Understanding Confidentiality and Education Decision Making for Youth in Foster Care Child Welfare, Education and the Courts: A Collaboration to Strengthen Educational Successes of Children and Youth in Foster Care November 4, 2011 Christina Spak Kathleen McNaught

Questions to be Discussed How do necessary education records get shared with caseworkers, foster parents and other in the child welfare system in compliance with existing confidentiality rules? Who makes general education decisions for children when they are in foster care? What additional rules apply related to education decision-making when children in care are receiving, or suspected of needing, special education services?

Overview Privacy interests of youth and parents Confidentiality laws governing each agency Balancing privacy interest with need for sharing information to serve the child and family Bottom line: confidentiality laws do permit sharing of information…but that sharing must occur within the parameters of the law Teachers often leave records out and other students see that they are in foster care Everyone at school knows they are in foster care Not keeping records together when transferring schools; not getting credit for all courses taken Inability to access own records

LAW: Family Educational Rights and Privacy Act (FERPA) 20 U. S. C LAW: Family Educational Rights and Privacy Act (FERPA) 20 U.S.C. § 1233g; 34 CFR Part 99 Purpose: to protect privacy interests of parents and students regarding the students’ education records One law that gives us some guidance on how to gain access to educational information. Passed in 1974 Provides money to states, if the states provide rights to parents

EDUCATION MYTH “We can’t share any information about a student with anyone who is not considered the parent.”

REALITY Education Records Must follow guidelines under FERPA But, not all information about a student is an education record under FERPA Directory Information But, not all information about a student an education record under FERPA; specifically excluded is: Oral information based on personal observation or knowledge and not based on a record (i.e., caseworker contacts child’s teacher to seek teacher’s observations about child’s classroom behavior) “Directory information” includes: student’s name, address, telephone listing, date and place of birth, major field of study, participation in sports or extracurricular activities, weight and height of athletic team members, dates of attendance, degrees and awards received, and most recent educational agency or institution attended by the student. Directory Information = NOT SOCIAL SECURITY NUMBER! Remember: FERPA Parent can Opt-Out of Directory Information

EDUCATION MYTH “We can’t share child specific education records with anyone without parental consent”

REALITY The only individuals with automatic access to education records are the parent and youth over 18. Others involved with the child welfare system (e.g., caseworkers, child attorneys, GALs, CASAs, foster parents and caretakers) should be able to gain access in a variety of ways.

How child welfare can gain access to education records: Parental Consent FERPA Exceptions (i.e., Court order granting access) Three ways for Child Welfare to gain access…we will discuss each in more detail.

How child welfare can gain access to education records: Always should first try and obtain parental consent from parent. FERPA Requirements Parent’s have right to: Inspect and review child’s records A hearing to challenge content record Keep records confidential unless consent to release Special requirements concerning consent forms -- records requested, reasons for release, and to whom released. 20 U.S.C. §1232g(b)(2)

FERPA Exceptions Other school officials, including teachers, with legitimate educational interest in the child; In connection with an emergency, to protect the health and safety of student or other persons; Officials of other schools when child transferring schools; State and local authorities within department of juvenile justice; To comply with judicial order or subpoena. These are most relevant for child welfare -- Health and Safety – used for emergencies where immediate release of the info is necessary to control a serious situation – investigation stage, perhaps? Day to day enrollment, probably not. JJ exception – if state statute permits disclosure – IL and FL only at this point Court order exception and all other FERPA exceptions…no redisclosure unless there is another FERPA exception. For example, court order could contain language about release to child welfare, but child welfare could not release to mental health or other provider unless the court order also contained language about releasing to them. In contrast, if child welfare accesses the records as the parent under FERPA, they are free to redisclose to whomever they choose. (In accordance with CW policies and procedures).

Parent Definition Under FERPA FERPA Definition of Parent: “includes natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.” Comments to Regulations confirm that foster parents who are acting as a child’s parent qualify. Outstanding Question: Do representatives of a custodial child welfare agency meet the definition of parent for purposes of FERPA?

EDUCATION MYTH “Unless we receive consent from the parent, we cannot send education records to a new school when a child transfers out of school.”

REALITY False. FERPA permits a school to transfer education records to a new school when the purpose is for the student’s enrollment or transfer. Parental consent is not required. Now, under Fostering Connections, child welfare agencies have an obligation to see that this transfer occurs for children in care. For bullet one, the school would have to make a reasonable attempt to notify the parent or eligible student of the disclosure, unless the parent or eligible student initiated the disclosure or the school includes a notice about the transfer of records in its annual notification of rights under FERPA.

CHILD WELFARE MYTH “We are not obligated to keep education information in our child welfare case files.”

REALITY False. Child welfare is specifically required to maintain educational information, including school records, in the case plan.

LAW: Title IV-E of the Social Security Act 42 U. S. C. A LAW: Title IV-E of the Social Security Act 42 U.S.C.A. 675(1)(C) & (5)(D) Must keep health and education records as part of written case plan, that includes: Name and address of health and education provider Grade level performance School record Known medical problems and medications Any other relevant health and education information Records must be reviewed and updated Must supply records to foster care provider Must supply records to youth exiting care What do records include? Must be reviewed & updated Supplied to every foster parent/provider Consider in making placement decisions Title IV-E of the Social Security Act requires that child welfare agencies a child’s case plan that his or her educational placement has been taken foster care placement decisions are made. 42 U.S.C. §§ 670 – 679. The National Council of Juvenile and Family Court Judges created a judicial checklist, Asking the Right Questions: A Judicial Checklist to Ensure That the Educational Needs of Children and Youth in Foster Care Are Being Addressed. This Checklist outlines an array of questions that may be asked in a courtroom regarding the educational needs of children and youth in foster care. It contains specific questions for an initial hearing that could lead to improved school continuity. The checklist can be adapted by individual states and jurisdictions to reflect state law and local practice. It is available at http://www.abanet.org/child/education/NCJFCJChceklist.pdf.

Resources Mythbusting: Downloadable at http://www.abanet.org/child/education/publications/dataexchange.html Solving the Data Puzzle: http://www.abanet.org/child/education/publications/solvingthedatapuzzle.pdf Education Court Performance Measures: draft addition to the Judicial Performance Measures Toolkit

Family Policy Compliance Office, US Department of Education Discussion with Acting Director, Ellen Campbell

General Education Decisionmaking Numerous education decisions (outside of special education decisions). Examples include: Enrollment Consent to certain school activities School transfers (under NCLB) McKinney-Vento school of origin decisions Definition of Parent differs in various federal laws and also may be state laws that apply. FERPA parent State laws on decisionmaking authority Both school and courtroom advocacy are different than the legal right to make education decisions.

Individuals with Disabilities Education Act 2004 20 U.S.C. 1400 et. seq. Purpose: To provide all children with disabilities that impact on their ability to succeed in school with a free, appropriate, public education in the least restrictive environment possible. The Education for All Handicapped Children’s Act was passed in 1975.[i] The name of the act was changed to the Individuals with Disabilities in Education Act in 1990. [i] PL 94-142 THIS IS FIRST OF TWO MAJOR LAWS WE WILL DISCUSS RELATED TO CHILDREN WITH DISABILITIES IN SCHOOL.

Special Education Process Referral & Consent Evaluation Identification for services Individual Education Program (IEP) Identify needs Determine services Designate placement Referral: child is suspected of having a disability that is effecting his or her ability to succeed in school. EVERYONE should be looking for signs ANYONE can refer a child to begin the special education process who they believe may need services Make the request IN WRITING May want to consider completing an outside evaluation prior to making a referral Evaluation: school can do but also have right to independent evaluation, at school’s expense, if don’t agree with school eval. Can be conducted by school (at school’s expense) Can submit current outside evaluations (paid for by child welfare agency) to be reviewed and accepted by school Courts can order outside evaluations to expedite process! Review the evaluations to determine: Appropriateness of evaluations (right type) Current Qualifications of evaluator Other evaluations needed Identification: team together reviews evals and determines if child meets definition for one or more of the categories of disabilities under IDEA If the child does have one or more disabilities, the IEP team then must develop an IEP for the child, determining goals and objectives for the child, identify accommodations or modifications the child needs, determine if any related services are necessary for the child, and, if the child is 14 or older, identify transition services are necessary to prepare the child for adulthood and the future. IEP Team Required team members Parent or surrogate and school can invite others Child should be included when appropriate Parents and surrogates: Part of IEP team; should participate in all decisions Will be asked to sign and agree to all decisions Advocates who aren’t parent or surrogate: GET YOURSELF INVITED Provide support or information to parent, surrogate or school if appropriate IEP Development Written plan outlining needs and services Once IDEA eligibility determined, IEP must be developed within 30 days Must include: present levels of performance Measurable goals and objectives Services, modifications and supports needed Transition services, if over 14 Extended School Year determination placement Placement Once needs and services are decided, the team must then decide where (in what setting) these services can be provided. Must be Least Restrictive Environment (LRE) Continuum of Placement Options From inclusion in regular classroom to residential placement Disputes If don’t agree, parent or surrogate SHOULD NOT SIGN IEP Options Mediation Due Process State Department of Education complaint

Confidentiality and Educational Decision Making for Foster Youth with Disabilities Carmen M. Sanchez Education Program Specialist Office of Special Education and Rehabilitative Services US Department of Education

What is the Definition of Parent Under IDEA? Birth or adoptive parent, foster parent unless prohibited by state law, guardian generally authorized to act as the child’s parent or to make educational decisions for the child (but not the state if a child is a ward of the state), person who is acting in the place of a parent and with whom the child is living; can be a non-relative, a person legally responsible for the child. a surrogate parent 34 C.F.R. §300.30 Should we note the preference for natural or adoptive parent unless educational rights have been terminated

When is the birth or adoptive parent the parent under IDEA? When the biological or adoptive parent is “attempting to act” as the parent, the biological or adoptive parent will be presumed to be the parent unless they don’t have the legal authority to make education decisions. 34 C.F.R. §300.30(b)(1)

Situations when the birth or adoptive parent is not the parent under IDEA If the birth or adoptive parent is not “attempting to act” as the parent, the education agency can treat one of the other persons on the list (foster parent, etc.) as the IDEA decisionmaker. When a judicial decree or order specifies another person, either as a surrogate parent or as an education decisionmaker, the education agency must accept that person as the IDEA parent. Another Note of Caution: If the child is a “ward of the state under the laws of the state” sometimes an education agency can appoint a surrogate parent even if there is a birth or adoptive parent who is “attempting to act” – more about this later

Who can appoint and when should a surrogate parent be appointed? The education agency must determine whether a “surrogate parent” is needed, and should assign one within 30 days, if: no IDEA parent can be identified or located, the child is a ward of the State under the laws of that state, or the student is an unaccompanied youth under McKinney-Vento. For IDEA wards of the State, the juvenile court can alternatively appoint the surrogate parent.

Ward of the State IDEA defines as: “a child who, as determined by the state where the child resides, is, a foster child; a ward of the State; or in the custody of a public child welfare agency” “Ward of the state does not include a foster child who has a foster parent who meets the definition of a parent [under IDEA]”

Who can be a surrogate parent under IDEA? Surrogate parents appointed by LEA can’t be employees of state or local education agencies or other agencies involved in the education and care of the child (i.e., can’t be the public or private caseworker or a school official), can’t have any conflicting interests, They must have knowledge and skills necessary to be a good surrogate. Surrogate parents appointed by Judge can’t be employees of SEAs, LEAs, or other agencies involved in the education and care of the child (i.e., can’t be the caseworker or school staff)

Tips and Reminders for Judges A judge can appoint a surrogate parent for children who meet the IDEA definition of ward of the state. A judge can appoint an IDEA decisionmaker to make special education decisions for a child whenever and to whatever extent such a decision is permitted by state law. For example, whenever such a decision is in the “best interest” of the child. A judge can appoint an IDEA decisionmaker, even when the child has a foster parent. The IDEA decisionmaker appointed by a Court is the parent for IDEA purposes even if there is another person who meets the definition available (for example, a foster parent). A Court can only appoint a surrogate parent when the child is an IDEA ward of the State – which means when the child does not have a foster parent who is permitted to serve as the IDEA parent. If the child has a foster parent who could be the IDEA parent, but that person is not the best choice, the court can appoint a guardian who will supersede the foster parent.

Requesting an Evaluation Typically, the parent must provide signed consent for the school to conduct the evaluation If parent won’t consent, a school can go to a hearing to get an order for the evaluation However, for chidren who are “wards of the state” there is an exception.

Exception: “Wards of the State” School districts may conduct initial evaluations without parental consent under certain circumstances: The school district can’t locate the parents after making reasonable efforts The birth parents rights are terminated under DE law Or a judge removes the birth parents’ educational rights (temporarily or permanently) & consent is given by an individual the judge appoints School/judge or DOE should appoint surrogate in the interim NOTE: The person appointed by the court is not automatically the surrogate parent and cannot give consent for services to begin if the child is eligible.

How Does this All Work in States? Example- Connecticut Christine B. Spak, J.D. Coordinator Surrogate Parent Office Department of Education State of Connecticut

Contact Information Kathleen McNaught kathleen.mcnaught@americanbar.org 34