Disability Rights of West Virginia
Foster Care and Special Education
Article by Lori Waller, DRWV Staff Attorney
Thirty to fifty percent of children in foster care are eligible for special education services as opposed to the fifteen percent or less of children not in care who are eligible for special education services. Children in foster care also are three times more likely to be expelled and twice as likely to be absent. Children in foster care receive harsher discipline—including more frequent suspensions, expulsions, and police intervention—than their non-foster care peers as well. This practice adversely affects their academic achievement. Additionally, children in foster care are more likely to have at least one disability as compared to children not in care. It is clear many children in foster care need special education services.
Placement in foster care uproots a child and places that child in a different living situation. With a change in living situations, a child also may experience a change in school placement. For the child, this means making new friends and learning new rules as well as adjusting to a new classroom. All this change can create instability in a child’s life, making academic and behavioral supports even more important to educational success.
Educational Stability Plan
Under federal law, a child welfare agency, such as the Department of Health and Human Resources (“DHHR”), must create an educational stability plan for each child in care. The plan must include the following: 1) an assurance that each placement of the child in foster care takes into account the appropriateness of the current educational setting and the proximity to the school in which the child was enrolled at the time of placement; and 2) an assurance that the child welfare agency has coordinated with the local school to ensure the child can remain in that school, or if remaining in that school is not in the child’s best interest, an assurance that the child will be enrolled immediately in a new school and that the new school obtains relevant academic and other records. This plan is in place throughout the time a child is in foster care and should be considered before a change in placement.
Special Education Services
Any child in foster care who is eligible for special education services needs to receive those services as well. Special education services help a child be successful in the classroom. Likewise, some children coming into foster care have not yet been evaluated for special education services and will need to be referred for an evaluation for services. Whether a child in foster care is currently receiving services or needs to be evaluated for services, meeting the educational needs of the child is one of the biggest responsibilities of the foster care system. Educational needs are often overlooked when a family is in crisis and many children come into foster care already performing at a level below that of their peers.
Caseworkers and foster parents can call Disability Rights of West Virginia (DRWV) for assistance with navigating the special education system. Currently, DRWV is involved with a group of attorneys who have filed a class action against DHHR for failing to provide needed services to children in foster care. It is hoped this class action will lead to a change in policies and procedures and to an overall improvement in the foster care experience for any child coming into care.
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 Nat'l Working Grp. on Foster Care & Educ., Fostering Success in Education: National Factsheet on the Educational Outcomes of Children in Foster Care 1 (2014), available at www.fostercareandeducation.org/DesktopModules/Bring2mind/DMX/Download.aspx?EntryId=1279&Command=Core_Download&method=inline&PortalId=0&TabId=124.
 North American Council on Adoptable Children, Position Paper “Educational Needs of Children in Foster Care and Adoption,” available at: https://nacac.org/advocate/nacacs-positions/educational-needs/.
 Kelly Henderson, Ph.D., “Finding the Sweet Spot: Foster Care, Disability and Special Education,” July 7, 2021, available at: https://fosteringfamiliestoday.com/fostering-families-today-feature/finding-the-sweet-spot-foster-care-disability-and-special-education/#:~:text=Prevalence%20rates%20for%20children%20in,studies%20in%20the%20last%20decade.