§ 3209 — Education of homeless children

§ 3209. Education of homeless children. 1. Definitions.\n a. Homeless child. For the purposes of this article, the term\n"homeless child" shall mean:\n (1) a child or youth who lacks a fixed, regular, and adequate\nnighttime residence, including a child or youth who is:\n (i) sharing the housing of other persons due to a loss of housing,\neconomic hardship or a similar reason;\n (ii) living in motels, hotels, trailer parks or camping grounds due to\nthe lack of alternative adequate accommodations;\n (iii) abandoned in hospitals; or\n (iv) a migratory child, as defined in subsection two of section\nthirteen hundred nine of the Elementary and Secondary Education Act of\n1965, as amended by the Every Student Succeeds Act of 2015, who\nqualifies as homeless under any of the provisions of clauses (i) through\n(iii) of this subparagraph or subparagraph two of this paragraph;\n (v) an unaccompanied youth, as defined in section seven hundred\ntwenty-five of subtitle B of title VII of the McKinney-Vento Homeless\nAssistance Act; or\n (2) a child or youth who has a primary nighttime location that is:\n (i) a supervised publicly or privately operated shelter designed to\nprovide temporary living accommodations including, but not limited to,\nshelters operated or approved by the state or local department of social\nservices, and residential programs for runaway and homeless youth\nestablished pursuant to article nineteen-H of the executive law; or\n (ii) a public or private place not designed for, or ordinarily used\nas, a regular sleeping accommodation for human beings, including a child\nor youth who is living in a car, park, public space, abandoned building,\nsubstandard housing, bus or train stations or similar setting.\n a-1. Exception. For the purposes of this article the term "homeless\nchild" shall not include a child in a foster care placement or receiving\neducational services pursuant to subdivision four, five, six, six-a or\nseven of section thirty-two hundred two of this part or pursuant to\narticle eighty-one, eighty-five, eighty-seven or eighty-eight of this\nchapter.\n b. Designator. The term "designator" shall mean:\n (1) the parent or the person in parental relation to a homeless child;\nor\n (2) the homeless child, if no parent or person in parental relation is\navailable; or\n (3) the director of a residential program for runaway and homeless\nyouth established pursuant to article nineteen-H of the executive law,\nin consultation with the homeless child, where such homeless child is\nliving in such program.\n c. School district of origin. The term "school district of origin"\nshall mean the school district within the state of New York in which the\nhomeless child was attending a public school or preschool on a\ntuition-free basis or was entitled to attend when circumstances arose\nwhich caused such child to become homeless, which is different from the\nschool district of current location. School district of origin shall\nalso mean the school district in the state of New York in which the\nchild was residing when circumstances arose which caused such child to\nbecome homeless if such child was eligible to apply, register, or enroll\nin public preschool or kindergarten at the time such child became\nhomeless, or the homeless child has a sibling who attends a school in\nthe school district in which the child was residing when circumstances\narose which caused such child to become homeless.\n d. School district of current location. The term "school district of\ncurrent location" shall mean the public school district within the state\nof New York in which the hotel, motel, shelter or other temporary\nhousing arrangement of a homeless child, or the residential program for\nrunaway and homeless youth, is located, which is different from the\nschool district of origin.\n e. Regional placement plan. The term "regional placement plan" shall\nmean a comprehensive regional approach to the provision of educational\nplacements for homeless children which has been approved by the\ncommissioner.\n f. Feeder school. The term "feeder school" shall mean:\n (1) a preschool whose students are entitled to attend a specified\nelementary school or group of elementary schools upon completion of that\npreschool;\n (2) a school whose students are entitled to attend a specified\nelementary, middle, intermediate, or high school or group of specified\nelementary, middle, intermediate, or high schools upon completion of the\nterminal grade of such school; or\n (3) a school that sends its students to a receiving school in a\nneighboring school district pursuant to section two thousand forty of\nthis chapter.\n g. Preschool. The term "preschool" shall mean a publicly funded\nprekindergarten program administered by the department or a local\neducational agency or a Head Start program administered by a local\neducational agency and/or services under the Individuals with\nDisabilities Education Act administered by a local educational agency.\n h. Receiving school. The term "receiving school" shall mean:\n (1) a school that enrolls students from a specified or group of\npreschools, elementary schools, middle schools, intermediate schools, or\nhigh schools; or\n (2) a school that enrolls students from a feeder school in a\nneighboring local educational agency pursuant to section two thousand\nforty of this chapter.\n i. School of origin. The term "school of origin" shall mean a public\nschool that a child or youth attended when permanently housed, or the\nschool in which the child or youth was last enrolled, including a\npreschool or a charter school. Provided that, for a homeless child or\nyouth who completes the final grade level served by the school of\norigin, the term "school of origin" shall include the designated\nreceiving school at the next grade level for all feeder schools. Where\nthe child is eligible to attend school in the school district of origin\nbecause the child becomes homeless after such child is eligible to\napply, register, or enroll in the public preschool or kindergarten or\nthe child is living with a school-age sibling who attends school in the\nschool district of origin, the school of origin shall include any public\nschool or preschool in which such child would have been entitled or\neligible to attend based on such child's last residence before the\ncircumstances arose which caused such child to become homeless.\n 2. Choice of district and school.\n a. The designator shall have the right to designate one of the\nfollowing as the school district within which the homeless child shall\nbe entitled to attend upon instruction:\n (1) the school district of current location;\n (2) the school district of origin; or\n (3) a school district participating in a regional placement plan.\n b. The designator shall also have the right to designate one of the\nfollowing as the school where a homeless child seeks to attend for\ninstruction:\n (1) the school of origin; or\n (2) any school that nonhomeless children and youth who live in the\nattendance area in which the child or youth is actually living are\neligible to attend, including a preschool.\n c. (1) Notwithstanding any other provision of law to the contrary,\nwhere the public school district in which a homeless child is\ntemporarily housed is the school district of origin, the homeless child\nshall be entitled to attend the schools of such district without the\npayment of tuition in accordance with subdivision one of section\nthirty-two hundred two of this article for the duration of the\nhomelessness and until the end of the school year in which such child\nbecomes permanently housed and for one additional year if that year\nconstitutes the child's terminal year in such building.\n (2) Notwithstanding any other provision of law to the contrary, where\nthe school district of origin or school of origin that a homeless child\nwas attending on a tuition-free basis or was entitled to attend when\ncircumstances arose which caused the child to become homeless is located\nin New York state and the homeless child's temporary housing arrangement\nis located in a contiguous state, the homeless child shall be entitled\nto attend the school of origin or any school that nonhomeless children\nand youth who live in the attendance area in which the child or youth is\nactually living are eligible to attend, including a preschool, subject\nto a best interest determination pursuant to subparagraph three of\nparagraph f of this subdivision, for the duration of the homelessness\nand until the end of the school year in which such child becomes\npermanently housed and for one additional year if that year constitutes\nthe child's terminal year in such building.\n (3) Notwithstanding any other provision of law to the contrary, where\nthe child's temporary housing arrangement is located in New York state,\nthe homeless child shall be entitled to attend the school of origin or\nany school that nonhomeless children and youth who live in the\nattendance area in which the child or youth is actually living are\neligible to attend, including a preschool, subject to a best interest\ndetermination pursuant to subparagraph three of paragraph f of this\nsubdivision, for the duration of the homelessness and until the end of\nthe school year in which such child becomes permanently housed and for\none additional year if that year constitutes the child's terminal year\nin such building.\n d. Notwithstanding the provisions of paragraph a of this subdivision,\na homeless child who has designated the school district of current\nlocation as the district of attendance and who has relocated to another\ntemporary housing arrangement outside of such district, or to a\ndifferent attendance zone or community school district within such\ndistrict, shall be entitled to continue to attend in the same school\nbuilding or designate any school that nonhomeless children and youth who\nlive in the attendance area in which the child or youth is actually\nliving are eligible to attend, including a preschool, subject to a best\ninterest determination in accordance with subparagraph three of\nparagraph f of this subdivision, for the duration of the homelessness\nand until the end of the school year in which the child becomes\npermanently housed and for one additional year if that year constitutes\nthe child's terminal year in such building.\n e. Such designation shall be made on forms specified by the\ncommissioner, and shall include the name of the child, the name of the\nparent or person in parental relation to the child, the name and\nlocation of the temporary housing arrangement, the name of the school\ndistrict of origin, the name of the school district where the child's\nrecords are located, the complete address where the family was located\nat the time circumstances arose which caused such child to become\nhomeless and any other information required by the commissioner. All\nschool districts, temporary housing facilities operated or approved by a\nlocal social services district, and residential facilities for runaway\nand homeless youth shall make such forms available and shall ensure that\nthe completed designation forms are given to the local educational\nagency liaison for the local educational agency in which the designated\nschool is located in a timeframe prescribed by the commissioner in\nregulations. Where the homeless child is located in a temporary housing\nfacility operated or approved by a local social services district, or a\nresidential facility for runaway and homeless youth, the director of the\nfacility or a person designated by the social services district, shall,\nwithin two business days, assist the designator in completing the\ndesignation forms and enrolling the homeless child in the designated\nschool district and shall forward the completed designation form to the\nlocal educational agency liaison for the local educational agency in\nwhich the designated school is located in a timeframe prescribed by the\ncommissioner in regulations.\n f. Upon receipt of the designation form, the designated school\ndistrict shall immediately:\n (1) review the designation form to ensure that it has been completed;\n (2) admit the homeless child even if the child or youth is unable to\nproduce records normally a requirement for enrollment, such as previous\nacademic records, records of immunization and/or other required health\nrecords, proof of residency or other documentation and/or even if the\nchild has missed application or enrollment deadlines during any period\nof homelessness, if applicable. Provided that nothing herein shall be\nconstrued to require the immediate attendance of an enrolled student\nlawfully excluded from school temporarily pursuant to section nine\nhundred six of this chapter because of a communicable or infectious\ndisease that imposes a significant risk of infection of others;\n (3) determine whether the designation made by the designator is\nconsistent with the best interests of the homeless child or youth. In\ndetermining a homeless child's best interest, a local educational agency\nshall:\n (i) presume that keeping the homeless child or youth in the school of\norigin is in the child's or youth's best interest, except when doing so\nis contrary to the request of the child's parent or guardian, or in the\ncase of an unaccompanied youth, the youth;\n (ii) consider student-centered factors, including but not limited to\nfactors related to the impact of mobility on achievement, education, the\nhealth and safety of the homeless child, giving priority to the request\nof the child's or youth's parent or guardian or the youth in the case of\nan unaccompanied youth;\n (iii) if after considering student-centered factors and conducting a\nbest interest school placement determination, the local educational\nagency determines that it is not in the homeless child's best interest\nto attend the school of origin or the school designated by the\ndesignator, the local educational agency must provide a written\nexplanation of the reasons for its determination, in a manner and form\nunderstandable to such parent, guardian, or unaccompanied youth. The\ninformation must also include information regarding the right to a\ntimely appeal in accordance with regulations of the commissioner. The\nhomeless child or youth must be enrolled in the school in which\nenrollment is sought by the designator during the pendency of all\navailable appeals;\n (4) treat the homeless child as a resident for all purposes;\n (5) make a written request to the school district where the child's\nrecords are located for a copy of such records; and\n (6) forward the designation form to the school district of origin\nwhere applicable.\n g. Within five days of receipt of a request for records pursuant to\nsubparagraph five of paragraph f of this subdivision, the school\ndistrict shall forward, in a manner consistent with state and federal\nlaw, a complete copy of the homeless child's records including, but not\nlimited to, proof of age, academic records, evaluations, immunization\nrecords, and guardianship papers, if applicable.\n h. Where the school of origin is a charter school, the school district\ndesignated pursuant to this subdivision shall be deemed to be the school\ndistrict of residence of such child for purposes of fiscal and\nprogrammatic responsibility under article fifty-six of this chapter and\nshall be responsible for transportation of the homeless child if a\nsocial services district is not otherwise responsible pursuant to\nsubdivision four of this section.\n i. The commissioner shall promulgate regulations setting forth the\ncircumstances pursuant to which a change in designation may be made and\nestablishing a procedure for the identification of the school district\nof origin.\n 2-a. Notwithstanding any other provision of law to the contrary, each\nlocal educational agency, as such term is defined in subsection\ntwenty-six of section ninety-one hundred one of the Elementary and\nSecondary Education Act of 1965, as amended by the Every Student\nSucceeds Act of 2015, shall designate a local educational agency liaison\nfor homeless children and youths and shall, consistent with the\nprovisions of this section, otherwise comply with the applicable\nrequirements of paragraphs three through seven of subsection (g) of\nsection seven hundred twenty-two of subtitle B of title VII of the\nMcKinney-Vento Assistance Act.\n 3. Reimbursement.\n a. Where either the school district of current location or a school\ndistrict participating in a regional placement plan is designated as the\ndistrict in which the homeless child shall attend upon instruction and\nsuch homeless child's school district of origin is within New York\nstate, the school district providing instruction, including preschool\ninstruction, shall be eligible for reimbursement by the department, as\napproved by the commissioner, for the direct cost of educational\nservices, not otherwise reimbursed under special federal programs,\ncalculated pursuant to regulations of the commissioner for the period of\ntime for which such services are provided. The claim for such\nreimbursement shall be in a form prescribed by the commissioner. The\neducational costs for such children shall not be otherwise aidable or\nreimbursable.\n b. The school district of origin shall reimburse the department for\nits expenditure for educational services on behalf of a homeless child\npursuant to paragraph a of this subdivision in an amount equal to the\nschool district basic contribution, as such term is defined in\nsubdivision eight of section forty-four hundred one of this chapter,\npro-rated for the period of time for which such services were provided\nin the base year by a school district other than the school district of\norigin. Upon certification by the commissioner, the comptroller shall\ndeduct from any state funds which become due to the school district of\norigin an amount equal to the reimbursement required to be made by such\nschool district in accordance with this paragraph, and the amount so\ndeducted shall not be included in the operating expense of such district\nfor the purpose of computing the approved operating expense pursuant to\nparagraph t of subdivision one of section thirty-six hundred two of this\nchapter.\n 4. Transportation.\n a. A social services district shall provide for the transportation of\neach homeless child, including those in preschool and students with\ndisabilities identified pursuant to sections forty-four hundred one and\nforty-four hundred two of this chapter whose individualized education\nprograms include special transportation services, who is eligible for\nbenefits pursuant to section three hundred fifty-j of the social\nservices law, to and from a temporary housing location in which the\nchild was placed by the social services district and the school attended\nby such child pursuant to this section, if such temporary housing\nfacility is located outside of the designated school district pursuant\nto paragraph a of subdivision two of this section. A social services\ndistrict shall be authorized to contract with a board of education or a\nboard of cooperative educational services for the provision of such\ntransportation. Where the social services district requests that the\ndesignated school district of attendance provide or arrange for\ntransportation for a homeless child eligible for transportation pursuant\nto this paragraph, the designated school district of attendance shall\nprovide or arrange for the transportation and the social services\ndistrict shall fully and promptly reimburse the designated school\ndistrict of attendance for the cost as determined by the designated\nschool district. This paragraph shall apply to placements made by a\nsocial services district without regard to whether a payment is made by\nthe district to the operator of the temporary housing facility.\n b. The designated school district of attendance shall provide for the\ntransportation of each homeless child who is living in a residential\nprogram for runaway and homeless youth established pursuant to article\nnineteen-H of the executive law, to and from such residential program,\nand the school attended by such child pursuant to this section, if such\ntemporary housing location is located outside the designated school\ndistrict. The designated district of attendance shall be authorized to\ncontract with a board of cooperative educational services or a\nresidential program for runaway and homeless youth for the provision of\nsuch transportation. The department shall reimburse the designated\nschool district of attendance for the cost of transporting such child to\nand from the residential program and the school attended by such child\nto the extent funds are provided for such purpose, as determined by the\ndirector of the budget.\n c. Notwithstanding any other provision of law, any homeless child not\nentitled to receive transportation pursuant to paragraphs a and b of\nthis subdivision who requires transportation in order to attend a school\nof origin designated pursuant to subdivision two of this section, shall\nbe entitled to receive such transportation pursuant to this paragraph.\nThe designated school district of attendance shall provide\ntransportation to and from the child's temporary housing location and\nthe school of origin. Such transportation shall not be in excess of\nfifty miles each way except where the commissioner certifies that\ntransportation in excess of fifty miles is in the best interest of the\nchild. Any cost incurred for such transportation that is allowable\npursuant to the applicable provision of parts two and three of article\nseventy-three of this chapter or herein, shall be aidable pursuant to\nsubdivision seven of section thirty-six hundred two of this chapter,\nprovided that the approved transportation expense shall not exceed an\namount determined by the commissioner to be the total cost for providing\nthe most cost-effective mode of such transportation in a manner\nconsistent with commissioner's regulations. The commissioner shall\npromulgate regulations setting forth the circumstances pursuant to which\nparent accompaniment for transportation may be reimbursable, including\nbut not limited to: the age of the child; the distance of the\ntransportation; the cost-effectiveness of the transportation; and\nwhether the child has a handicapping condition.\n d. Notwithstanding any other provision of law, where a homeless child\ndesignates the school district of current location as the district the\nchild will attend and such child does not attend the school of origin,\nsuch school district shall provide transportation to such child on the\nsame basis as a resident student.\n e. Where the designated school district of attendance has recommended\nthat the homeless child attend a summer educational program and the lack\nof transportation poses a barrier to such child's participation in the\nsummer educational program, the designated school district of attendance\nshall provide transportation.\n f. The designated school district of attendance, or the social\nservices district if such child is eligible for transportation from the\nsocial services district pursuant to paragraph a of this subdivision,\nshall provide or arrange for transportation to extracurricular or\nacademic activities where:\n (1) the homeless child participates in or would like to participate in\nan extracurricular or academic activity, including an after-school\nactivity, at the school;\n (2) the homeless child meets the relevant eligibility criteria for the\nactivity; and\n (3) the lack of transportation poses a barrier to such child's\nparticipation in the activity.\n g. Where the homeless child is temporarily living in a contiguous\nstate and has designated a school of origin located in the state of New\nYork, the designated school district in New York state shall collaborate\nwith the local educational agency in which such child is temporarily\nliving to arrange for transportation in accordance with section\n722(g)(1)(J)(iii)(II) of the McKinney-Vento Homeless Assistance Act.\n h. Where the homeless child is temporarily living in New York state\nand continues to attend a school of origin located in a contiguous\nstate, the school district of current location shall coordinate with the\nlocal educational agency where such child is attending school to arrange\nfor transportation in accordance with section 722(g)(1)(J)(iii)(II) of\nthe McKinney-Vento Homeless Assistance Act.\n i. Transportation as described in this subdivision must be provided to\nthe homeless child by the designated school district of attendance or\nthe social services district for the duration of homelessness. The\ndesignated district of attendance must transport the child for the\nremainder of the school year in which the child becomes permanently\nhoused and one additional year if that year constitutes the child's\nterminal year in the designated school. Such transportation shall not be\nin excess of fifty miles each way except where the commissioner\ncertifies that transportation in excess of fifty miles is in the best\ninterest of the child. The designated school district of attendance\nshall be entitled to reimbursement from the current school district in\nwhich the child becomes permanently housed for any cost incurred for\ntransportation for the remainder of the school year after the child\nbecomes permanently housed and one additional year if that year\nconstitutes the child's terminal year in the designated school.\n 5. Each school district shall:\n a. establish procedures, in accordance with 42 U.S.C. section\n11432(g)(3)(E), for the prompt resolution of disputes regarding school\nselection or enrollment of a homeless child or youth, including, but not\nlimited to, disputes regarding transportation and/or a child's or\nyouth's status as a homeless child or unaccompanied youth;\n b. provide a written explanation, including a statement regarding the\nright to appeal pursuant to 42 U.S.C. section 11432(g)(3)(E)(ii), the\nname, post office address and telephone number of the local educational\nagency liaison and the form petition for commencing an appeal to the\ncommissioner pursuant to section three hundred ten of this chapter of a\nfinal determination regarding enrollment, school selection and/or\ntransportation, to the homeless child's or youth's parent or guardian,\nif the school district declines to either enroll and/or transport such\nchild or youth to the school of origin or a school requested by the\nparent or guardian; and\n c. shall immediately enroll the child or youth in the school in which\nenrollment is sought pending final resolution of the dispute over the\nschool district's final determination of the child's or youth's homeless\nstatus, including all available appeals within the local educational\nagency and the commissioner pursuant to the provisions of section three\nhundred ten of this chapter.\n 6. a. By January thirty-first, nineteen hundred ninety-five, the\ncommissioner, the commissioner of the office of temporary and disability\nassistance and the commissioner of the office of children and family\nservices shall develop a plan to ensure coordination and access to\neducation for homeless children and shall annually review such plan.\n b. The commissioner shall periodically monitor local school districts\nto ensure their compliance with the provisions of this article, and that\nsuch districts review and revise any local regulations, policies, or\npractices that may act as barriers to the enrollment or attendance of\nhomeless children in school or their receipt of comparable services as\ndefined in Part B of Title VII of the Federal Stewart B. McKinney Act.\n c. School districts shall periodically report such information to the\ncommissioner as he or she may require to carry out the purposes of this\nsection.\n 7. Public welfare officials, except as otherwise provided by law,\nshall furnish indigent children with suitable clothing, shoes, books,\nfood, transportation and other necessaries to enable them to attend upon\ninstruction as required by law. Upon demonstration of need, such\nnecessaries shall also include transportation of indigent children for\nthe purposes of evaluations pursuant to section forty-four hundred ten\nof this chapter and title II-A of article twenty-five of the public\nhealth law.\n 8. Information about a homeless child's or youth's living situation\nshall be treated as a student educational record, and shall not be\ndeemed to be directory information, under the McKinney-Vento Homeless\nAssistance Act, as amended by the Every Student Succeeds Act of 2015.\n 9. Each homeless child to be assisted under this section shall be\nprovided services comparable to services offered to other students in\nthe school selected under this section, including the following:\ntransportation services; educational services for which the child or\nyouth meets the eligibility criteria, such as services provided under\nTitle I of the Elementary and Secondary Education Act of 1965 or similar\nstate or local programs; educational programs for children with\ndisabilities; educational programs for English learners; programs in\ncareer and technical education; programs for gifted and talented\nstudents; and school nutrition programs.\n 10. The commissioner may promulgate regulations to carry out the\npurposes of this section.\n