Does One Wrong Equal No Rights? Connecticut Lets Its Surrogate Parents' Contracts Lapse

stressed workerDue to the State Department of Education’s failure to provide new contracts in a timely manner, Connecticut’s approximately 74 surrogate parents have found themselves in limbo.  Surrogate parents are appointed by the State Department of Education [“SDE”] to advocate on behalf of disabled students who have no parents, whose parents are incapable of meaningfully participating in what state law describes as the “educational decision making-process,” or who are in foster care.  Federal law requires states to provide surrogate parents, and in compliance therewith, Connecticut enters into contracts with surrogate parents, under which they are compensated at set rates for their efforts.  These contracts, however, expired on June 30, and since then, the SDE has taken inconsistent positions as to the effect of this lapse.

On June 26, 2015, Isabelina Rodriguez, the recently appointed Chief of the SDE’s Bureau of Special Education, advised surrogates that the SDE would do its best to provide new contracts by July 10, 2015. This did not occur.  Furthermore, Dr. Rodriguez issued a warning to surrogate parents, writing:  “Please note that you should not engage in any surrogate parent activity without an executed contract” (emphasis in original).  In the very next sentence, though, Dr. Rodriguez wrote:

However, if you have been informed that you will be receiving a contract, the contracts will have an effective date of July 1, 2015, and any activities that might occur between July 1, 2015, and the date your contract is signed will be eligible as activities under the new contract.

In other words, immediately after it expressly prohibited surrogates from acting as surrogates, the SDE suggested that they could, in fact, ignore its proscription.  Not surprisingly, surrogates have been hesitant to do so.

On July 17, Dr. Rodriguez sent another e-mail, acknowledging that the contracts were still not ready but this time directing the surrogates:  “Please continue to provide all necessary services for your assigned students” (emphasis added). Dr. Rodriguez justified this abrupt change in position by noting that Connecticut law provides that the "[a]ppointment of a surrogate parent shall be effective until the child reaches eighteen years of age," and thus, "even in the nascence of the contract, [the surrogates] have the authority to . . . provide the necessary services for your assigned student(s)."

Maybe, but then again, maybe not.

The surrogate program is not an educational Rapture, in which random individuals are assumed into the SDE and thereafter sent out to represent children; rather, applicants to the surrogate program are vetted and approved, after which they enter into annual contracts that delineate their specific duties and obligations.  The till-eighteen appointment would, therefore, seem conditioned upon the existence of the contract, particularly given that the now-expired agreements provided that “representation that deviates from any of the terms of this agreement . . . may result in immediate suspension of the individual Surrogate Parent’s responsibilities pending a possible revocation of appointment.” If there is no agreement in place, then, would not the representation necessarily have to deviate from the prior contractual terms?  Thus, how could a surrogate be expected to represent a student in the absence of a contract?

Given the SDE’s track record, its sudden reversal is perhaps a not-atypical attempt to comply with federal mandates by fitting the proverbial square peg into a round hole.  Nonetheless, there is no federal obligation that the SDE actually pay surrogates, and whether the surrogates will comply with the SDE’s directive to perform their duties in the absence of a contract is ultimately an individual decision.  Even once contracts are issued, they may reflect SDE economizing, for according to the July 17 e-mail, the State may cap the number of meetings with students for which the SDE would compensate surrogates.  That could create a tension between the surrogate’s desire to advocate for students and their understandable desire to be compensated for their time and their efforts.

So What Does It All Mean?

Until the surrogate parents are provided with and sign new contracts, their entitlement to advocate for students and to obtain confidential student records is questionable.  At the same time, should a school district preclude their participation in the student’s “educational decision-making process,” the SDE would likely cite its own wobbly reasoning as justification for issuing corrective actions against the district.  Thus, while it is not without risk, districts likely have little choice but to recognize a surrogate’s authority just as they did prior to the current contractual conundrum.

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