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
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
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
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)
How child welfare can gain access
to education records:
 Always should first try and obtain
parental consent from parent.
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.
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.
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. 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
Resources
 Mythbusting: Downloadable at
http://www.abanet.org/child/educatio
n/publications/dataexchange.html
 Solving the Data Puzzle:
http://www.abanet.org/child/educatio
n/publications/solvingthedatapuzzle.p
df
 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
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.
Special Education Process
 Referral & Consent
 Evaluation
 Identification for services
 Individual Education Program
(IEP)
 Identify needs
 Determine services
 Designate placement
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
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).
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