N.Y. Education Law § 3209: Education of homeless children

§ 3209. Education of homeless children. 1. Definitions.

a. 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

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; or

(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;

(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-1. 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. 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, 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. 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.

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.