B. School Stability

Special Issue: School is often a source of stability as well as a place for academic and social development of children and youth in foster care. If a child must be removed from his or her home or change placements, consider the potential impact on the child’s education and what efforts were made to keep the child in the same school, if possible.

1. Fostering Connections

Congress passed the most sweeping child welfare law in a decade with the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act).[20] 42 U.S.C. § 675. The Fostering Connections Act includes important provisions regarding the educational stability of youth in foster care, calling on child welfare agencies to keep the child in the same school any time the child's placement changes, unless it is not in the child’s best interest. If the child cannot remain in the same school, the child must be promptly enrolled in a new school. The legislation also increases the amount of federal funding that may be used to cover education-related transportation costs and requires child welfare agencies to work with local education agencies (LEAs)[21] to ensure educational stability. Provisions in the Fostering Connections Act highlight the importance of improving educational outcomes of children and youth in foster care across the nation.

a. Education Stability Provisions of the Fostering Connections Act

•   Proximity to school – Each placement decision for a child in foster care must take into account the appropriateness of the child’s current educational setting and the proximity to the school in which the child is enrolled. 42 U.S.C. § 675(1)(G)(i).

•   Coordinate with local education agencies – The child welfare agency must coordinate with LEAs to ensure that the child can remain in the school where the child is enrolled at the time of each placement. 42 U.S.C. § 675(1)(G)(ii)(I). For further detail, please see U.S. Departments of Education and Health & Human Serv., Admin. for Children & Families (2014) joint letter.[22]

•   Immediate enrollment and timely transfer of records – Alternatively, if remaining in that school is not in the child’s best interests, the agencies must ensure that the child is immediately enrolled and that all educational records are provided to the new school. 42 U.S.C. § 675(1)(G)(ii)(II).

•   Transportation – Foster care maintenance payments may cover reasonable travel for the child to remain in the school in which the child is enrolled at the time of placement. 42 U.S.C. § 675(4)(A).

2. Educational Stability Plan

To meet the requirements of the Fostering Connections Act regarding education stability, DFPS must develop, in accordance with 42 U.S.C. § 675, a plan to ensure the educational stability for children in foster care. Tex. Fam. Code § 264.1072.

In recognition of the need for agency coordination, DFPS must collaborate with the Texas Education Agency (TEA) to develop policies and procedures to ensure that the needs of foster children are met in every school district. Tex. Fam. Code § 266.008(d).

3. Every Student Succeeds Act

In December 2015, the most recent reauthorization of the Elementary and Secondary Education Act, known as the Every Student Succeeds Act (ESSA), became law.[23] 20 U.S.C. § 6301 et seq. ESSA makes substantial changes to the education system, including giving more flexibility to states to determine student performance measures. ESSA also mirrors in the education law many of the provisions affecting students in foster care from the Fostering Connections Act.

a. Education Stability Provisions of the Every Student Succeeds Act

Best interest determination – A student in foster care is entitled to enroll or remain in the school of origin unless a determination is made that it is not in such child’s best interest to attend the school of origin, which decision shall be based on all factors relating to the child’s best interest, including consideration of the appropriateness of the current educational setting and the proximity to the school in which the child is enrolled at the time of placement. 20 U.S.C. §6311(g)(1)(E)(i).

Streamlined transitions – When a determination is made that it is not in such child’s best interest to remain in the school of origin, the child is immediately enrolled in a new school, even if the child is unable to produce records normally required for enrollment. 20 U.S.C. § 6311(g)(1)(E)(ii). The enrolling school shall immediately contact the school last attended by any such child to obtain relevant academic and other records. 20 U.S.C. § 6311(g)(1)(E)(iii).

Liaisons at the state and local education agencies – ESSA requires designation of a state point of contact to coordinate with child welfare agencies. 20 U.S.C. § 6311(g)(1)(E)(iv). LEAs must also designate a point of contact upon written request. 20 U.S.C. § 6312(c)(5)(A).

Transportation – LEAs must ensure that children in foster care needing transportation to the school of origin will promptly receive transportation in a cost-effective manner and in accordance with 42 U.S.C. 675(4)(A) and ensure that, if there are additional costs incurred in providing transportation to maintain children in foster care in their schools of origin, the local educational agency will provide transportation to the school of origin if:

◦ the local child welfare agency agrees to reimburse the local educational agency for the cost of such transportation;

◦ the LEA agrees to pay for the cost of such transportation; or

◦ the LEA and the local child welfare agency agree to share the cost of such transportation. 20 U.S.C. § 6312(c)(5)(B).

4. School Placement

A student who was enrolled in a primary or secondary public school before the student entered the conservatorship of DFPS and who is placed at a residence outside the attendance area for the school or outside the school district is entitled to continue to attend the school in which the student was enrolled immediately before entering conservatorship until the student successfully completes the highest grade level offered by the school at the time of placement without payment of tuition. The student is entitled to continue to attend the school regardless of whether the student remains in the conservatorship of DFPS for the duration of the student’s enrollment in the school. Tex. Educ. Code § 25.001(g).

If a student who is in the conservatorship of DFPS is enrolled in a primary or secondary public school, other than the school in which the student was enrolled at the time the student was placed in the conservatorship of DFPS, the student is entitled to continue to attend that school without payment of tuition until the student successfully completes the highest grade level offered by the school at the time of enrollment in the school, even if the child’s placement is changed to a residence outside of the attendance area for that school or outside the school district. The student is entitled to continue to attend the school regardless of whether the student remains in the conservatorship of DFPS for the duration of the student’s enrollment in the school. Tex. Educ. Code § 25.001(g-1).

Special Issue: Although Tex. Educ. Code § 25.001(g) and Tex. Educ. Code § 25.001(g-1) allow a child to remain in his or her school at the time of placement into foster care, it does not address related transportation issues, including costs of transportation and the person responsible for providing it. The presumption is that the child’s caregiver will be responsible for any costs related to the transportation, although transportation plans required under ESSA may create more opportunities for some school districts in the 2017-2018 school year to work with the caregiver to find a solution to the transportation challenge.

5. McKinney-Vento Homeless Assistance Act

Previously, a child who is “awaiting foster care placement” met the federal McKinney-Vento Homeless Assistance Act (McKinney-Vento Act) definition of homeless and the child was entitled to attend the school that the child attended when permanently housed or the school in which the child was last enrolled, with transportation and other services provided by the district. 42 U.S.C. § 11431 et seq.[24] ESSA amends the McKinney-Vento Act and effective December 10, 2016, the “awaiting foster care placement” will be removed from the definition of homelessness. Pub. L. No. 114–95. Note, guidance from the Department of Education on ESSA is still under development and this date is subject to change.