The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
The Every Student Succeeds Act (ESSA), passed in December 2015, reauthorized federal education law for the first time in over a decade. Of significance to advocates for children in foster care, ESSA specifically addresses the needs of children in the child welfare system. In fact, ESSA’s provisions ensuring school stability for children in foster care are some of the first requirements under ESSA to go into effect in most states.
Through the ABA Center on Children and Law’s education work throughout the country and strong relationships with advocates in states, we have tracked implementation trends and highlights at the state and local levels. We also have a clearer picture of gaps and remaining struggles that many jurisdictions face when complying with ESSA requirements to protect children in foster care.
Overall, existing implementation efforts show state and local education agencies (SEAs and LEAs) are focusing on the foster care provisions, and have the support of child welfare agencies. The examples below share implementation highlights from jurisdictions from around the country. However, challenges remain; we offer suggestions for positive steps to support the education stability and success of children in foster care.
Identifying Points of Contacts
All state education agencies have identified foster care pointes of contact (POCs) as required by ESSA. Most states also have an education POC in their state child welfare agency, a definite best practice even though this is not specifically required in federal education or child welfare law. As these state-level POCs have started collaborating on implementation efforts, we have seen a significant increase of local education and child welfare agency POCs. In several states, state agencies have helped facilitate appointing local POCs and are maintaining public lists of local POCs on state agency websites.
- New York State Education Department (SED) and Office of Children and Family Services (OCFS) issued a joint guidance letter requiring LEAs to report to SED their POCs and provided a website where local child welfare agency POCs could be found. Additionally, these New York state agencies are drafting clear roles and responsibilities for the POCs in each agency and plan to host a webinar for all POCs.
Several states have begun hosting regional meetings to bring together local POCs and facilitate cross-system collaboration. These meetings often consist of general information sharing between education and child welfare and the beginning steps of drafting an agreement for transportation and other processes required in ESSA.
- Maryland has hosted three regional meetings, bringing together LEA POCs and local child welfare agency POCs. These meetings provided a forum to draft the LEA’s local transportation plan for children in foster care, with a requirement to submit a final version to the state education agency POC.
Providing POC Training and Networking
With POCs identified in all state education agencies, there is a need for training on roles and responsibilities and a forum for POCs to learn from each other and share information. State-level POCs need to take the lead providing training and networking opportunities to the local POCs to ensure they feel supported and know who to turn to for help or with questions.
- Joint guidance from the North Carolina Division of Social Services and Department of Public Instruction clearly outlines roles and responsibilities of LEA and child welfare agencies. The responsibilities include but are not limited to: collaboration, notification, participation in training sessions, information sharing, best interest determination processes, and transportation planning.
- The Tennessee Department of Education created a “Point of Contact Responsibility Matrix” outlining the responsibilities of the Tennessee Department of Education, the Department of Children’s Services, and the LEAs. The matrix includes several responsibilities, including the state’s responsibility to monitor LEAs, promote collaboration, and coordinate several issues; the child welfare agency’s responsibility to establish a process for best interest determinations, create a notification process, coordinate information and data sharing, and provide training; and the LEA’s responsibility to develop transportation procedures, create a dispute resolution process, develop policies, and coordinate data sharing.
Issuing State ESSA Guidance
To date a majority of states have publicly released guidance memorializing ESSA implementation and aiding local jurisdictions. This guidance takes various forms, such as joint and individual agency letters, question and answer documents (modeling the federal joint guidance), and implementation toolkits. Some jurisdictions have hosted webinars or informational meetings to explain the guidance. Toolkits have included forms for best interest determinations, documenting transportation agreements, individual student transportation arrangements, and flowcharts to guide workers through the school stability process. Many tools and guidance are featured on education agency websites and widely shared internally.
- Ohio Department of Education created their own webpage (education.ohio.gov/topics/school-improvement/foster-care) where they released several guidance documents including: joint guidance, implementation checklist, student checklist, educational stability process, best interest determination form, and sample transportation procedures.
Establishing Best Interest Decision-Making Processes
Several state agencies have provided best interest decision templates, outlining the process for local agencies to make best interest decisions for whether a child will remain in the school of origin or immediately enroll in a new school when a child’s foster care placement changes. Most of these templates detail when decisions need to be made, who needs to be included in the decision-making process, how input from those individuals will be gathered, and factors to consider in decisions.
The factors most states have identified reflect factors outlined in the federal joint guidance, which can also be found as part of the Legal Center for Foster Care and Education’s ESSA Toolkit, Best Interest Determination Procedures.2 Agencies are also creating internal policies and procedures to comply with Fostering Connections and ESSA. In most states, the ultimate decision about the child’s best interest lies with the child welfare agency; therefore, child welfare agencies are taking the lead establishing and documenting these procedures.
- The District of Columbia child welfare agency, Child and Family Services Agency (CFSA), has created two best interest decision-making tools for caseworkers. The agency is also revamping its internal policy to outline the entire best interest process for when a child is first removed from home and subsequent living placement changes.
- The Colorado Department of Human Services (CDHS) has released to their local agencies, with support from the Colorado Department of Education, a best interest process with best interest decision-making templates, school notification forms, and follow-up procedures. CDHS also amended their court rules to include this process.
Developing Local Written Transportation Procedures
Several state agencies, as part of their state guidance, have issued templates or model forms for LEAS to use to complete their local written transportation procedures. In other states, LEAs have used national tools or other examples and completed their local procedures, ahead of any further guidance from the state.
- In 2016 the Pennsylvania Department of Education and Department of Human services jointly provided local jurisdictions a “PA Transportation Plan Guide” with templates for transportation agreements, memorandums of understanding (MOUs), and individual student transportation plans. Many Pennsylvania county child welfare agencies and LEAs used these templates to enter into transportation agreements.
In one county, the child welfare agency discovered it was more cost-effective to contract directly with a transportation service provider. Under a transportation agreement, the LEA and the child welfare agency discuss in each case which agency can provide transportation at a lower cost. In most cases, it is more cost-effective for the child welfare agency to provide transportation and the agreement provides the cost will be shared between the LEA and child welfare agency, while the child welfare agency arranges and provides transportation. In addition, the child welfare agency also has the means to provide and arrange for immediate transportation (the next day) even if the provision of transportation will shift to the LEA after five days.
In other counties, the LEA contracts for all transportation services. This highlights that even with a uniform state template, local agencies can work out cost sharing that is most feasible and practical to their local context.
Covering “Additional Costs” of Transportation
In many local transportation plans that have been developed, LEAs and child welfare agencies are finding ways to share the added transportation costs to keep children in their schools of origin when their child welfare placements change. These include cost-sharing agreements based on distance or time of year, as well as pure cost splits (50/50 agreements).
- The Iowa Department of Education and Department of Human Services entered an interagency agreement including a cost-sharing arrangement for local agencies. This arrangement, signed off on by all state LEAs, requires LEAs to arrange and pay for any extra costs to transport a foster student to their school of origin. If the student is placed within the school district or just outside in a “contiguous” school district, the district absorbs the full cost. If the student is placed further away, the child welfare agency will reimburse the district’s additional costs associated with the greater distance, up to a max daily amount.
Requiring Dispute Resolution
One significant challenge to implementing school stability provisions is ensuring a dispute resolution mechanism is in place when child welfare agencies and LEAs disagree on how to cover transportation costs. Several states have tackled this issue in their formal procedures, including how to address transportation costs pending resolution of the dispute.
- Mississippi has a clear dispute resolution process in their state joint guidance requiring local agencies who disagree about transportation costs to reach out to state agency POCs to resolve the dispute. In the interim, the local agencies must share costs 50/50.
- Alabama’s dispute resolution process requires the agency that was paying for transportation before a dispute arose, to continue paying while resolving the dispute. If transportation to maintain school of origin is a new request, the LEA must provide and arrange the transportation in the interim. Finally, if there is a “pattern of dispute” in a local jurisdiction the state can intervene to resolve the disputes.
- South Carolina joint guidance requires local agencies to develop local dispute resolution processes for transportation and best interest disputes. If a transportation dispute cannot be resolved between the two local agencies they should reach out to their state contacts. If the dispute still cannot be resolved, they will use the state-level dispute resolution process. The state-level dispute resolution process involves a three-person panel including the state education agency POC, the state child welfare agency POC, and the South Carolina Department of Deputy General Counsel for Federal Programs. The guidance provides timelines for the process and the required contents when submitting dispute resolution requests.
Expanding ESSA Provisions through State Legislation
A few states have passed state legislation emphasizing and/or expanding on ESSA’s requirements and ensuring uniform procedures throughout the state. While not possible in all states, state legislation can be an important tool to ensure statewide compliance. All of the laws highlighted went into effect July 2017.
- Nevada AB 491 requires: best interest decisions be made when a child’s living placement changes; appointment of POCs at the state child welfare and education agencies; the state board of education to prepare an annual report on the academic progress of children in foster care that includes statewide achievement scores and graduation rates; and specific academic information for youth in foster care be submitted to the juvenile court by the child welfare agency. AB 491 also establishes several rights for students in foster care: the right to remain in the same school, right to transportation to support school stability for the entire time the student is in foster care and until the end of the school year when a child leaves foster care, and the right to immediate enrollment in a new school.
- New Mexico SB 213 and HB 411: These state laws reinforce ESSA requirements for immediate enrollment and POCs. SB 213 addresses immediate enrollment and record transfers. HB 411 requires POCs in LEAs and identifies their responsibilities for youth in foster care and court-involved students.
- Delaware Senate Bill 87: State law now clarifies that children in child welfare agency custody remain entitled to attend their school of origin if it is in their best interests, or they are eligible for immediate enrollment in a new school. The law also allows children to remain in the school of origin for the remainder of the school year if they leave agency custody during that year.
Next Steps for Action
All State Agencies Must Collaborate to Implement ESSA Foster Care Provisions
Not all states have issued public ESSA procedures or guidance, making it challenging to confirm that all state education agencies are working with their state child welfare agencies to comply with ESSA’s foster care provisions. A few SEAs have issued their own guidance, but without involving the child welfare agency, raising concerns about lack of collaboration. Fully implementing ESSA’s foster care provisions depends on all states working with their child welfare partners to ensure school stability and success for children in foster care.
All LEAs Must Have Written Transportation Procedures
There are over 13,000 LEAs across the country, making it challenging to ensure all LEAs have written procedures requiring prompt transportation for foster care students to their school of origin, as required by ESSA. This is especially challenging in states whose state agencies are still working on state-level guidance to support creating those plans.
Common causes of delays in finalizing written procedures are:
- delays at the local level deciding how to cover additional costs of transportation for youth in care to attend their school of origin when it is in their best interest; and
- securing funds to fulfill cost-sharing obligations once agreed upon by local education and child welfare agencies.
Many state agencies also have not created adequate dispute resolution processes when local agencies cannot agree on cost-sharing procedures or when disputes arise in a particular case. Local agencies struggle to develop adequate dispute resolution procedures, especially when disputes involve other school districts as well as the custodial child welfare agency.
Agencies Must Focus on Accountability and Monitoring
States will need to monitor compliance with ESSA provisions at the local level. Some good examples exist (i.e., some states have required LEAs to amend their Title I, Part A applications to account for the new foster care provisions; others are adding to the 2017-2018 Title I, Part A applications). However, more monitoring of these provisions is necessary, and ongoing tracking of how LEAs and agencies are collaborating must be developed.
Agencies Must Ensure Accuracy of State Report Card Data on Children in Foster Care
The new data requirements of ESSA begin for the 2017-18 school year and require disaggregated data on graduation rates and academic performance for all students in foster care. This creates an opportunity for states to fully address the requirements, collaborate with child welfare agencies, and potentially go beyond the ESSA data points to ensure good statewide data. For the SEA report card data to be meaningful, SEAs must have accurate information about who is in foster care. Data- sharing agreements with child welfare agencies are the only way for SEAs and/or LEAs to have accurate information about which children are in care to report education outcomes for those students. For a useful resource to support state data sharing across agencies see: Roadmap for Foster and K-12 Data Linkages: Key Focus Areas to Ensure Quality Implementation.
Passage of ESSA’s protections for children in foster care focusing on their school stability and success is an important step forward. Work implementing ESSA’s protections over the last two years has moved these policy gains into practice at the state and local level to support students in foster care. While child welfare advocates can celebrate this progress, it is important to focus on the remaining challenges and implementation efforts. All children in foster care deserve a chance to succeed in their education goals and pursuits. Insisting that ESSA’s foster care provisions be implemented thoughtfully and consistently is necessary to improve education outcomes for these vulnerable students.
Kathleen McNaught, JD, is a staff attorney at the ABA Center on Children and the Law. She directs the Legal Center for Foster Care and Education, providing training and technical assistance on improving education outcomes for children in foster care.
Emily Peeler, JD, is a staff attorney at the ABA Center on Children and the Law. As part of the Legal Center for Foster Care and Education at the Center, she works with states to implement ESSA’s foster care requirements.
Every Student Succeeds Act Education Provisions
ESSA provides the following education protections for youth in foster care:
- Collaboration between child welfare and education agencies: ESSA requires state and local education and child welfare agencies to collaborate when implementing ESSA’s requirements.
- Identified points of contact (POC) at the state and local level: ESSA requires a POC at the state education level, and if the child welfare agency notifies the local education agency (LEA) in writing of a POC, the LEA must appoint their own POC.
- Established best interest decision-making process: When a child is placed into foster care, or changes placement, the Fostering Connections to Success and Increasing Adoptions Act and ESSA require child welfare and education agencies to collaborate to determine if it is in the child’s best interest to remain in their school of origin.
- Written transportation procedures: If, after a best interest determination is made, a student will remain in their school of origin, ESSA requires the LEA to work with the child welfare agency to ensure transportation is provided, arranged, and funded.
- Disaggregated data reporting: ESSA requires state education agencies to begin disaggregated reporting in their state report card for youth in foster care in three areas: 1) high school graduation rates; 2) performance on other academic indicators selected by the state; and 3) student achievement on academic assessments.
ESSA Implementation Toolkit
The Legal Center for Foster Care and Education has released an ESSA Implementation Toolkit to help jurisdictions develop tools and guidance. This toolkit includes the following resources:
- Q&A: How will ESSA Support Students in Foster Care
- Highlights of Joint Federal Guidance to Ensure School Success for Students in Foster Care under the ESSA
- Implementation Checklist 1
- Implementation Checklist 2
- Model State MOU
- SEA Directive to LEAs
- Q&A: Points of Contact – How They Can Help Students in Foster Care
- Best Interest Determination Guide
- Tips on Developing LEA Transportation Procedures
- Local MOU Template
- Individual Student Transportation Plan Template
1. For more information about the states highlighted throughout this article, contact the Legal Center for Foster Care and Education.
2. Legal Center for Foster Care and Education. “Best Interest Decision Making Procedures.” Every Student Succeeds Act Implementation Toolkit, 2017.