Meeting the Needs of Children in Foster Care: McKinney-Vento & Fostering Connections

Maura McInerney, Ed Law Center

Are children in foster care ever homeless?Why does school stability matter

for children in foster care?Are there other laws that impact children in

foster care?What are the confidentiality rules?

What could we do differently to meet the needs of these students?

Collaboration between ABA, Annie E. Casey Foundation and Casey Family Programs, in conjunction with the Juvenile Law Center and Education Law Center.

A national technical assistance resource and information clearinghouse on legal and policy matters affecting the education of children and youth in out-of-home care.

Website: www.abanet.org/child/education Listserv, Conference Calls, Publications,

Searchable Database

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Who are the children and youth in out-of-home care?

Approx. 650,000 youth a year (1% of all US youth); approx. 400,000 on any day.

Disproportionately children of color 67% school age; 33% under age 5 Over 26,000 young people

emancipated from foster care in 2011

The Whirlwind of Out-of-Home Care

Removed from home/parents/siblings• May not have had chance to say goodbye• Uncertain about where parents/siblings are

Living with strangers • In strange house/room/bed• Different customs/routine• Other children in home

Few or none of your possessions• Lucky to have trash bag of belongings

Uncertainty about future• Where will I live?• Will I return home?• Where will I go to school?

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Studies across the country, show children in foster care are struggling academically

Approximately 54% of youth discharged from care have completed high school.

Approximately 67% of youth will become homeless, go to jail or die within one year of leaving the foster care system at 18.

In one California County, dependent youth were twice as likely to not be proficient in English or math, and earned average of 14 fewer credits per year, compared to their non-dependent peers.

Midwest Study showed youth in foster care on average read at only a seventh grade level after completing 10th or 11th grade.

Two to four times more likely to repeat a grade.

Two times as likely to receive an out of school suspension and three times as likely to report being expelled.

Only 4% obtain bachelor’s degree by age 26.

Educational Outcomes

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What are the educational experiences of students in out-of-home care?

Of more than 1,000 foster care alumni surveyed in a Casey Family Programs national study, 68% attended 3 or more elementary schools; 33% attended 5 or more.

One study showed that over two thirds of children in care changed schools shortly after initial placement in care.

A University of Chicago study found that, by the 6th grade, students who had changed schools 4 or more times had lost approximately one year of educational growth.

A New York study found 42% of children did not start school immediately upon entering care; half of those did not start due to lost or misplaced records.

In a national study of 1,087 foster care alumni, youth who had even one fewer placement change per year were almost twice as likely to graduate from high school before leaving care.

Why This MattersA high school drop out is . . . Eight times more likely to be incarcerated 40% more likely to be on public assistance Far more likely to be unemployed More likely to become a drug addict Estimated cost of a youth who drops out and turns to crime & drugs --

$1.7 to $2.3 million

Children in foster care are….. Alone once they “age out” often at 18. More likely to be homeless, unemployed, have

mental care needs etc.

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Examples of the Barriers to Educational Achievement for Children in Care

• Lack of placement stability• Delayed enrollment • Children with special education needs

do not access/receive services • Over-representation in alternative

education & suspenions• Confusion about legal rights

Blueprint for Change: Education Success for Children in Foster Care

8 Goals for Youth

Benchmarks for each goal indicating progress toward achieving education success

National, State, and Local Examples

Goals for Youth

Goal 1: Remain in the Same SchoolGoal 2: Seamless Transitions Between SchoolsGoal 3: Young Children Are Ready to LearnGoal 4: Equal Access to the School ExperienceGoal 5: School Dropout, Truancy, and

Disciplinary Actions AddressedGoal 6: Involving and Empowering Youth Goal 7: Supportive Adults as Advocates and

DecisionmakersGoal 8: Obtaining Postsecondary Education

Goals 1 & 2: School Stability and Continuity

Overlap between the McKinney-Vento Act and Fostering Connections Act

McKinney-Vento Act & Fostering Connections Act

McKinney-Vento Act (NCLB) Ensures school stability, transportation to school of

origin, pendency in school of choice while disputes are resolved, immediate enrollment, help of school liaisons to enroll, access to Title I, comparable services etc.

Fostering Connections (Title IV-E) Caseworkers must consider proximity and

appropriateness of prior school in placing children AND must ensure school stability unless remaining in same school is not in child’s best interest. Transportation is more limited; no liaisons, no clear mandate on Education to act – HOWEVER, they have a duty to cooperate to ensure stability.

Children in Foster Care:Eligibility Under McKinney-Vento

Currently, some children who are, or who have been, in out-of-home care are eligible for the benefits of the McKinney-Vento Act. Children living in emergency or temporary shelters Youth who have run away from foster placements and are

living in a homeless situation. Youth who have been abused or neglected and are living in a

homeless situation, but have not been placed in the custody of the child welfare system.

Youth who have aged out of foster care and are living in a homeless situation, but have not graduated from high school.

The definition of children eligible under the McKinney-Vento Act includes children “awaiting foster care placement.”

Variety of interpretations of AFCP:

When child is in foster care they are not “awaiting foster care placement” and therefore are not McKinney eligible

Children in foster care in certain particularly unstable placements (such as shelter placements) are considered McKinney eligible

All children pre-adjudication or disposition are considered McKinney eligible

All children pre finalization of permanency plan (e.g. adoption; guardianship; reunification) are McKinney eligible

All children in foster care are McKinney eligible

State examples of McKinney-Vento application

Delaware defines “awaiting foster care placement” as all children in foster care.

Massachusetts and Connecticut have reached state level agreements between their education and child welfare agencies to include certain children in foster care under McKinney Vento.

Other states and local jurisdictions have chosen to have informal policies to determine when a child in foster care is eligible under McKinney Vento.

Creating State Foster Care/Education Policies

Some states continue to debate which children in care are eligible under McKinney’s “awaiting foster care placement” and others have limited eligibility to certain subset of children in care

However, almost all agree that similar protections are NEEDED for all children in care. Many states have sought other means of establishing

these McKinney-like protections for all children in care. (Example: California AB 490- Jan. 2004)

Now with Fostering Connections, a new wave of state foster care/education legislation is underway

Foster Care and McKinney-Vento

What we know: Many children in the foster care system are

being served under McKinney-Vento, but the numbers and the child’s situation vary by state.

All children in foster care need the kinds of protections provided in McKinney-Vento

McKinney-Vento is not currently designed to serve all youth in the foster care system

Fostering Connections to Success Act (October 2008)

Amends Title IV (Parts B and E) of the Social Security Act

Broad-reaching amendments to child welfare law

Important provisions promoting education stability and enrollment for youth in care

Changes child welfare law, but cannot be fully realized without collaboration from education system

Appropriateness and Proximity

The child’s case plan must include “assurances that the placement of a child in foster care takes into account the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement.”

Proximity and Appropriateness Issues

Proximity How is proximity defined? Necessary recruitment efforts Useful collaborations between schools

and child welfare Appropriateness

Who makes the determination? What criterion do they use? What input do they need?

School Stability

The child’s case plan must include “(I) an assurance that the state [or local

child welfare agency] has coordinated with appropriate local education agencies … to ensure that the child remains enrolled in the school in which the child was enrolled prior to placement”

Unless moving is in the child’s best interest – in which case – go to part II.

ACYF-CB-PI-10-11 July 9, 2010 – Program Instruction

Education Stability Plan must be a written part of the case plan, reviewed every 6 months.

Agency could invite school personnel, agency attorneys, GALs and AALs, youth, etc. to discussions about the education stability plan.

Agency is encouraged to develop standard and deliberate process for determining best interest and properly documenting the steps taken to make the determination.

School Stability Determination Issues

How is best interest determined/what are factors to address? (see next two slides for sample questions to consider when making school selection decisions)

Who ultimately decides best interest? What is the role of the parents (or other

person with education decision-making authority) in making these decisions?

How will disputes be resolved? How will child welfare and education

collaborate?

Key Questions to Consider When Making a Best Interest Determination

How long is the child’s current placement expected to last?

What is the child’s permanency plan? How many schools has the child attended over the past

few years? How many schools has the child attended this year? How have the school transfers affected the child emotionally, academically and physically?

How strong is the child academically? To what extent are the programs and activities at the

potential new school comparable to or better than those at the current school?

Does one school have programs and activities that address the unique needs or interests of the student that the other school does not have?

Which school does the student prefer?

Key Questions to Consider When Making a Best Interest Determination (cont)

How deep are the child’s ties to his or her current school? Would the timing of the school transfer coincide with a logical

juncture such as after testing, after an event that is significant to the child, or at the end of the school year?

How would changing schools affect the student’s ability to earn full credits, participate in sports or other extra-curricular activities, proceed to the next grade, or graduate on time?

How would the length of the commute to the school of origin impact the child?

How anxious is the child about having been removed from the home and/or any upcoming moves?

What school do the child’s siblings attend? Are there any safety issues to consider?

***For NCHE and LCFCE brief see http://www.serve.org/nche/downloads/briefs/school_sel_in_care.pdf

ACYF-CB-PI-10-11 July 9, 2010 Program Instruction

Examples of Best Interest Factors: Child’s preference Safety of the child Appropriateness of current

educational programs in current or other school and how the schools can serve the child’s needs (including special education)

COST SHOULD NOT BE A FACTOR!

Transportation

The term foster care maintenance payments includes “reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.”

Transportation: Considerations

Permissible use of Administrative Costs or Foster Care Maintenance Payments (only applies to IV-E eligible children in care).

Can be paid to child’s provider or separately to the transportation provider.

Some children may already be receiving transportation from other sources (M-V, IDEA, etc.)

State match required. Reimbursement to foster care provider or caretaker,

transportation provider, etc. Extracurricular transportation, school meetings, etc.

Enrolling in a New School

If remaining in the same school is not in the best interest of the child, the child’s case plan must include “(II) … assurances by the State agency

and the local education agencies to provide immediate and appropriate enrollment in a new school, with all of the education records of the child provided to the school.” 42 U.S.C.A. 675(1)(G)(ii).

Enrollment In New School Issues

How are immediate and appropriate defined?

Requires collaboration between school and child welfare agency.

How to ensure records follow student?

State Implementation of Education Provisions of Fostering Connections

Many states have or will pursue legislation or other policy changes to be in compliance with Fostering Connections

Provides an opportunity to incorporate some of the known strengths of McKinney-Vento into child welfare/education state policy; such as: Creation of a liaison or key point of contact in both child welfare

and education agencies Requirement for education agency to coordinate Consider state funding streams to support school of origin

transportation for children in foster care who are not McKinney eligible

Creation of protocols for best interest determinations as well as process for dispute resolution

Identifying role of the court in these processes given the children in care are court involved.

State Examples Connecticut (SB 31): when in child’s best interest to

remain in school of origin, DCF and Board of Ed. work together to develop transportation plan; DCF pays additional transportation costs, with approx. $3 million state dollars allocated

Colorado (HB 1274): each school district must designate a child welfare education liaison to coordinate timely and appropriate placement, transfer, and enrollment in school; liaison transfers school records within 5 school days of a request

Texas: education section of Child Service Plan amended to ask staff to specifically address educational stability issues

Fostering Connections Myths Children in foster care won’t be MV

eligible anymore, now that there is Fostering Connections. False. Children in foster care can be eligible under

both laws. McKinney eligibility is determined by state interpretation of MV and AFCP

Children in foster care don’t need MV eligibility anymore, now that there is Fostering Connections. False. MV provides far greater rights and

protections for eligible children, so the greatest protection for children in foster care is eligibility under both.

Fostering Connections Myths, cont…

Child welfare agencies and advocates now get to solely determine which children are eligible under MV. False. MV eligibility is still determined in the same

way it has always been for all MV eligible students. Child welfare agencies are now focused on best interest determinations as well, as it relates to FC, but these determinations do not replace the MV eligibility process in place in states. Child welfare advocates views on best interest should be factored into MV eligibility determinations.

Fostering Connections Myths, cont..

Now that there is Fostering Connections, child welfare agencies automatically take the place of the parent when making education decisions for the child. False. Nothing about Fostering Connections

changes the role of parents to be involved in education decisions for the child. The parent’s role in MV decisions, before and after Fostering Connections, may be impacted by statute or court determination.

Fostering Connections Myths, cont… Children in foster care who are eligible

under MV now must have transportation costs to remain in their home school covered under IV-E child welfare dollars. False. Children in care eligible under MV who

require transportation to remain in their same school are still entitled to transportation by the school in accordance with MV, although child welfare agencies should collaborate to support those efforts as much as possible. All children in foster care are not eligible under IV-E, making MV support for transportation costs even more critical for those children.

How Can Fostering Connections Help McKinney Vento Liaisons?

For Children in Care who are McKinney Vento eligible: Requires child welfare agencies to focus on education

stability for children care, including court oversight to ensure accountability

Child welfare agencies are a partner to the liaisons in ensuring school stability

Requires child welfare agencies to consider proximity to the child’s home schools when making living placement changes- which may decrease school mobility

Opportunity to further stabilize children who fluctuate between foster care involvement and homeless situations.

How can McKinney Vento liaisons help to implement Fostering Connections?

For children in care who AREN’T McKinney Vento eligible

While not part of official MV duties, you could be the critical link between child welfare and your school or district

Implementation of FC in your school or district can be benefited from successes learned from MV implementation

Enrollment protocols and record transfer policies Best interest determinations; dispute resolution Transportation arrangements or agreements

Helping to implement Fostering Connections for children in foster care, including use of IV-E maintenance dollars to support transportation needs, could help stabilize the child in a more permanent (non MV eligible living placement) and avoid a move to a temporary (MV eligible) placement.

Other Laws You Should Know

FERPA – Recent amendments permit representatives of child welfare to access education records

CAPTA – Federal child welfare law protects confidentiality of child welfare records & information

HIPPA – Protects confidentiality of medical records.

CAPTA Child Abuse Prevention and Treatment

Act42 U.S.C. § 5101 et. seq.; § 5116 et. seq.

Allows for information sharing when: A state statute* authorizes the sharing of

child welfare information with the school system

School system has a need for limited information to protect the child from abuse and neglect. Very limited

Family Educational Rights and Privacy Act 20 U.S.C. § 1233g; 34 CFR Part 99

Protects privacy interests of students’ education records:

Prohibits schools from disclosing personally identifiable information from students’ education records without the “written consent of a parent or eligible student, unless an exception to consent rule applies.

Limits access of records to expected use, requiring prior notice of & consent to disclosures while allowing reasonable sharing of records.

FERPA Definitions

Education records: Records that are directly related to a student and maintained by an educational agency or institution, or by a party acting for the agency or institution.

Parent : Natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.

Redisclosure prohibited

School may disclose personally identifiable information only on the condition that the party to whom the information is disclosed will not redisclose the information without the prior consent of the parent or eligible student.

FERPA CONSENT NOT REQUIRED:

Non-personally identifiable information Cannot be linked to a student by anyone

who does not have access to the linking key;

Data file populated by data from education records in a manner that ensures that identity of a student is not easily traceable or known at community level.

Examples – Aggregate data using student ID number that is not traceable to students

FERPA Exceptions Directory Information (subject to Opt-out)

name, address, phone, date and place of birth, participation in officially recognized activities and sports, and dates of attendance.

Law Enforcement Exception: disclosure to state and local authorities within department of juvenile justice

Emergency Exception: Disclosure to “appropriate parties” in connection with “emergency” to protect health and safety of student or other persons;

Judicial order or subpoena **

Amendment to FERPA Uninterrupted Scholars ActEffective January 14, 2013, the

Uninterrupted Scholars Act (USA) includes two important changes:  

1) USA creates a new “child welfare exception”

2) USA eliminates duplicative notice for the “court order exception”

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FERPA: Child Welfare Exception

Education records MAY be disclosed Whom - “an agency caseworker or other

representative of a State or local child welfare agency, or tribal organization… who has the right to access a child's case plan

When - such agency or organization is legally responsible for the care and protection of the child in accordance with state or tribal law.

And - the education records, or the personally identifiable information contained in such records of the student will not be disclosed by the agency or representative… except to an individual or entity engaged in addressing the student's education needs…

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State Guidance

Guidance Issued by PDE & DPW: Exception applicable to child welfare

representatives (“private providers”) Applies to children in out-of-home care

and dually adjudicated Minimal documentation required to

establish access to education records Can be re-disclosed to those addressing

educational needs of child Supports information sharing

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Why Child Welfare Needs Access

Must keep education records as part of written case plan, including:

Name and address of health and education provider

Grade level performance School record (including disciplinary record) Any other relevant education information

Fostering Connections: Attendance & school stability Title IV-E of the Social Security Act 42 U.S.C.A. 675(1)(C) & (5)(D)

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QUESTIONS

Questions Scenarios Stories Useful Resources & Tools Where to go to learn more

Legal Center for Foster Care and Education Resources

www.abanet.org/child/education/ Data and Information Sharing (Manual

and Tools) McKinney-Vento and Fostering Connections

Overlap Series Transportation Collaboration Q & A Best Interest Decisions State Law Chart and AFCP Chart

Searchable Database

Other Resources Tools

Solving the Data Puzzle: http://www.abanet.org/child/education/publications/solvingthedatapuzzle.pdf

Mythbusting: Breaking Down Confidentiality and Decision-Making Barriers to Meet the Education Needs of Children in Foster Care  www.abanet.org/child/education

Contact Information

Maura McInerney

Legal Center for Foster Care & Education

Education Law Centermmcinerney@elc-pa.org