Kathryn Hogan | Navigating The Intersection of Family Law and Special Education

We’re excited to welcome Kathryn Hogan as our guest today on the Texas Family Law Insiders podcast. Kathryn is a staff and education attorney on the education team at Disability Rights Texas. She’s an advocate for students with disabilities to get appropriate educational services, including foster children in psychiatric facilities who’ve been denied education by school districts. She is a graduate of Texas A&M University School of Law, a certified Educational Diagnostician, a certified principal, and has taught in Texas public schools for 14 years. 

The mission of Disability Rights Texas is to help people with disabilities understand and exercise their rights under the law, ensuring their full and equal participation in society. Kathryn helps parents of students with disabilities make sure they get an appropriate education in Texas public schools. Kathryn provides helpful information for family law attorneys for cases involving a disabled child, as well as:

  • Communication best practices
  • Section 504 and the education of children with disabilities
  • The Individuals with Disabilities Education Act-IDEA 
  • ARD committees
  • And more

Mentioned in this episode:


Kathryn Hogan: You look at the best interest of the child, but you keep the educational issues in mind.

Voiceover: You’re listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: We’re excited to welcome Kathryn JHogan today to the Texas Family Law Insiders podcast. Kathryn is a staff attorney on the Education Team at Disability Rights Texas. She advocates for students with disabilities to get appropriate educational services, including foster children in psychiatric facilities throughout Texas denied education by local school districts. Ms Hogan is a graduate of Texas A&M University School of Law, a certified educational diagnostician and a certified principal and has taught in Texas public schools for 14 years. Thank you so much for joining us today.

Kathryn: Well, thank you so much for having me. I’m very excited to be here.

Holly: So describe for us, what do you do?

Kathryn: Well, I always love to tell people about my job. I am an education attorney at Disability Rights Texas, and I help parents of students with disabilities to make sure that they get appropriate education in Texas public schools. I attend ARD meetings and 504 meetings. If agreements can’t be reached at those then I can file TDA complaints, or OCR complaints are due process hearing requests. If administrative actions like that don’t work, then there’s always federal court.

Holly: What is the mission of Disability Rights Texas?

Kathryn: Okay, well, Disability Rights Texas is the federally designated legal protection and advocacy agency for people with disabilities in the state of Texas. The mission of Disability Rights Texas, is to help people with disabilities understand and exercise their rights under the law, ensuring their full and equal participation in society. I said that we were the protection and advocacy organization, sometimes that’s referred to as the P&A. For the state of Texas, there’s one P&A organization in each state. And that’s who we are we advocate for people who might not otherwise have people looking out for them.

Holly: So are you kind of a governmental agency? Are you a nonprofit? Or how exactly are you set up?

Kathryn: We are a nonprofit, we’re not a government agency. In fact, Protection and Advocacy agencies are not allowed to be government agencies, they have to be separate from the government. Because we are allowed to access certain places that other agencies might not be allowed to go, for instance, government agencies might not be allowed to go. Whereas we’re allowed to go monitor or investigate places where a person with a disability might be to make sure that those people are not subject to abuse or neglect. And then, in some ways, we have more power than certain places, but in some ways we have less, we can go a lot of places that government agencies might not necessarily be allowed to go.

But we don’t have necessarily any power, we don’t have any power to arrest people, or to charge people with crimes or anything like that. We have power to find out things and to investigate or to monitor certain places. And then if we need to file complaints with possibly CPS or with a law enforcement agency or something like that, then we would do so and then they would be they would look into it further. At that point. Or if CPS has already investigated something, then we could still look into their investigation and say, ask them to reconsider certain things.

Holly: So I know you handle educational issues, but I assume there are a variety of issues that your organization deals with.

Kathryn: Yes, we have. We have various different teams. I’m on the Education Team. When I was first hired by Disability Rights, Texas, my title was not staff attorney. It was the education, education and children’s mental health attorney. And I worked closely with a couple of members of a team called the IRCL team or the institutional rights and civil liberties team, IRCL. And they go into they actually typically deal with our P&A authority more than the Education Team necessarily would. Because they might go into psychiatric facilities, or prisons or any other place that a person with a disability might be and might be subject to abuse or neglect. And they can go in and monitor those things. So they typically deal with that more often than we would although schools are included in those places that people with disabilities might be. So we certainly could use P&A authority in dealing with schools. But the IRCL team is more the experts on that.

Holly: So as Family Lawyers, we see educational issues come up in a variety of ways, both in private family law cases, and in CPS litigation. So today, we’ll talk about several issues that can be helpful to attorneys, and possibly also parents if they happen to be listening, but helpful to attornies and they help families navigate through these issues. So what should attorneys do? And what can they advise parents to do if a student needs help at school?

Kathryn: Okay, well, the first thing to remember, and most attorneys this would, this would come naturally to them. The first thing to remember is good communication. The school cannot fix a problem if they aren’t aware of the problem. So I always advise clients or friends, or anyone to keep in good communication with the school, if you start noticing an issue, be sure to inform them. Generally, I advise to inform in writing, and I prefer email because then you have the date that you’ve informed them, and it’s in writing. Sometimes when parents send emails to the school, they might get a phone call right back. And that’s fine.

I’m not saying never, never speak in person to the school or never speak in real time on the phone. But if you do, if the school is saying some things that you agree with and think are wonderful, be sure to send an email afterwards saying thank you so much for speaking with me today. It’s my understanding that the school has agreed to do A, B, C, and D, thank you so much for your time, I look forward to speaking to you again soon. Likewise, if the school has said something that you disagree with at the meeting, I advise sending a quick email afterwards and saying it’s my understanding that you’ve told me the school is not allowed to or is refusing to A, B, C, and D, so on and so forth, then you have it in writing. If the school is refusing to do something that they are obligated to do under federal law, or even Texas State law, then you have that in writing saying that they’re refusing to do it.

And chances are, they’re going to want to return that email and let you know, no, no, no, that wasn’t at all what we meant on the phone when we said that. So while parents often think that the best thing to do when they’re very upset with the school is to hop in the car and drive over there and talk to the principal or call up on the phone and demand to speak to the principal. A short and polite email often will do the trick better than that. And it gives you a little bit of time also to reread what you’ve written and make sure you’re being courteous and and you can get a lot better results often by just good communication and courteousness than being upset and jumping to go do something in person or on the phone.

Holly: So I’ve heard a lot of discussion over the years related to special education, 504s and IEPs. Can you kind of describe what all those are and what the differences are?

Kathryn: All right, well, um, special education is involves the Individual’s Disabilities Education Act, and 504 involves section 504 of the Rehabilitation Act. Now, section 504 entitles students to not be discriminated against. So if a student I mean, I’m just making up some examples, but if the student needs to sit closer to the chalkboard in order to see or a student needs to wear his glasses, or a student needs to have a book on tape, or larger print or something like that, or possibly even if the student needs a little bit of a little bit of tutoring or needs extra time before answering a question extra wait time in order to access the curriculum that any other student has the opportunity to access, then you would give us the student those accommodations so that student can get all the same education as everyone else and not be discriminated against.

That’s what section 504 does. It says you’re not allowed to discriminate against students with disabilities. Now, IDEA is a little bit different. It doesn’t just entitle students to the same education that everyone else is receiving. It entitles them to special supports and services so that that student can get a free, appropriate public education or fape, sometimes we call it fape, free appropriate public education. So, if a student with a disability qualifies for special education services, those are actual supports and services above and beyond or different than other students get. Whereas section 504 is non discrimination not being not being allowed to discriminate against that student because of his or her disability.

Holly: So in the family law context, we will see a lot of issues with parents who don’t agree on special education services, 504 services for students. So what happens if parents don’t agree?

Kathryn: Well, if if parents don’t agree, then who whomever is the educational decision maker would be the the actual parent who gets to make the decisions in an ARD meeting. However, most of those special education decisions are made by an entire ARD committee. And generally both parents are entitled to information, both parents would likely be entitled to come to the ARD committee meeting. Or the IEP team meeting is sometimes what it’s called. ARD stands for admission review and dismissal committee. And IEP stands for Individualized Education Plan. Throughout all the 50 states. If you say IEP team meeting, most people will know what you’re talking about. ARD is distinct to Texas, we’ve used that term here. But both parents generally are entitled to information about their child.

And would that would likely include attending ARD committee meetings and giving information to the ARD committee, so that they would have a little bit of say so in that their opinion can be heard certainly in an ARD committee meeting. But parents are just one member of the ARD committee, and there are five of those committees, five required members, sometimes there’s more than that. There’s an administrator, the parent, or if the student is over 18, then that would be the student. So administrator, parent, special education teacher, general education teacher, and some kind of assessment personnel who can, such as a diagnostician or a licensed specialist in school psychology, someone who is can administer and interpret Educational Testing, diagnose diagnostic tests, so that they can give information at ARD meetings.

Holly: Can a child qualify for special education or 504 services, even if they are making good grades?

Kathryn: Actually, yes, that’s a very good question. Um, there are various categories of eligibility for special education. And there are no specific categories for Section 504. If someone has a disability, and they need certain services, in order to access the general curriculum, or to access any services that the school offers, such as extracurricular or access the building anything like that, then they should be entitled to not be discriminated against. Now for special education services, there are certain eligibility categories that might not necessarily affect their student’s academic performance.

For instance, there is emotional disturbance or ED is often what it’s called, in which case, it can affect academics. And that’s generally when they notice it. The quickest is when a child’s emotional issues are affecting are affecting their school performance, academic performance, but it can also affect their social interaction at school, it can affect how they, how they behave in the cafeteria, or on the playground, or it can be can even affect how they are, how they are interacting at home. And all of those are educational needs, even if they’re not academic needs. And the school is required to to help the student with all his or her educational needs, not just those that are academic.

Holly: So I looked at a 504 plan before and as an attorney, my initial reaction was none of this is enforceable. How do you even know? It’s all vague and in the eye of the particular teacher? Do you see that as well? And, you know, I’ve been told it’s because, well, it needs to be that way, because you can’t make black and white. I’m just curious what your thoughts are on that?

Kathryn: Well, actually, that is a very good point. Now, one thing you just said was that you looked at a 504 plan. A 504 plan is a little bit different than a special education plan. But the same problems that you just mentioned in it would exist in an IEP or a plan for special education students or students qualifying for those services as well. Sometimes things are written very generally. And, and it is much harder to enforce something general than it is something more specific. Now, at a 504 meeting, parents are actually not required members of the 504 team. The 504 team does not have to have all five members, as you’ve said, so the school can really write a plan. Without the parents there if they would like and write it out, however they feel it should be. And I tend to think that it’s it is in the best interest of the school to make it more general so that it is harder to hold them accountable.

Maybe that’s a little cynical of me to say that, for instance, I’m not generally called when the relationship between the school and the parents is going just wonderfully, I’m typically called when there’s problems not when it’s going well. But a special education plan or an IEP individualized education plan. The parents are a team member. And if the parents think that something needs to be in there very specific, then they’re going to need to be firm in what they say and do at those IEP team meetings or ARD meetings. They need to say, how are we going to measure this? How are we going to measure that? How are we going to know that this has taken place? For instance, the goals need to be measurable goals and have time limits. And they need to be good goals, not just he will come to school and be happy. It needs to actually show that he’s achieving something rather than just de minimis progress, some real, real progress for the students that actually makes a difference in his or her life.

And quite often, it is very hard for parents to disagree at the end of those meetings. But if they agree, then it’s not the end of the world. If they disagree, if they agree, and then look later and go, wow, I don’t like this plan. You can always ARD it’s not like they’re stuck there forever. You can go back to an ARD meeting and ask for changes and then disagree, then it’s not like a contract where you’ve you’ve ruined your child for the rest of his high school career or elementary school career. You can make changes later. But it is important to hold hold your own and disagree at an ARD meeting if you don’t think that things are written well, or you don’t think the plan is adequate to help your child

Holly: In CPS litigation, when kiddos in those cases are involved in either special education services or 504 services. Can the attorneys representing those children or the attorneys representing parents be involved in that at all?

Kathryn: Actually, yes, they they could be involved in that. And if if there’s an attorney ad litem, or a guardian ad litem, those people are definitely entitled to come to those meetings and have a voice. They’re not actually ARD committee members, but they could have a voice actually. Well, it depends on if they’re actually designated as the parents, in which case they wouldn’t be our committee members if one of them is also considered a parent. But there’s a lot of things that can be done by attorneys in those situations. For instance, if CPS is involved, not to be cynical again, but it’s it’s a good thing to keep them informed that this parent is advocating for a child with disabilities with the school district because we wouldn’t want CPS getting informed possibly by the school district that there are problems with the foster parent, or a biological or adoptive parent. Just because that parent is advocating for the child with disabilities to get appropriate services.

Not that school districts in Texas whatever do that. It would be best to make sure CPS knows this foster parent is doing a good job and is very well versed in special education. He or she has been a special education teacher for 10 years, and has had three previous children with special needs and has navigated this system. And so this foster parent is holding the school accountable and making sure they’re doing a good job. If CPS knows that then it’s less likely that’s if they know that ahead of time. It’s less likely that the school might possibly come along and say there’s problems with this foster parent and the child needs to be moved elsewhere. Because that would be horrible if that happened when you have a good solid home life for a child and it to get something bad like that happen to the child, due to just being a good parent and advocating.

Holly: Yeah, I can see schools, you know, if they can get this child moved somewhere else, then it’s not their problem anymore, and they don’t have to navigate all those issues. So another acronym that I’ve come across is FIE. What is an FIE?

Kathryn: An FIE is a full and individual evaluation. If we’re talking about an initial evaluation, that is the evaluation that would qualify or not qualify a student for special education services. Now, while the evaluator does evaluators, school districts are required to seek out and find students with disabilities who reside within their school district, whether that that student is a private school student, whether they’re a public school student, whether they’re homeschooled whether they are in psychiatric facilities, for instance, whether they’re in residential treatment facilities, the school district is required to seek out those students and evaluate them to see if they qualify for special education services and give them the services they need. A full individual evaluation is the first step of requesting one of those as the first step, if a parent wants to request one, once again, I would suggest sending the FIE request either as an attachment or in the body of an email, too, I typically tell parents to send it to two different two different people at the school district because there are is turnover sometimes at the school district.

And then you have proof of what the date is because a school has a limited amount of time to send, then decide whether they are going to evaluate that student, and they send consent for evaluation to the parents, because requesting an evaluation is not the same as consenting to the evaluation. It’s called informed consent. And the school has to send out some kind of consent form, where they inform the parent of the types of assessment instruments and so on and so forth, that they will be using on that student. And then the parent has to sign that consent form. And then after that consent is turned in, then the school district has 45 days to assess the student. And then after they have assessed the student, then they have 30 days to have the initial ARD committee meeting to determine whether that student qualifies for special education services or not.

And it is not just the personnel who determine this, it is the entire ARD committee that determines whether the student qualifies for special education services or not. Now, the assessment personnel give a recommendation in their evaluation of whether they think the student should qualify. And that is typically what the committee goes by. But if the parent disagrees with that, or they disagree with the evaluation, for some reason, then they’re entitled to request an independent educational evaluation or IEE. And they can get that at public expense. So they can go find an independent evaluator, as long as it meets this evaluator meets the same criteria as the school evaluators, and they can get that student evaluated. And the ARD committee is obligated to consider that evaluation when that independent educational evaluation when determining whether the student qualifies for special education services or not.

Holly: I think with the issue of informed consent, that’s where we oftentimes will see two parents who maybe are divorced or never were married to begin with, but that don’t get along where one parent will consent and the other one will not. Is that a situation where the parents need to go to court to get somebody exclusive rights? Or is does the school or the system have a way of sorting that out?

Kathryn: That is a difficult question. Um, generally there is one parent that that has the Educational Rights once the disputes start happening. They do have one parent that has Educational Rights. Most of the time, I believe that schools would go by they assume that that the parents do have educational rights when they have custody of the student or whatever. And they don’t generally ask for two signatures most of the time, but that is a very difficult question. It is it is much like all the other information in school, there is a parent who the buck stops with that parents when they’re separated or divorced. And the other one is entitled to information, but not necessarily to make final decisions.

Holly: And we certainly see a lot of divorce decrees or custody orders that have either joint agreement required on educational decisions, or each one has the independent right subject to notice or consultation or just plain independence, it’s pretty rare to have an order that gives an exclusive right, just because the other side puts up a big fight about it. And in order to reach agreements, you get what you give on that issue. But I have heard a lot of attorneys who know a lot about special education issues say that it’s super important to give one parent the exclusive right.

Kathryn: It really is. And it does sound like your your first situation sounded a little bit the the most ugly and hard to hard to decide. But I would say that status quo rules first and change would require joint joint decisions. But whatever has already previously been decided, can remain that way. Much like we have a we have something called stay put where if we have an ARD meeting. And this, this is not assuming two separate parents having different ideas. But if there’s an ARD meeting, and the parents disagree with the school members of the ARD committee, then they can invoke something they can disagree at that ARD meeting and invoke something called stay put provision, in which case the student stays in whatever environment educational environment he or she is in at the time until the issue is resolved. And that could be that doesn’t necessarily imply as far as discipline, changes of placement, but it doesn’t, it does apply to the other kinds of changes in placement.

And that would go until they would stay in that particular placement until whatever issue is resolved, whether it be by due process, or if it still appealed, then it would still stay, they wouldn’t be moving the child back and forth back and forth. Every time there’s a new appeal, we leave that we oh, we won this appeal. So we’re leaving that we’re changing the child and until the next appeal comes? No, they stay the same as long as every issue until every issue is resolved. And that is how how I would probably interpret it as a member of the school. I can’t guarantee that every school necessarily interprets everything the same way that I would. But I would say the status quo if it requires joint consent, then you don’t have any consent until you have both and so everything stays the same until then.

Holly: So got another acronym here. What is the LRE?

Kathryn: The LRE is the least restrictive environment. And it is different for every child. Schools are required to educate students in that student’s least restrictive environment. They’re required to educate the student with his or her non disabled peers as much as possible. They’re required to educate the student in his or her home school as much as possible. And they’re required to educate him or her in the general education classroom as much as possible. Now, that means as much as possible with adequate supports and services. Now, some students, their Least Restrictive Environment might actually be a secluded setting in another room apart from non disabled peers for most of the day, because that is the least restrictive that you can have.

The student is in the same school building with his or her non disabled peers, but segregated to some extent. But that is not the first choice schools are required to to have a continuum of services, they can’t say we have a, b and c. And if you don’t like a, b and c, that’s too bad. We’re picking one of those. If the student is somewhere between the A placement and the B placement. And they really, they really need something a little more restrictive than A and a little less restrictive than B, then the school is required to provide a continuum of services, not just say, this is what we offer it this school. So this is all we’re giving your child. It’s not just you know, we’re going to put us a square peg in a round hole or anything like that, that the child comes first.

Holly: So, at first glance, Least Restrictive Environment sounds like it is designed to protect the child, but I have heard of situations where I mean, obviously a more restrictive environment is going to mean more cost to the district. So where districts use it as a means they don’t want to pay for more services by saying we need the least restrictive environment. Do you see that conflict coming up very often?

Kathryn: Actually, we don’t see that as often. But I wanted to correct something that might seem a certain way on first glance, but typically segregating a bunch of students who the school has determined, oh, these students are all alike getting to be educated the same way, let’s stick them in a classroom by themselves. That is typically a little that is less expensive than letting each one of them go out to their individual classrooms, with possibly a one on one aid, each one of them, school districts do not like to pay for one on one aides for five different students, they’d rather have one teacher, one teacher aide in a room all by themselves, and not let them be around their non disabled peers.

Because it does save them money as far as equipment, if there’s specialized equipment that certain students need, it’s much easier to have all that specialized equipment in one place, than to have have that all over the place and allowing the students to stay in their home school, and allowing the students to each be in all their individual classes. So typically, we don’t necessarily see it that way. And there is some issues with funding and how Texas funds special education. And I’m, I’m not a policy attorney with Disability Rights, Texas and Disability Rights, Texas generally just educates rather than advocates for legislature to do certain things or telling people oh, go call your congressman.

Well, feel free to call your congressman or congresswoman. But we’re not going to tell you what to tell them. But there are some funding issues, which encourage schools to they get more funding for segregating students in more restrictive environments, and they get less funding for having the mainstream. However, they tend to need more funding for having the mainstream and need less funding for having them segregated. So it does it, it creates an not very good incentive for least restrictive environment for the students.

Holly: I know a lot of school districts do have, you know, one or two elementary schools out of all their elementary schools that’ll have special education services at that school. So it sounds like those parents have the right to fight to have their kids stay at the homeschool, the neighborhood school or wherever they’re zoned for as opposed to going to the district’s choice of special education school?

Kathryn: And parents certainly have a right to advocate for what ever they believe is in the best interest of their child and they have the right to go to an ARD meeting and advocate for whatever they think is best for their child. However, if there are specially trained personnel at a certain school, or there is special equipment at a certain school, then that might very well well actually be the least restrictive environment for that child. I mean, when certainly not saying that all students need to be educated in the general ed classroom without any teacher aides without any extra supports and services. And they’ll all be successful. Parents really do need to be involved and try to come up with ideas with the art committee. It’s supposed to be a cooperative committee, where they come up with what is best for the child, much as in family law, they’re trying to come up with what is the best interest of the child. That’s what should be happening in special education law at the schools is the school and the parents should work together to come up with the best possible education for the student.

Holly: So one of the things mentioned in your bio was about foster children in psychiatric facilities. And I’m sure there’s also non foster children that end up in psychiatric facilities. Who, either to school districts make the call on that or who is making the call on a child needing to be taken out of a home and traditional schooling environment and into a psychiatric facility.

Kathryn: Well, it’s not necessarily what I had been saying and what I’m the most familiar with is that there might be some reason that a student goes to a psychiatric facility, for instance, there, there is some issue at home or maybe it did happen in school, but they end up getting admitted to a psychiatric facility. And it is in general foster children that I’m speaking about. But it could happen to other people, other children as well. And then once they are in the facility, foster students might possibly lose their placements. And then there are in the, the child is in the foster, I mean in the psychiatric facility without a placement. So the psychiatric facility ends up being the placement for the student, and they don’t have somewhere else to go. So when the original issue that might have gotten, you know, here, it’s a short term psychiatric facility, maybe 10, or 12 days is how long people are supposed to stay. And some foster children were staying possibly months, even some of them over a year, and whatever issue is resolved within 10 or 12 days, but yet they’re stuck there.

And that that is not necessarily the issue that the Education team dealt with. But to add insult to injury when they were in the facilities, most of the time throughout the state of Texas, the local school district, which is required to educate students residing in their school district, including those that psychiatric facilities, most of them were not providing any education services to the psychiatric facilities. And so whereas the IRCL team would be trying to get these students out of psychiatric facilities and and in more appropriate placements, because people should not be living in psychiatric facilities, the education team was trying to at least while they are they’re getting them education. So they’re not three, four or five months behind in school when they finally get out.

So that’s typically what we were saying, however, for parents to know, is if your child is in a psychiatric facility that you have, that you have admitted them to, or they’re admitted for some reason, yes, you can go on and keep bringing makeup work from the school, their tip their typical school that they’ve been going to. But if you’re not if your child is not really getting the education that he or she is supposed to just by you running back and forth with makeup or canned things, the local school district where the psychiatric facility is located, is required to provide education for the students there upon enrollment, and as far as foster children or homeless children or anything, that enrollment means telling them enroll this kid, as far as a student who actually does have a parent, other, you know, not a foster or homeless student, then yes, the parent would need to get involved and say I want my student and my child enrolled in school in this school district now that he or she is residing in the psychiatric facility.

Holly: So it wouldn’t be then the district where the child had been attending that’s responsible. It shifts to the district wherever that child ends up.

Kathryn: Correct. Correct. And that’s not to say that they can’t, the school district that they came from, certainly can keep providing education if they want to. And the parent can probably keep them enrolled there if they want to. Most school districts are not going to make you not going to try to kick you out of their school district just because your child is temporarily located somewhere else or sick or something. If they’re in a hospital or in a psychiatric facility. If they’re hospitalized long term, they’re entitled to homebound services. they’re entitled to services at a psychiatric facility as well if they’re there. But even if it’s not locally, located in the district, most home original or home districts will continue letting a parent you know take makeup work or whatever. I haven’t really ran into home districts. I know we’re just enrolling and we found out that he’s residing somewhere else.

And we’re not going to let your child keep going here until he’s out of the psychiatric facility. I haven’t really run into that. I’m not saying that it might not happen. But the real problem is when there isn’t a parent who’s going back and forth with the old school district. And then psychiatric facilities when I was first going. Some of them really didn’t know what school district is supposed to be providing. Is it the one that came from? Is that the one where we are? Who is supposed to be? They say oh well this is a this is a such an A ISD place and this is a B ISD place and this is the C ISD student. All these students come from different school districts. Are we supposed to contact all these school districts? It’s like no, where is the facility located you just need to contact one school district and make sure they provide education for all these children. Generally foster children who are in the facility.

Holly: So what advice would you give to family lawyers who see these issues surface in the context of a family law case?

Kathryn: Well, it’s it’s really the advice that Family Lawyers follow all the time. You look at the best interest of the child, but you keep the educational issues in mind. And you keep in mind that a student with a disability might have different best interests that need to be advocated for, then all other children might and every child is unique, no matter who the child is, or what their particular situation is. But if a child has disabilities, they have different rights at school than the other children have. And so it’s important to advocate for what that child needs in a different way than you would advocate for other children. It’s important to know who is the educational decision maker, it’s important to know who’s allowed to be the parent in an ARD meeting. And for foster children. That’s really that’s really tricky there because a ward of the state cannot have an employee of the state be the parent in an ARD meeting. So that’s one of the issues that I see is, is, you know, caseworkers signing as parents at ARD meetings, which they’re not allowed to do.

Holly: So should it be, do you think the foster parent or a casa or the ad litem for the child? Who do you think is the best suited to fill that role?

Kathryn: Well, it’s different for different children, but who legally is allowed to be the parent at an ARD meeting is an adoptive or biological parent, possibly a grandparent who is who the child lives with or something like that. A foster parent is allowed to be considered the parent at an ARD meeting. CPS caseworkers are not allowed to be considered the parent at an ARD meeting. Even if that CPS caseworker is designated as the educational decision maker. That person is not allowed to be the parent at the ARD meeting, RT, RTC staff are not allowed to be considered the parent and an ARD meeting. So if they are designated as the educational decision maker, then they’re not allowed to be the parent.

So in that case, then the student wouldn’t if the student does not have anyone who is allowed to be considered the parent at an ARD meeting, then the school district would be required to appoint what’s called an educational surrogate. Now, a court can also appoint an educational surrogate. In fact, quite often we would be at Disability Rights, Texas would prefer a court to appoint an educational surrogate than the school district because if we are needing to get a parent to sign off on us to advocate for a student, we would likely have better luck getting a court appointed educational surrogate to want to fight with a school district more than we would get a school district volunteer educational surrogate to want to fight with the school district who they are volunteering for.

So but if there hasn’t been a court appointed educational surrogate, and the student doesn’t have a parent, and the foster parent does not want to be the educational surrogate or something like that, then the school district is required the buck stops with them at that point, they are required to appoint someone and train someone to be an educational surrogate. If we come along and we find that the educational surrogate is not doing his or her job, then we can at Disability Rights, Texas can try to get a new educational surrogate court appointed or something like that, and get that person trained to do the job.

Holly: What types of people would a court normally appoint to fill that role?

Kathryn: Guardian ad litem, so you had mentioned that Guardian Ad litems are, are would be a good choice. Um, foster parents would be a good choice. But they already they don’t have to actually be appointed, possibly just people in the community who are understand a little bit about special education, law, maybe another parent, a friend of one of their one of their classmates, or somebody who knows the child very well, possibly another relative of the child, people who have an interest in the child but are not receiving any kind of financial financial incentives to take care of the child in any way such as an RTC or RTF or anything like that. But there’s a variety of people Guardian Ad litems tend to be a very good person to appoint because they’re already looking out for the child.

Holly: So what advice would you give to attorneys representing parents or children in CPS litigation?

Kathryn: Well, I do think communication is important. Like I said earlier, if you’re representing someone in CPS, you need to keep CPS, you need to make sure to inform CPS about foster parents or parents or anything who are advocating for a child with special needs with the school, because they do need to know to to take with a grain of salt, possibly things that they might be being informed by the school. And know if there might be some motives of that it would just be a little easier not to have a parent who advocates as much because parents should be advocating for their children, they should be involved in their child’s education and trying to get what is best for him or her.

Holly: So we were talking earlier about the FIE and what the timeline is for that. Can you explain that for us?

Kathryn: Okay, I think earlier, I probably misspoke and said 10 days or something, it’s um, after the parent has requested an FIE, then the school has 15 days, and it’s 15 school days, not calendar days, but they have 15 days to provide the parents with some kind of consent form an informed consent form so that the parent can can then give consent for the school to evaluate. As I said, the request for an evaluation and the consent for evaluation are two different things. After the parent gives the consent, then the school has 45 days to conduct the evaluation. And then after the 45 school days, that school days again, then the school has 30 calendar days before it has to have the ARD meeting to decide whether a child is eligible.

Holly: Great, thank you so much for clearing that up for us. And we’re just about out of time. But where can our listeners go to learn more about Disability Rights Texas?

Kathryn: Well, we have a website, that’s probably a great place to start. And it’s www.disabilityrightstx.org. Also, if you or a loved one, or if if you’re a person with a disability or you know someone who has a disability, and they’re having any issues, not just at school, but if they’re having employment issues, or housing issues. I know with COVID there’s some different situations that people are dealing with any kind of discrimination issues or any kind of access to services issues with that, then they should try our intake line at 800-252-9108. Or if it’s easier to do an online intake, then it’s I N T A K E intake.drtx.org.

Holly: Perfect. Well, that’s great information and I think a lot of our listeners will get a lot of education from listening to you today. Thank you so much for joining us.

Kathryn: Well, thank you very much for having me.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle Family Law appellate matters. For more information, visit our website at www.draperfirm.com

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