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Q21. Does the list of documents referred to in AB 490 include the student's cumulative file?

Education Code § 49069.5 requires districts to "compile the complete educational record of the pupil including a determination of seat time, full or partial credits earned, current classes and grades, immunization and other records, and, if applicable, a copy of the pupil's [special education] plan…" A student's "cumulative file" should be included as part of the "complete educational record."

 

Q22. Can a school refuse to forward transcripts for a foster child to his new school because there is an outstanding debt owed on books?

Education Code § 49069.5(d) states: "Upon receiving a transfer request from a county placing agency, the local educational agency shall, within two business days, transfer the pupil out of school and deliver the educational information and records of the pupil to the next educational placement" (emphasis added). There are no exceptions to this requirement in the code; therefore, a district or school cannot refuse to forward transcripts and educational material due to an outstanding debt.

 

Q23. What is the definition of "deliver" for the requirement that a school "deliver" the pupil's educational records to a new school within 2 business days? Is it sufficient for the old school to put them in the mail within in 2 days?

Education Code § 49069.5 states that the foster youth's old school, "upon receiving a transfer request from a county placing agency … shall within two business days transfer the pupil out of school and deliver the educational information and records of the pupil to the next educational placement" (emphasis added).

The code does not provide a definition for "deliver." However, with the widespread availability of facsimiles and email, districts should work together to transmit records in the most immediate manner possible. The receiving school needs the student's records to ensure that the youth is placed in an appropriate educational setting, and any delay in receiving records can have a detrimental impact on the youth's education.

 

Q24. Whatshould a child welfare worker or school do if they have difficulty determining who holds educational rights? Where should they turn?

This information is contained in a court order; and a caseworker should begin by checking the case file and court record. Next, the worker should call his/her attorney or the child's attorney. Ideally, the person who holds educational rights is listed on the child's education passport and case plan. School personnel may also call the child's caseworker or attorney to get this information. In addition, the child welfare agency and juvenile court should have a protocol for providing this information to those who need it.

If the caseworker determines that education rights have not been addressed by the juvenile court, the worker and/or the child's attorney can ask the court to hold a hearing to determine who should hold educational rights. When the court limits a parent's educational rights, a JV-535 form (Judicial Council form – an Order Limiting Parents' Right to Make Educational Decisions for the Child and Appointing Responsible Adult as Educational Representative), should be filed and provided to the local educational agency. If the court limits educational rights and is unable to identify a Responsible Adult to make educational decisions on behalf of the child, and the child is eligible or suspected of being eligible for special education services, the school district must appoint a Surrogate Parent pursuant to Government Code §7579.5 and provide the contact information to the juvenile court through a JV-536 form. 

JV-535 (Order Designating Educational Rights Holder) 

 JV-563 (Local Educational Agency Response to JV-535)

 

Q25. Who can sign the emergency information card for a child? Must that person have education rights?

The answer to this question may depend on local school district policies. However, even if there is no legal prohibition on a person filling out the form, it is important to be careful about who has that responsibility. The emergency card usually has vital information, like who to contact in an emergency and who has the right to pick up a child from school (if this is restricted).

 

Q26. How does the court decide that the parents are unable or unwilling to hold educational rights?

The guidance provided in the law is that the parents' educational rights should only be limited to the extent necessary to protect the child. This determination must be made on a case-by-case basis. However, factors that should be taken into consideration include: the availability of the parents, whether the whereabouts of the parents are known, the child's needs, the extent of the parent's involvement in the child's life, the stage of the proceedings, and other issues that impact the child's interests. If reunification is the case plan goal, and the parents are involved and acting responsibly, the parents should, in most circumstances, be encouraged and supported in retaining these rights.

 

Q27. Can the school appoint a surrogate parent for special education purposes if the court has not limited the rights of the parents, but the school district can't find them?

Parents/legal guardians retain educational rights unless they have specifically been limited by the court. WIC §§ 361; 726. If the parents are unavailable or unresponsive to the child's educational needs, the child's attorney and/or the attorney representing the case worker can ask the court to limit the parent/legal guardian's educational rights and appoint a Responsible Adult to make educational decisions. The school district may only appoint a Surrogate Parent if the court has limited the parent/legal guardian's educational rights and the court is unable to identify a Responsible Adult to appoint in their place. WIC § 361; WIC § 726; GC § 7579.5.

 

Q28. Are there existing county/district models on partial credits?

Fresno County is one example of a district that has created a specific policy on partial credits. Under their policy, 15 hours of school work is the equivalent of 1 unit. Seat time alone may not always be the only criteria in assigning credit; student participation, homework and in-class assignment completion can also be considered. When students leave the school mid-semester, teachers fill out a partial-credit verification form immediately to send to the new school. When students transfer into Fresno schools, teachers add credits from their prior school into their records.

 

Q29. Can a student be required by a teacher to make up work missed as the result of absences caused by a change in placement, attendance at a court hearing or court-ordered activity?

If the youth's absences are caused by a change in his residential placement, his grades should be calculated "as of the date [he] left school" and not lowered as a result of the absence. EC § 49069.5. However, if the youth has absences caused by court-attendance or court-related activities, the school can require that the youth complete make up work or tests missed.

 

Q30. If a student is covered by both McKinney-Vento and AB 490, which one governs?

Both McKinney-Vento and AB 490 may simultaneously cover foster youth placed into temporary living situations. Where McKinney-Vento provides greater protection (for example, McKinney-Vento specifically requires that school districts provide transportation to the school of origin), the youth is entitled to this greater level of protection.

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Q11. Who is responsible for providing transportation to the youth's school of origin?

AB 490 does not directly state who is responsible for providing transportation to a child's school of origin. Rather, the law states that meeting the needs of the child is a collective effort. Education Code § 48850 says, "In fulfilling their responsibilities to these pupils, educators, county placing agencies, care providers, advocates, and the juvenile courts shall work together to maintain stable school placements…" Further, Education Code § 48853.5(d)(6) states "the local educational agency and the county placing agency are encouraged to collaborate to ensure maximum utilization of available federal moneys, explore public-private partnerships, and access any other funding to promote the well-being of foster children through educational stability."

REMEMBER though that the school district may be specifically responsible for transportation if the youth is considered homeless under the federal McKinney-Vento law or qualifies for special education. McKinney-Vento requires that school districts provide transportation to a homeless student's school of origin. 42 U.S.C.§ 11432 (g)(4). McKinney-Vento defines homelessness as when children and youth are "awaiting foster care placement." Thus, in some cases, foster youth will be covered by both AB 490 and McKinney-Vento. If the youth is covered by McKinney-Vento, the school district must provide transportation to his school of origin.

If the youth is disabled and receives special education services pursuant to the federal Individuals with Disabilities Education Act (IDEA), the school district may also be responsible for providing transportation. If appropriate, transportation issues should be addressed at the student's Individualized Education Program (IEP) meeting, and written into the IEP.

 

Q12. Is it true that the child welfare agency has no input into whether it is in the child's best interest to remain in her school of origin?

It is true that AB 490 does not directly spell out the child welfare agency's role in determining whether a child should continue in her school or origin. However, that does not mean that the law does not otherwise provide for their participation. The child welfare agency has control over where the child lives in the first place. When a placing agency decides the most appropriate place for a child to live, the law requires them to consider the placement's proximity to the child's present school and the impact that the placement would have on the child's educational stability. WIC § 16501.1(c). In addition, Education Code §48850(a) requires placing agencies to collaborate with other parties in order to maintain stable school placements. The placing agencies, such as child welfare agencies, therefore have a significant role in ensuring that a child is provided with educational stability.

 

Q13. What recourse do attorneys or case workers have if they disagree with the educational placement decision made by the person holding educational rights, the child, and the liaison?

Placement and education moves should be a coordinated and planned effort. The only recourse in this situation is to petition the juvenile court to change the educational decision maker. If the educational decision maker is the parent, the court may limit the parent's educational rights and appoint a Responsible Adult to make educational decisions. WIC §§ 361 or 726. A limitation on the parent's right to make educational decisions will only be granted to the extent needed to protect the child. If the attorney or social worker disagrees with the decision of the Responsible Adult, the attorney and/or social worker may petition the court to transfer the educational rights to another individual.

 

Q14. When the district liaison, person with educational rights, and youth all agree that a child should stay in her school of origin, can the district of origin require the youth to complete interdistrict transfer paperwork (as if they came from the new school of residence)?

No. Education Code § 48853.5 (d)(1) states that the school district "serving the foster child shall allow the foster child to continue his or her education in the school of origin for the duration of the academic school year," when the foster youth is moved out of the district due to an "initial detention or placement, or any subsequent change in placement." Thus, a foster youth who moves out of the school's district of residence should be treated as if they still reside in the district for the remainder of the school year.

Interdistrict transfers, on the other hand, are appropriate in situations where a student who is not a resident of the district desires to attend one of the district's schools. Students who remain in their schools of origin when they are covered by AB 490 or McKinney-Vento cannot be required to complete interdistrict transfer paperwork.

 

Q15. If a foster child experiences a change of placement during the summer, but would like to attend his or her school of origin in the fall, does AB 490 give her this right?

The school of origin provision requires a district to "allow the foster child to continue his or her education in the school of origin for the duration of the academic school year." EC § 48853.5 (d)(1). Thus, if a child is moved in the summer and the academic year has been completed, the district is not required to allow the child to return in the fall. However, if remaining in the school of origin would be beneficial for the child's education, a school district can always use discretion to allow this.

 

Q16. How can schools allow foster youth to enroll without immunization records? Won't this jeopardize the health of other students?

Education Code § 48853.5 states that when foster youth change schools, the new school must immediately enroll them, even if they are missing the records and documents normally required for enrollment, including immunization records. If foster youth are missing immunization records, it is generally because no one is able to find the records, not because the youth have not been immunized. Foster youth move frequently, and their records often fail to move with them. However, foster youth receive frequent medical check-ups, and in most cases, it is more likely that they have been over-immunized than that they failed to receive the immunizations at all.

Also, it is important to remember that immunizations protect the child who is immunized, not other students. Thus, if a youth enrolls without immunizations, it is that youth who is at risk, not other students who are presumably immunized.

Education Code § 48853.5 seeks to eliminate the amount of time that foster youth spend out of school due to missing records. It is important to remember that even if a school is required to immediately enroll youth without first receiving immunization records, the school is still entitled to work with the previous school and the county agency to locate the records. The school is only prohibited from delaying enrollment.

 

Q17. How does the automatic enrollment provision apply to children with Individualized Education Programs (IEPs) that require a specific placement?

The school where the child is placed is responsible for implementing the IEP until the child is enrolled in a new school. If the transition process is managed properly (taking education into consideration in making placements, consulting with the parent or individual with education rights, giving advance notice of a change in placement, etc.), this should not be a common problem. If a child has such particular needs that the placement and/or service providers are specified, then educational planning is likely to be very important (for more reasons that just figuring out how to implement the IEP). Further, state law requires that the new school district immediately provide an interim placement in conformity with the last IEP and hold an IEP Meeting within 30 days of the transfer into the new school district to ensure the child's needs are being met. EC § 56325.

 

Q18. If a student has an expired IEP, must they be immediately enrolled? Can the school district postpone enrollment until an IEP can be held?

Even if the student is no longer covered by an IEP or is awaiting a new IEP, the school cannot delay enrollment of a foster child under AB 490. EC § 48853.5 (d)(4)(B). Furthermore, state law requires that the new school district immediately provide an interim placement in conformity with the last IEP and hold an IEP Meeting within 30 days of the transfer into the new school district in order to ensure the child's needs are being met. EC § 56325.

 

Q19. Are schools allowed to require a birth certificate before enrollment?

No. Education Code § 48853.5 states that when foster youth change schools, the new school must immediately enroll them, even if they are missing the records and documents normally required for enrollment, which includes birth certificates. The school is still entitled to work with the previous school and the county agency to locate the records, but it can not delay the youth's enrollment.

 

Q20. Some schools have requirements that students successfully complete a certain number of credits before they can participate in certain extra curricular activities; can schools apply these requirements to foster children?

Yes.The purpose of AB 490 is to remove barriers that foster children face. However, the schools are still allowed to apply the same rules for eligibility to participate in extra curricular activities to foster children as they do for children who are living with their birth parents.

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Q1. What is AB 490?

Assembly Bill 490 (AB 490) refers to California legislation addressing many of the barriers to educational success experienced by foster youth. AB 490 was passed in 2003 and became effective January 1, 2004. The law gives increased responsibility to school districts, county social service agencies, and other child welfare professionals to monitor and support the education of foster youth. AB 490 added some new provisions to the law as well as amended existing laws, mostly in the California Education Code.

 

Q2. What does AB 490 require?

AB 490 creates or amends the following provisions of law:

• School of origin: If the placement of a foster youth changes, the youth has the right to remain in her school of origin for the duration of the school year, provided it is in her best interest to do so. EC § 48853.5
• Immediate enrollment: When a foster youth changes schools, the new school must immediately enroll the youth even if she is missing academic and medical records, immunization records, proof of residency, a school uniform, or if she owes fees or materials to her prior school. EC § 48853.5
• School district foster care liaison: Every school district must appoint an educational liaison for foster children. EC § 48853.5
• Preference for mainstream school: Foster children must attend a regular, mainstream school unless they have an IEP requiring a different educational placement, or the person with educational rights determines that it is in the child’s best interest to attend a different educational program or remain in her school of origin. EC § 48853.
• Timely transfer of records: County placing agencies and school districts must work together to transfer records in a timely manner. As soon as the youth’s case worker or probation officer becomes aware of the need to transfer a student to a new school, he or she must notify the school of the last day of attendance, request calculation of student’s educational information, and request that the student be transferred. EC § 49069.5. The school the student is transferring from must deliver the student’s educational record to the next school within 2 business days. EC §§ 49069.5(d),(e). The school the student is transferring to must request the student’s records from the old school within 2 business days of the student’s enrollment. EC § 48853.5(d)(4)(C).
• Protection for grades: A youth’s grades cannot be lowered due to absences caused by a change in placement, attendance at a court hearing, or a court ordered activity. EC §§ 49069.5(g),(h).
• Partial credits: Schools must award all students credit for full or partial coursework satisfactorily completed at another public school, a juvenile court school, or a non-public, non-sectarian school. EC § 48645.5.
• Case worker and probation officer access to school records: Case workers and probation officers may access the youth’s school records without parental consent or a court order, so that they may compile the youth’s health & education summary, fulfill educational case management duties, or assist with school transfer or enrollment. EC § 49076.

 

Q3. Which youth does AB 490 cover?

The legislative intent of AB 490 was "to ensure that pupils in foster care... have a meaningful opportunity to meet the academic achievement standards to which all pupils are held, are placed in the least-restrictive educational programs, and have access to the academic resources, services, and extra-curricular and enrichment activities as all other pupils."

The population of youth the Legislature had in mind when it passed AB 490 is described in EC § 48853.5(d) as "any foster child who has been removed from his or her home pursuant to Section 309 of the Welfare and Institutions Code (WIC), is the subject of a petition filed under Section 300 or 602 of the WIC, or has been removed from his or her home and is the subject of a petition filed under Section 300 or 601 of the WIC." Other sections of the Education Code affected by AB 490 refer to "pupils in foster care" or use other words to describe the same group. See, e.g., EC § 46069.5.

 

Q4. When a child leaves foster care and returns home to live with her biological parents, must the school district allow her to immediately enroll? If she wants to stay in her school of origin, can she? And is the foster youth liaison required to work with such youth?

As explained above, § 48853.5 applies to any child who is the subject of a petition under WIC 300 or

602. As a practical matter, any child who is a dependent or ward would rarely ever be sent back home without the court retaining jurisdiction for some period (for family maintenance, an extended home visit, or as part of the child welfare or juvenile justice systems). Thus, the child is likely to still be a dependent or ward and the "subject of a petition." Even if the court did dismiss jurisdiction, there could still be an argument that the child is the subject of a petition (unless the child is sent home because the petition is specifically dismissed under WIC 390 or 782).

 

Q5. Does AB 490 apply to voluntary placements?

While many provisions of AB 490 do not directly apply to voluntary placements, the spirit of AB 490 is to increase the academic achievement of children in out-of-home care. The partial credit provision of the law in particular applies to all students in California. Thus, a child in a voluntary placement would clearly be entitled to receive partial credit for work satisfactorily completed at another public school, at a juvenile court school or non-public, non-sectarian school. EC § 48645.5.

 

Q6. Does AB 490 apply to informal placements with relatives, when there is no juvenile court involvement?

Again, while AB 490 does not directly apply to children who live in informal placements, the spirit of AB490 is to increase the academic achievement of children in out-of-home care. However, as noted above, children in informal placements are still covered by the provisions of the law that apply to all students. For example, they must receive partial credits for work completed at another school.

 

Q7. Does AB 490 apply to a child age 5.5 years who is enrolling in Kindergarten, even though compulsory education does not begin until age 6 in California?

Education Code § 48853 (a) provides that a foster child "shall attend programs operated by the local education agency, unless" one of the exceptions applies. Furthermore, EC § 48000 states that a child shall be admitted to kindergarten at the beginning of a school year, or at any later time in the same year if the child will have a fifth birthday on or before December 2 of that school year. This means that foster children have the right to attend the local kindergarten program if the person who holds educational rights and/or placing agency decides to enroll the child.

Education Code § 48853.5 requires the school district to "allow the foster child to continue his or her education in the school of origin for the duration of the academic year" when the child's placement changes. This should allow a child to remain in the same kindergarten program.

 

Q8. What is the remedy if districts or schools don’t comply with the provisions of AB 490?

If a district or school fails or refuses to comply with the provisions of AB 490, advocates should begin by immediately notifying the child’s attorney. They can also attempt to resolve the issue informally by contacting the district’s liaison for foster children. If the district liaison is unresponsive, advocates should then contact the liaison at the county office of education. The county office should be able to help them work with the district. If the county is unable to get the district to comply, they will contact the California Department of Education.

If the matter cannot be resolved informally within a few days and the school district fails or refuses to comply with the provisions of AB 490, the child’s attorney can ask the juvenile court to join the school district to court proceedings pursuant to Welfare and Institutions Code §362 and 727(a) (i.e. file a Joinder Motion asking the court to order the school district to appear and explain why they failed to provide the child with the services he is entitled to pursuant to AB 490).

 

Q9. If a foster youth has the right to stay in her school of origin if it is in her "best interest," how is best interest determined?

Education Code § 48853.5 states that three people are involved in determining whether or not it is in a child’s best interest to remain in her school of origin. Those three people are the school district foster youth liaison, the person who holds education rights for the child, and the child.

If the liaison wishes to recommend that it is not in the child’s best interest to remain in her school of origin, the liaison must provide the person with education rights with a written explanation. EC § 48853.5 (d)(3).

 

Q10. If the decision makers (e.g. educational liaison, person with education rights, child) disagree over whether it is in the child's best interest to remain in school of origin, how is the dispute resolved?

If a dispute arises, the child has the right to remain in her school of origin until the dispute is resolved. No specific dispute resolution process is described in the Education Code, but districts might rely on their existing dispute resolution procedures (for example, dispute resolution procedures described by the federal McKinney-Vento law).

Ultimately, the child remains in the school of origin if the child and/or person with education rights decide it is in the child’s best interests. The foster care liaison’s role is "advisory" and does not supersede the authority of the parent or person with educational rights. EC §48853.5 (c).

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