Virginia Special Education for Foster Care, Homeless, and Surrogate Parent Situations

When a child with a disability doesn't have a parent who can exercise educational decision-making rights — because of family instability, homelessness, foster care, or incarceration — the ordinary IDEA framework runs into a gap. Virginia has specific obligations for these populations, but those obligations are often not well-understood by the school staff, foster parents, or case workers who are supposed to be enforcing them.

This post covers three distinct but related situations: the surrogate parent requirement, McKinney-Vento protections for students experiencing homelessness, and the rights of students in foster care.

Virginia Surrogate Parents in Special Education

Under IDEA and Virginia's 8VAC20-81, a surrogate parent must be appointed when:

• The child's parents cannot be identified
• The agency, after reasonable efforts, cannot locate the parents
• The child is a ward of the state
• The child is an unaccompanied homeless youth (as defined by the McKinney-Vento Act)

The surrogate parent is not a foster parent or a residential staff member — it is a specific IDEA designation. The surrogate parent is appointed to act in place of a parent for purposes of IDEA, including participating in IEP meetings, providing or withholding consent for evaluations, reviewing educational records, and initiating dispute resolution on the child's behalf.

Virginia's surrogate appointment requirements:

The school division must make reasonable efforts to identify and locate the child's parents before appointing a surrogate. If parents cannot be found or the child is a ward of the state, the division must appoint a surrogate within 30 days of determining that one is needed.

A surrogate in Virginia:

• Must not be an employee of the VDOE, the school division, or any other agency involved in the care of the child
• Must not have a conflict of interest with the child
• Must have adequate knowledge and skills to represent the child effectively
• Must be a volunteer who serves without compensation from the division (though they may be reimbursed for expenses)

If a school division fails to appoint a surrogate within the required timeframe, or appoints someone with a conflict of interest (such as a social worker employed by the same agency involved in the child's care), this is a procedural violation that can be addressed through a state complaint to the VDOE.

Foster parents as surrogates: In Virginia, a foster parent can serve as the IDEA surrogate for a foster child, but only if the foster parent is willing to do so and has no conflict of interest. Simply being a foster parent doesn't automatically make someone the IDEA parent — the child's status, the nature of the custody arrangement, and whether biological parent rights have been terminated all affect who holds IDEA rights.

If you are a foster parent whose foster child has an IEP and you've been left out of IEP meetings or haven't received Prior Written Notices, contact the school's special education director immediately. You may need to formally establish your role as either the IDEA parent or a surrogate through the division's appointment process.

McKinney-Vento: Special Education Rights for Students Experiencing Homelessness

The McKinney-Vento Homeless Assistance Act intersects with IDEA in ways that Virginia schools are required to address — but often handle poorly. McKinney-Vento provides specific protections for children experiencing homelessness, including children in transitional housing, doubled-up situations, motels, emergency shelters, and substandard housing.

Immediate enrollment: Under McKinney-Vento, Virginia schools must immediately enroll homeless children, even if they lack the documentation normally required for enrollment (immunization records, proof of residency, prior school records). This applies to children with IEPs. The school cannot delay enrollment pending receipt of prior records.

School of origin: Homeless children have the right to remain enrolled in their school of origin (the school they attended before losing housing) or to enroll in the school in the attendance area where they are temporarily staying. For a child with an IEP, this choice matters enormously — the school of origin may have been implementing the IEP correctly, while a new school may need time to review records and may not have the specialized staff to continue services immediately.

Special education obligations: Once a homeless child with an IEP enrolls in a Virginia school, the school must immediately provide comparable services as required under IDEA. This mirrors the military transfer provision (8VAC20-81-120) — comparable services must begin immediately, not after a weeks-long review process.

If a child experiencing homelessness does not yet have an IEP but is suspected of having a disability, the school's Child Find obligation requires it to promptly initiate an evaluation. Homelessness and educational disruption are not reasons to delay — if anything, they are reasons to expedite.

McKinney-Vento liaisons: Every Virginia school division is required to designate a McKinney-Vento liaison responsible for ensuring that homeless students are identified, enrolled, and receive the services they're entitled to. If a school is failing to promptly identify and serve a homeless student with a disability, the liaison is the appropriate first point of contact. If the liaison is unresponsive, contact the VDOE's Office of Student Services.

Foster Care and Special Education in Virginia

Children in foster care face unique challenges in special education: frequent placement changes, multiple school transitions, and the complexity of determining who holds IDEA rights on behalf of the child.

Who holds IDEA rights for a foster child?

This depends on whether parental rights have been terminated and whether a biological parent remains involved. If the biological parent retains legal rights, they remain the IDEA parent — even if the child is in foster care. The school must continue to work with the biological parent on IEP decisions unless a court or administrative order specifies otherwise.

If parental rights have been terminated and the child is a ward of the state, a surrogate parent must be appointed. Virginia's foster care system and child welfare agencies should have protocols for this — but in practice, surrogate appointments for children in foster care are inconsistently handled, and children frequently fall through the cracks with no one exercising IDEA rights on their behalf.

Virginia has enacted requirements for coordination between the Department of Social Services and school divisions for children in foster care. Each Virginia school division is required to designate a point of contact for child welfare agencies regarding the educational needs of students in foster care. The Every Student Succeeds Act (ESSA) and subsequent guidance require that educational decisions for children in foster care be made in the child's best interest.

Immediate services and enrollment: When a foster child with an IEP changes placements, the new school must immediately provide comparable services under the existing IEP while any reevaluation is completed. A change in foster placement does not justify a gap in special education services.

Stability in school placement: Under ESSA, foster children are entitled to remain in their school of origin when a placement change occurs, or to be immediately enrolled in a new school. Transportation must be provided to support school of origin enrollment when it's in the child's best interest. For a child with a well-established IEP in their school of origin, remaining there during a placement change can be critical to continuity of services.

Advocating for a foster child with a disability: If you are a foster parent, a case worker, or a court-appointed advocate (CASA volunteer) for a child with a disability, you may need to actively push for:

• Surrogate parent appointment if no biological parent is exercising IDEA rights
• Immediate enrollment and immediate IEP implementation at each new school
• Expedited evaluation if a disability is suspected and the child has never been evaluated
• Coordination between the school division and the child welfare agency regarding educational planning

Contact PEATC for guidance on navigating these situations — they have specific resources for families in the child welfare system — and contact the school division's McKinney-Vento liaison or the child welfare education coordinator for the specific division.

The Virginia IEP & 504 Advocacy Playbook covers the broader Virginia special education framework and the documentation practices that protect all students' rights, including those in the most vulnerable situations. Understanding who holds what rights — and how to enforce them — is the starting point for any of the situations described here.

See more United States guides →