Federal Law Introduced to Ease Transfer of Foster Youth Education Records

NOTE: This story was updated on June 7

by John Kelly

Four members of the Congressional Caucus on Foster Youth submitted a bill today that would ease the movement of a foster youth’s education records by removing his biological parent’s right to prevent the use of those records, and facilitate easier use of such records by child welfare researchers.

The Access to Papers Leads to Uninterrupted Scholars Act (A+ Act) is designed to amend the Family Educational Rights and Privacy Act (FERPA) in an effort to speed up the transfer of education records for children who need to change schools after being removed from their homes, and give social workers the real-time educational data they need to make decisions in the best interest of the children they serve.

The act is co-authored by Reps. Karen Bass (D-Calif.), Tom Marino (R-Penn.), Michele Bachmann (R-Minn.) and Jim McDermott (D-Wash.).

FERPA, as presently constituted, “prevents child welfare agencies from assessing student records,” said Bass at an afternoon press conference announcing the bill. Leaving foster youths prone to have to repeat courses or be placed in the wrong grade or special education program, she said.

Many schools will not enroll a student until his records have arrived, particularly information related to immunizations received by the child. As currently written, FERPA, which was passed in 1974, requires child welfare agencies to either obtain parental consent for a transfer, or receive a court order from a judge.

“It shouldn’t be so complicated,” said Christina Miranda, a former foster youth from Pennsylvania. “In a sense, you’re a ward of the court, and so child welfare agencies are the parent.”

Miranda attended three elementary schools, three middle schools and three high schools, she said, and there were times “I was sitting for months, waiting to get into school.”

Bass’ bill would create an exemption to FERPA rules for child welfare agencies when such agency or organization has responsibility for the student’s placement and care, provided that the education records, or the personally identifiable information contained therein, of the student will not be disclosed by such agency or organization except for the purpose and to the extent necessary to address the student’s educational needs.”

The bill would also eliminate the requirement that schools notify parents of a record release that occurred subject to a judicial order: “When a parent is a party to a child welfare court proceeding, and the order is issued in the context of that proceeding, additional notice to the parent by the educational agency or institution is not required.”

Some state child welfare agencies, including Florida, already share education records without a court order or the consent of a biological parent, according to the American Bar Association. Florida’s arrangement embodies Miranda’s notion of system-as-parent.

“Those states have enacted laws…that define ‘parent’ to include a child welfare agency representative so that the agency can consent to the release of school records,” according to an ABA bulletin about child welfare compliance with FERPA.

FERPA defines the term “parent” as “a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.”

There is no language in FERPA prohibiting child welfare officials from qualifying as a parent,” said a memorandum from Kele Stewart Williams, director of the University of Miami Children & Youth Law Clinic.  “This omission is significant because another major piece of federal education legislation, the Individuals with Disabilities Education Act (IDEA), expressly provides that ‘the state’ does not qualify as a ‘parent.’”

Other states have left the application of FERPA to counties. California has a statewide exemption for probation officers, but counties dictate the ability of caseworkers to access education records, said Jackie Wong, a state coordinator for the state’s Foster Youth Services program.

“I’ve always wondered why only one side of the court would be given the exemption,” Wong said in an interview with The Chronicle.

Wong also expressed wariness at Florida’s stance that a system can be defined as the de facto parent of a child in care.

“I get the simplicity of defining [the state] as a parent, but at end of the day, it’s not that simple,” she said. On the other hand, she continued, “line staff do need access to education records to do their jobs.”

The A+ Act would not force states to define child welfare agencies as the parent of youths in state custody. The bill only amends FERPA to force school districts to turn over records to the agencies without the permission of any defined parent if that parent is party to a child welfare proceeding.

The exemption covers all child welfare proceedings, not just ones in which a child is removed from the home, said Mary Cagle, statewide director of children’s legal services for the Florida Department of Children and Families. Cagle was instrumental in development of the A+ Act.

“It’s across the board,” Cagle said at the press conference. “If child welfare is in the child’s life, we should allow for sharing information.”

The act would also guarantee education records access to researchers interested in “federal and state education-related mandates governing child welfare agencies.” Bass specifically mentions enrollment practices, attendance and school stability as three issues of interest.

The Department of Education opened the door last year for increased use of education records by researchers. The new rules, issued in December 2011, allow states to establish an authorized FERPA representative to approve plans for use in an “audit or evaluation of federally- supported education programs, or in connection with the enforcement of the federal legal requirements which relate to such programs.”

As with any research permitted under FERPA, any child welfare researchers using education records would not be permitted to use any personal identification of students or their parents, and must destroy all identifying information once it was no longer needed for the research.

Additional Chronicle coverage of FERPA and A+ Act:
Daniel Heimpel: How the A+ Act came to be
Tasion Kwamilele: In some California counties, child welfare and education systems have already agreed to work around FERPA.
Orville Thomas: San Diego County is the gold standard for education record-sharing in California.
Stephanie Ludwig and Anna Jacobi: FERPA regs plague some research projects, easy to work with on others.

John Kelly is the editor-in-chief of The Chronicle of Social Change

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John Kelly is editor-in-chief of The Chronicle of Social Change.