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New York Consolidated Laws, Education Law - EDN § 3209. Education of homeless children

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1. Definitions.

a. [Eff. until June 30, 2019, pursuant to L.2003, c. 101, § 5.  See, also, par. a, below.] Homeless child.  For the purposes of this article, the term “homeless child” shall mean:

(1) a child or youth who lacks a fixed, regular, and adequate night-time residence, including a child or youth who is:

(i) sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii) abandoned in hospitals;  or

(iv) a migratory child, as defined in subsection two of section thirteen hundred nine of the Elementary and Secondary Education Act of 1965,  1 as amended by the Every Student Succeeds Act of 2015, who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;

(v) an unaccompanied youth, as defined in section seven hundred twenty-five of subtitle B of title VII of the McKinney-Vento Homeless Assistance Act;  or

(2) a child or youth who has a primary nighttime location that is:

(i) a supervised publicly or privately operated shelter designed to provide temporary living accommodations including, but not limited to, shelters operated or approved by the state or local department of social services, and residential programs for runaway and homeless youth established pursuant to article nineteen-H of the executive law;  or

(ii) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings, including a child or youth who is living in a car, park, public space, abandoned building, substandard housing, bus or train stations or similar setting.

a. [Eff. June 30, 2019.  See, also, par. a, above.] Homeless child.  For the purposes of this article, the term “homeless child” shall mean:

(1) a child who lacks a fixed, regular, and adequate nighttime residence, including a child or youth who is:

(i) sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason;

(ii) living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations;

(iii) abandoned in hospitals;

(iv) a migratory child, as defined in subsection two of section thirteen hundred nine of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015, who qualifies as homeless under any of the provisions of clauses (i) through (iii) of this subparagraph or subparagraph two of this paragraph;  or

(v) an unaccompanied youth, as defined in section seven hundred twenty-five of subtitle B of title VII of the McKinney-Vento Homeless Assistance Act;  or

(2) a child who has a primary nighttime location that is:

(i) a supervised publicly or privately operated shelter designed to provide temporary living accommodations including, but not limited to, shelters operated or approved by the state or local department of social services, and residential programs for runaway and homeless youth established pursuant to article nineteen-H of the executive law;  or

(ii) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings, including a child or youth who is living in a car, park, public space, abandoned building, substandard housing, bus or train stations or similar setting.

(3) the term “homeless child” shall not include a child in foster care placement or receiving educational services pursuant to subdivision four, five, six, six-a or seven of section thirty-two hundred two of this article or pursuant to article eighty-one, eighty-five, eighty-seven or eighty-eight of this chapter.

a-1. [Expires and deemed repealed June 30, 2019, pursuant to L.2003, c. 101, § 5.] Exception.  For the purposes of this article the term “homeless child” shall not include a child in a foster care placement or receiving educational services pursuant to subdivision four, five, six, six-a or seven of section thirty-two hundred two of this part or pursuant to article eighty-one, eighty-five, eighty-seven or eighty-eight of this chapter.

b. Designator.  The term “designator” shall mean:

(1) the parent or the person in parental relation to a homeless child;  or

(2) the homeless child, if no parent or person in parental relation is available;  or

(3) the director of a residential program for runaway and homeless youth established pursuant to article nineteen-H of the executive law, in consultation with the homeless child, where such homeless child is living in such program.

c. School district of origin.  The term “school district of origin” shall mean the school district within the state of New York in which the homeless child was attending a public school or preschool on a tuition-free basis or was entitled to attend when circumstances arose which caused such child to become homeless, which is different from the school district of current location.  School district of origin shall also mean the school district in the state of New York in which the child was residing when circumstances arose which caused such child to become homeless if such child was eligible to apply, register, or enroll in public preschool or kindergarten at the time such child became homeless, or the homeless child has a sibling who attends a school in the school district in which the child was residing when circumstances arose which caused such child to become homeless.

d. School district of current location.  The term “school district of current location” shall mean the public school district within the state of New York in which the hotel, motel, shelter or other temporary housing arrangement of a homeless child, or the residential program for runaway and homeless youth, is located, which is different from the school district of origin.

e. Regional placement plan.  The term “regional placement plan” shall mean a comprehensive regional approach to the provision of educational placements for homeless children which has been approved by the commissioner.

f. Feeder school.  The term “feeder school” shall mean:

(1) a preschool whose students are entitled to attend a specified elementary school or group of elementary schools upon completion of that preschool;

(2) a school whose students are entitled to attend a specified elementary, middle, intermediate, or high school or group of specified elementary, middle, intermediate, or high schools upon completion of the terminal grade of such school;  or

(3) a school that sends its students to a receiving school in a neighboring school district pursuant to section two thousand forty of this chapter.

g. Preschool.  The term “preschool” shall mean a publicly funded prekindergarten program administered by the department or a local educational agency or a Head Start program administered by a local educational agency and/or services under the Individuals with Disabilities Education Act administered by a local educational agency.

h. Receiving school.  The term “receiving school” shall mean:

(1) a school that enrolls students from a specified or group of preschools, elementary schools, middle schools, intermediate schools, or high schools;  or

(2) a school that enrolls students from a feeder school in a neighboring local educational agency pursuant to section two thousand forty of this chapter.

i. School of origin.  The term “school of origin” shall mean a public school that a child or youth attended when permanently housed, or the school in which the child or youth was last enrolled, including a preschool or a charter school.  Provided that, for a homeless child or youth who completes the final grade level served by the school of origin, the term “school of origin” shall include the designated receiving school at the next grade level for all feeder schools.  Where the child is eligible to attend school in the school district of origin because the child becomes homeless after such child is eligible to apply, register, or enroll in the public preschool or kindergarten or the child is living with a school-age sibling who attends school in the school district of origin, the school of origin shall include any public school or preschool in which such child would have been entitled or eligible to attend based on such child's last residence before the circumstances arose which caused such child to become homeless.

2. Choice of district and school.

a. The designator shall have the right to designate one of the following as the school district within which the homeless child shall be entitled to attend upon instruction:

(1) the school district of current location;

(2) the school district of origin;  or

(3) a school district participating in a regional placement plan.

b. The designator shall also have the right to designate one of the following as the school where a homeless child seeks to attend for instruction:

(1) the school of origin;  or

(2) any school that nonhomeless children and youth who live in the attendance area in which the child or youth is actually living are eligible to attend, including a preschool.

c. (1) Notwithstanding any other provision of law to the contrary, where the public school district in which a homeless child is temporarily housed is the school district of origin, the homeless child shall be entitled to attend the schools of such district without the payment of tuition in accordance with subdivision one of section thirty-two hundred two of this article for the duration of the homelessness and until the end of the school year in which such child becomes permanently housed and for one additional year if that year constitutes the child's terminal year in such building.

(2) Notwithstanding any other provision of law to the contrary, where the school district of origin or school of origin that a homeless child was attending on a tuition-free basis or was entitled to attend when circumstances arose which caused the child to become homeless is located in New York state and the homeless child's temporary housing arrangement is located in a contiguous state, the homeless child shall be entitled to attend the school of origin or any school that nonhomeless children and youth who live in the attendance area in which the child or youth is actually living are eligible to attend, including a preschool, subject to a best interest determination pursuant to subparagraph three of paragraph f of this subdivision, for the duration of the homelessness and until the end of the school year in which such child becomes permanently housed and for one additional year if that year constitutes the child's terminal year in such building.

(3) Notwithstanding any other provision of law to the contrary, where the child's temporary housing arrangement is located in New York state, the homeless child shall be entitled to attend the school of origin or any school that nonhomeless children and youth who live in the attendance area in which the child or youth is actually living are eligible to attend, including a preschool, subject to a best interest determination pursuant to subparagraph three of paragraph f of this subdivision, for the duration of the homelessness and until the end of the school year in which such child becomes permanently housed and for one additional year if that year constitutes the child's terminal year in such building.

d. Notwithstanding the provisions of paragraph a of this subdivision, a homeless child who has designated the school district of current location as the district of attendance and who has relocated to another temporary housing arrangement outside of such district, or to a different attendance zone or community school district within such district, shall be entitled to continue to attend in the same school building or designate any school that nonhomeless children and youth who live in the attendance area in which the child or youth is actually living are eligible to attend, including a preschool, subject to a best interest determination in accordance with subparagraph three of paragraph f of this subdivision, for the duration of the homelessness and until the end of the school year in which the child becomes permanently housed and for one additional year if that year constitutes the child's terminal year in such building.

e. Such designation shall be made on forms specified by the commissioner, and shall include the name of the child, the name of the parent or person in parental relation to the child, the name and location of the temporary housing arrangement, the name of the school district of origin, the name of the school district where the child's records are located, the complete address where the family was located at the time circumstances arose which caused such child to become homeless and any other information required by the commissioner.  All school districts, temporary housing facilities operated or approved by a local social services district, and residential facilities for runaway and homeless youth shall make such forms available and shall ensure that the completed designation forms are given to the local educational agency liaison for the local educational agency in which the designated school is located in a timeframe prescribed by the commissioner in regulations.  Where the homeless child is located in a temporary housing facility operated or approved by a local social services district, or a residential facility for runaway and homeless youth, the director of the facility or a person designated by the social services district, shall, within two business days, assist the designator in completing the designation forms and enrolling the homeless child in the designated school district and shall forward the completed designation form to the local educational agency liaison for the local educational agency in which the designated school is located in a timeframe prescribed by the commissioner in regulations.

f. Upon receipt of the designation form, the designated school district shall immediately:

(1) review the designation form to ensure that it has been completed;

(2) admit the homeless child even if the child or youth is unable to produce records normally a requirement for enrollment, such as previous academic records, records of immunization and/or other required health records, proof of residency or other documentation and/or even if the child has missed application or enrollment deadlines during any period of homelessness, if applicable.  Provided that nothing herein shall be construed to require the immediate attendance of an enrolled student lawfully excluded from school temporarily pursuant to section nine hundred six of this chapter because of a communicable or infectious disease that imposes a significant risk of infection of others;

(3) determine whether the designation made by the designator is consistent with the best interests of the homeless child or youth.  In determining a homeless child's best interest, a local educational agency shall:

(i) presume that keeping the homeless child or youth in the school of origin is in the child's or youth's best interest, except when doing so is contrary to the request of the child's parent or guardian, or in the case of an unaccompanied youth, the youth;

(ii) consider student-centered factors, including but not limited to factors related to the impact of mobility on achievement, education, the health and safety of the homeless child, giving priority to the request of the child's or youth's parent or guardian or the youth in the case of an unaccompanied youth;

(iii) if after considering student-centered factors and conducting a best interest school placement determination, the local educational agency determines that it is not in the homeless child's best interest to attend the school of origin or the school designated by the designator, the local educational agency must provide a written explanation of the reasons for its determination, in a manner and form understandable to such parent, guardian, or unaccompanied youth.  The information must also include information regarding the right to a timely appeal in accordance with regulations of the commissioner.  The homeless child or youth must be enrolled in the school in which enrollment is sought by the designator during the pendency of all available appeals;

(4) treat the homeless child as a resident for all purposes;

(5) make a written request to the school district where the child's records are located for a copy of such records;  and

(6) forward the designation form to the school district of origin where applicable.

g. Within five days of receipt of a request for records pursuant to subparagraph five of paragraph f of this subdivision, the school district shall forward, in a manner consistent with state and federal law, a complete copy of the homeless child's records including, but not limited to, proof of age, academic records, evaluations, immunization records, and guardianship papers, if applicable.

h. Where the school of origin is a charter school, the school district designated pursuant to this subdivision shall be deemed to be the school district of residence of such child for purposes of fiscal and programmatic responsibility under article fifty-six of this chapter and shall be responsible for transportation of the homeless child if a social services district is not otherwise responsible pursuant to subdivision four of this section.

i. The commissioner shall promulgate regulations setting forth the circumstances pursuant to which a change in designation may be made and establishing a procedure for the identification of the school district of origin.

2-a. [Expires and deemed repealed June 30, 2019, pursuant to L.2003, c. 101, § 5.] Notwithstanding any other provision of law to the contrary, each local educational agency, as such term is defined in subsection twenty-six of section ninety-one hundred one of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015,  2 shall designate a local educational agency liaison for homeless children and youths and shall, consistent with the provisions of this section, otherwise comply with the applicable requirements of paragraphs three through seven of subsection (g) of section seven hundred twenty-two of subtitle B of title VII of the McKinney-Vento Assistance Act.  3

3. Reimbursement.

a. Where either the school district of current location or a school district participating in a regional placement plan is designated as the district in which the homeless child shall attend upon instruction and such homeless child's school district of origin is within New York state, the school district providing instruction, including preschool instruction, shall be eligible for reimbursement by the department, as approved by the commissioner, for the direct cost of educational services, not otherwise reimbursed under special federal programs, calculated pursuant to regulations of the commissioner for the period of time for which such services are provided.  The claim for such reimbursement shall be in a form prescribed by the commissioner.  The educational costs for such children shall not be otherwise aidable or reimbursable.

b. The school district of origin shall reimburse the department for its expenditure for educational services on behalf of a homeless child pursuant to paragraph a of this subdivision in an amount equal to the school district basic contribution, as such term is defined in subdivision eight of section forty-four hundred one of this chapter, pro-rated for the period of time for which such services were provided in the base year by a school district other than the school district of origin.  Upon certification by the commissioner, the comptroller shall deduct from any state funds which become due to the school district of origin an amount equal to the reimbursement required to be made by such school district in accordance with this paragraph, and the amount so deducted shall not be included in the operating expense of such district for the purpose of computing the approved operating expense pursuant to paragraph t of subdivision one of section thirty-six hundred two of this chapter.

4. Transportation.

a. A social services district shall provide for the transportation of each homeless child, including those in preschool and students with disabilities identified pursuant to sections forty-four hundred one and forty-four hundred two of this chapter whose individualized education programs include special transportation services, who is eligible for benefits pursuant to section three hundred fifty-j of the social services law, to and from a temporary housing location in which the child was placed by the social services district and the school attended by such child pursuant to this section, if such temporary housing facility is located outside of the designated school district pursuant to paragraph a of subdivision two of this section.  A social services district shall be authorized to contract with a board of education or a board of cooperative educational services for the provision of such transportation.  Where the social services district requests that the designated school district of attendance provide or arrange for transportation for a homeless child eligible for transportation pursuant to this paragraph, the designated school district of attendance shall provide or arrange for the transportation and the social services district shall fully and promptly reimburse the designated school district of attendance for the cost as determined by the designated school district.  This paragraph shall apply to placements made by a social services district without regard to whether a payment is made by the district to the operator of the temporary housing facility.

b. The designated school district of attendance shall provide for the transportation of each homeless child who is living in a residential program for runaway and homeless youth established pursuant to article nineteen-H of the executive law, to and from such residential program, and the school attended by such child pursuant to this section, if such temporary housing location is located outside the designated school district.  The designated district of attendance shall be authorized to contract with a board of cooperative educational services or a residential program for runaway and homeless youth for the provision of such transportation.  The department shall reimburse the designated school district of attendance for the cost of transporting such child to and from the residential program and the school attended by such child to the extent funds are provided for such purpose, as determined by the director of the budget.

c. Notwithstanding any other provision of law, any homeless child not entitled to receive transportation pursuant to paragraphs a and b of this subdivision who requires transportation in order to attend a school of origin designated pursuant to subdivision two of this section, shall be entitled to receive such transportation pursuant to this paragraph.  The designated school district of attendance shall provide transportation to and from the child's temporary housing location and the school of origin.  Such transportation shall not be in excess of fifty miles each way except where the commissioner certifies that transportation in excess of fifty miles is in the best interest of the child.  Any cost incurred for such transportation that is allowable pursuant to the applicable provision of parts two and three of article seventy-three of this chapter or herein, shall be aidable pursuant to subdivision seven of section thirty-six hundred two of this chapter, provided that the approved transportation expense shall not exceed an amount determined by the commissioner to be the total cost for providing the most cost-effective mode of such transportation in a manner consistent with commissioner's regulations.  The commissioner shall promulgate regulations setting forth the circumstances pursuant to which parent accompaniment for transportation may be reimbursable, including but not limited to:  the age of the child;  the distance of the transportation;  the cost-effectiveness of the transportation;  and whether the child has a handicapping condition.

d. Notwithstanding any other provision of law, where a homeless child designates the school district of current location as the district the child will attend and such child does not attend the school of origin, such school district shall provide transportation to such child on the same basis as a resident student.

e. Where the designated school district of attendance has recommended that the homeless child attend a summer educational program and the lack of transportation poses a barrier to such child's participation in the summer educational program, the designated school district of attendance shall provide transportation.

f. The designated school district of attendance, or the social services district if such child is eligible for transportation from the social services district pursuant to paragraph a of this subdivision, shall provide or arrange for transportation to extracurricular or academic activities where:

(1) the homeless child participates in or would like to participate in an extracurricular or academic activity, including an after-school activity, at the school;

(2) the homeless child meets the relevant eligibility criteria for the activity;  and

(3) the lack of transportation poses a barrier to such child's participation in the activity.

g. Where the homeless child is temporarily living in a contiguous state and has designated a school of origin located in the state of New York, the designated school district in New York state shall collaborate with the local educational agency in which such child is temporarily living to arrange for transportation in accordance with section 722(g)(1)(J)(iii)(II) of the McKinney-Vento Homeless Assistance Act.

h. Where the homeless child is temporarily living in New York state and continues to attend a school of origin located in a contiguous state, the school district of current location shall coordinate with the local educational agency where such child is attending school to arrange for transportation in accordance with section 722(g)(1)(J)(iii)(II) of the McKinney-Vento Homeless Assistance Act.

i. Transportation as described in this subdivision must be provided to the homeless child by the designated school district of attendance or the social services district for the duration of homelessness.  The designated district of attendance must transport the child for the remainder of the school year in which the child becomes permanently housed and one additional year if that year constitutes the child's terminal year in the designated school.  Such transportation shall not be in excess of fifty miles each way except where the commissioner certifies that transportation in excess of fifty miles is in the best interest of the child.  The designated school district of attendance shall be entitled to reimbursement from the current school district in which the child becomes permanently housed for any cost incurred for transportation for the remainder of the school year after the child becomes permanently housed and one additional year if that year constitutes the child's terminal year in the designated school.

5. Each school district shall:

a. establish procedures, in accordance with 42 U.S.C. section 11432(g)(3)(E), for the prompt resolution of disputes regarding school selection or enrollment of a homeless child or youth, including, but not limited to, disputes regarding transportation and/or a child's or youth's status as a homeless child or unaccompanied youth;

b. provide a written explanation, including a statement regarding the right to appeal pursuant to 42 U.S.C. section 11432(g)(3)(E)(ii), the name, post office address and telephone number of the local educational agency liaison and the form petition for commencing an appeal to the commissioner pursuant to section three hundred ten of this chapter of a final determination regarding enrollment, school selection and/or transportation, to the homeless child's or youth's parent or guardian, if the school district declines to either enroll and/or transport such child or youth to the school of origin or a school requested by the parent or guardian;  and

c. shall immediately enroll the child or youth in the school in which enrollment is sought pending final resolution of the dispute over the school district's final determination of the child's or youth's homeless status, including all available appeals within the local educational agency and the commissioner pursuant to the provisions of section three hundred ten of this chapter.

6. a. By January thirty-first, nineteen hundred ninety-five, the commissioner, the commissioner of the office of temporary and disability assistance and the commissioner of the office of children and family services shall develop a plan to ensure coordination and access to education for homeless children and shall annually review such plan.

b. The commissioner shall periodically monitor local school districts to ensure their compliance with the provisions of this article, and that such districts review and revise any local regulations, policies, or practices that may act as barriers to the enrollment or attendance of homeless children in school or their receipt of comparable services as defined in Part B of Title VII of the Federal Stewart B. McKinney Act.  4

c. School districts shall periodically report such information to the commissioner as he or she may require to carry out the purposes of this section.

7. Public welfare officials, except as otherwise provided by law, shall furnish indigent children with suitable clothing, shoes, books, food, transportation and other necessaries to enable them to attend upon instruction as required by law.  Upon demonstration of need, such necessaries shall also include transportation of indigent children for the purposes of evaluations pursuant to section forty-four hundred ten of this chapter and title II-A of article twenty-five of the public health law.

8. Information about a homeless child's or youth's living situation shall be treated as a student educational record, and shall not be deemed to be directory information, under the McKinney-Vento Homeless Assistance Act, as amended by the Every Student Succeeds Act of 2015.

9. Each homeless child to be assisted under this section shall be provided services comparable to services offered to other students in the school selected under this section, including the following:  transportation services;  educational services for which the child or youth meets the eligibility criteria, such as services provided under Title I of the Elementary and Secondary Education Act of 1965 or similar state or local programs;  educational programs for children with disabilities;  educational programs for English learners;  programs in career and technical education;  programs for gifted and talented students;  and school nutrition programs.

10. The commissioner may promulgate regulations to carry out the purposes of this section.

1  20 USCA § 6399.
2  20 USCA § 7801.
3  42 USCA § 11432.
4  42 USCA § 11301 et seq.

Cite this article: FindLaw.com - New York Consolidated Laws, Education Law - EDN § 3209. Education of homeless children - last updated January 01, 2021 | https://codes.findlaw.com/ny/education-law/edn-sect-3209/


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