Deadlines Loom for Schools To Comply With Key Provisions of Every Student Succeeds Act

December 28, 2016Alerts Education Alert

Congress imposed a handful of new responsibilities on school administrators when it passed the Every Student Succeeds Act in 2015, and the deadlines related to the educational stability of foster care students have already started to arrive.

Some of these new duties are relatively simple, but others require considerable planning and collaboration, such as the provision mandating the establishment of clear, written transportation plans/procedures for students in foster care by January 31, 2017.

In this article, we outline the changes ESSA brings with a focus on the actions that must be taken.

ESSA[1], which took effect on December 10, 2016, was intended to complement the Fostering Connections Act and to require state education agencies (SEAs) and local education agencies (LEAs) to work closely with county children and youth agencies (CCYAs) to ensure the educational stability of children in foster care.

Under the ESSA, a child in foster care must remain in their school of origin, unless it is determined that remaining in the school of origin is not in that child’s best interest. Consistent with the Fostering Connections Act, “foster care” means 24-hour substitute care for children placed away from their parents or guardians and for whom a CCYA 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 pre-adoptive homes.

Important Changes

The McKinney-Vento Homeless Assistance Act:

The phrase “awaiting foster care placement” was removed from the definition of “homeless children and youths” under the McKinney-Vento Homeless Assistance Act (McKinney-Vento). However, even with this change, some students in foster care may still be eligible under McKinney-Vento, including:

  • Children in foster care living in “emergency or transitional shelters.”
  • Children in foster care who are “unaccompanied homeless youth” (e.g., youth who have run away from child welfare placements).

Best Interest Determination (BID):

The BID for a foster care child’s school placement and school transportation arrangements are now to be coordinated by the LEA’s point of contact (described in greater detail below) in conjunction with CCYA staff and other relevant team members who support the child. All children in foster care (with the exception of voluntary placements) are placed under order of the court. As such, court determinations, findings and orders are critical to the BID. Teams should be aware of and must follow existing court orders. If a court order specifies an educational placement for the child, the CCYA must request and obtain a modified court order prior to the child changing schools if the team’s BID is different from the court order. Teams making the BID should consider a number of factors, including:

  • A child’s attachment and engagement in their current school.
  • Placement of siblings, school environment and quality of services.
  • History of school transfers.
  • The impact of commuting on a child.
  • Where applicable, a child’s need for, and entitlement to, special services, including special education and/or English learner supports. 

However, the BID may not take the cost of transportation into consideration.

Transportation Plans/Procedures:

The LEA must collaborate with the CCYA to develop and implement clear written procedures governing how transportation will be provided, arranged and funded to maintain children in foster care in their school of origin when in their best interest. Pursuant to the ESSA, when additional costs[2] are incurred in providing transportation to the school of origin, the LEA (the school district of origin) will provide transportation if:

  • The LEA is reimbursed by the CCYA,
  • The LEA agrees to pay the costs.
  • The LEA and the CCYA agree to share the costs.

There are several strategies that LEAs and CCYAs can pursue to cover these costs, including, but not limited to the following:

  • If transportation can be funded by the CCYA through Title IV-E foster care maintenance payments, then the CCYA should cover additional transportation costs using a combination of federal, state and local funds.
  • If the child is not eligible for federal child welfare funds under Title IV-E or the funding is not available, then the cost of transportation could be evenly divided between the LEA and CCYA using available funding. A transportation plan could also contemplate a phased-in coverage of costs. For example, LEAs could cover transportation costs for a designated time period by leveraging Title I funds to support school stability and CCYAs could cover the remainder of costs for the duration of the child’s time in foster care by using a combination of state and local funds.
  • If the child is not eligible for federal child welfare funds under Title IV-E and Title I funds are exhausted or not available, then CCYAs could support the transportation costs using a combination of state and local funds.
  • Other solutions, such as the sharing of costs between the school district of origin, the school district of residence and the placing CCYA.

NOTE: Each LEA’s transportation plans/procedures must be submitted to the Pennsylvania Department of Education (PDE) via email ([email protected]) by January 31, 2017.

The Pennsylvania Departments of Education and Human Services recently released the following documents for LEAs to use as guides when drafting their plans and procedures:

Designated Point of Contact:

Each LEA must designate a point of contact (POC). The POC’s responsibilities include, but are not limited to:

  • Coordinating with the corresponding CCYA on the implementation of the Title I foster care provisions.
  • Sharing in the development of a process for making the BID.
  • Documenting the BID.
  • Facilitating with the CCYA the transfer of records including immunizations, medical records and copies of the individualized education programs (IEPs) and Section 504 plans to ensure immediate enrollment.
  • Facilitating data sharing with CCYA consistent with the Family Educational Rights and Privacy Act (FERPA) and other privacy protocols.
  • Developing and coordinating local transportation procedures.
  • Sharing in making the BID and resolving transportation disputes.
  • Ensuring that children in foster care are enrolled in and regularly attending school.
  • Providing professional development and training to school staff on the Title I foster care provisions and education needs of children in foster care, as needed.

All LEAs were to designate a POC by December 10, 2016. If an LEA has not done so, then the LEA must designate a POC and provide the person’s name and contact information to the Pennsylvania Department of Education via this form.

For more information about this alert, please contact Pamela L. Peltzman at 610.397.7979 or [email protected] or any member of the firm’s Education Practice.


[1] In December 2015, Congress passed ESSA to reauthorize the Elementary and Secondary Education Act of 1965 (ESEA). 

[2] The Departments of Education and Human Services’ Non-Regulatory Guidance: Ensuring Educational Stability for Children in Foster Care defines “additional costs” as the difference between what an LEA otherwise would spend to transport a student to his or her assigned school and the cost of transporting a child in foster care to his or her school of origin. For example, if the LEA must reroute busses to transport a child in foster care to one of its schools, the cost of this rerouting would be considered an additional cost.

[3] The transportation plan should include an agreed upon dispute resolution procedure to ensure that any disagreements regarding the cost of transportation or BID are resolved promptly and fairly and do not impact a student’s ability to remain in the school of origin during the dispute resolution process.