and for other purposes.

September 16, 2003

Mrs. MURRAY (for herself and Mr. DEWINE) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions

To amend the Individuals with Disabilities Education Act to ensure that children with disabilities who are homeless or are wards of the State have access to special education services, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Improving Education for Homeless and Foster Children with Disabilities Act of 2003'.

SEC. 2. FINDINGS.

Section 601(c) of the Individuals with Disabilities Education Act (20 U.S.C. 1400(c)) is amended by adding at the end the following:

`(11) Children and youth in foster care (approximately 588,000 nationwide) have a higher prevalence of physical, developmental, and behavioral health problems than other children. They are also more likely than other children to have academic and behavioral trouble in school, higher rates of absenteeism and tardiness, and are more likely than other children to be in special education, repeat a grade, and have disabilities that affect their ability to learn.

`(12) In a number of States, more than 60 percent of children and youth in foster care drop out of school before graduation; a rate that is twice as high as the dropout rate for all students.

`(13) More than 1,350,000 children will experience homelessness at least once during the course of a year.

`(14) While homeless children are diagnosed with learning disabilities at a disproportionally high rate, such children are underserved by special education programs. In 1997, 20 of 47 States reported that special education was a major need of homeless children, yet 39 percent of States also reported that such children had difficulties accessing special education services.

`(15) In reports to the Department of Education, 50 percent of States indicated that homeless children had difficulties accessing special education services.'.

SEC. 3. DEFINITIONS.

Section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401) is amended--

(1) by redesignating paragraphs (9) through (30) as paragraphs (10) through (31), respectively;

(2) by inserting after paragraph (8) the following:

`(9) HOMELESS CHILDREN- The term `homeless children' has the meaning given the term `homeless children and youths' in section 725 of the McKinney-Vento Homeless Assistance Act.';

(3) by striking paragraph (20) (as redesignated by paragraph (1) of this section) and inserting the following:

`(20) PARENT-

`(A) IN GENERAL- The term `parent'--

`(i) means--

`(I) a natural or adoptive parent of a child;

`(II) a guardian (but not the State if the child is a ward of the State);

`(III) an individual acting in the place of a natural or adoptive parent, including a grandparent, stepparent, or other relative with whom the child lives or an individual who is legally responsible for the child's welfare; or

`(IV) except as used in sections 615(b)(2) and 639(a)(5), an individual assigned under either of those sections to be a surrogate parent; and

`(ii) in the case of a homeless child who is not in the physical custody of a parent or guardian, includes a related or unrelated adult with whom the child is living or other adult jointly designated by the child and the local educational agency liaison for homeless children and youths (designated pursuant to section 722(g)(1)(J)(ii) of the McKinney-Vento Homeless Assistance Act), in addition to other individuals permitted by law.

`(B) FOSTER PARENT- Unless State law prohibits a foster parent from acting as a parent, the term `parent' includes a foster parent if--

`(i) the natural or adoptive parents' authority to make educational decisions on the child's behalf has been extinguished under State law; and

`(ii) the foster parent--

`(I) has an ongoing, long-term parental relationship with the child;

`(II) is willing to make the educational decisions required of parents under this Act; and

`(III) has no interest that would conflict with the interests of the child.'; and

(4) by adding at the end the following:

`(32) WARD OF THE STATE- The term `ward of the State' means a child who--

`(A) is considered a ward of the State in the State where the child resides; or

`(B) is in the custody of a public child welfare agency, including if the child is residing--

`(i) in a foster family home, group home, or other alternative residential setting; or

`(ii) at home under protective supervision.'.

SEC. 4. STATE ELIGIBILITY.

Section 612(a) of the Individuals with Disabilities Education Act (20 U.S.C. 1412(a)) is amended--

(1) in paragraph (3)(A), by striking `disabilities attending' and inserting `disabilities who are homeless children or are wards of the State and children with disabilities attending'; and

(2) in paragraph (21)(B)--

(A) in clause (i), by striking the semicolon at the end and inserting `, including not less than 1 foster parent of a child with disabilities who is a ward of the State and 1 grandparent or other relative who is acting in the place of a natural or adoptive parent;';

(B) in clause (v), by striking the semicolon at the end and inserting `, including officials who carry out activities under subtitle B of title VII of the McKinney-Vento Homeless Assistance Act;';

(C) in clause (ix), by striking `and' after the semicolon;

(D) in clause (x), by striking the period at the end and inserting a semicolon; and

(E) by adding at the end the following:

`(xi) representatives from the State child welfare agency; and

`(xii) a representative of wards of the State who are in foster care, such as an attorney for children in foster care, a guardian ad litem, a court appointed special advocate, or a judge.'.

SEC. 5. LOCAL EDUCATIONAL AGENCY ELIGIBILITY.

Section 613(f)(2) of the Individuals with Disabilities Education Act (20 U.S.C. 1413(f)(2)) is amended--

(1) in subparagraph (B), by striking `and title XVI of the Social Security Act (supplemental security income)' and inserting `title XVI of the Social Security Act (supplemental security income), part E of title IV of the Social Security Act (foster care and adoption assistance), the John H. Chafee Foster Care Independence Program under section 477 of the Social Security Act, and State case plans for wards of the State';

(2) in subparagraph (C), by striking `and' after the semicolon;

(3) in subparagraph (D), by striking the period at the end and inserting `, that includes staff from the State child welfare agency; and'; and

(4) by adding at the end the following:

`(E) developing and coordinating strategies with local educational agency liaisons for homeless children and youths (designated pursuant to section 722(g)(1)(J)(ii) of the McKinney-Vento Homeless Assistance Act) to facilitate service delivery to children with disabilities who are homeless children.'.

SEC. 6. EVALUATIONS, ELIGIBILITY DETERMINATIONS, INDIVIDUALIZED EDUCATION PROGRAMS, AND EDUCATIONAL PLACEMENTS.

Section 614 of the Individuals with Disabilities Education Act (20 U.S.C. 1414) is amended--

(1) in subsection (a)(1)(C), by adding at the end the following:

`(iii) EXCEPTION FOR WARDS OF THE STATE- The agency shall not be required to obtain an informed consent from the parents of a child for an initial evaluation to determine whether the child is a child with a disability if such child is a ward of the State and consent has been given by the judge appointed to the child's case or the child's attorney, guardian ad litem, or court appointed special advocate.';

(2) in subsection (b)(3)--

(A) in subparagraph (C), by striking `and' after the semicolon;

(B) in subparagraph (D), by striking the period at the end and inserting `; and'; and

(C) by adding at the end the following:

`(E) assessments of homeless children and wards of the State are--

`(i) expedited and coordinated with such children's prior and subsequent schools as necessary to ensure timely completion of full evaluations; and

`(ii) completed within time limits--

`(I) established for all students by Federal, State, and local laws; and

`(II) that computes the commencement of time from the date on which such children are first referred for assessments in any local educational agency.';

(3) in subsection (d)--

(A) in paragraph (1)(B)--

(i) in clause (vi), by striking `and' after the semicolon;

(ii) in clause (vii), by striking the period at the end and inserting `; and'; and

(iii) by adding at the end the following:

`(viii) if the child is a ward of the State, the individual with primary responsibility for the child's education needs, such as a foster parent, a relative with whom the child lives who acts as a parent to the child, an attorney for the child, a guardian ad litem, a court appointed special advocate, a judge, or an education surrogate.'; and

(B) in paragraph (2), by adding at the end the following:

`(C) PROGRAM FOR HOMELESS CHILDREN AND WARDS OF THE STATE- In the case of a homeless child or a ward of the State who enrolls in a new school and who had an IEP that was in effect in the same or another State, the local educational agency, State educational

agency, or other State agency, as the case may be, shall immediately have in effect such IEP until such agency--

`(i) adopts such IEP; or

`(ii) develops a new IEP.'; and

(4) in subsection (f), by adding at the end the following: `Decisions regarding the educational placement of a child with a disability who is a homeless child shall comply with the requirements described under section 722(g)(3) of the McKinney-Vento Homeless Assistance Act.'.

SEC. 7. PROCEDURAL SAFEGUARDS.

Section 615 of the Individuals with Disabilities Education Act (20 U.S.C. 1415) is amended--

(1) in subsection (a), by inserting `, including children with disabilities who are wards of the State,' after `children with disabilities';

(2) in subsection (b)--

(A) in paragraph (2)--

(i) by striking `or the child is a ward of the State' and inserting `the child is a ward of the State, or the child is a homeless child who is not in the physical custody of a parent or guardian'; and

(ii) by inserting `in accordance with subsection (n)' after `surrogate for the parents';

(B) in paragraph (7)--

(i) in subparagraph (B)(i), by striking `residence of the child,' and inserting `residence of the child (or available contact information in the case of a homeless child),'; and

(ii) by striking `and' after the semicolon;

(C) in paragraph (8), by striking the period at the end and inserting `; and'; and

(D) by adding at the end the following:

`(9) procedures to protect the rights of the child whenever the child is a ward of the State, including procedures that preserve the rights of the natural or adoptive parent to make the decisions required of parents under this Act (unless such rights have been extinguished under State law) but that permit a child who is represented in juvenile court by an attorney, guardian ad litem, or another individual, to be represented by such attorney, guardian ad litem, or other individual in any meetings, mediation proceedings, or hearings provided under this Act.';

(3) in subsection (l), by striking `disabilities,' and inserting `disabilities, or under subtitle B of title VII of the McKinney-Vento Homeless Assistance Act or parts B and E of title IV of the Social Security Act,'; and

(4) by adding at the end the following:

`(n) SURROGATE PARENT-

`(1) ASSIGNMENT- The assignment of a surrogate under subsection (b)(2) shall take place not more than 30 days after the earlier of the following takes place:

`(A) The child is referred to the local educational agency for an initial evaluation to determine if the child is a child with a disability.

`(B) There is a determination made by the agency that the child needs a surrogate parent because the child's parent cannot be identified, the child becomes a ward of the State, or, despite reasonable efforts to do so, the agency cannot discover the whereabouts of the parent of the child.

`(2) REQUIREMENTS OF SURROGATE- An individual may not be assigned to act as a surrogate for the parents under subsection (b)(2) unless the individual--

`(A) signs a written form agreeing to make the educational decisions required of parents under this Act;

`(B)(i) has the knowledge and skills necessary to ensure adequate representation of the child; or

`(ii) agrees to be trained as an educational surrogate; and

`(C) has no interests that would conflict with the interests of the child.

`(3) FOSTER PARENT AS SURROGATE- A foster parent of a child may be assigned to act as a surrogate for the parents of such child under subsection (b)(2) if the foster parent--

`(A) has an ongoing, long-term parental relationship with the child;

`(B) agrees to make the educational decisions required of parents under this Act;

`(C) agrees to be trained as an educational surrogate; and

`(D) has no interest that would conflict with the interests of the child.'.

SEC. 8. FINDINGS AND POLICY.

Section 631(a)(5) of the Individuals with Disabilities Education Act (20 U.S.C. 1431(a)(5)) is amended by inserting `, and infants and toddlers in foster care' after `rural populations'.

SEC. 9. ELIGIBILITY.

Section 634(1) of the Individuals with Disabilities Education Act (20 U.S.C. 1434(1)) is amended by inserting `, infants or toddlers with disabilities who are homeless children, and infants or toddlers with disabilities who are wards of the State' after `located in the State'.

SEC. 10. REQUIREMENTS FOR STATEWIDE SYSTEM.

Section 635 of the Individuals with Disabilities Education Act (20 U.S.C. 1435) is amended--

(1) in subsection (a)--

(A) in paragraph (5), by inserting before the period at the end the following: `, and including a requirement, based on a State policy, that all children under 3 years of age who are involved in a substantiated case of child abuse or neglect are referred to the system described in section 633 for evaluation and, if appropriate, receipt of early intervention services';

(B) in paragraph (6), by striking `hospitals and physicians' and inserting `hospitals, physicians, homeless family shelters, medicaid and State child health insurance program enrollment offices, health and mental health clinics, public schools in low-income areas serving low-income children, staff in State and local child welfare agencies, and judges'; and

(C) by adding at the end the following:

`(17) A procedure to ensure that early intervention services and evaluations are available to infants or toddlers with disabilities who are--

`(A) homeless children; and

`(B) wards of the State or in foster care, or both.'; and

(2) by adding at the end the following:

`(c) CONSTRUCTION- Nothing in subsection (a)(5) shall be construed to alter the responsibility of a State under title XIX of the Social Security Act with respect to early and periodic screening, diagnostic, and treatment services (as defined in section 1905(r) of such Act).'.

SEC. 11. STATE APPLICATION AND ASSURANCES.

Section 637 of the Individuals with Disabilities Education Act (20 U.S.C. 1437) is amended--

(1) in subsection (a)--

(A) in paragraph (8)(C), by striking `and' after the semicolon;

(B) by redesignating paragraph (9) as paragraph (10); and

(C) by inserting after paragraph (8) the following:

`(9) a description of policies and procedures to ensure that infants or toddlers with disabilities who are homeless children and their families and infants or toddlers with disabilities who are wards of the State have access to multidisciplinary evaluations and early intervention services; and'; and

(2) in subsection (b)(7), by striking `low-income, and rural families' and inserting `low-income, homeless, and rural families and children with disabilities who are wards of the State'.

SEC. 12. STATE INTERAGENCY COORDINATING COUNCIL.

Section 641(b)(1) of the Individuals with Disabilities Education Act (20 U.S.C. 1441(b)(1)) is amended--

(1) in subparagraph (A), by striking the period at the end and inserting `, not less than one other member shall be a foster parent of a child with a disability, and not less than one other member shall be a grandparent or other relative acting in the place of a natural or adoptive parent of a child with a disability.'; and

(2) by adding at the end the following:

`(J) OFFICE OF THE COORDINATOR OF EDUCATION OF HOMELESS CHILDREN AND YOUTH- Not less than 1 representative designated by the Office of Coordinator for Education of Homeless Children and Youths.

`(K) STATE CHILD WELFARE AGENCY- Not less than 1 representative from the State child welfare agency responsible for foster care.

`(L) REPRESENTATIVE OF FOSTER CHILDREN- Not less than 1 individual who represents the interests of children in foster care and understands such children's education needs, such as an attorney for children in foster care, a guardian ad litem, a court appointed special advocate, a judge, or an education surrogate for children in foster care.'.

SEC. 13. ADMINISTRATIVE PROVISIONS.

Section 661(e)(2) of the Individuals with Disabilities Education Act (20 U.S.C. 1461(e)(2)) is amended--

(1) in subparagraph (E), by striking `and' after the semicolon;

(2) in subparagraph (F), by striking the period at the end and inserting `; and'; and

(3) by adding at the end the following:

`(G) projects that provide training in educational advocacy to individuals with responsibility for the needs of wards of the State, including foster parents, grandparents and other relatives acting in the place of a natural or adoptive parent, attorneys for children in foster care, guardians ad litem, court appointed special advocates, judges, education surrogates, and children's caseworkers.'.

SEC. 14. CONFORMING AMENDMENTS.

Section 612(a)(12)(B)(i) of the Individuals with Disabilities Education Act (20 U.S.C. 1412(a)(12)(B)(i)) is amended--

(1) by striking `602(22)' and inserting `602(23)';

(2) by striking `602(29)' and inserting `602(30)'; and

(3) by striking `602(30)' and inserting `602(31)'.

END