Education Law in the Child Welfare System

1. Education Law in the Child Welfare System Federal & Colorado Law

2. Education Matters • Stable and positive school experiences: • Enhance children’s well-being • Help children make more successful transitions to adulthood • Increase their chances for personal fulfillment and self-sufficiency • Educational success is a potential positive counterweight to abuse, neglect, separation, and impermanence.

3. Introductions • What’s your role? • What county do you work in? • What do you hope to learn in this session? • Specific issues coming up in your practice?

4. Primary Stakeholders • Children • Parents • Caseworkers & DHS • Judges • GALs • RPCs • CASAs • Educators

5. Topics • School stability • Colorado statutes • McKinney-Vento • Fostering Connections • Access to Records • FERPA • Students with Disabilities • Section 504 of the Rehabilitation Act • IDEA • Student Discipline in General Education

6. School Stability

7. Overview of Statutes • When a child’s residence changes, there is often pressure to move the child to a new school, but there are some protections against this. Refer to Handout 3 – Fostering Connections Reference • Colorado Laws • Same school for remainder of semester (sometimes school year) for all CO students • Transfer procedures for students in out-of-home placement • Federal Laws: • McKinney-Vento: Same school/new school based on best interests for students who are homeless • Fostering Connections: Same school/new school based on best interests for students in out-of-home placement

8. All children in Colorado can remain in their school until the end of the semester. • § 22-32-116, C.R.S. • Statute implies the district might have to provide transportationin some situations All Colorado Students

9. CO – Elementary • Elementary students can stay in the same school for the rest of the year and reenroll if: • The child was included in the last October pupil count and has attended continuously since; and • The guardian sends a written request to principal; and • The principal finds there is space and approves the request. • Explicitly states no transportation after the end of the semester • This implies transportation for 1st semester.

10. CO – Seniors • 12th graders: • Can stay in the same school for the rest of the school year • Same implication for district-provided transportation

11. 42 U.S.C. §11431 et. Seq. • Children who are homeless stay in “school of origin” if in best interest • If not in best interests to stay in same school, right to immediate enrollment in new school, even without all records • Colorado implementation: §22-33-103.5(5) McKinney-Vento Homeless Assistance Act

12. McKinney-Vento – Same School • Homeless youth have the right to stay in school of origin if in best interests • School of Origin = the school attended when permanently housed or the school last enrolled • Status applies for school year or as long as homelessness continues • Transportation provided to stay in same school • School districts can share costs • School of choice pending dispute resolution

13. McKinney-Vento - New School • Immediate and appropriate enrollment in new school, even without records • Enrolling school must contact previous school to request records • If child has no immunization records, enrolling school must arrange for immunizations • C.R.S. § 22-33-103.5

14. Who is “Homeless?” • Children who lack a fixed, regular, and adequate nighttime residence, including: • Children living in emergency or transitional shelters • Children abandoned in hospitals • Unaccompanied homeless youth • Children “awaiting foster care placement” • No state or federal definition of children “awaiting foster care placement”

15. P.L. 110-351, 42 U.S.C. 629 et seq. and 42 U.S.C. 670 et seq. • Affects many areas of child welfare law; we are just looking at educational stability • “Ensures” educational stability for children in out-of-home placements • 42 U.S.C. § 675(1)(G) Fostering Connections

16. FC – What is “School Stability?” • Fostering Connections requires DHS to “ensure” that: • Youth stay in same school if in their best interests • If moving schools is in their best interests, immediate and appropriate enrollment in a new school

17. FC – Same School • Stay in the same school if it is in their best interests • When changing residential placements DHS must: • Consider the appropriateness of the educational placement and the proximity of the current school • Coordinate with educational authorities to maintain child’s school placement if in child’s best interests • What are you seeing in your practice?

18. FC – Same School & Transportation • Transportation is an implied obligation of DHS • DHS must “ensure” school stability • Transportation is an allowable IV-E expense • Cost of transportation is not a permissible factor in determining the child’s best interests • DHS may provide transportation w/ Title IV-E funds • How to use IV-E funds is a county decision

19. FC – Same School & Transportation • Act amends the definition of IV-E foster care maintenance payment to include "reasonable travel” to school of origin. • Now reimbursed at the Medicaid matching rate   • Previously, travel related expenses were an “administrative expense” with set 50% reimbursement • Makes no rate difference in CO b/c our Medicaid rate is 50%

20. FC – New School • “immediate enrollment…with all records transferred…” • Ambiguous timing for records – Immediate and contemporaneous with enrollment? • Either way, enrollment must be immediate • What is “immediate” enrollment? • The ACF has declined to clarify what “immediate” means other than to say “without delay.” • What is “appropriate” enrollment?

21. FC Implementation in Volume 7 • Requires CWs to: • Describe how new placement is in reasonable proximity to child’s school; • Coordinate with school districts; • Either 1) notify sending school of records transfer request as soon as possible; or 2) request the records themselves and provide to the new school; • Document efforts to maintain child in same school; and • Document reasons why remaining in same school not in child’s best interests.

22. Fostering Connections vs. CO Implementation Fostering Connections C.R.S. § 19-3-213 CW “shall attempt to select a placement that allows the child to remain in the current school, or to transfer to a comparable educational situation.” Best interests? Preference for same school? • Stay in same school if in best interests • Transportation implied OR • Immediate enrollment in new school • Only if staying in same school is not in best interests

23. Fostering Connections vs. McKinney-Vento Fostering Connections McKinney-Vento Homeless youth Obligates school districts Same school if in best interest School of student’s choice pending dispute Immediate enrollment Transportation must be provided by district(s) Title I (education) funds • Out-of-home youth • Obligates DHS • No reciprocal mandate on schools to “ensure” stability • Same school if in best interest • Immediate enrollment • Transportation implied by DHS • Title IV-E (SSA) funds for transportation

24. Transportation – Your Experiences • What have you tried to secure transportation? What has worked? • People/agencies who could potentially provide transportation: • DHS (may be through private company) • School district (may be through private company) • Kin • Foster parents • Group home staff • Others?

25. Best Interest Determinations • The ACF “encourages” development of a “standard and deliberate process for determining best interests” for school placement. • Since this is part of the case plan, the family should be included in determining best interests

26. Discussion with Your Table Handout 4 - ABA Model Form • What factors should we consider in making best interest determinations? • See handout for ABA’s model best interest determination form • This should be completed with input from all needed parties, including parents • Would something like this work in your practice?

27. What it does: • Address prompt enrollment and records transfer for out-of-home youth who are changing schools • Address need for reciprocal mandate for schools to coordinate with DHS What it does not: • Implement Fostering Connections – applies to school districts, not DHS • Provide protection for foster youth to remain in the same school if in their best interests C.R.S. §22-32-138 (HB 08-1019)

28. CO – New school out-of-home placements • Creates child welfare education liaisons who: • Are designated by each school district or charter institute • Are responsible for: • Collaborating with child placement agencies, county departments, the state department to ensure proper school placement, transfer, and enrollment of foster children

29. CO – New school out-of-home placements • When foster youth transfer to a new school: • Sending school must send educational records within 5 days of request. • Cannot delay/refuse request for any reason, including unpaid fines • Receiving school must enroll student within 5 days of receiving records. • Students must be enrolled even if they cannot meet usual requirements such as providing immunization records or compliance with dress code. • 14 days after enrollment to provide immunization records

30. State and Federal Combined – New School • Fostering Connections: • “immediate enrollment…with all records transferred…” Ambiguous timing for records • C.R.S. § 22-32-138: • Sending school must transfer records within 5 school days, and receiving school must enroll within 5 school days of receipt • Combined: • Right to immediate enrollment, and records must be transferred in 5 school days

31. Fee Waivers

32. Fee Waivers • Applies to children who are in out-of-home placements: • C.R.S. §22-32-138: schools and districts must waive fees for students in out-of-home placements. • This includes, but is not limited to: • Extracurricular activities and programs before, during, and after school • Books and lab fees • Recently the Children’s Law Center has applied this statute successfully for waiver of full-day kindergarten fees.

33. Fee Waivers • Children who have disabilities: • IDEA – does not waive fees, but note the “free” in FAPE. • If something is provided for in the IEP as special education related service, it should be free, even if a fee would apply to other students.

34. FERPA Family Educational Rights & Privacy Act

35. Family Educational Rights and Privacy Act • “FERPA” - 20 U.S.C. § 1232g and 34 CFR Part 99 • Protects privacy of educational records and • Parents have the right to review records • Within “a reasonable time” – max 45 days • Can be charged for copies unless fee effectively denies access • Requests for waiver of copying fees rarely denied • Rights pass to children when they turn 18

36. FERPA • All records about the child that are maintained by the school. Including, but not limited to: • Grades, progress reports, test scores • Attendance • IEPs, evaluations, and all other related documents • Discipline records • Internal communication (e.g., emails) about the student • Law enforcement records maintained by the school • Does NOT include: • Notes in maker’s sole possession & sole access • Law enforcement records maintained by a law enforcement unit that may operate in the school.

37. Uninterrupted Scholars Act • Amendment to FERPA: • Permits child welfare agencies to access education records without a court order when the agency has legal custody of the child • Allows child welfare agencies to share the information with people “engaged in addressing the child’s educational needs,” while still protecting confidentiality; and • When a D&N court orders access to records (such as to GALs), the school does not need to provide additional notice to the parent • 20 U.S.C. 1232g(b)

38. Section 504 Of the Rehabilitation Act

39. Section 504 • Prohibits discrimination against people with disabilities • Unlike IDEA, applicable to other government programs, not just education. • “Disability” means impairments that substantially limit major life activities (walking, talking, learning, working, seeing, breathing) • Services under Section 504 are implemented by school districts.

40. Section 504 • Non-Discrimination: • Provides equal access to a free appropriate public education: • The provision of regular or special education and related aids or services to meet the needs of students with disabilities as adequately as the needs of students without disabilities • EQUAL ACCESS vs. affirmative right to FAPE

41. Section 504 • Eligible students have a “504 Plan” with accommodations that do not fundamentally alter the program. • Ex: • Insulin administered by trained personnel • Access to large print materials or Braille • Extra time on exams; quiet space for exams • Directions given one at a time; check for understanding • 504 plans can include special education services as well as accommodations.

42. Discipline Under Section 504 • Generally, IDEA discipline protections also apply under Section 504. • Mainly through case law and OCR guidance, not statute • No placement change (long-term suspension or expulsion) for behavior that is a manifestation of the disability • One key difference: IDEA eligible students continue to receive FAPE if long-term suspended; students only eligible under 504 only receive educational services if general education students would as well. • Affirmative right to FAPE vs. Equal Access to FAPE

43. Individuals with Disabilities Education Act

44. Free Appropriate Public Education (FAPE) • Special education and related services that: • Have been provided at public expense, under public supervision and direction, without charge • Meet the standards of the Colo. Dept. of Education • Include an appropriate preschool, elementary school, or secondary school in Colorado • Are provided in conformity with the Individualized Education Program (IEP)

45. IDEA – Sources of Law • 20 USC §1401 et seq • See also 34 C.F.R. §300.00 et seq • State implementation: • 22-20-101 et seq, C.R.S. • 1 CCR 301–8. Rules for the Administration of the Exceptional Children's Educational Act

46. IDEA – 2 Parts • Part C: 0 – 3 years old • Early Intervention Services through an Individualized Family Service Plan (IFSP) • Most challenging piece – transition to Part B • Part B: 3 – 21 years old • 3-5 years old – Preschool • 5-21 years old – K-12 • Special Education and Related Services through Individualized Education Program (IEP)

47. Child Find • School districts have a duty to identify children with disabilities. • Many referral sources for evaluating a child 0-3: • Pediatricians • Caseworkers • Parents • GAL/CASA • Referral for all children 0-3 who are “the subject of substantiated case of child abuse or neglect” • Only the “parent” or someone from the school district can refer a child 3-21 for an evaluation for Part B services.

48. IDEA Part C Children ages 0-3

49. Part C Eligibility • Responsibility for Child Find Evaluation is on the public school district where child is living. • Assessment completed by Early Intervention Multi- Disciplinary Team • Evaluation AND initial IFSP must be completed within 45 days • State Early Intervention Colorado • (888) 777-4041, www.eicolorado.org

50. IFSP for Children 0-3 Years Old • IFSP: Individualized Family Service Plan • Reviewed at least every 6 months, with a meeting at least annually • If parents consent, the district may use an IFSP instead of an IEP for children ages 3-5. • IFSP for children 3-5 must promote school readiness • Part B procedures still apply for children 3-5