Maura McInerney, Esq. Education Law Center June 2010

1. Education Advocacy 102:Eight Keys To Improving Educational Outcomes For Children in CareA Guide for CASAs Maura McInerney, Esq. Education Law Center June 2010

2. What We Know • Almost half of youth in foster care in Pennsylvania do not complete high school. (Philadelphia =70%) • Only one-third graduate in four years. • They are far more likely to repeat a grade. • Score lower on standardized tests. Average youth in care reads at a seventh grade level after completing 11th grade. • Lower grade point averages • Fewer credits toward HS graduation

3. Barriers to Educational Achievement • Delayed enrollment • Lack of school stability • Children in care with special education needs fail to access services • Over-representation in alternative education programs and inappropriate placements • Confusion about legal rights & absence of active involved advocates and decision makers • Lack of remedial services • Lost credits/diploma requirements

4. Improving Education = Improving Lives Poor academic performance affects lives dramatically and contributes to higher than average rates of homelessness, criminality, drug abuse and unemployment. Maryland Public Policy Institute, Focus Group Study: Foster Care Families, Children, and Education, December 2006, at www.mdpolicy.org/docLib/20061130_FosterCareFocusGroupStudy.pdf (April 10, 2007).

5. A 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

6. Reasons for Hope:Educational Success Studies indicate that when youth in care have stable home placements, stable school attendance and the support they need educational outcomes improve dramatically: • One school placement = Twice as likely to graduate from high school • One-to-one tutoring= Average increases in reading level by 1.7 years in six months. www.casey.org/NR/rdonlyres/E32D6828-9DD6-4304-842B-723AEA2EF029/1145/Casey_ExecSummary_NCLB.pdf ww.http://www.treehouseforkids.org/index.htm;

7. Blueprint for Change: Educational Success for Children in Care • 8 Goals for Youth • Benchmarks for each goal indicating progress toward achieving education success • National, State, and Local Examples

8. GOALS • Goal 1: Educational Stability: Youth remain in their school of origin whenever possible and in their best interests. • Goal 2: Youth are guaranteed smoothtransitions between schools. • Goal 3: Young children in foster care enter school ready to learn. • Goal 4: Youth have access to and opportunities to participate successfully in all academic and non-academic aspects of the school experience, including support services.

9. GOALS • Goal 5: Youth in care have dropout, truancy andschool discipline rates equal to or less thanthose of other children. • Goal 6: Youth are involved and engaged in all aspects of their education and educational planning and are empowered to be self advocates for their education needs and pursuits. • Goal 7: Each youth has at least one significant adult consistently involved in his or her life and education. • Goal 8: Youth in care enter into and complete post-secondary education pursuits at rates at least comparable to those not in care.

10. Goal 1: School StabilityYouth remain in School of Origin when possible and in their best interests.

11. Why Is School Stability Important? • On average, a child in foster care changes schools two to three times per year. • With each school move, a child fallsfour to six months behind their classmates. • Academic difficulties are more likely to go unnoticed; records misplaced, credits lost and academic placements are more likely to be inappropriate. • See Fact Sheet on School Stability at http://www.abanet.org/child/education/Stability_Fact_Sheet.pdf

12. What Research Tells Us • Frequent school changes are associated with an increased risk of failing a grade in school and behavior problems. • 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. • In a national study of 1,087 foster care alumni, youth who had one fewer placement change per year were almost twice as likely to graduate from high school before leaving care.

13. Importance of School Stability in Pennsylvania PDE’s new BEC on Enrollment of Students specifically urges school districts to provide school stability: “Children placed in foster care often move from one foster home to another and such moves may involve school changes as well. In order to minimize the impact of change upon these children, school districts are strongly encouraged to develop policies or agreements to enable a student who is in foster care to remain in the educational program in the same school or school district even if that student is moved to a residence in another school attendance area within the district in in another school district.”

14. Making School Stability a Reality • McKinney-Vento Homeless Assistance Act • Fostering Connections to Success and Increasing Adoptions Act • Additional Tools in Pennsylvania

15. Right to Stay in Same School: Comparing McKinney-Vento to Fostering Connections • McKinney-Vento Act (Education Law: NCLB) • Requires school districts to ensure school stability, provide 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 (Child Welfare: Title IV-E) • Requires caseworkers to consider proximity and appropriateness of prior school in placing children AND to 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 – HOWEVER, they have a duty to cooperate to ensure stability.

16. STEP ONE: Is the Child Homeless Under McKinney • Definition of homeless includes children “awaiting foster care placement”* and includes those who live in • shelters or • emergency, interim or respite foster care • kinship care • evaluation or diagnostic centers • placements for the sole purpose of evaluation • AND . . . . *Definition added in 2001; PDE added PA definition in 2008, BEC on Homeless Youth

17. AND . . . Local school officials shouldconsult with their county C&Y agencies whenever necessary to determine if a child meets the definition… including, on a case-by-case basis, whether a child who does not clearly fall into on of these categories is nevertheless a child “awaiting foster care placement.” See PDE BEC AND OCYF Bulletin http://www.pccyfs.org/dpw_ocyfs/OCYF_Bulletin_3130-0801_Educational_Stability.pdf

18. In Pennsylvania . . . PDE BEC Education for Homeless Youth & OCYF Bulletin Educational Stability and Continuity for Children in Substitute Care underscores that the “awaiting placement provision applies to any placement “not likely to become permanent.”

19. Rights Under McKinney-Vento42 U.S.C.§11434A(2) Homeless students have the right to: ￭ Remain in school of origin ￭ With Transportation ￭ Right to appeal (includes written explanation from school district, notice of right to appeal & assistance in dispute process) ￭ Immediate enrollment ￭ Comparable services/equal access • Right to free school privileges from either the school district in which they are located or the school of origin. • Right to equal access to the same free, appropriate public education, including a public preschool education, as provided to others. 

20. How It Works • Notify school district that child qualifies as homeless under PDE definition • School choice: school of origin = • Prior school OR • School child attended when last “permanently housed If child seeks to remain in school of origin, • Transportation: School districts agreement or cost is split • Right to remain in school while any dispute is pending . . .

21. How To Solve McKinney-Vento Problems • For either enrollment or school selection disputes, child is entitled to a written explanation of school’s decision with notice of right to appeal. • Ask to speak to School District homeless liaison, then the M-V Homeless Regional Coordinator • If enrollment/school choice is denied, send a complaint to State Coordinator Sheldon Winnick at PA Department of Education or PDE’s Legal Office. See ELC Guide • During the dispute, the child must be immediately admitted to the school he/she is seeking to attend. • Under Homeless Students BEC, PDE has 20 business days to resolve dispute. May be appealed to federal court. • Contact ELC

22. Troubleshooting under McKinney-Vento: Common Problems • Right to IMMEDIATE ENROLLMENT • Child must receive a written explanation of school’s decision with notice of right to appeal. 42 U.S.C. §11432(g)(3)(E). • School district and State have a duty to PROMPTLY resolve disputes. • Unaccompanied youth MUST receive help from school district liaison to file a dispute. • During the dispute, the child must be immediately admitted to the school he/she is seeking to attend.42 U.S.C. §11432(g)(3)(E)(ii).

23. FOSTERING CONNECTIONS: • NEW TOOLS FOR SCHOOL STABILITY & EDUCATIONAL SUCCESS

24. Fostering Connections to Success • Enacted in Oct 2008 • Amends Part B and E of the Social Security Act • Important provisions promoting education stability and enrollment for youth in care • Changes child welfare law, but cannot be realized without collaboration from education

25. Staying in Same School under Fostering Connections • The case plan must include assurances that the county agency has coordinated with the LEA • “to ensure that the child remains in the school in which the child is enrolled at the time of placement” • unless remaining in the same school “is not in the best interest of the child.” 42 U.S.C §675(1)(G)(ii), (iii). • Child welfare agency may seek reimbursement for transportation through Title IV-E administrative or maintenance dollars

26. 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.”

27. 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.

28. School Stability Determination • How is best interest determined/what are factors to address? • Who ultimately decides best interest? • How will disputes be resolved? • How will child welfare and education collaborate?

29. Key Questions to Consider When Making a School Selection • 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?

30. Key Questions to Consider When Making a School Selection • 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?

31. 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).

32. 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?

33. 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.”

34. Transportation issues • Permissible use, does not establish a right • Applies only to IV-E eligible children • Requires state to fund match for IV-E eligible children; and all transportation for non IV-E eligible children. • Unclear how reimbursement can be calculated

35. Attendance • State plan attendance requirement: states must provide assurances in their state plan that all IV-E eligible children of beginning at the minimum age for compulsory school attendance are enrolled in school. 42 U.S.C.A. 671. • Includes: • School • Home schooled • Independent study program • Unless medical condition precludes participation • Must comply with compulsory school laws, state enrollment laws, and relevant federal laws such as IDEA, ADA.

36. Transition Plan • Requires that transition plan be developed for youth 90 days prior to youth’s exit from care. 42 U.S.C. 675(H). • Must include plan for education. NOTE: A preexisting IV-E requirement is that case plans include an “independent living plan” “where appropriate for youth ages 16 and older.” 42 U.S.C. 675 (1)(D)

37. Other Older Youth Provisions • Gives state option to extend eligibility for Independent Living Services and Education Training Vouchers (ETVs) to youth who enter kinship guardianship or were adopted at age 16 or older*. 42 U.S.C. 677 • Gives states option to keep youth in care until age 21 as long as youth is in educational program, employed, or meets other requirements. 42 U.S.C. 675(8)(A) *ETVs had already been available to youth adopted over 16 under prior law.

38. Goal 2: Youth are guaranteed seamless transitions between schools and school districts.

39. What We Are Seeing • Children in care lose ground due to enrollment delays, the failure of prior schools to locate records and to transfer all credits. Lost time can be devastating to a youth’s educational success. • Like homeless children, youth in care need a liaison to help them make a smooth transition by addressing enrollment, ensuring appropriate placement and expanding access to school activities.

40. Benchmarks of Success • Guarantee “immediate” enrollment in new school • Legally mandate timely transfer of records and credits • Children are not penalized for lost school time or work missed due to court dates or child welfare-related activities and such time is minimized. • Children in placements receive credit for educationally appropriate curriculum. • All crucial education documents are maintained in case file(including enrollment docs, IEPs, evaluations).

41. ENROLLMENT RULES • PA law allows foster parent or caseworker to enroll a child in care. • Enrollment must be prompt: • School must enroll child within 5 businessdays of receiving required documents • If New School asks Old School for records, must be sent within 10 business days From: 22 Pa Code 11.11(b)

42. Enrollment Rules (cont’d) • Child has legal right to attend school where foster family lives, regardless of where birth parent resides. 24 P.S. §13-1301; BEC on Enrollment of Students • Non-resident children in foster care must be treated in the same manner as resident children. Nancy M. v. Scanlon, 666 F. Supp. 723 (E.D.Pa. 1987). • A nonresident child in paid foster care “is entitled to all free school privileges accorded to resident children of the district. . . in the same manner as though such child were in fact a resident child of the district.“

43. What You Should Know • Enrollment Rules - Law requires proof of: • AGE • Birth certificate, notarized statement by the parent, etc. TIP: try old school records if you have them • IMMUNIZATIONS • Can be oral assurance from old district or a doctor with the record to follow later • RESIDENCY • Agency letter of placement & foster parent provides proof that he or she is a resident From: 22 Pa Code 11.11(b) + PDE’s BEC on Enrollment • SWORN STATEMENT OF DISCIPLINARY RECORD • Signer can say “to best of my knowledge” if not sure From: 22 Pa CS 13-1304-A (Act 26) + PDE’s BEC on Enrollment

44. What You Should Know • Schools CANNOT request ANY other records including • Social security number • Photo ID • Visa/immigration documents • Court order concerning placement or guardianship • Reasons the child is living in district • Affidavit from biological parents

45. A School Cannot Refuse to Enroll A Child Because . . . • It is difficult to determine grade/class placement. • There is a delay in getting old school records. (The prior school has 10 days to provide records.) • The child is “too old” and could seek a GED instead. (Youth have a right to attend school until age 21.) • There are only a few weeks left in the school year. • The child has a disciplinary record. Exception: If a child is currently expelled for a weapons offense he may be assigned to an alternative placement for the length of the expulsion.

46. What You Should Know:Enrollment Rules in Discipline Cases • School district cannot refuse to educate the child based on disciplinary record • Exception: If child is currentlyexpelled for a weapons offense, the district may assign that student to an alternative assignment or provide alternative education services for the duration of the expulsion From: 24 P.S. 13-1317.2(e.1)

47. Special Rule for Children in Care • Pennsylvania Department of Education’s policy on truancy and attendance prohibits a school district from counting a child as truant or an absence as unexcused if the child is participating in court-related activities or County C&Y meetings. See 24 P.S. 13-1327 and Compulsory Attendance and Truancy Elimination Plan

48. Know the Law: Protect a Child • (1) Does the school have an obligation to enroll the child if the records from a prior school have not been transferred? • (2) Does the school have an obligation to enroll the child if he/she is over 18? • (3) What happens if the child did not complete the coursework in his/her prior grade? • (4) What happens when a child is transferring from a residential treatment facility?

49. Answers to FAQ • (1) Yes! • (2) Yes! Under Pennsylvania law, a child is entitled to attend public school up to age 21 OR until he/she graduates. 24 P.S. §13-1301 • (3) This depends on the school district. In some schools, children have been permitted to “test” into a grade where placement is unclear. • (4) RTF should write a letter for the child’s file.

50. Resolving Enrollment Disputes in Pennsylvania • Person trying to enroll child can complain to: • Dr. Linda Rhen, Director School Services Unit, Pa Department of Education333 Market Street Harrisburg, Pa 19126-0333(717) 787-4860 or 783-3750 phone (717) 783-6802 fax • Within 5 business days, PDE will request the district’s position. It must respond in 5 business days. • If enrollment is denied, PDE’s Office of Chief Counsel may choose to intervene.