Q&A From the Field

Foster Care

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If the child welfare system still has custody, then the student falls under ESSA’s Title I foster care provisions. The child welfare agency or the court may place the child with a family member on a trial basis, or even longer-term, but still keep the case open.  If that is the situation, then ESSA still applies. It doesn’t matter if the child is with a foster family, relative, group home, etc.  If the child welfare agency has placement and care responsibility, ESSA applies.  Here is the legal definition of “in foster care”:

Under the Fostering Connections Act, “foster care” means 24-hour substitute care for children placed away from their parents or guardians and for whom the child welfare agency has placement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and preadoptive homes. A child is in foster care in accordance with this definition regardless of whether the foster care facility is licensed and payments are made by the State, Tribal or local agency for the care of the child, whether adoption subsidy payments are being made prior to the finalization of an adoption, or whether there is Federal matching of any payments that are made. (45 C.F.R. §1355.20(a)).

If the court places the child with a family member and closes the case, so the child welfare system no longer is overseeing the placement, then the child no longer is in foster care.  At that point, the child could be covered by the McKinney-Vento Act if the family member is living in a homeless situation. This publication provides some more information that might be helpful.

All students in foster care/state custody are covered by the Title I, Part A provisions that provide them with immediate enrollment and school stability. They are not covered by the McKinney-Vento Act. We have more information about the Title I, Part A protections for students in foster care, including the provisions for transportation to the school of origin, on our website.

It sounds like you are working with youth in foster care. Youth in foster care includes any youth in the care and custody of the child welfare system, regardless of where they are placed (including an ILP or THPP, motel, or other situation), how long they have been in care, or where they lived before they were brought into care. 45 CFR 1355.20(a). Youth in care are not eligible for McKinney-Vento services. However, they are eligible for services for youth in care as defined under Title I, Part A of the Every Student Succeeds Act, which provides for immediate enrollment in school and the ability to remain in the school of origin. 20 U.S.C. § 6311(g)(1)(E)(i). The protections are very similar to those under the McKinney-Vento Act, with the exception that the child welfare agency is responsible for providing transportation to the school of origin, as opposed to the school district.

Unfortunately, this informal arrangement does not qualify the children as being in foster care. The child welfare agency avoids financial liability or custody of the children when using optional “safety plans.” Whether the child is McKinney-Vento eligible would depend on the living situation of the child with the caretaker. In general, the child likely would not be eligible, because the child is not with the caretaker “due to loss of housing, economic hardship, or a similar reason.” However, as with many McKinney-Vento issues, it’s a case-by-case determination. For example, was the parent forced into the safety plan due to a loss of housing? Is the child sleeping on the couch in the living room? Is the caretaker violating her lease and in danger of eviction due to having the child there? Circumstances could qualify the child under McKinney-Vento.

No. In light of the new ED guidance that came out on March 3, the foster care identification essentially supersedes the McKinney-Vento identification in this situation.  The new guidance specifies that if a student qualified as “homeless” due to awaiting foster care placement prior to December 10, and then moves into permanent housing before December 10, the student should continue to be served by McKinney-Vento for the rest of the year.  However, the guidance also states that a student who qualified as “homeless” due to awaiting foster care placement prior to December 10, and then is placed in foster care, should be served by Title I. The guidance question focuses on students “awaiting foster care placement,” but the answer equally applies to a student who is eligible as “homeless” under any part of the definition.

Here is an excerpt from question J-10:

“Beginning on December 10, 2016, those students who are awaiting foster care placement [eligible as “homeless”] under the McKinney-Vento Act and have been placed in foster care, will be covered under the foster care provisions in Title I of the ESEA.”

The assurances on foster care in both the state Title I plan and the local Title I plan cover all children in foster care, regardless of their academic standing. Therefore, we think it is very reasonable to conclude that all children in foster care are automatically eligible for Title I services.

Unlike McKinney-Vento, the Title I protections for children in foster care do not extend beyond a child’s stay in foster care. Hence, we think it is reasonable to conclude that automatic Title I status would conclude when a student exits foster care. Of course, a child who was in foster care might qualify for Title I Part A services based on their academic standing.

Schools are required to collaborate with child welfare agencies to develop written procedures governing how transportation to maintain children in foster care in their school of origin, when in their best interest, will be provided, arranged, and funded. If there are no additional costs incurred in providing school of origin transportation for children in foster care, the school district should provide the transportation. However, if there are additional costs incurred, schools must provide transportation only if the local child welfare agency agrees to reimburse the costs, or the school district agrees to pay for all or part of the costs. These provisions are found in Title I, Part A of the Every Student Succeeds Act. 20 U.S.C. §6312(c)(5).

Yes. We put together a short document on this that might help. It explains the legal responsibilities for students in foster care under ESSA, including transportation. On the second page, there are links to both a state-level and local-level example that might help serve as a guide for you.