Dated July 10, 2003

Dr. Mary J. Ford

Director of Special Education

New Hampshire Department of Education

101 Pleasant Street

Concord, New Hampshire 03301-3860

Dear 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:

1.  *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As you are aware, RSA 186-C: 14,II(c) was repealed effective July 14,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.

2.  *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 parent for the child. (34 CFR
§300.515(b)). The regulations further set forth the criteria for
selection of a surrogate at §300.515(c). There is nothing in the
criteria listed in §300.515(c) requiring that the natural parents'
rights to make educational decisions be terminated in order for a foster
parent to be appointed as a surrogate. In fact, there is no discussion
of foster parents in any part of §300.515. Thus, a foster parent may be
appointed as the surrogate parent if the State determines that the
criteria found in 34 CFR §300.515(c) are satisfied.

The second part of your question involves the regulatory definition of
"parent" at 34 CFR §300.20(b), which may include a foster parent. This
regulation states that unless State law prohibits a foster parent from
acting as a [parent]{.underline}, a State may allow a foster parent to
act as a [parent]{.underline} under Part B of IDEA if 1) the natural
parents' authority to make educational decisions on the child's behalf
has been extinguished under State law and 2) the foster parent has an
ongoing, long-term parental relationship with the child; is willing to
make the educational decisions required of parents under the IDEA; and
has no interest that would conflict with the interests of the child.

In 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 for
>
> Stephanie S. Lee
>
> Director
>
> Office of Special Education Programs