DEPARTMENT OF EDUCATION

Office of the Secretary

Statutory Authority: 14 Delaware Code, Section 202A (14 Del.C. §202A)

14 DE Admin. Code 903

FINAL

REGULATORY IMPLEMENTING ORDER

903 Best Interest Determination Process for School Placement - Students in Foster Care

I. SUMMARY OF THE EVIDENCE AND INFORMATION SUBMITTED

Pursuant to 14 Del.C. §202A, the Secretary of Education intends to amend 14 DE Admin. Code 903 Best Interest Determination Process for School Placement - Students in Foster Care. This regulation has been reviewed as required by 29 Del.C. §10407 which states regulations are to be reviewed every four years. While there are no content changes to this regulation, it is being amended to comply with the Delaware Administrative Code Drafting and Style Manual.

Notice of the proposed regulation was published in the Delaware Register of Regulations on June 1, 2022. In addition, notice was published in The News Journal and the Delaware State News on June 1, 2022, in the form hereto attached as Exhibit "A". No comments were received for this regulation.

II. FINDINGS OF FACTS

The Secretary finds that it is appropriate to amend 14 DE Admin. Code 903 Best Interest Determination Process for School Placement - Students in Foster Care as required by 29 Del.C. §10407 which states regulations are to be reviewed every four years. While there are no content changes to this regulation, it is being amended to comply with the Delaware Administrative Code Drafting and Style Manual.

III. DECISION TO AMEND THE REGULATION

For the foregoing reasons, the Secretary concludes that it is appropriate to amend 14 DE Admin. Code 903 Best Interest Determination Process for School Placement - Students in Foster Care. Therefore, pursuant to 14 Del.C. §122, 14 DE Admin. Code 903 Best Interest Determination Process for School Placement - Students in Foster Care attached hereto as Exhibit "B" is hereby amended. Pursuant to the provision of 14 Del.C. §122(e), 14 DE Admin. Code 903 Best Interest Determination Process for School Placement - Students in Foster Care hereby amended shall be in effect for a period of five years from the effective date of this order as set forth in Section V. below.

IV. TEXT AND CITATION

The text of 14 DE Admin. Code 903 Best Interest Determination Process for School Placement - Students in Foster Care amended hereby shall be in the form attached hereto as Exhibit "B", and said regulation shall be cited as 14 DE Admin. Code 903 Best Interest Determination Process for School Placement - Students in Foster Care in the Administrative Code of Regulations for the Department of Education.

V. EFFECTIVE DATE OF ORDER

The actions hereinabove referred to were taken by the Secretary pursuant to 14 Del.C. §122 on July 6, 2022. The effective date of this Order shall be ten (10) days from the date this Order is published in the Delaware Register of Regulations.

IT IS SO ORDERED the 6th day of July 2022.

Department of Education

Mark A. Holodick, Ed.D., Secretary of Education

Approved this 6th day of July 2022

903 Best Interest Determination Process for School Placement - Students in Foster Care

1.0 Purpose

Under 14 Del.C. §202A, a student in the custody of DSCYF the Delaware Department of Services for Children, Youth and Their Families (DSCYF) who is in foster care must remain in the student's School of Origin school of origin unless a determination is made that it is not in the student's best interest to attend such school. The purpose of this regulation is to provide the process for the determination of best interest in school placement decisions for students in foster care.

2.0 Definitions

The following words and terms, when used in this regulation, shall have the following meaning unless the context clearly states otherwise:

"Best Interest Meeting" means the convening of certain individuals as noted within this regulation to determine if the student should remain in the "school of origin" school of origin.

"Best Interest Meeting Determination Form (Foster Care)" means the document, which may be amended from time to time, approved by the Delaware Department of Education for use in the determination of best interest in school placement decisions for students in foster care.

"Charter School" means a charter school board established pursuant to Chapter 5 of Title 14 of the Delaware Code.

"Child in DSCYF custody" or "student in foster care" "Student in Foster Care" means a student in the custody of the Delaware Department of Services for Children, Youth and Their Families (DSCFY) (DSCYF) pursuant to Chapter 25 of Title 13 of the Delaware Code.

"Court Appointed Special Advocate" or "CASA" means a volunteer authorized and appointed under 14 Del.C. §9010A, who is supervised by a coordinator and who works in conjunction with the child's attorney to accomplish the duties set forth in 29 Del.C. § 9007A(c).

"Department" means the Delaware Department of Education.

"DFS" means the Division of Family Services, a unit of the Delaware Department of Services for Children, Youth and Their Families.

"DFS Caseworker" means the caseworker assigned to the student in foster care.

"DSCYF" means the Delaware Department of Services for Children, Youth and Their Families.

"LEA Foster Care Liaison" means the Local Educational Agency Liaison local education agency liaison for students in foster care.

"Local School District" shall mean a reorganized school district or vocational technical school district established by 14 Del.C. Ch. 10.

"School of Origin" means the following:

• The school in which the student is enrolled at the time of entry into foster care;

• The school in which the student is enrolled at the time of change of placement while in foster care; or

• The school identified for the next grade level in the same local school district where the child in foster care is enrolled.

"Secretary" means the Secretary of the Delaware Department of Education.

"State Coordinator" means the Delaware Coordinator for Education of Students in Foster Care.

3.0 School of Origin for Students in Foster Care

3.1 "School of Origin" means the following:

3.1.1 the school in which the student is enrolled at the time of entry into foster care;

3.1.2 the school in which the student is enrolled at the time of change of placement while in foster care; or

3.1.3 the school identified for the next grade level in the same Local School District where the child in foster care is enrolled.

4.0 3.0 Best Interest Meeting Timeline

4.1 3.1 A Best Interest meeting Meeting must occur within five (5) school days based on the School of Origin's school instructional calendar or seven (7) business days in the event of the summer recess:

4.1.1 3.1.1 when When a student is placed into foster care;

4.1.2 3.1.2 when When there is a change in foster care placement; or

4.1.3 3.1.3 when When the student leaves the custody of DSCYF.

4.2 3.2 If it is determined a Best Interest Meeting under subsection 4.1 3.1 cannot occur within the specified time, documentation identifying the reason for the meeting delay shall be provided to the State Coordinator within ten (10) working days. This information shall be provided annually to the chief school officer of the local school district or charter school.

4.3 3.3 If subsection 4.1 3.1 is not applicable, a Best Interest meeting Meeting shall be held at least once a year, preferably within the last two (2) months of the school calendar.

5.0 4.0 Process for the Determination of Best Interest

5.1 4.1 The DFS Caseworker and LEA Foster Care Liaison shall be responsible for the coordination of the date, time, and method for the Best Interest Meeting using available technology; however, in person attendance is preferred.

5.1.1 4.1.1 The LEA Foster Care Liaison shall:

5.1.1.1 4.1.1.1 invite Invite needed educationally related participants; and

5.1.1.2 4.1.1.2 invite Invite the special education administrator or designee from the student's school of residence, based on the address of the DSCYF custody placement at the time of the meeting, and the student's School of Origin school of origin, and the educational surrogate parent when applicable to participate in the Best Interest meeting Meeting if the student is eligible for or receiving special education services.

5.1.2 4.1.2 The DFS Caseworker shall:

5.1.2.1 4.1.2.1 invite the parent(s) or legal guardian(s) or Relative Caregiver, foster care parent(s) Invite the parents, legal guardian, or relative caregiver, foster care parents, attorney for the child or CASA, and educational decision maker, as applicable; and

5.1.2.2 4.1.2.2 invite Invite the student to attend when it is determined to be developmentally appropriate by the DFS Caseworker.

5.2 4.2 The Best Interest Meeting shall be conducted in a manner that results in the Best Interest Meeting Determination Form (Foster Care) being completed.

5.3 4.3 The Best Interest determination shall be made by the following individuals:

5.3.1 4.3.1 a A representative of DSCYF, preferably the DFS Caseworker,

5.3.2 4.3.2 a A representative of the student's School of Origin school of origin, and

5.3.3 4.3.3 a A representative of the student's school of residence based on the address of the DSCYF custody placement at the time of the meeting.

5.4 4.4 If no agreement is reached by all of the representatives specified in subsection 5.3 4.3 for changing the school placement from the School of Origin school of origin to the student's school of residence, based on the address of the DSCYF custody placement at the time of the meeting, then the student shall remain in the School of Origin school of origin pending finalization of any applicable dispute resolution process.

5.4.1 4.4.1 Except in accordance with subsection 5.4.2 4.4.2, a subsequent Best Interest Meeting shall not occur unless subsection 4.1 3.1 or subsection 4.3 3.3 applies.

5.4.2 4.4.2 If exigent circumstances exist for a subsequent Best Interest Meeting to occur, an application shall be submitted on a form approved by the Department to the State Coordinator. The Secretary or designee will determine whether to approve the application for the requested subsequent Best Interest Meeting.

6.0 5.0 Applicability

6.1 5.1 Nothing in this regulation shall alter a Local School District or Charter School's local school district or charter school’s duties under the Individual Individuals with Disabilities Education Act (IDEA) or 14 DE Admin. Code 922 through 929.

5.2 Nothing in this regulation shall prevent a Local School District or Charter School local school district or charter school from providing supportive instruction to children with disabilities in a manner consistent with the Individuals with Disabilities Education Act (IDEA) and Delaware Department of Education regulations.

6.2 5.3 Nothing in this regulation shall alter a Local School District or Charter School's local school district or charter school’s duties under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act to students who are qualified individuals with disabilities. Nothing in this regulation shall prevent a Local School District or Charter School local school district or charter school from providing supportive instruction to such students.

21 DE Reg. 420 (11/01/17)

26 DE Reg. 98 (08/01/22) (Final)