270,000. The number of PK-12 grade students who are part of the foster care system in the United States. According to the U.S. Department of Education, these students are more likely to experience steep challenges to school success including lower grades, graduation rates, and attendance. The Fostering Connections Act in conjunction with the Every Student Succeeds Act provides additional protections for children in foster care. In addition to the unique needs of students in foster care, schools must consider the IDEA Part B and C considerations for these students.
For example, is a foster parent a “parent” under the IDEA? According to the IDEA, the term “parent” includes a foster parent “unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent.” 34 CFR 300.30. In Nebraska, 92 NAC 51-003.44 defines “parent” to include “a foster parent.” Similarly, in South Dakota, ARSD 24:05:13:04 defines “parent” as a “foster parent” as well.
Does that mean if a special education student is in foster care a school should deal with the foster parents and ignore the biological parents? Not exactly. In both states when “the biological or adoptive parent, when attempting to act as the parent and when more than one party is qualified to act as a parent, must be presumed to be the parent unless the biological or adoptive parent does not have the legal authority to make educational decisions for the child.” See 92 NAC 51-003.44, ARSD 24:05:13:04. That means when a student is in foster care and the biological/adoptive parent is trying to be present in the student’s life, the school should involve BOTH the biological/adopting parent(s) AND the foster parent to IEP meetings. So long as ONE parent shows up, the IEP meeting can proceed. Under both Nebraska and South Dakota law, a foster parent may make education decisions on behalf of their foster children and may exercise IDEA rights. Neither state requires the child’s biological parent to provide consent to release information from education records to foster parents.
How should a school handle evaluations and eligibility? In July 2013, OSEP issued a letter to state directors of special education clarifying issues surrounding highly mobile children such as those in foster placements. OSEP confirmed that highly mobile children should have timely and expedited evaluations and eligibility determinations. It also pointed out that if a school begins the evaluation process and the child transfers to a new school district, the new school district may not delay the evaluation process in order to implement the RTI process.
How does FERPA factor into considerations regarding records of those students in foster care? FERPA “permits LEAs and schools to disclose education records of students placed in foster care, without consent of the parent or eligible student, to an agency caseworker or other representative of a state or local child welfare agency (CWA) or tribal organization authorized to access a student’s case plan, when such agency or organization is legally responsible, in accordance with state or tribal law, for the care and protection of the student.” While this FERPA exception is permissive, the SPPO office has stated that schools are encouraged to disclose education records to welfare caseworkers to help ensure the child’s education needs are met.
All members of the education community should be worried about the data showing abysmal educational outcomes for students in foster care. We should all do everything we can to make sure foster students’ special education decisions are not reduced or delayed due to confusion about who is the “parent” under the IDEA. If you have any questions about foster children and the IDEA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000 or send everyone an email at ksb@ksbschoollaw.com.