November 30, 2016

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Analysis of Foster Care Transportation Requirements in ESSA Reg

Earlier, this week the US Department of Education (ED) published final regulations to implement the accountability and state plan provisions of the Every Student Succeeds Act (ESSA). These final regulations include new rules related to homelessness and foster care. In light of AASA's deep concerns with the proposed regulation the new and final rule is a considerable advocacy win given its importance for school leaders.

Below is an quick analysis from Barbara Duffield at SchoolHouse Connection on what school leaders must understand about the new regulation

I. Transportation to School of Origin for Children in Foster Care -  §299.13(c)(ii)

In §299.13(c)(ii), ED included the following regulation for the Title I state plan:  

“To ensure that children in foster care promptly receive transportation, as necessary, to and from their schools of origin when in their best interest under section 1112(c)(5)(B) of the Act, the SEA must ensure that an LEA receiving funds under title I, part A of the Act will collaborate with State and local child welfare agencies to develop and implement clear written procedures that describe:

(A)  How the requirements of section 1112(c)(5)(B) of the Act will be met in the event of a dispute over which agency or agencies will pay any additional costs incurred in providing transportation; and

(B)  Which agency or agencies will initially pay the additional costs so that transportation is provided promptly during the pendency of the dispute. 

Analysis of Final Regulation:

This final rule on the transportation of children in foster care to their schools of origin is a marked departure from the U.S. Department of Education’s initial proposal. The final rule also substantially modifies ED’s previously-issued guidance on the same subject.

The final regulation requires LEAs that receive Title I Part A funds to collaborate with State and local child welfare agencies on written procedures that describe how the statutory requirements of ESSA in section 1112(c)(5)(B) will be met in the event of a dispute over which agency/agencies will pay additional costs of transportation, including which agency/agencies will initially pay additional costs during the pendency of the dispute.

It is important to note:

1) The final regulation references the statutory requirements of ESSA in section 1112(c)(5)(B). This section requires LEAs that receive Title I Part A funds to collaborate with child welfare agencies to develop and implement local transportation procedures that must ensure that children and youth in foster care receive transportation to their school of origin, if it is in their best interest; and that, if there are additional costs, LEAs provide transportation only on the condition that the LEA agrees to pay some or all of those costs or the child welfare agency agrees to reimburse the LEA for the costs.

Nothing in the final regulation changes the limited statutory obligations of LEAs to provide transportation if there are additional costs, and onlyif they are reimbursed or agree to pay for it.

2) The regulations clearly establish no presumption regarding which agency/agencies are responsible for additional transportation costs during disputes. Rather, the regulation requires LEAs that receive Title I Part A funds to collaborate with State and local child welfare agencies to develop procedures that describe which agency/agencies will pay for additional costs during disputes over which agency/agencies must pay.

3) The final regulation contemplates a collaborative process between LEAs and state and local child welfare agencies for developing local transportation procedures. It would be inconsistent with the statute and the final regulation for an SEA to impose a uniform requirement unilaterally on all LEAs in a state to pay for transportation during disputes. Such a unilaterally-imposed requirement would conflict with the requirement for the collaborative development of local transportation procedures addressing how transportation will be provided and who will be responsible for additional transportation costs while disputes are pending.

 


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