Presented by Amy Peabody and David Wickersham Kentucky Department of Education

1. “Who’s in charge of whom? Issues of custody, charge, formal and informal guardianship for all students generally and specific issues for foster students.” Presented by Amy Peabody and David Wickersham Kentucky Department of Education Presented at the 2013 Fall DPP Conference

2. Who can enroll and attend? • Kentucky statutes KRS 158.030 and KRS 158.100 place a duty on local school districts to enroll students who meet the age and residency requirements and who have not received a high school diploma. KRS 158.030 requires a school district to provide an education to “every child residing in the district who satisfies the age requirements of this section….” Presented at the 2013 Fall DPP Conference

3. Who can present students for enrollment? • KRS 158.030 and 159.010 combine to provide the right for any adult with “custody or charge” to present a child for enrollment in the district of the adult’s residence. Presented at the 2013 Fall DPP Conference

4. Types of guardianship or custody • Formal: • Biological or adoptive parents • Foster parents • Legal guardian or legal custodian • Educational decision-making authority (AOC Form 796) • Informal (just in “charge” of the student): • Grandparents • Family friend • Friend’s parents Presented at the 2013 Fall DPP Conference

5. How do we determine if the child resides in the district? • Usually, the district reviews the residency of the legal guardian or custodian. If there are multiple school districts to whom the family or student has ties, the district where the student lies his head at night, most nights, is the district of residence with the obligation to enroll and educate the student. The district Director of Pupil Personnel (DPP) will be the contact with the student and adult for that conversation. • If you (DPP) question whether the student actually lives at the residence, conduct a home visit. Presented at the 2013 Fall DPP Conference

6. What about an adult without formal custody or guardianship over the child? OAG 78-64: “…regarding the situation of a child living with someone other than the person who has legal custody of the child. As a general rule, we believe a child would only be entitled to attend school tuition free in the school district in which the legal custodian resides. However, if a child is not living with his or her legal custodian, we believe the circumstances surrounding such a situation must be considered on a case-by-case basis.… It is not too difficult to imagine such situations as a child living with grandparents or even with friends out of a matter of basic physical necessity and with no form of legal intervention having taken place. If the facts of such a situation would establish that the child was not residing in a particular school district primarily for school purposes, we believe tuition generally would not be chargeable. The school board must exercise reasonable, unarbitrary discretion in considering these matters.” Presented at the 2013 Fall DPP Conference

7. Informal guardian: OAG 78-64 “…. Thus, since the compulsory attendance laws are directed to those having responsibility in some respect over children residing in the Commonwealth, we believe the intent of the General Assembly in using the terms “other person” and “custody or charge” was to be as all encompassing as possible. This statutory language covers everyone from the adult having legal custody of a child to one having mere custody or control,under their charge, of a child, as discussed above.” Presented at the 2013 Fall DPP Conference

8. Concerns over lack of formal guardianship or custody • If school officials have safety or well-being concerns (e.g., abuse, kidnapping) regarding a specific home situation of a student, they should contact law enforcement or social services to notify the proper authorities who will commence investigation. • Enrolling the student should not be delayed. • School will be the safest place for a child, especially if there are concerns regarding the safety of the home environment or the legality of the adult’s physical custody of the child. Presented at the 2013 Fall DPP Conference

9. With whom will FERPA allow the district to share education records? • 34 CFR § 99.4   What are the rights of parents? “An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.” Presented at the 2013 Fall DPP Conference

10. Can a person with informal custody or charge be a “parent” under FERPA? Yes. • 34 CFR § 99.3 “Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.” • If there is no presence by the parent or guardian, if there is an absence of the parent or guardian in the student’s education, then the person with informal custody or “charge” is a “parent” under FERPA and can participate in the student’s education and receive the student’s records. Presented at the 2013 Fall DPP Conference

11. Can a person with informal custody or charge be a “parent” under IDEA? Yes. For IDEA, 34 C.F.R. 300.30 http://www.gpo.gov/fdsys/pkg/CFR-2012-title34-vol2/pdf/CFR-2012-title34-vol2-sec300-30.pdf defines “parent” to mean (1) A biological or adoptive parent of a child; (2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent; (3) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State); (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 with § 300.519 or section 639(a)(5) of the Act. (b) (1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child. (2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (4) of this section to act as the ‘‘parent’’ of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the ‘‘parent’’ for purposes of this section. Presented at the 2013 Fall DPP Conference

12. Homeless students • McKinney Vento federal law defines “homeless children and youths”: • individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of section 103 (a)(1); and • includes- • (i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement; • (ii) children and youths who have a primary night-time residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 103 (a)(2)(C); • (iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and • (iv) migratory children (as such term is defined in section 1309 of the Elementary and Secondary Education Act of 1965) who qualify as homeless for the purposes of this subtitle because the children are living in circumstances described in clauses (i) through (iii). Presented at the 2013 Fall DPP Conference

13. Homelessstudents • McKinney Vento defines “unaccompanied youth” to include “youths not in the company of a parent or guardian.” • McKinney Vento: “Stability and adequacy of the living arrangement are critical considerations when determining homelessness.” • Requirements regarding homeless students apply to all districts, regardless of whether the district receives a McKinney-Vento Homeless grant.  Presented at the 2013 Fall DPP Conference

14. Homeless students • KDE webpage on McKinney Vento: http://education.ky.gov/federal/progs/txc/Pages/default.aspx • Federal guidelines on enrolling homeless students: http://education.ky.gov/federal/progs/txc/Documents/FederalGuidelinesforHomelessChildrenPDF.pdf Presented at the 2013 Fall DPP Conference

15. LEA Responsibilities RegardingEnrollment The McKinney-Vento Act also requires LEAs to implement a number of measures to eliminate enrollment barriers faced by homeless children and youth. These measures include the following: (1) Making School Placement Determinations on the Basis of the Best Interest of the Child. (2) Immediately Enrolling Homeless Children and Youth and Providing Assistance With Obtaining Records. Presented at the 2013 Fall DPP Conference

16. LEA responsibilities for enrolling homeless students In making a placement determination, an LEA must, according to the child’s or youth’s best interest— (a) Continue the child’s or youth’s education in the school of origin— (i) For the duration of homelessness if a family becomes homeless between academic years or during an academic year; or (ii) For the remainder of the academic year if the child or youth obtains permanent housing during an academic year; or (b) Enroll the child or youth in any public school that non-homeless students who live in the attendance area in which the child or youth is actually living are eligible to attend. Presented at the 2013 Fall DPP Conference

17. LEA: Immediately Enroll Homeless Children and Youth and Provide Assistance With Obtaining Records. • A school that an LEA selects on the basis of the best interest determination must immediately enroll the homeless child or youth, even if the child or youth is unable to produce records normally required for enrollment (such as previous academic records, medical records, proof of residency, or other documentation). (Section 722(g)(3)(C)(i)) • The enrolling school must immediately contact the school last attended by the child or youth to obtain relevant academic or other records. (Section 722(g)(3)(C)(ii)) If a child or youth needs to obtain immunizations, or immunization or medical records, the enrolling school must immediately refer the parent or guardian to the LEA homeless liaison, who must assist in obtaining the immunizations or records. (Section 722(g)(3)(C)(iii) Any record ordinarily kept by a school regarding each homeless child or youth must be maintained so that it is available in a timely fashion when the child enters a new school or school district. (Section 722(g)(3)(D)) Presented at the 2013 Fall DPP Conference

18. Type of ID required for enrollment • KRS 158.032(3) includes the only requirements under Kentucky law for proof of age and identity for a student’s initial enrollment in a school in Kentucky: Upon enrollment of a student for the first time in any elementary or secondary school, the school shall notify in writing the person enrolling the student that within thirty (30) days the person shall provide either: (a) A certified copy of the student's birth certificate; or (b) Other reliable proof of the student's identity and age, and an affidavit of the inability to produce a copy of the birth certificate. • Exact birth date not required: Proof of the age of the student (e.g., 6 years old by October 1) is sufficient for this requirement for initial enrollment. A student’s exact date of birth (month, day, and year) is not required for initial enrollment. Presented at the 2013 Fall DPP Conference

19. Types of “other reliable proof of student’s identity and age” • Types of “other reliable proof of a student’s identity and age” may include but not be limited to (NOT an all-inclusive list): Social Security card; passport; military identification or immigration card; baptismal certificate; copy of the record of baptism – notarized or duly certified and which reflects the date of the student’s birth; recording of student’s name and birth in a family Bible or other religious text; notarized statement from the parents or another relative or guardian as to the date of the student’s birth; prior school record indicating the date of the student’s birth; driver’s license or learner’s permit; adoption record; any religious record authorized by a religious official; affidavit of identity and age; any government document or court record reflecting the date of the student’s birth; oral proof when the native language of a parent or guardian is not a written language. Presented at the 2013 Fall DPP Conference

20. Cannot require a Social Security number. • Providing the student’s Social Security number is optional. Though a Social Security card is an acceptable form of identification for enrollment, a school shall not request or require a parent or guardian to provide one for enrollment. A school shall inform the parent or guardian of the types of proof of identity and age listed in this guidance and the procedures for approval of any other form of proof. Schools are prohibited from asking for documentation of immigration status for enrollment. School personnel shall not ask any questions during enrollment that cause or could cause a “chilling effect” on the student’s right to education. If a school enrollment form lists Social Security card as a form of identification it will accept, then the form should clearly state that providing the student’s Social Security number is optional, not required. KRS 156.160 created the Statewide Student Identification (SSID) number system because some students do not have a Social Security number or their parents or guardians choose not to disclose the Social Security number of the student to the school. Presented at the 2013 Fall DPP Conference

21. Cannot ask about immigration status of parent or child. • Right to enrollment independent of immigration status: Each school is responsible for notifying its staff that a student’s right to enrollment does not depend on his/her or the parent/guardian’s immigration status. The U.S. Supreme Court, in Plyler v. Doe, 457 U.S. 202 (1982), held it was unconstitutional for a school to deny free public education to students who were not legally residing in the U.S., and schools could not ask any questions during the enrollment process which would have a “chilling effect” on a student’s right to education. Presented at the 2013 Fall DPP Conference

22. Immigration status is confidential • Student and parent/guardian immigration information is confidential: Any information relevant to the immigration status of a student, parent or guardian contained in an educational record is protected by FERPA, and schools are prohibited from causing a “chilling effect” on a student’s access to education. School personnel who report suspicions regarding the legality of a student or the parent or guardian’s presence in the United States are violating FERPA and the Plyler preclusion of a “chilling effect.” 20 U.S.C.A. § 1232g; 34 CFR 99.3; Plyler v. Doe, 457 U.S. 202 (1982). Presented at the 2013 Fall DPP Conference

23. Forms of ID for initial enrollment KDE provides this guidance on types of “other reliable proof” of identification for initial enrollment on our website: http://education.ky.gov/comm/newtoKY/Pages/Kentucky-Enrollment-Requirements.aspx (Word document attached to webpage under the question on forms of identification required for enrollment). Presented at the 2013 Fall DPP Conference

24. Foster Students and FERPA • In January 2013, Congress passed the “Uninterrupted Scholars Act (USA)” which amended the Family Educational Rights and Privacy Act (FERPA) to permit educational agencies and institutions to disclose education records of students in foster care to State and county social service agencies or child welfare agencies. The statute also amended the requirement that educational agencies and institutions notify parents before complying with judicial orders and subpoenas in certain situations. Presented at the 2013 Fall DPP Conference

25. Foster Students and FERPA • U.S.E.D.’s PTAC (Privacy Technical Assistance Center) has provided guidance on foster students and sharing their education records under the FERPA amendment: http://ptac.ed.gov/ (bottom of the page) • http://ptac.ed.gov/sites/default/files/Foster_Children_WebinarFinal_08-26-13.pdf (direct link to the USED USHHS joint presentation’s Power Point slide) Presented at the 2013 Fall DPP Conference

26. Uninterrupted Scholars Act • Introduced: August 1, 2012 • Aka: The A+ Act • Sponsor: Senator Mary Landrieu [D-LA] • Signed by the President: January 14, 2013 • This bill became Pub.L. 112-278 Presented at the 2013 Fall DPP Conference

27. Cosponsors-Bipartisan Support 9 cosponsors (7D, 2R) Begich, Mark [D-AK] Blunt, Roy [R-MO] Boxer, Barbara [D-CA] Franken, Alan “Al” [D-MN] Grassley, Charles “Chuck” [R-IA] Klobuchar, Amy [D-MN] Kerry, John [D-MA] (joined Sep 10, 2012) Murray, Patty [D-WA] (joined Sep 10, 2012) Feinstein, Dianne [D-CA] (joined Dec 05, 2012) http://www.govtrack.us/congress/bills/112/s3472 Presented at the 2013 Fall DPP Conference

28. USA and FERPA The Family Educational Rights and Privacy Act (FERPA) protects the privacy of students’ education records. Schools must comply with FERPA. Generally, FERPA prohibits schools from disclosing a student’s education records to a third party unless the parent (or the student at age 18) gives written consent. www.fostercareandeducation.org Presented at the 2013 Fall DPP Conference

29. USA USA creates a new exception under FERPA that makes it easier for schools to release a child’s education records to child welfare agencies without the prior written consent of the parents. (This does not mean that child welfare agencies should leave out parents. In fact, good practice dictates that child welfare agencies should make efforts to keep parents informed and involved at all times.) Presented at the 2013 Fall DPP Conference

30. USA Amends FERPA http://fosteryouthcaucus-karenbass.house.gov/video/uninterrupted-scholars-act Presented at the 2013 Fall DPP Conference

31. USA Amends FERPA 2 Important Changes Section 444(b) of the General Education Provisions Act (20 U.S.C. 1232g(b)) (commonly known as the ‘‘Family Educational Rights and Privacy Act of 1974’’) was amended to: Allows education agencies to release/disclose a child’s education records, without parental consent, to child welfare workers who have a right to access a child’s case plan (includes tribal agencies). Does not require the education agency or institution to provide additional notice to the parent when the parent is a party to a proceeding involving child abuse, neglect or dependency. Presented at the 2013 Fall DPP Conference

32. Foster Care Alumni Studies Education Outcomes Students in foster careGeneral student population Dropout 50% 30% HS Grads/GED 50% 70% Goes to College 20% 60% Graduates 7-8% 25% www.cwla.org Casey Northwest Alumni Study Presented at the 2013 Fall DPP Conference

33. Kentucky’s Implementation of the USA Interagency Partnership with the Kentucky Department of Education (KDE), Administrative Office of the Courts (AOC) and the Kentucky School Board Association (KSBA). Creation of new Standards of Practice Educational Passport Joint letter from KDE and DCBS Presented at the 2013 Fall DPP Conference

34. Benefits of Partnership Realize the goal of equity in education for all students. Improve graduation rates and decrease dropout rates. Prevent inappropriate school placements, enrollment delays, lost credits, and drop-outs. Increase college and career readiness. Turn around low performing schools. Close the achievement gap. Presented at the 2013 Fall DPP Conference

35. What is FERPA? Gives parents and eligible students the right to access and seek to amend education records. Protects personally identifiable information (PII) from education records from unauthorized disclosure. Written consent required to disclose PII unless an exception applies. Presented at the 2013 Fall DPP Conference

36. What are education records? Education records are 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. Presented at the 2013 Fall DPP Conference

37. What is personally identifiable information (PII)? Name Mother’s maiden name Address Date of birth Social Security Number Parent’s name Presented at the 2013 Fall DPP Conference

38. Exceptions to the consent requirement School officials with legitimate educational interest; Schools in which a student intends to enroll; State and local officials pursuant to a state statute in connection with serving the student under the juvenile justice system. To comply with a judicial order or subpoena; Audits, evaluations and studies; Directory Information; and Health and safety emergencies. Presented at the 2013 Fall DPP Conference

39. Before the Uninterrupted Scholars Act Some schools and LEAs were sharing education records with CWAs prior to passage of the Uninterrupted Scholars Act using FERPA exceptions such as court order and “parent”. But there was a lot of confusion about what FERPA permitted. Presented at the 2013 Fall DPP Conference

40. Uninterrupted Scholars Act- What’s Changed? New exception to the general consent rule passed by Congress January, 2013, P.L. 112-278 Disclosure permitted to: “agency caseworker or other representative” of a state or local CWA who has the right to access a student’s case plan. Disclosure permitted when: the CWA is “legally responsible for the care and protection of the student”. Provisions for tribal organizations as well. Presented at the 2013 Fall DPP Conference

41. What can the CWA do with the Education Records? Child welfare agencies can only re-disclose records to an entity or individual addressing the foster child’s education needs. The person receiving the records must be authorized to receive the records and the disclosure must be consistent with state confidentiality law. Presented at the 2013 Fall DPP Conference

42. Changes to Notice Provisions The USA amends the requirement to notify a parent before complying with a subpoena or court order to disclose records when the parent has been a party to a court order proceeding involving child abuse, neglect, or dependency. Theory behind this change: The parent has already been informed by being involved in the child abuse, neglect or dependency proceeding. Presented at the 2013 Fall DPP Conference

43. Scenario One Q. A high school gets a request from the local child welfare agency (CWA) for all school records relating to certain students who are in foster care. Does the high school have to turn over all the records or just the information that the high school thinks the child welfare agency needs to see? A. FERPA doesn’t require, but permits. Presented at the 2013 Fall DPP Conference

44. Scenario 2 Q. Does a school sharing education records with a CWA need to have a written agreement with that agency prior to disclosing PII form education records? A. Under USA no specific agreement is required, but FERPA wouldn’t preclude. Presented at the 2013 Fall DPP Conference

45. Scenario 3 Q. If the CWA hires contractors to function as caseworkers, rather than using its own employees, may the CWA re-disclose education records to those contractors? And, if so, does the CWA have to record the re-disclosure? A. Yes Presented at the 2013 Fall DPP Conference

46. Scenario 4 Q. May a CWA use education records for purposes other than addressing a foster child’s education needs? For example, could the agency use these records to conduct investigations of child abuse or conduct research? A. No Presented at the 2013 Fall DPP Conference

47. Scenario 5 Q. A school district is willing to turn over education records to a CWA, but wants to require the CWA to destroy the records once the children in question are no longer in the foster care system. Does FERPA require this? And can the school district make the CWA do this? A. FERPA may require records be destroyed but not under this exception. CWA could use standard retention guidelines. If CWA chooses to retain the records when a child is no longer in foster care they cannot use. Presented at the 2013 Fall DPP Conference

48. Scenario 6 Q. Could an LEA and a CWA agree to enter into an arrangement where the LEA sends information on children in foster care to the CWA on a monthly basis? A. Yes. As a best practice could identify children in foster care and transfer only those records. LEA must record those disclosures. Presented at the 2013 Fall DPP Conference

49. Scenario 7 Q. What should a school do if it is notified that a child is in foster care an then the biological parent asks to meet with the child’s teacher and review the student’s progress? Does FERPA mean that the school can no longer talk to the biological parent? A. No. In most cases the goal is return to parent and rights have not been terminated. Presented at the 2013 Fall DPP Conference

50. Scenario 8 Q. What about situations where the child is living with a relative because the home situation is unsafe. Can the school share records with the relative? A. This is not addressed in the USA which addresses children in foster care. Generally, FERPA would permit if the relative is providing day-to-day care whether caring formally or informally for a child. Presented at the 2013 Fall DPP Conference