Federal Agencies Issue Joint Guidance for Implementing ESSA's New Provisions Regarding Foster Youth

Lozano Smith Client News Brief
July 2016
Number 43

The U.S. Department of Education and the U.S. Department of Health and Services recently issued non-regulatory guidance for implementing provisions of the Every Student Succeeds Act of 2015 (ESSA), successor to the No Child Left Behind Act, which enhance school enrollment protections for students in foster care.

On June 23, 2016, the departments released their 28-page guidance, along with two "Dear Colleague" letters summarizing the provisions and timeline for implementation. The provisions, which apply to state and local education agencies (SEAs and LEAs) receiving Title I funds, become effective on December 10, 2016. The guidance is not binding and does not add any new legal requirements for school districts not already included in ESSA. But it is a useful reference, particularly for creating programs serving foster children as part of California's requirement that school districts develop Local Control and Accountability Plans.

ESSA's new provisions regarding foster youth, which largely mirror existing California law, mandate that students entering foster care be permitted to remain enrolled in their school of origin unless it is in their best interest to move to a new school, and that transportation be provided to support those students. The new provisions also require immediate enrollment of foster youth who change schools; new schools must immediately request enrolling students' records from the school they are transferring from. ESSA also requires LEAs to annually report academic achievement and graduation rate data for foster youth.

While ESSA leaves development of specific guidelines, policies and procedures to state and local agencies, the guidance provides direction in this regard as follows:

Educational stability. The guidance clarifies that ESSA's provisions apply to all students in foster care - including preschoolers, if the LEA offers a public preschool program - regardless of their residential placement or what agency pays for their care. It defines foster care as "24-hour substitute care for children placed away from their parents or guardians and for whom the child welfare agency (CWA) has placement and care responsibility" and includes children who are awaiting a residential placement who, as of December 10, 2016 will no longer be classified as "homeless" under the McKinney-Vento Homeless Assistance Act.

School of origin. The guidance defines "school of origin" as the school where the student is enrolled when placed in foster care, or where the student is enrolled when their placement changes. While the law does not apply to students who have exited foster care, LEAs are encouraged to "prioritize" these students' stability. For example, it says LEAs should consider allowing these students to remain in their school of origin through the end of the school year, if appropriate.

"Best interest" determination. The guidance provides that LEAs making a best interest determination have flexibility regarding the factors considered, though ESSA requires LEAs to consider the appropriateness of the current educational setting and the youth's proximity to the school. The guidance indicates that if a student is disabled or an English language learner, their existing rights to appropriate services should be considered. One factor prohibited from consideration, however, is transportation costs.

ESSA does not prescribe a specific process or timeline for making a best interest determination, though according to the guidance, LEAs should establish a clear policy or protocol for making determinations. Meaningful input should be gathered from all relevant parties. Decisions should be made as quickly as possible, and the student should remain in their school of origin while a determination is being made.

Dispute resolution. The guidance suggests that in a dispute over a best interest determination, the child welfare agency has the final word on placement, unless state law or policy dictates otherwise. It encourages LEAs and CWAs to develop a dispute resolution process that is fair, reaches results in an expeditious manner and provides a written explanation of the decision to all involved parties. To minimize disruption, students should be allowed to remain in their school of origin while disputes are being resolved, to the extent feasible and appropriate.

Transportation. The new law requires LEAs to collaborate with CWAs to develop transportation procedures that: (1) ensure foster children who need transportation to their school of origin receive it promptly and in a cost-effective manner in accordance with section 475(4)(A) of the Social Security Act and (2) specify who will pay for the transportation. Local procedures should address issues that may arise if a student needs to cross district or state lines to get to school.

The new ESSA provisions say that LEAs must provide foster children transportation to their school of origin, even if they do not provide transportation to students who are not in foster care; the guidance also encourages LEAs to provide transportation to students who exit foster care, through the end of the school year. The guidance says that charter school LEAs must also provide transportation to foster children.

In determining whether transportation is "cost effective," the guidance says, an LEA must consider cost, distance, length of travel and whether the mode of travel is developmentally appropriate. LEAs are responsible for providing transportation while disputes are being addressed.

Immediate enrollment and records transfer. The guidance defines "immediate" enrollment in a new school as follows: "as soon as possible in order to prevent educational discontinuity." Moreover, LEAs cannot deny or delay enrollment because enrollment documents were not provided. LEAs must also ensure that foster children regularly attend and fully participate in school and that their educational needs are being met. The guidance encourages LEAs to revise policies that act as barriers to enrollment and attendance.

State and local points of contact. The guidance spells out potential roles and duties for points of contact and says it is essential that they have sufficient capacity and the necessary resources to fulfill their duties.

Student data and privacy. Agencies choosing to develop a Comprehensive Child Welfare Information System are required, to the extent practicable, to include data exchanges with educational agencies. The guidance also "strongly encourage(s)" CWAs to notify LEAs when a child enters foster care or changes foster care placements. It also calls on LEAs and their child welfare counterparts to establish formal mechanisms for sharing data.

Collaboration. The guidance urges education and child welfare agencies to consider opportunities to cross-train on the issues governed by ESSA's new foster care provisions, and to collaborate to raise awareness of the provisions and other state and federal child welfare laws. It also recommends that educational and child welfare agencies that haven't done so already establish a structure for facilitating collaboration, like a task force or work group, and that they establish regional, inter-district and interstate collaborations before the provisions go into effect. It lists potential partners and recommends that collaborative efforts continue after the new foster care provisions are implemented.

If you have any questions about the implementation of ESSA's new provisions relating to foster youth or California's requirements relative to foster youth under the Education Code, please contact the author of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.
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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.