Final Regulations for Every Student Succeeds Act (ESSA)

The Legal Center for Foster Care and Education (http://www.fostercareandeducation.org) would like to share important news regarding the issuance of final federal regulations by the U.S. Department of Education implementing the Every Student Succeeds Act (ESSA). This link will guide you to the regulations released on November 28, 2016: http://www2.ed.gov/policy/elsec/leg/essa/essaaccountstplans1129.pdf.

There are several key provisions in these regulations important to children in foster care, but the language addressing transportation is most timely given impending deadlines.  The regulations clarify the obligation of education and child welfare agencies to provide transportation during disputes over payment of any "additional costs" of transportation to maintain children's school stability.  Specifically, the regulations reinforce the responsibility of the State Education Agencies (SEAs) to:

  • Ensure that children in foster care promptly receive transportation, as necessary, to and from their schools of origin when in the children's best interest.
  • Ensure that LEAs that receive funding under Title I collaborate with child welfare agencies to develop and implement clear written transportation procedures that describe how school stability will be ensured in the event of a dispute over which agency or agencies will pay for any additional costs incurred.
  • Ensure that LEAs' local transportation procedures describe which agency or agencies will initially pay the additional costs so that transportation is provided to children in foster care during the pendency of any funding disputes.

These regulations send a clear message that providing transportation to achieve school stability for children in foster care is of paramount importance and that SEAs as well as LEAs, in collaboration with local child welfare agencies, have a clear duty to ensure that transportation is promptly provided.  Neither ESSA nor this regulation specifically allocate the responsibility to fund additional costs to either LEAs or local child welfare agencies.  Rather, this new regulation clarifies that state and local educational agencies have bottom line responsibility for developing and implementing procedures that guarantee school stability transportation for all children in foster care when disputes arise - and during the pendency of disputes - over which agency or agencies will fund any additional costs incurred.

These regulations go into effect January 30, 2017. However, it is important to remember that the provisions in ESSA relating to school stability, prompt school enrollment, and transportation to ensure school stability for children in foster care go into effect on December 10, 2016. State and local child welfare and education agencies must immediately begin or continue conversations about their shared responsibility to support the school stability and the success of students in foster care.  In order to ensure consistency across all districts within a state, the U.S. Department of Education has encouraged SEAs to issue uniform statewide guidance on how disputes should be resolved regarding which agency or agencies will fund transportation (including funding for transportation pending those disputes) and to establish a common dispute resolution process at the state level.

We look forward to continuing to support this work in your state, and encourage you to please contact us with questions or updates.

Kristin Kelly, Esq.

American Bar Association

Center on Children and the Law

1050 Connecticut Avenue NW, 4th Floor

Washington, DC 20036

(202) 662-1733

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