Understanding Confidentiality and Education Decision Making for Youth in Foster Care

1. Understanding Confidentiality and Education Decision Making for Youth in Foster Care Child Welfare, Education and the Courts: A Collaboration to Strengthen Educational Successes of Children and Youth in Foster Care November 4, 2011 Christina Spak Kathleen McNaught

2. Questions to be Discussed • How do necessary education records get shared with caseworkers, foster parents and other in the child welfare system in compliance with existing confidentiality rules? • Who makes general education decisions for children when they are in foster care? • What additional rules apply related to education decision-making when children in care are receiving, or suspected of needing, special education services?

3. Overview • Privacy interests of youth and parents • Confidentiality laws governing each agency • Balancing privacy interest with need for sharing information to serve the child and family • Bottom line: confidentiality laws do permit sharing of information…but that sharing must occur within the parameters of the law

4. LAW: Family Educational Rights and Privacy Act (FERPA)20 U.S.C. § 1233g; 34 CFR Part 99 • Purpose: to protect privacy interests of parents and students regarding the students’ education records

5. EDUCATION MYTH “We can’t share any information about a student with anyone who is not considered the parent.”

6. REALITY • Education Records • Must follow guidelines under FERPA • But, not all information about a student is an education record under FERPA • Directory Information

7. EDUCATION MYTH “We can’t share child specific education records with anyone without parental consent”

8. REALITY • The only individuals with automatic access to education records are the parent and youth over 18. • Others involved with the child welfare system (e.g., caseworkers, child attorneys, GALs, CASAs, foster parents and caretakers) shouldbe able to gain access in a variety of ways.

9. How child welfare can gain access to education records: • Parental Consent • FERPA Exceptions (i.e., Court order granting access)

10. How child welfare can gain access to education records: • Always should first try and obtain parental consent from parent.

11. FERPA Exceptions • Other school officials, including teachers, with legitimate educational interest in the child; • In connection with an emergency, to protect the health and safety of student or other persons; • Officials of other schools when child transferring schools; • State and local authorities within department of juvenile justice; • To comply with judicial order or subpoena.

12. Parent Definition Under FERPA • FERPA Definition of Parent: “includes natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.” • Comments to Regulations confirm that foster parents who are acting as a child’s parent qualify. • Outstanding Question:Do representatives of a custodial child welfare agency meet the definition of parent for purposes of FERPA?

13. EDUCATION MYTH “Unless we receive consent from the parent, we cannot send education records to a new school when a child transfers out of school.”

14. REALITY • False. • FERPA permits a school to transfer education records to a new school when the purpose is for the student’s enrollment or transfer. Parental consent is not required. • Now, under Fostering Connections, child welfare agencies have an obligation to see that this transfer occurs for children in care.

15. CHILD WELFAREMYTH “We are not obligated to keep education information in our child welfare case files.”

16. REALITY • False. Child welfare is specifically required to maintain educational information, including school records, in the case plan.

17. LAW: Title IV-E of the Social Security Act 42 U.S.C.A. 675(1)(C) & (5)(D) • Must keep health and education records as part of written case plan, that includes: • Name and address of health and education provider • Grade level performance • School record • Known medical problems and medications • Any other relevant health and education information • Records must be reviewed and updated • Must supply records to foster care provider • Must supply records to youth exiting care

18. Resources • Mythbusting: Downloadable at http://www.abanet.org/child/education/publications/dataexchange.html • Solving the Data Puzzle: http://www.abanet.org/child/education/publications/solvingthedatapuzzle.pdf • Education Court Performance Measures: draft addition to the Judicial Performance Measures Toolkit

19. Family Policy Compliance Office, US Department of Education Discussion with Acting Director, Ellen Campbell

20. General Education Decisionmaking • Numerous education decisions (outside of special education decisions). Examples include: • Enrollment • Consent to certain school activities • School transfers (under NCLB) • McKinney-Vento school of origin decisions • Definition of Parent differs in various federal laws and also may be state laws that apply. • FERPA parent • State laws on decisionmaking authority

21. Individuals with Disabilities Education Act 2004 20 U.S.C. 1400 et. seq. • Purpose: To provide all children with disabilities that impact on their ability to succeed in school with a free, appropriate, public education in the least restrictive environment possible.

22. Special Education Process • Referral & Consent • Evaluation • Identification for services • Individual Education Program (IEP) • Identify needs • Determine services • Designate placement

23. Confidentiality and Educational Decision Making for Foster Youth with Disabilities Carmen M. Sanchez Education Program Specialist Office of Special Education and Rehabilitative Services US Department of Education

24. What is the Definition of Parent Under IDEA? • Birth or adoptive parent, • foster parent unless prohibited by state law, • guardian generally authorized to act as the child’s parent or to make educational decisions for the child (but not the state if a child is a ward of the state), • person who is acting in the place of a parent and with whom the child is living; can be a non-relative, • a person legally responsible for the child. • a surrogate parent 34 C.F.R. §300.30

25. When is the birth or adoptive parent the parent under IDEA? When the biological or adoptive parent is “attempting to act” as the parent, the biological or adoptive parent will be presumed to be the parent unless they don’t have the legal authority to make education decisions. 34 C.F.R. §300.30(b)(1)

26. Situations when the birth or adoptive parent is not the parent under IDEA • If the birth or adoptive parent is not “attempting to act” as the parent, the education agency can treat one of the other persons on the list (foster parent, etc.) as the IDEA decisionmaker. • When a judicial decree or order specifies another person, either as a surrogate parent or as an education decisionmaker, the education agency must accept that person as the IDEA parent. • Another Note of Caution: If the child is a “ward of the state under the laws of the state” sometimes an education agency can appoint a surrogate parent even if there is a birth or adoptive parent who is “attempting to act” – more about this later

27. Who can appoint and when should a surrogate parent be appointed? • The education agency must determine whether a “surrogate parent” is needed, and should assign one within 30 days, if: • no IDEA parent can be identified or located, • the child is a ward of the State under the laws of that state, or • the student is an unaccompanied youth under McKinney-Vento. • For IDEA wards of the State, the juvenile court can alternatively appoint the surrogate parent.

28. Ward of the State • IDEA defines as: “a child who, as determined by the state where the child resides, is, a foster child; a ward of the State; or in the custody of a public child welfare agency” “Ward of the state does not include a foster child who has a foster parent who meets the definition of a parent [under IDEA]”

29. Who can be a surrogate parent under IDEA? Surrogate parents appointed by LEA • can’t be employees of state or local education agencies or other agencies involved in the education and care of the child (i.e., can’t be the public or private caseworker or a school official), • can’t have any conflicting interests, • They must have knowledge and skills necessary to be a good surrogate. Surrogate parents appointed by Judge • can’t be employees of SEAs, LEAs, or other agencies involved in the education and care of the child (i.e., can’t be the caseworker or school staff)

30. Tips and Reminders for Judges • A judge can appoint a surrogate parent for children who meet the IDEA definition of ward of the state. • A judge can appoint an IDEA decisionmaker to make special education decisions for a child whenever and to whatever extent such a decision is permitted by state law. For example, whenever such a decision is in the “best interest” of the child. • A judge can appoint an IDEA decisionmaker, even when the child has a foster parent. • The IDEA decisionmaker appointed by a Court is the parent for IDEA purposes even if there is another person who meets the definition available (for example, a foster parent).

31. Requesting an Evaluation • Typically, the parent must provide signed consent for the school to conduct the evaluation • If parent won’t consent, a school can go to a hearing to get an order for the evaluation • However, for chidren who are “wards of the state” there is an exception.

32. Exception: “Wards of the State” • School districts may conduct initial evaluations without parental consent under certain circumstances: • The school district can’t locate the parents after making reasonable efforts • The birth parents rights are terminated under DE law • Or a judge removes the birth parents’ educational rights (temporarily or permanently) & consent is given by an individual the judge appoints • School/judge or DOE should appoint surrogate in the interim • NOTE: The person appointed by the court is not automatically the surrogate parent and cannot give consent for services to begin if the child is eligible.

33. How Does this All Work in States? • Example- Connecticut Christine B. Spak, J.D. Coordinator Surrogate Parent Office Department of Education State of Connecticut

34. Contact Information Kathleen McNaught kathleen.mcnaught@americanbar.org