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 —Public Law 110-351, (“Fostering Connections”) is a federal law primarily designed to promote permanent families for children and youth in foster care. This law encourages:
- maintaining family connections (June 2012 CLP),
- supporting youth transitioning from foster care (August 2012 CLP),
- ensuring the health and educational well-being for foster youth (this issue),
- maintaining sibling ties, and
- providing many Native American children important federal protections and support for the first time by allowing Tribes to directly administer their local programs authorized by Title IV-E of the Social Security Act.
This article presents a brief overview of the provisions to ensure health and educational well-being. It also offers some general judicial considerations for implementation and provides questions to be asked from the bench to help ensure compliance with the law and best practice.
Title II: Improving Outcomes for Children in Foster Care
Section 204: Educational Stability
Federal law has long required that a child be placed within reasonable proximity of the child’s home and that proximity to the child’s school be considered when making all placement decisions. Fostering Connections took the additional step to require that both proximity and appropriateness of the educational setting be considered when making all placement decisions.
Fostering Connections also requires child welfare agencies to coordinate with local education agencies to ensure that children remain in the same school at the time of placement, unless it would not be in their best interest to remain in the same school. If it is not in the child’s best interest to remain in the school at the time of placement, the state must ensure immediate enrollment in a new school with all of the educational records of the child provided to that new school.
Fostering Connections also allows for some federal reimbursement for Title IV-E eligible school-age children for the cost of reasonable transportation so the child can remain in the school in which he or she is enrolled at the time of placement under the definition of foster care maintenance payment. States were previously (and continue to be) able to receive some federal reimbursement for school transportation, as well as transportation for parents, foster parents, or children to school meetings or extracurricular events, as an administrative cost.
Finally, states are now required under Fostering Connections to ensure all Title IV-E eligible children in foster care, or receiving kinship guardianship or adoption assistance payments, are full-time students or have completed secondary school.
The Program Instruction clearly emphasizes the court’s important role in educational stability.
Is the court asking about educational stability, as part of each child’s individual child welfare case plan, at the initial removal hearing, and at other subsequent permanency review hearings? Is the court specifically asking questions to address:
- educational stability for the child;
- how to keep the child in his or her current school;
- who will provide transportation to help the child remain in that school, if necessary?
Is the court making a best interest determination, ensuring the child is immediately enrolling in a new school, if not in his or her best interest to remain in his or her previous school, and monitoring the child’s ongoing educational progress?
Is the court considering the rights afforded children in foster care under the federal McKinney-Vento Act; the overlap between McKinney-Vento and Fostering Connections; and the different obligations of the education and child welfare agencies?
- Interagency collaboration between McKinney-Vento State Coordinators, local Offices of Education, local school liaisons, and the child welfare system is critical to effective implementation of both laws.
- See: Legal Center for Foster Care and Education fact sheet on the overlap of these two laws—How Fostering Connections and McKinney-Vento Can Support School Success for all Children in Out-of -Home Care
Is the court monitoring a child’s ongoing school attendance and participation, especially in light of the new requirement that state child welfare agencies must include an assurance in their Title IV-E State Plan that all Title IV-E eligible children in foster care (of minimum compulsory school age) are enrolled in and attending school?
- Courts should require child welfare agencies, and other appropriate parties to a case, to report on the child’s ongoing school attendance and participation.
- Courts should also consider working with the child welfare and education agencies to develop a system to share information to ensure and track school enrollment and attendance, as well as other critical data to evaluate student’s stability, continuity and educational progress.
Is the court taking a leadership role in ensuring collaboration between the state education agency, child welfare agency, local school districts and possibly other systems?
- Judicial leadership around this issue is critical, and judges play a key role as conveners of multiple systems, in a broader context of system reform.
- Consider adding education issues to the scope of an existing, or forming a new, interagency workgroup or committee and strategize how child welfare, education and other systems can effectively collaborate to ensure school stability and continuity and increase graduation rates and/or high school completion.
- Consider having that interagency group develop policies, protocols or agreements outlining the agreed upon process for making best interest determinations (including factors to consider and individuals to involve), expedited enrollment procedures, record transfer processes, and identifying education decisionmakers.
- School districts are generally willing to help when collaboratives are formed.
- Grant opportunities often have a better chance with multiple stakeholders.
The court’s specific authority over the education agency may vary by state or jurisdiction, and impact whether the court can order the education agency to comply.
- Regardless of the court’s authority over the schools, in all cases judges can grant motions by parties to the case to request that the education agency or local school district representative appear to respond to questions or provide information to the court.
Questions to Ask from the Bench
Is the child enrolled in and regularly attending school?
- If not, order a party to the case to immediately enroll the child.
- Is the school the child is attending appropriate to meet the child’s education needs?
- If not, appoint someone to immediately advocate for assessments or appropriate services for the child.
When a change in living placement is occurring, has the proximity to the child’s current school been considered when identifying the new living placement?
- If not, order the agency to consider and document proximity to school.
When a change in living placement has occurred, did the child stay in the same school?
- Was it determined to not be in his or her best interest to stay? If not, why not?
- Are there efforts being made to either keep him or her in the same school or return him or her to that school?
- What are the barriers to making that happen, if any?
Has transportation been arranged and provided? If the child is placed outside of the school district’s boundaries, is the child welfare agency taking ultimate responsibility to ensure needed transportation is provided (either alone or in collaboration with the education agency)?
- If it is not in the child’s best interest to stay in the same school, why not and who made that determination? Are all parties in agreement? Was the youth’s perspective included in the decision?
Was the child immediately enrolled in a new school, if not in his/her best interest to stay?
- Have his/her records been transferred? How quickly were the records transferred?
- If not enrolled immediately or records not transferred, order an individual to take immediate action.
- Who has spoken to the school about the trauma that the child may be experiencing by separation from his/her family?
Does anything else need to be ordered to ensure school stability for this child?
Has the parent consented to the release of the child’s education records to the child welfare agency and other advocates in the case?
- Does the court need to issue an order to allow the school to release these records to any necessary individuals including the child’s attorney or GAL and the child welfare agency?
- See: Mythbusting: Breaking Down Confidentiality and Decision-Making Barriers to Meet the Education Needs of Children in Foster Care or Q & A: Information Sharing to Improve Educational Outcomes for Children in Out-of-Home Care
Is there a specific individual identified who will take the lead to ensure school stability and all necessary education services and supports (including ensuring credit calculations and graduation requirements are addressed), or does someone need to be identified?
Who is the child’s education decision maker for general and/or special education?
- If no one is identified, does one need to be identified or appointed?
- Are all IEPs and 504 plans current?
- For more information about the role of the judge in making special education decisionmaker appointments, see: Special Education Decision Making: Role of the Judge.
Section 205: Health Coordination and Oversight
Fostering Connections requires states to develop a state plan for the ongoing oversight and coordination of health care services for all children in foster care. The health plan must be developed in coordination and collaboration with the state Medicaid agency and in consultation with pediatricians and other experts in health care and child welfare. The plan must ensure a coordinated strategy to identify and respond to the physical, mental, reproductive health and dental health needs of all children in foster care.
Specifically, the plan must:
- provide a schedule for initial and follow-up health screenings,
- describe how identified health needs will be monitored and treated,
- describe how medical information will be updated and appropriately shared with providers,
- detail the steps that are or will be taken to ensure continuity of health care services, including the possibility of establishing a medical home for every child in care,
- include what will be done to ensure ongoing oversight of prescription medications, including psychotropic drugs, and
- describe how the state actively consults with and involves appropriate professionals in the assessment and provision of appropriate medical care for children in foster care.
See: the American Academy of Pediatrics’ Bright Futures guidelines at
www.brightfutures.aap.org, generally regarded as the standard for evidence-based pediatric services; the tools and resources available from AAP’s Healthy Foster Care America at http://www.aap.org/fostercare/; the Healthy Beginnings, Healthy Futures: A Judge’s Guide and Health for Teens in Care: A Judge’s Guide.
The Program Instruction states that the courts can play an important role in health oversight and coordination.
The state-coordinated health care plan should include the six bullets above with emphasis on:
- Proper physical, mental, reproductive health and dental health services for every child,
- Initial and follow-up health screenings for every child,
- Coordination and continuity of medical care for every child, and
- Ongoing oversight of prescription and psychotropic mediations.
Courts can act as powerful and effective conveners of multiple systems to communicate, coordinate, and collaborate with regard to the health plan.
Questions to Ask from the Bench
Although the health plan is not required by Fostering Connections to be done on an individual level for each child, the court should inquire how the child’s health care needs are being coordinated.
Who is the point of contact for questions and problem-solving?
- If necessary, a judge can request a meeting to coordinate the provision of health services or order the provision of specific services related to a child’s physical, dental, reproductive health or mental health.
What steps have been taken to ensure continuity of health care services, including establishment of a medical home for the child?
- What are the barriers to establishing a medical home?
- Does the child have a dental home?
- Does the child receive routine dental care services?
Has the child received all necessary health screens and assessments? If so, when?
Has the child received a comprehensive physical assessment? If so, when?
Has the child received developmental, mental health, and substance use screenings? If so, when?
What issues or problems were identified in these screening and assessments, if any? How will these issues or problems be addressed?
Is the child receiving all evidence-informed preventive health services and screenings (based on the age of the child), including oral and vision care, reproductive health, and HPV vaccinations?
Are the child’s immunizations up to date?
Does the child have a health passport?
- Is all medical information regularly updated and shared with appropriate providers?
Have there been regular assessments of prescription medication, including psychotropic drugs?
How often does the child see a doctor and what is the overall quality of the health care the child is receiving?
How is that quality being assessed?
Does the child like his or her doctor? Why or why not? (Ask the child if present)
Is the child receiving age-appropriate reproductive health information and services?
Has the agency complied with the health care plan? If not, what action will be taken to correct the compliance problem and what is the timeframe to reaching compliance?
The Grandfamilies State Law and Policy Resource Center serves as a national legal resource in support of grandfamilies within and outside the child welfare system. Visit www.grandfamilies.org.