Educational Consent Laws
Seventeen states have educational consent laws: California, Connecticut, Delaware, Hawaii, Kentucky, Louisiana, Maryland, Missouri, Montana, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, South Carolina, and Virginia.
Since 1994, California has had a consent law that allows an "informal" relative caregiver to submit the same affidvait to enroll the child in school and consent to the child's medical treatment. An important aspect of this law is that the signatures of the child's parents are not required on the affidavit, which is crucial in those instances where the parents cannot be found. The law includes the form for the affidavit with a note to school officals that addresses the concern that some individuals could abuse this law to shop for schools.  An extensive pollicy brief on these laws is available here.
Children Have Legal Residency
Other states have found additional innovative ways to ensure that children being raised by grandparents and other relatives can attend public school tuition free. In a few states – Michigan, Rhode Island, and South Dakota -- children’s residency basically follows them, rather than their parents. In other words, where a child lives is his or her legal residency for purposes of attending public school. Rhode Island's law is a very straightforward example of these laws:
...[I]n cases where a child has no living parents, has been abandoned by his or her parents, or when parents are unable to care for their child on account of parental illness or family break-up, the child shall be deemed to be a resident of the city or town where the child lives with his or her legal guardian, natural guardian, or other person acting in loco parentis[in place of a parent] to the child. 
A similar approach to access school enrollment is used in Indiana. That state has had a law for several years that the “legal settlement” of a student being supported, cared for and living with another person, is the school attendance area of that person. In Indiana, local school districts cannot require guardianship or legal custody unless facts are in dispute and the school district believes that (1) the child is living with another person primarily in order to attend a particular school, and (2) the students’ parents are able to support the student. If the facts are disputed and the school therefore requires guardianship or legal custody, the child may be enrolled on the day that papers are filed with the court to obtain guardianship or legal custody.
Open Enrollment Laws
Some states allow children being raised by relatives to enroll in public school tuition free through open enrollment laws. These laws generally allow a parent or guardian to enroll his or her child in a public school not located in the district where the parent lives. If the parent is still involved in the child’s life, this may be a way to enroll a child near the home of the relative who is raising him or her.
Grandparents Provide After-School Care
Texas has an innovative provision in its law, which does not appear to exist in any other state. A child may attend a school district in which he or she does not reside, but in which the grandparent resides “and provides a substantial amount of after-school care for the person as determined by the board.”
Power of Attorney Laws
The majority of states and the District of Columbia have explicitly codified power of attorney laws so parents can bestow relatives with the power of attorney for the care of their children: Alabama, Alaska, Arizona, Arkansas, Colorado, District of Columbia, Georgia, Hawaii, Idaho, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Tennessee, Utah, and Washington.
These states typically allow the power of attorney to be designated for six months to a year, so it may not be the best option for long term caregivers. The laws are generally written to confer all powers over the care of a child, with the notable exceptions of the powers to consent to marriage or adoption. Once the designation is complete, caregivers should be able to enroll a child tuition-free in public school.
In 2005, New York enacted a power of attorney law that legalized the common practice of parents writing notes to schools or medical providers stating that other people have temporary responsibility for their children. This law is more explicit than some other laws and delineates what information parents must include in the document to designate a temporary caregiver, either related or not related, for their children. If the time period is not stated, it is assumed to be thirty days. Six months is the maximum time designation, but renewals are permissible. Once the designation is completed, temporary caregivers can:
- enroll a child in school,
- sign necessary school consent forms, like those for class trips, and
- consent to most health care, including immunizations, dental work, mental health therapies and emergency care.
Caregivers, however, cannot consent to certain elective major medical procedures. Information on health care consent is available in the health care analysis on this website.
It is important to note that educational consent documents and power of attorneys like the one in New York can be easily revoked by the parents. Furthermore, institutions, such as schools and hospitals, may not accept them despite the existence of a law stating they should.
The federal Individuals with Disabilities Education Act (IDEA) funds three categories of services for all disabled children regardless of who is raising them:
- Early intervention services for children birth to three (Part C)
- Pre-school services (Part B)
- Special education services, for K-12
Services under all three categories can include speech, physical, and occupational therapies.
Schools should be including relative caregivers in the process of developing these services. The U.S. Department of Education regulations implementing the IDEA define “parent” to include relative caregivers. The definition of “parent” is found in Title 34 of the Code of Federal Regulations (CFR) at section 300.30(a):
The term parent means -- … (4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or (5) A surrogate parent who has been appointed in accordance…
Some jurisdictions reportedly require relative caregivers to go through a process to become a “surrogate parent” in order to be considered a “parent”. The plain language of the federal regulation does not require this step for these caregivers. Advocates should point to this federal regulation in cases where relatives are required to complete the process.
Arizona and Oklahoma specifically cite this regulation in their statutes concerning surrogate parents, thereby making it clear that grandparents and other relatives who are acting as parents are not required to become surrogate parents. On the other hand, Illinois, Nebraska, and New Hampshire laws, appear to contradict the federal regulation and arguably require that relatives acting in the place of parents become surrogate parents.