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 Fostering Connections to Success and Increasing Adoptions Act of 2008 states that child welfare agencies must ensure children stay in the school in which they were enrolled at the time of placement (unless it is not in their best interest to do so). Child welfare agencies must ensure school transportation is provided when needed. Federal child welfare reimbursement dollars are available to assist with transportation costs, but work must be done to determine how these reimbursements will be actualized in each state and jurisdiction.
The following considerations help state and local child welfare agencies determine how to use Title IV-E dollars to support school transportation for children in care. This determination is only part of the equation. The mandate is to ensure school stability for all children in care, and federal reimbursement is available only for IV-E eligible children.
What is IV-E Eligibility and How Do You Determine Which Children Qualify?
To be eligible for IV-E reimbursement, the child must meet all eligibility requirements under Title IV-E of the Social Security Act for foster care, including that the child has been:
- removed from an income-eligible home pursuant to a voluntary placement agreement or as a result of a judicial determination that remaining in the home would be contrary to the welfare of the child;
- placed and in the care of the child welfare agency; and
- placed with a licensed foster family home or in a licensed child-care institution.
It is important to know the percentage of children in foster care who are IV-E eligible in your state, a percentage often called the state “penetration rate,” as the percentage varies widely across states. Although the state’s percentage will not provide an absolute number of IV-E eligible children, it will provide a good estimate of how much IV-E reimbursement may be available. For guidance on state IV-E eligibility percentages, see http://cwla.org/advocacy/childreninfostercarereport08.pdf, based on 2008 estimates.
There are other considerations to keep in mind in structuring the transportation model that is most cost-effective and appropriate, including determining whether it is best for your state to classify school stability transportation as a FCMP or an administrative cost.
1) What is the state’s FMAP Rate?
The FMAP rate is the percentage of reimbursement your state can claim from the federal government related to IV-E foster care maintenance. To determine your state’s rate, see http://aspe.hhs.gov/health/fmap11.pdf. The reimbursement rate for IV-E administrative costs is 50% for all states. Therefore, states that have FMAP rates much higher than 50% will have a strong incentive to include transportation as a FCMP. Alternatively, states that have FMAP rates closer to 50% will need to
determine whether using FCMP or administrative costs is most cost-effective and efficient.
2) Should the state claim school transportation as a FCMP or an administrative cost?
The Fostering Connections Act allows FCMP to be used to pay for “reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement.” A program instruction issued by the Administration of Children and Families reiterates that Title IV-E administrative dollars can also be used for this purpose. These provisions give the child welfare agency much flexibility in determining how to classify the cost of school transportation. For many states, the FMAP rate is well above 50%; these states will probably prefer to claim school transportation costs as FCMP. States with 50% or only slightly higher FMAP rates may prefer to claim school transportation costs as administrative costs given the less rigorous documentation and other requirements.
3) Can FCMP be used for costs regardless of whether the child is in an initial or subsequent placement?
Yes. States can claim FCMP reimbursement for transportation to the school in which the child was enrolled at the time of placement at ANY point in the case, regardless of how many placement changes have occurred.1
4) How do child welfare agencies determine what is considered “reasonable travel”?
The Fostering Connections Act provides that FCMP includes “reasonable travel,” yet the law does not define this term. The program instruction makes clear that the child welfare agency has the discretion to determine what is “reasonable,” and mentions cost, distance, and length of travel as examples of factors that an agency can consider.2
Whether it is in a child’s best interest to remain in the current school is a different question than whether transportation qualifies as “reasonable” for purposes of federal reimbursement. The program instruction is very clear that cost should NOT be a factor in determining the best interest of the child for school selection purposes.3
Child welfare agencies should not be unduly restrictive in determining whether a particular cost or travel is “reasonable” for purposes of federal reimbursement; transportation that is not determined to be “reasonable” by the child welfare agency will not be eligible for IV-E reimbursement.
5) Are child welfare agencies permitted to include school transportation costs in a FCMP paid to the child’s provider OR as a separate payment directly to the transportation provider?
Child welfare agencies may do either.4 There is great flexibility in deciding the most efficient way to provide school transportation. Furthermore, the FCMP reimbursement may be claimed to cover school transportation costs incurred by non-child welfare agencies, such as school districts that provide school stability transportation.
Although the Fostering Connections Act has highlighted the responsibility of the child welfare agency to ensure school stability and continuity for children in foster care, there are obstacles to ensuring that children in foster care have the transportation they need to remain in stable school placements. Successful state implementation requires:
Patience. Although the Fostering Connections Act is a large step towards ensuring school stability and continuity for children in foster care, all stakeholders must recognize that change takes time. State and local child welfare agencies are working diligently to implement all provisions of the Fostering Connections Act; education stability is just one of many requirements. Although the law requires collaboration across education and child welfare agencies, many education agencies are not yet aware of the law. Successful state implementation requires equal parts diligence and patience.
Understanding. Both child welfare and education agencies must have a clear understanding of what federal law requires. State and local agencies must review their laws and policies to determine to what extent they have already addressed school stability and transportation issues and which issues need to be addressed. Currently, there is confusion about the overlap between the McKinney-Vento Act and the Fostering Connections Act and the differences in the responsibilities and requirements under each. There also is confusion about the specific aspects of the Fostering Connections Act, especially around what transportation costs are and are not covered by existing law. Successful state implementation requires a solid understanding of the current legal requirements and the areas of ambiguity or need for additional state or federal clarification.
Communication and relationships. Clear communication and collaboration across systems are essential to making school transportation a reality. The Fostering Connections Act and the program instruction make clear that collaboration across child welfare and education agencies is required. Joint protocols and policies will be needed to ensure all parties are following the same procedures.
Philosophy. A culture shift must occur within agencies to embrace the presumption that children remain in their current schools (unless not in their best interest), even when their foster care placements change. In both the child welfare and education systems, the prevailing assumption has been that when a child’s living situation changes, so does the school. Work must be done so that staff’s assumption now favors school stability – that is that a child’s school remains stable UNLESS it is in the child’s best interest to change schools.
States must analyze carefully what transportation is needed to keep children in care in the same schools and must develop state-specific plans. Although there is some federal law and guidance regarding IV-E reimbursement for school transportation, each state must address its own Title IV-E financing structure and policies to determine what will work best there. Since only IV-E eligible students are eligible for federal reimbursement for transportation, states must tackle both the state match contribution for IV-E eligible children and transportation costs for non IV-E eligible children to effectively meet the law’s school stability requirements.
These are challenging tasks, but if undertaken in a spirit of cooperation, and with an understanding of the importance of school stability to children in foster care, they can be achieved.
This article was adapted from an issue brief prepared by the Legal Center for Foster Care and Education, a project of the ABA Center on Children and the Law. The project’s new “Fostering Connections Implementation Toolkit,” includes the full versions of this and other briefs, along with state checklists.
1 Administration for Children and Families Guidance at 20.
Child Welfare Federal Financing Basics
States receive federal child welfare funds from a range of sources1 to support the child welfare services provided to children. By far the largest funding source is Title IV-E of the Social Security Act.2 Title IV-E guarantees federal reimbursement to states for a portion of foster care costs. Title IV-E funds are used to provide foster care maintenance payments for children who are “IV-E eligible,”3 as well as for administrative and training costs associated with the foster care program.
Foster care maintenance payments (FCMPs) are the costs associated with maintaining a child in a foster care placement, and include food, clothing, shelter, daily supervision, school supplies, and personal incidentals.4 Foster care administrative costs cover case management and other items necessary for the proper and efficient administration of the Title IV-E state plan.5 The federal government reimburses states for a portion of the foster care maintenance cost for eligible children at a set rate for each state (the Federal Medical Assistance Percentages or “FMAP rate”), which ranges from 50% to 83% of the costs.6 The federal government reimburses states for a portion of the administrative costs at a set rate of 50% of the costs for all states.7
Sources: 1 For a summary, see Murarova, Zuzana & Elizabeth Thornton. “Federal Funding for Child Welfare: What You Should Know.” ABA Child Law Practice 29(3), May 2010.
2 42 U.S.C. § 670 et seq.
3 To be eligible for IV-E reimbursement, the child must meet all eligibility requirements under Title IV-E of the Social Security Act for foster care.
4 42 U.S.C. § 675(4)(A).
5 42 U.S.C. § 674(a)(3).
6 45 C.F.R. § 1356.60; 42 U.S.C. § 1396d.
7 42 U.S.C. § 674(a)(3).
Determining Transportation Needs
Children Not Requiring Transportation
Not every child in foster care requires transportation to remain in their current school. As examples, the following categories of children will not require transportation:
- Children who are placed within the school boundaries.
- Children whose “best interest” dictates that they should be immediately enrolled in new schools.
- Children who have completed high school.
Children Requiring Transportation at Minimal/No Additional Cost
Some students requiring transportation can be transported for minimal or no additional cost:
- Children in care who meet the definition of “homeless” children under the McKinney-Vento Act (McKinney-Vento).
- Children who have transportation written into their IEPs because of legitimate special education needs.
- Children who live close to or can be dropped off at a bus stop near the existing transportation system for the current school.
- Children who move within the same school district and transportation across the district is available for other reasons.
- Children who have a relationship with an adult whose existing commute complements the child’s transportation need.
Children Requiring Transportation at a Cost
Some children will need transportation provided at additional cost. Cost should NOT be a factor in determining the best interest of the child for school selection purposes. Some examples of transportation with associated costs are:
- A foster parent, relative or other adult provides transportation but needs reimbursement for mileage.
- An agency provides the youth or caretaker with bus passes or other public transportation vouchers.