Foster Care and the IEP: Who Has Educational Rights When a Child Is in the System

She'd been in three placements in eight months. Each time she moved, the IEP started over.

New district. New evaluation request. New team. New goals that didn't reflect what anyone who knew her well would have written. As if the child herself was new.

Nobody had told her foster parent about educational stability. Nobody had told the schools they were required to implement the existing IEP immediately, without a new evaluation. Nobody had appointed a surrogate parent to advocate consistently across placements.

She was nine years old and already being failed by two systems simultaneously.

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Children in foster care with disabilities are one of the most underserved populations in special education. They move frequently, lose consistency, and often have no single adult advocating for their educational rights across placements. The law has specific protections for them — protections that most foster parents, caseworkers, and even some school staff don't know exist. — Tabaitha McKeever, Special Education Teacher

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The Two-System Problem

A child in foster care exists at the intersection of two large bureaucracies: the child welfare system and the public education system. Each has its own rules, its own personnel, and its own definition of what the child needs.

What gets lost in the gap between them is consistency. Consistency in schooling. Consistency in services. Consistency in who shows up at the IEP meeting knowing the child's history.

IDEA has specific requirements designed to address this — but they only work if someone knows to invoke them.

Who Holds Educational Decision-Making Rights

This is the question most people get wrong.

Biological parents retain all IDEA rights — including the right to consent to evaluations, approve or refuse IEP services, and request IEP meetings — until their parental rights are legally terminated (TPR). Being in foster care does not automatically transfer educational decision-making from a parent to a foster parent or the state. If the biological parent can be located and is willing to participate, they remain the educational rights holder.

Foster parents do not automatically hold educational decision-making authority. They may attend IEP meetings and advocate for the child, but they typically cannot consent to evaluations, sign the IEP, or make binding educational decisions unless the court has specifically granted them that authority.

The state or agency assumes educational rights after Termination of Parental Rights — but only if no other person has been granted those rights by the court.

A surrogate parent is appointed under IDEA when no parent can act: when parental rights are terminated, when the biological parent cannot be located, or when the parent is unavailable to participate. The surrogate parent has all the rights of a parent under IDEA — including consent authority, IEP participation, and dispute resolution rights.

The Surrogate Parent Requirement Is Not Optional

This is the part of IDEA that protects children in foster care most directly — and the part most districts fail to implement.

Under 34 C.F.R. § 300.519, when a child in foster care has a disability and no parent is available to exercise IDEA rights, the school district must appoint a surrogate parent. Not "should." Must. The district has an affirmative obligation to act without waiting for anyone to ask.

A surrogate parent is an independent adult who:

• Has no conflicts of interest with the child
• Has knowledge and skills related to special education
• Advocates for the child's educational interests

Employees of the school district, employees of child welfare agencies, and foster parents who have a conflict of interest cannot serve as surrogate parents. The surrogate must be genuinely independent.

When a surrogate parent is properly appointed, they have the same standing as a biological parent at every stage of the IEP process. They can consent to evaluations, approve or reject IEP services, request meetings, and file complaints and due process on the child's behalf.

Educational Stability: The Child's Right to Stay in School

When a child in foster care changes placements, they often have to change schools. The disruption is compounding — new home, new school, new teacher, new IEP team, new everything. IDEA and the Every Student Succeeds Act (ESSA) both have provisions designed to reduce this.

Immediate services. When a child in foster care transfers to a new district, that district must immediately provide services comparable to what was in the existing IEP while the team arranges a formal review. The new district cannot require a new evaluation before starting services. This is not optional and not subject to the new district's preferences about their own assessment process.

School of origin stability. ESSA requires that state child welfare agencies and education agencies coordinate to keep children in foster care enrolled in their "school of origin" — the school they attended when they entered care — unless remaining there is not in the child's best interest. The child cannot simply be moved to the neighborhood school as a default. The best-interest determination must be made explicitly, with the child's educational needs as the primary factor.

Transportation. If a child remains in their school of origin but their placement moves them out of that school's area, the agencies must arrange transportation to and from school. Transportation costs cannot be the reason a child is moved to a different school.

What Caseworkers Often Don't Know

Caseworkers carry enormous caseloads and are not special education specialists. In practice:

• Many caseworkers don't know about the surrogate parent requirement and don't initiate it
• Many caseworkers don't know that the new district must implement the existing IEP immediately
• Many caseworkers don't know that educational stability is a right, not a courtesy
• Many caseworkers don't know that biological parents retain IDEA rights until TPR

This means that often, no one is filling the gaps — and the child loses services, loses placement stability, and loses consistency while the two systems work out whose responsibility it is.

What Foster Parents Can Do

Foster parents may not hold consent authority, but they have meaningful rights at the IEP table:

• Attend all IEP meetings
• Request a meeting at any time
• Ask questions, raise concerns, and provide information about the child's daily functioning
• Advocate for the child's needs in the team discussion
• Ask the district whether a surrogate parent has been appointed and, if not, request that one be

If the foster parent believes the district is failing to implement the existing IEP while evaluating the child, or has refused to enroll the child in their school of origin without a best-interest determination, those are state complaint issues.

FAQ: Foster Care and the IEP

Do biological parents keep IDEA rights when their child is in foster care? Yes, until their parental rights are legally terminated. Being in foster care does not transfer educational decision-making authority to the foster parent or the state. The school must continue to involve biological parents in the IEP process and obtain their consent, as long as they can be located and are willing to participate.

What is a surrogate parent under IDEA? A surrogate parent is an independent adult appointed by the school district to act in place of a parent for IDEA purposes when no parent is available — including after TPR, when the biological parent cannot be located, or when the parent is unavailable. The surrogate has all IDEA parental rights: consent to evaluations, IEP participation, and access to dispute resolution. The district is required to appoint a surrogate — the parent, caseworker, or foster parent does not need to request one.

We moved placements and the new school wants to reevaluate before starting services. Is that legal? No. When a child in foster care transfers to a new district, the new district must immediately provide services comparable to the existing IEP. They can initiate a new evaluation concurrently, but they cannot delay or withhold services while that evaluation is completed. Request the services in writing and reference 34 C.F.R. § 300.323.

Can the agency move my foster child to a different school without a best-interest determination? No. Under ESSA, children in foster care have a right to remain enrolled in their school of origin unless a formal best-interest determination is made. The determination must consider the child's educational needs and cannot simply default to the nearest school. Transportation must be arranged if needed to support school of origin enrollment.

The surrogate parent the district appointed is a district employee. Is that allowed? No. District employees, state agency employees, and foster parents with conflicts of interest cannot serve as surrogate parents under IDEA. A surrogate parent must be genuinely independent from both the district and the child welfare agency. If the appointed surrogate has a conflict of interest, challenge the appointment and request a compliant surrogate.

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This post is for general educational purposes and does not constitute legal advice.

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If a child in your care has a disability and you're navigating an IEP across placements — or you're not sure whether the current IEP is being implemented as required — the IEP & ARD Paperwork Review Service gives you a written analysis of what the document requires and where the gaps are. That analysis matters especially when no one advocate has consistent knowledge of the child's history.

For more on IEP rights when circumstances change, read What Happens When You Move to a New State or visit the IEP Process hub.