NY Educ L § 3209 (2021)
2021 New York Laws EDN - Education Title 4 - Teachers and Pupils Article 65 - Compulsory Education and School Census Part 1 - Compulsory Education 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.   * NB Effective until June 30, 2022   * a.  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.   * NB Effective June 30, 2022   * 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.   * NB Effective until June 30, 2022   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.   * NB Repealed June 30, 2022   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.