Florida Senate - 2009                                    SB 1128
       
       
       
       By Senator Rich
       
       
       
       
       34-00599-09                                           20091128__
    1                        A bill to be entitled                      
    2         An act relating to education for children in shelter
    3         care or foster care; amending s. 39.0016, F.S.;
    4         defining the term “surrogate parent”; providing
    5         legislative intent; providing conditions for district
    6         school board or court appointment of a surrogate
    7         parent for educational decisionmaking for a child who
    8         has or is suspected of having a disability; amending
    9         s. 39.202, F.S.; providing for access to certain
   10         records to liaisons between school districts and the
   11         Department of Children and Family Services; amending
   12         s. 39.402, F.S.; requiring access to a child's medical
   13         records and educational records if a child is placed
   14         in a shelter; amending s. 39.701, F.S.; requiring the
   15         court and citizen review panel in judicial reviews to
   16         consider testimony by a surrogate parent for
   17         educational decisionmaking; providing for additional
   18         deliberations relating to appointment of an
   19         educational decisionmaker; requiring certain
   20         documentation relating to the educational setting;
   21         amending s. 1003.21, F.S.; providing access to free
   22         public education for children known to the department;
   23         authorizing a temporary exemption relating to school
   24         attendance; amending s. 1003.22, F.S.; authorizing a
   25         temporary exemption from school-entry health
   26         examinations for children known to the department;
   27         providing an effective date.
   28         
   29  Be It Enacted by the Legislature of the State of Florida:
   30         
   31         Section 1. Section 39.0016, Florida Statutes, is amended to
   32  read:
   33         39.0016 Education of abused, neglected, and abandoned
   34  children; agency agreements; children having or suspected of
   35  having a disability.—
   36         (1) DEFINITIONS.—As used in this section, the term:
   37         (a) “Children known to the department” means children who
   38  are found to be dependent or children in shelter care.
   39         (b) “Department” means the Department of Children and
   40  Family Services or a community-based care lead agency acting on
   41  behalf of the Department of Children and Family Services, as
   42  appropriate.
   43         (c) “Surrogate parent” means an individual appointed to act
   44  in the place of a parent in educational decisionmaking and in
   45  safeguarding a child's rights under the Individuals with
   46  Disabilities Education Act and this section.
   47         (2) AGENCY AGREEMENTS.—
   48         (a)(3) The department shall enter into an agreement with
   49  the Department of Education regarding the education and related
   50  care of children known to the department. Such agreement shall
   51  be designed to provide educational access to children known to
   52  the department for the purpose of facilitating the delivery of
   53  services or programs to children known to the department. The
   54  agreement shall avoid duplication of services or programs and
   55  shall provide for combining resources to maximize the
   56  availability or delivery of services or programs.
   57         (b)(4) The department shall enter into agreements with
   58  district school boards or other local educational entities
   59  regarding education and related services for children known to
   60  the department who are of school age and children known to the
   61  department who are younger than school age but who would
   62  otherwise qualify for services from the district school board.
   63  Such agreements shall include, but are not limited to:
   64         1.(a) A requirement that the department shall:
   65         a.1. Enroll children known to the department in school. The
   66  agreement shall provide for continuing the enrollment of a child
   67  known to the department at the same school, if possible, with
   68  the goal of avoiding disruption of education.
   69         b.2. Notify the school and school district in which a child
   70  known to the department is enrolled of the name and phone number
   71  of the child known to the department caregiver and caseworker
   72  for child safety purposes.
   73         c.3. Establish a protocol for the department to share
   74  information about a child known to the department with the
   75  school district, consistent with the Family Educational Rights
   76  and Privacy Act, since the sharing of information will assist
   77  each agency in obtaining education and related services for the
   78  benefit of the child.
   79         d.4. Notify the school district of the department's case
   80  planning for a child known to the department, both at the time
   81  of plan development and plan review. Within the plan development
   82  or review process, the school district may provide information
   83  regarding the child known to the department if the school
   84  district deems it desirable and appropriate.
   85         2.(b) A requirement that the district school board shall:
   86         a.1. Provide the department with a general listing of the
   87  services and information available from the district school
   88  board, including, but not limited to, the current Sunshine State
   89  Standards, the Surrogate Parent Training Manual, and other
   90  resources accessible through the Department of Education or
   91  local school districts to facilitate educational access for a
   92  child known to the department.
   93         b.2. Identify all educational and other services provided
   94  by the school and school district which the school district
   95  believes are reasonably necessary to meet the educational needs
   96  of a child known to the department.
   97         c.3. Determine whether transportation is available for a
   98  child known to the department when such transportation will
   99  avoid a change in school assignment due to a change in
  100  residential placement. Recognizing that continued enrollment in
  101  the same school throughout the time the child known to the
  102  department is in out-of-home care is preferable unless
  103  enrollment in the same school would be unsafe or otherwise
  104  impractical, the department, the district school board, and the
  105  Department of Education shall assess the availability of
  106  federal, charitable, or grant funding for such transportation.
  107         d.4. Provide individualized student intervention or an
  108  individual educational plan when a determination has been made
  109  through legally appropriate criteria that intervention services
  110  are required. The intervention or individual educational plan
  111  must include strategies to enable the child known to the
  112  department to maximize the attainment of educational goals.
  113         3.(c) A requirement that the department and the district
  114  school board shall cooperate in accessing the services and
  115  supports needed for a child known to the department who has or
  116  is suspected of having a disability to receive an appropriate
  117  education consistent with the Individuals with Disabilities
  118  Education Act and state implementing laws, rules, and
  119  assurances. Coordination of services for a child known to the
  120  department who has or is suspected of having a disability may
  121  include:
  122         a.1. Referral for screening.
  123         b.2. Sharing of evaluations between the school district and
  124  the department where appropriate.
  125         c.3. Provision of education and related services
  126  appropriate for the needs and abilities of the child known to
  127  the department.
  128         d.4. Coordination of services and plans between the school
  129  and the residential setting to avoid duplication or conflicting
  130  service plans.
  131         e.5. Appointment of a surrogate parent, consistent with the
  132  Individuals with Disabilities Education Act and pursuant to
  133  subsection (3), for educational purposes for a child known to
  134  the department who qualifies as soon as the child is determined
  135  to be dependent and without a parent to act for the child. The
  136  surrogate parent shall be appointed by the school district
  137  without regard to where the child known to the department is
  138  placed so that one surrogate parent can follow the education of
  139  the child known to the department during his or her entire time
  140  in state custody.
  141         f.6. For each child known to the department 14 years of age
  142  and older, transition planning by the department and all
  143  providers, including the department's independent living program
  144  staff, to meet the requirements of the local school district for
  145  educational purposes.
  146         (c)(2) The provisions of this subsection section establish
  147  standards goals and not rights. This subsection section does not
  148  require the delivery of any particular service or level of
  149  service in excess of existing appropriations. A person may not
  150  maintain a cause of action against the state or any of its
  151  subdivisions, agencies, contractors, subcontractors, or agents
  152  based upon this subsection section becoming law or failure by
  153  the Legislature to provide adequate funding for the achievement
  154  of these standards goals. This subsection section does not
  155  require the expenditure of funds to meet the standards goals
  156  established in this subsection section except funds specifically
  157  appropriated for such purpose.
  158         (3) CHILDREN HAVING OR SUSPECTED OF HAVING A DISABILITY.—
  159         (a)1.The Legislature finds that disability is a natural
  160  part of the human experience and in no way diminishes the right
  161  of individuals to participate in or contribute to society.
  162  Improving educational results for children with disabilities is
  163  an essential element of our public policy of ensuring equality
  164  of opportunity, full participation, independent living, and
  165  economic self-sufficiency for individuals with disabilities.
  166         2. The Legislature also finds that research and experience
  167  have shown that the education of children with disabilities can
  168  be made more effective by:
  169         a. Having high expectations for these children and ensuring
  170  their access to the general education curriculum in the regular
  171  classroom, to the maximum extent possible.
  172         b. Providing appropriate exceptional student education,
  173  related services, and aids and supports in the least restrictive
  174  environment appropriate for these children.
  175         c. Having a trained, interested, and consistent educational
  176  decisionmaker for the child when the parent is determined to be
  177  legally unavailable or when the foster parent is unwilling, has
  178  no significant relationship with the child, or is not trained in
  179  the exceptional student education process.
  180         3. It is, therefore, the intent of the Legislature that all
  181  children with disabilities known to the department, consistent
  182  with the Individuals with Disabilities Education Act, have
  183  available to them a free, appropriate public education that
  184  emphasizes exceptional student education and related services
  185  designed to meet their unique needs and prepare them for further
  186  education, employment, and independent living and that the
  187  rights of children with disabilities are protected.
  188         (b)1. Each district school board or dependency court must
  189  appoint a surrogate parent for a child known to the department
  190  who has or is suspected of having a disability, as defined in s.
  191  1003.01(3), when:
  192         a. After reasonable efforts, no parent can be located;
  193         b. A court of competent jurisdiction over a child has
  194  determined that no person has the authority under the
  195  Individuals with Disabilities Education Act or that no person
  196  with such authority is willing or able to serve as the
  197  educational decisionmaker for the child; or
  198         c.The child is residing in a licensed group care or
  199  therapeutic setting wherein the Individuals with Disabilities
  200  Education Act prohibits staff from acting as a surrogate parent
  201  for educational decisionmaking.
  202         2. The dependency court may appoint a surrogate parent for
  203  any child who is under its jurisdiction. A surrogate parent
  204  appointed by the court must be at least 18 years old. The court
  205  may not appoint an employee of the Department of Education, the
  206  local school district, a community-based care provider, the
  207  Department of Children and Family Services, or any other public
  208  or private agency involved in the education or care of the child
  209  as appointment of those persons is prohibited by federal law.
  210  However, a person who acts in a parental role to a child, such
  211  as a foster parent or relative caregiver, is not prohibited from
  212  serving as a surrogate parent if employed by such agency,
  213  willing to serve, and knowledgeable about the child and about
  214  the exceptional student education process. Group home staff and
  215  therapeutic foster home parents may not be appointed. The
  216  surrogate parent may be a relative or other adult involved in
  217  the child's life regardless of whether that person has physical
  218  custody of the child.
  219         3. The district school board must accept the appointment of
  220  the court or must appoint a surrogate parent within 30 days
  221  after notice that the child meets the criteria in this paragraph
  222  and no court appointment has been made.
  223         4. A surrogate parent appointed by the district school
  224  board must be accepted by any subsequent school without regard
  225  to where the child is receiving residential care so that a
  226  single surrogate parent can follow the education of the child
  227  during his or her entire time in state custody.
  228         5. For a child known to the department, the responsibility
  229  to appoint a surrogate parent resides with both the district
  230  school board and the court with jurisdiction over the child. If
  231  the court elects to appoint a surrogate parent, notice shall be
  232  provided as soon as practicable to the child's school. At any
  233  time that the court determines that it is in the best interests
  234  of a child to remove a surrogate parent, the court may appoint a
  235  new surrogate parent for educational decisionmaking purposes for
  236  that child.
  237         (4)(5)TRAINING.—The department shall incorporate an
  238  education component into all training programs of the department
  239  regarding children known to the department. Such training shall
  240  be coordinated with the Department of Education and the local
  241  school districts. The department shall offer opportunities for
  242  education personnel to participate in such training. Such
  243  coordination shall include, but not be limited to, notice of
  244  training sessions, opportunities to purchase training materials,
  245  proposals to avoid duplication of services by offering joint
  246  training, and incorporation of materials available from the
  247  Department of Education and local school districts into the
  248  department training when appropriate. The department training
  249  components shall include:
  250         (a) Training for surrogate parents to include how an
  251  ability to learn of a child known to the department is affected
  252  by abuse, abandonment, neglect, and removal from the home.
  253         (b) Training for parents in cases in which reunification is
  254  the goal, or for preadoptive parents when adoption is the goal,
  255  so that such parents learn how to access the services the child
  256  known to the department needs and the importance of their
  257  involvement in the education of the child known to the
  258  department.
  259         (c) Training for caseworkers and foster parents to include
  260  information on the right of the child known to the department to
  261  an education, the role of an education in the development and
  262  adjustment of a child known to the department, the proper ways
  263  to access education and related services for the child known to
  264  the department, and the importance and strategies for parental
  265  involvement in education for the success of the child known to
  266  the department.
  267         (d) Training of caseworkers regarding the services and
  268  information available through the Department of Education and
  269  local school districts, including, but not limited to, the
  270  current Sunshine State Standards, the Surrogate Parent Training
  271  Manual, and other resources accessible through the Department of
  272  Education or local school districts to facilitate educational
  273  access for a child known to the department.
  274         Section 2. Paragraph (p) of subsection (2) of section
  275  39.202, Florida Statutes, is amended to read:
  276         39.202 Confidentiality of reports and records in cases of
  277  child abuse or neglect.—
  278         (2) Except as provided in subsection (4), access to such
  279  records, excluding the name of the reporter which shall be
  280  released only as provided in subsection (5), shall be granted
  281  only to the following persons, officials, and agencies:
  282         (p) An employee of the local school district who is
  283  designated as a liaison between the school district and the
  284  department pursuant to an interagency agreement required under
  285  s. 39.0016 and the principal of a public school, private school,
  286  or charter school where the child is a student. Information
  287  contained in the records which the liaison or the principal
  288  determines are necessary for a school employee to effectively
  289  provide a student with educational services may be released to
  290  that employee.
  291         Section 3. Subsection (11) of section 39.402, Florida
  292  Statutes, is amended to read:
  293         39.402 Placement in a shelter.—
  294         (11)(a) If a child is placed in a shelter pursuant to a
  295  court order following a shelter hearing, the court shall require
  296  in the shelter hearing order that the parents of the child, or
  297  the guardian of the child's estate, if possessed of assets which
  298  under law may be disbursed for the care, support, and
  299  maintenance of the child, to pay, to the department or
  300  institution having custody of the child, fees as established by
  301  the department. When the order affects the guardianship estate,
  302  a certified copy of the order shall be delivered to the judge
  303  having jurisdiction of the guardianship estate. The shelter
  304  order shall also require the parents to provide to the
  305  department and any other state agency or party designated by the
  306  court, within 28 days after entry of the shelter order, the
  307  financial information necessary to accurately calculate child
  308  support pursuant to s. 61.30.
  309         (b) The court shall request that the parents consent to
  310  provide access to the child's medical records and provide
  311  information to the court, the department or its contract
  312  agencies, and any guardian ad litem or attorney for the child.
  313  If a parent is unavailable or unable to consent or withholds
  314  consent and the court determines access to the records and
  315  information is necessary to provide services to the child, the
  316  court shall issue an order granting access. The court may also
  317  order the parents to The parent or legal guardian shall provide
  318  all known medical information to the department and to any
  319  others granted access under this subsection.
  320         (c) The court shall request that the parents consent to
  321  provide access to the child's educational records and provide
  322  information to the court, the department or its contract
  323  agencies, and any guardian ad litem or attorney for the child.
  324  If a parent is unavailable or unable to consent or withholds
  325  consent and the court determines access to the records and
  326  information is necessary to provide services to the child, the
  327  court shall issue an order granting access. The court may
  328  appoint a surrogate parent or may refer the child to the
  329  district school board for appointment of a surrogate parent.
  330         Section 4. Subsection (8) of section 39.701, Florida
  331  Statutes, is amended to read:
  332         39.701 Judicial review.—
  333         (8) The court and any citizen review panel shall take into
  334  consideration the information contained in the social services
  335  study and investigation and all medical, psychological, and
  336  educational records that support the terms of the case plan;
  337  testimony by the social services agency, the parent, the foster
  338  parent or legal custodian, the guardian ad litem or surrogate
  339  parent for educational decisionmaking if one has been appointed
  340  for the child, and any other person deemed appropriate; and any
  341  relevant and material evidence submitted to the court, including
  342  written and oral reports to the extent of their probative value.
  343  These reports and evidence may be received by the court in its
  344  effort to determine the action to be taken with regard to the
  345  child and may be relied upon to the extent of their probative
  346  value, even though not competent in an adjudicatory hearing. In
  347  its deliberations, the court and any citizen review panel shall
  348  seek to determine:
  349         (a) If the parent was advised of the right to receive
  350  assistance from any person or social service agency in the
  351  preparation of the case plan.
  352         (b) If the parent has been advised of the right to have
  353  counsel present at the judicial review or citizen review
  354  hearings. If not so advised, the court or citizen review panel
  355  shall advise the parent of such right.
  356         (c) If a guardian ad litem needs to be appointed for the
  357  child in a case in which a guardian ad litem has not previously
  358  been appointed or if there is a need to continue a guardian ad
  359  litem in a case in which a guardian ad litem has been appointed.
  360         (d) Who holds the rights to make educational decisions for
  361  the child. If appropriate, the court may refer the child to the
  362  district school board for appointment of a surrogate parent or
  363  may itself appoint a surrogate parent under the Individuals with
  364  Disabilities Education Act and s. 39.0016.
  365         (e)(d) The compliance or lack of compliance of all parties
  366  with applicable items of the case plan, including the parents'
  367  compliance with child support orders.
  368         (f)(e) The compliance or lack of compliance with a
  369  visitation contract between the parent and the social service
  370  agency for contact with the child, including the frequency,
  371  duration, and results of the parent-child visitation and the
  372  reason for any noncompliance.
  373         (g)(f) The compliance or lack of compliance of the parent
  374  in meeting specified financial obligations pertaining to the
  375  care of the child, including the reason for failure to comply if
  376  such is the case.
  377         (h)(g) Whether the child is receiving safe and proper care
  378  according to s. 39.6012, including, but not limited to, the
  379  appropriateness of the child's current placement, including
  380  whether the child is in a setting that is as family-like and as
  381  close to the parent's home as possible, consistent with the
  382  child's best interests and special needs, and including
  383  maintaining stability in the child's educational placement, as
  384  documented by assurances from the community-based care provider
  385  that:
  386         1. The placement of the child takes into account the
  387  appropriateness of the current educational setting and the
  388  proximity to the school in which the child is enrolled at the
  389  time of placement.
  390         2. The community-based care agency has coordinated with
  391  appropriate local educational agencies to ensure that the child
  392  remains in the school in which the child is enrolled at the time
  393  of placement.
  394         (i)(h) A projected date likely for the child's return home
  395  or other permanent placement.
  396         (j)(i) When appropriate, the basis for the unwillingness or
  397  inability of the parent to become a party to a case plan. The
  398  court and the citizen review panel shall determine if the
  399  efforts of the social service agency to secure party
  400  participation in a case plan were sufficient.
  401         (k)(j) For a child who has reached 13 years of age but is
  402  not yet 18 years of age, the adequacy of the child's preparation
  403  for adulthood and independent living.
  404         (l)(k) If amendments to the case plan are required.
  405  Amendments to the case plan must be made under s. 39.6013.
  406         Section 5. Paragraph (f) of subsection (1) and paragraph
  407  (g) of subsection (4) of section 1003.21, Florida Statutes, are
  408  amended to read:
  409         1003.21 School attendance.—
  410         (1)
  411         (f) Homeless children, as defined in s. 1003.01, and
  412  children who are known to the department, as defined in s.
  413  39.0016, must have access to a free public education and must be
  414  admitted to school in the school district in which they or their
  415  families live. School districts shall assist homeless children
  416  and children who are known to the department to meet the
  417  requirements of subsection (4) and s. 1003.22, as well as local
  418  requirements for documentation.
  419         (4) Before admitting a child to kindergarten, the principal
  420  shall require evidence that the child has attained the age at
  421  which he or she should be admitted in accordance with the
  422  provisions of subparagraph (1)(a)2. The district school
  423  superintendent may require evidence of the age of any child whom
  424  he or she believes to be within the limits of compulsory
  425  attendance as provided for by law. If the first prescribed
  426  evidence is not available, the next evidence obtainable in the
  427  order set forth below shall be accepted:
  428         (g) If none of these evidences can be produced, an
  429  affidavit of age sworn to by the parent, accompanied by a
  430  certificate of age signed by a public health officer or by a
  431  public school physician, or, if neither of these is available in
  432  the county, by a licensed practicing physician designated by the
  433  district school board, which certificate states that the health
  434  officer or physician has examined the child and believes that
  435  the age as stated in the affidavit is substantially correct. A
  436  homeless child, as defined in s. 1003.01, and a child who is
  437  known to the department, as defined in s. 39.0016, shall be
  438  given temporary exemption from this section for 30 school days.
  439         Section 6. Subsection (1) and paragraph (e) of subsection
  440  (5) of section 1003.22, Florida Statutes, are amended to read:
  441         1003.22 School-entry health examinations; immunization
  442  against communicable diseases; exemptions; duties of Department
  443  of Health.—
  444         (1) Each district school board and the governing authority
  445  of each private school shall require that each child who is
  446  entitled to admittance to kindergarten, or is entitled to any
  447  other initial entrance into a public or private school in this
  448  state, present a certification of a school-entry health
  449  examination performed within 1 year prior to enrollment in
  450  school. Each district school board, and the governing authority
  451  of each private school, may establish a policy that permits a
  452  student up to 30 school days to present a certification of a
  453  school-entry health examination. A homeless child, as defined in
  454  s. 1003.01, and a child who is known to the department, as
  455  defined in s. 39.0016, shall be given a temporary exemption for
  456  30 school days. Any district school board that establishes such
  457  a policy shall include provisions in its local school health
  458  services plan to assist students in obtaining the health
  459  examinations. However, any child shall be exempt from the
  460  requirement of a health examination upon written request of the
  461  parent of the child stating objections to the examination on
  462  religious grounds.
  463         (5) The provisions of this section shall not apply if:
  464         (e) An authorized school official issues a temporary
  465  exemption, for a period not to exceed 30 school days, to permit
  466  a student who transfers into a new county to attend class until
  467  his or her records can be obtained. A homeless child, as defined
  468  in s. 1003.01, and a child who is known to the department, as
  469  defined in s. 39.0016, shall be given a temporary exemption for
  470  30 school days. The public school health nurse or authorized
  471  private school official is responsible for followup of each such
  472  student until proper documentation or immunizations are
  473  obtained. An exemption for 30 days may be issued for a student
  474  who enters a juvenile justice program to permit the student to
  475  attend class until his or her records can be obtained or until
  476  the immunizations can be obtained. An authorized juvenile
  477  justice official is responsible for followup of each student who
  478  enters a juvenile justice program until proper documentation or
  479  immunizations are obtained.
  480         Section 7. This act shall take effect July 1, 2009.