Many of our helpline calls are used to determine initial eligibility. Unique situations can make determining whether a student is eligible for McKinney-Vento designation difficult. The NYS TEACHS Helpline supports district liaisons in determining eligibility for students in unique circumstances and considers each situation on a case-by-case basis. Please call the Helpline at 800-388-2014 for assistance in eligibility determinations.
The Tale
A District Liaison called and described a scenario in which a 10th-grade student with a disability has left her mother's physical custody and is now staying with her aunt in another district. This student is considered an Unaccompanied Homeless Youth, and the aunt and student have expressed their desire to pursue enrollment in the district of her current location due to reduced travel time.
The District Liaison expressed concerns that the mother is demanding a meeting with the school district. She wants to know where the child is and wants her to stay in the area.
Questions to Consider:
What makes the student an Unaccompanied Homeless Youth (UHY)?
If the mother wishes for the student to return home, and she has a place to stay, is the student still considered a UHY?
Is the district responsible for telling the mother where the student is residing?
Does the parent continue to retain parental rights?
This student has an IEP. What does the new school need to do to ensure the student has access to all IEP services?
What is a “Surrogate Parent?”
What can the new district do to ensure they have a guardianship document on file?
What if the new school district does not agree with the reason the student is living with her aunt? Can they investigate or deny UHY?
Answers:
An unaccompanied youth is a student who is not in the physical custody of their parent or legal guardian; this includes young people who have run away from home, have been kicked out of their homes, or have been abandoned by their parents. There is no age limit for unaccompanied youth, but these students are most often in their teens.
Unaccompanied youth are protected under the McKinney-Vento Act when the student does not have a fixed, adequate, and regular nighttime residence. 42 U.S.C. § 11434a(2) When aware, school district McKinney-Vento liaisons must make an extra effort to help connect unaccompanied youth with the support and services they may need. 42 U.S.C. § 11432(g)(6)(A)(iv).
In this scenario, the student is not living in the custody of a parent or legal guardian, but with her aunt. While the aunt is a family member, she has no legal custody of the student. When a student lives with someone without legal custody, this can often be viewed as lacking “regular nighttime residence” as the student could be asked to leave at any time. For these reasons, the student is considered a UHY and MV-eligible.
Even if a student’s parent says that they may return home, the student could still be an unaccompanied homeless youth. Determinations of UHY and MV eligibility are based solely on the definition of an unaccompanied homeless youth. If the student is living with the aunt (or not with a parent/legal guardian), whether the parents invite the student home or not, she can be considered UHY and McKinney-Vento eligible.
A child/youth's temporary housing address is protected under FERPA and should not be disclosed.
Yes, parental rights remain in effect until the youth turns 18 years old. Parents can access educational records and otherwise be involved with the student’s education.
Please refer to this Guidance from the Family Policy Compliance Office (FPCO) at the U.S. Department of Education, “Family Educational Rights and Privacy Act (FERPA) and the Disclosure of Student Information Related to Emergencies and Disasters,” includes information that can help unaccompanied youth and their caregivers in accessing student educational records.
For students in temporary housing and receiving special education services, the law says:
Students with an IEP who are homeless have the same options as other students experiencing homelessness: the student can stay in their same school (also known as the school of origin) or can transfer to a local school (a school zoned for where the student is temporarily housed). 42 U.S.C. § 1414(d)(2)(c)(i). and-
Students in temporary housing have the same right to special education services as permanently housed students in the school district. The McKinney-Vento Act and the Individuals with Disabilities Education Act (IDEA) work together to make sure that students in temporary housing with disabilities have their needs met. 42 U.S.C. § 11432(g)(5)(D); 20 U.S.C. § 1401(29).
In this case, the UHY may decide what district- School of Origin or School of Current Location– may provide services. If it is in the best interest of the student to maintain enrollment in the school of origin – then they would transport the student to services/programs and keep the IEP that they had developed. If it is in the best interest of the student to attend the current location school district, then they would convene a CSE meeting and provide services/programs in the IEP as close as possible and as soon as possible (within 60 days) as they prepare a new IEP. The school may determine the best way to provide services and if an alternative or BOCES program will best meet the needs of the student.
In the case of this student, they’ve decided to enroll in the district of current location as she is living with her aunt. The new district would enroll this student and convene a CSE meeting within 60 days. The student’s mom needs to be informed and invited to the meeting and the youth can choose to appoint someone as a surrogate parent.
IDEA’s surrogate parent provisions for unaccompanied youth help protect these students’ rights and provide the school district with an appropriate adult with whom to communicate about evaluations and services.
The school district must appoint a person to serve as a “surrogate parent” for students who do not have someone to act as a parent on matters related to special education. 20 U.S.C. § 1415(b)(2)(A)(ii). Surrogate parents cannot be employees of the school district or any agency caring for the student (like the department of social service caseworkers). Surrogate parents cannot have a conflict of interest with the student and must have the knowledge and skills to represent the student. Please note that the definition of a parent in the Individuals with Disabilities Education Act (IDEA) is very broad and includes a foster parent or other individuals with whom the student lives. 20 U.S.C. § 1401(23). School districts must keep a list of available surrogate parents in the school district. N.Y.C.R.R. § 200.5(n)(1).
NAECHY put this together: Surrogate Parents and Unaccompanied Homeless Youth under the Individuals with Disabilities Education Act to help school districts ensure that unaccompanied youth who are homeless and who have disabilities can access special education services.
The McKinney-Vento Act requires schools to enroll students experiencing homelessness immediately, even if the student is unable to provide documents that are typically required for enrollment, such as previous academic records, records of immunization and other required health records, proof of residency, or other documentation. 42 U.S.C. §11432(g)(3)(C). Guardianship papers are not required.
ESSA amended the McKinney-Vento Act to require school districts to “give priority to” the wishes of an unaccompanied youth. 42 U.S.C. § 11432(g)(3)(B)(iv). Prior to ESSA, the law said to “consider” the wishes of the youth. The change is significant, as it clarifies that, for unaccompanied youth, the school must follow the youth’s placement wishes, limited only by the best-interest determination made by the school. If the school district makes a determination contrary to the youth’s wishes, the youth must be given the opportunity to appeal the decision. This applies when a youth wants to enroll in a school/district, and the parent wants the youth in a different school/district.
In this particular scenario, the aunt’s school district would need to enroll this student immediately, even if they are waiting on documents typical of an enrollment, such as an IEP. They would then follow up with the necessary documentation after the student has been enrolled. The district may also need to hold a CSE meeting once the student is enrolled. In addition, they should consider using the caregiver authorization form to identify the aunt as the current caregiver.
School districts may develop a Caregiver Authorization form that establishes the responsibilities of caregivers and requests caregivers’ contact information in place of traditional proof of guardianship for unaccompanied youth. This form is not required but it may be helpful to schools and students. Such forms should be carefully created to avoid barriers to a student’s full participation in school and should never lead to delays in enrollment because unaccompanied youth are entitled to immediate enrollment under the McKinney-Vento Act. 42 U.S.C. § 11432(g)(3)(C).
If the student has a Surrogate Parent (likely the aunt in this case), then the Surrogate Parent's contact information will be on file as well.
The McKinney-Vento Act neither authorizes nor requires school districts to make judgments about the validity of why a student is not living with a parent or a legal guardian. Determinations of MV eligibility are based solely on the definition of an unaccompanied homeless youth.
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