at Advocates for Children
151 West 30th Street
New York, NY 10001
PLEASE NOTE: In some cases, certain information on this page may not be current.
Important changes related to McKinney-Vento were included in the Every Student Succeeds Act of 2015 (ESSA). The changes went into effect October 1, 2016, and include: expanded transportation protections until the end of the school year for temporarily housed students who move into permanent housing, the inclusion of preschool in the definition of "school of origin" (children can stay in their school of origin and receive transportation to that school), and changes to the dispute resolution process which include the provision of all McKinney-Vento related services (for example, continued enrollment and transportation) until a final decision is issued. For more information about ESSA changes to the McKinney-Vento Act, see the State Education Department's Field Memo regarding Implementation of Changes to McKinney-Vento Homeless Act as a Result of Passage of Every Student Succeeds Act.
Please continue to check here for updated information about how new laws will impact policies and procedures in New York State, and as always, feel free to contact NYS-TEACHS at 800-388-2014 with any questions you may have.
The McKinney-Vento Homeless Assistance Act is a federal law that entitles children who are homeless to a free, appropriate public education, and requires schools to remove barriers to their enrollment, attendance, and success in school. The purpose of the McKinney-Vento Act is to promote school continuity for children who are experiencing instability with their housing. 42 U.S.C. § 11431.
Children and youth should be considered homeless for the purposes of the McKinney-Vento Act when they:
- Are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; or are abandoned in hospitals;
- have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 103(a)(2)(C));
- are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and
- are migratory children (as such term is defined in section 1309 of the Elementary and Secondary Education Act of 1965) who qualify as homeless for the purposes of this subtitle because the children are living in circumstances described in clauses (i) through (iii).
42 U.S.C. § 11434A (2)(B).
Under what circumstances should a student be designated homeless?
A student should be designated homeless if she lacks a fixed, adequate and regular nighttime residence. 42 U.S.C. § 11434A (2)(A).
What does "fixed, regular and adequate" mean?
- Fixed residence: one that is stationary, permanent, and not subject to change.
- Normal, standard; constituted, conducted, or done in conformity with established or prescribed usages, rules, or discipline; and recurring, attending, or functioning at fixed or uniform intervals. (Merriam-Webster's Collegiate Dictionary)
- Regular residence: one which is used on a regular (e.g., nightly) basis.
- Habitual: by habit; constant, customary, accustomed, usual; common; ordinary; regular; familiar. (Ballentine's Law Dictionary)
- Fully sufficient; equal to what is required; and lawfully and reasonably sufficient. (Ballentine's Law Dictionary)
- Adequate residence: one that is sufficient for meeting both the physical and psychological needs typically met in home environments.
What is a "doubled-up" living situation?
Oftentimes, students live in temporary housing situations with relatives, friends, or other individuals because of a loss of housing or economic hardship. Unaccompanied youth (students who are not in the physical custody of a parent or legal guardian) often find themselves living in doubled-up situations. These students should be designated as homeless under the McKinney-Vento Act.
If a student is placed in what the Department of Social Services (DSS) considers "permanent" housing, can the student still qualify for protection under the McKinney-Vento Act?
Sometimes, it depends on the nature of the housing arrangement, i.e. whether it is fixed, adequate and regular. DSS has a more narrow definition of homelessness than does the McKinney-Vento Act for the purpose of providing shelter eligibility. For example, families in doubled up situations are often not considered homeless for DSS purposes, but students in doubled up housing should still be designated as homeless under the McKinney-Vento Act.
Are children in foster care covered under the McKinney-Vento Act?
A child in foster care is not considered homeless. However, until changes to the definition of homelessness under the McKinney-Vento Act go into effect on December 10, 2016, children who are "awaiting foster care placement" are considered homeless. 42 U.S.C. § 11434a (2)(B)(i); N.Y. Educ. Law § 3209(a)(3); 8 N.Y.C.R.R. § 100.2(x)(1)(i)(a)(4).
Are preschoolers eligible for protections under the McKinney-Vento Act?
Preschoolers are covered under the McKinney-Vento Act and are entitled to a public preschool education. 42 U.S.C. § 11432(g)(1)(F)(i). If the district offers pre-k services, then these services must also be made available to students in temporary housing. If a student attended preschool prior to a loss of housing, that student is entitled to continue to attend preschool in the school last attended. 42 U.S.C. § 11432(g)(3)(I)(i). If there are no pre-kindergarten classes in the district, every effort should be made to find an appropriate placement for the children whose parents request pre-kindergarten classes. NYC has undertaken initiatives to expand preschool access to all. NYC Chancellor's Regulations A-780(II).
Are migrant students covered under the McKinney-Vento Act?
Many migrant children and youth, because of frequent moves, are likely to fit the definition of homeless under the McKinney-Vento Act. Migrant students who meet the definition of homelessness should be designated as McKinney-Vento eligible, and share the same rights afforded to other students experiencing homelessness under the Act. 42 U.S.C. § 11434A (2) (B)); N.Y. Educ. Law § 3209(a)(2).
Is transitional housing covered under the McKinney-Vento Act?
Yes. The McKinney-Vento Act specifically applies to children and youth who "are living in emergency or transitional shelters," including transitional housing programs and transitional living programs. 42 U.S.C. § 11434a (2)(B)(i); See also, Bullock v. Board of Education of Montgomery County, Civ. A.DKC 2002-0798 (D. Md.).
Should a school district contact a student's landlord to verify the student's living situation?
No. Schools must treat information about a homeless child's or youth's living situation as a student education record, subject to all the protections of the Family Educational Rights and Privacy Act (FERPA). 42 U.S.C. § 11432(g)(3)(G). If the district does not believe the student to be homeless, they may conduct an investigation after having immediately enrolled the student in school. However, in conducting investigations, districts must be careful not to disclose any personally identifiable information about the student/family unless they have prior written permission from the parent to do so. Sharing personal information from a student's education record not only violates the Family Educational Rights and Privacy Act (FERPA), but could jeopardize the family's living situation. 20 U.S.C. § 1232g; 34 CFR Part 99. For more information about FERPA, please visit the U.S. Department of Education's Forum Guide to The Privacy of Student Information: A Resource for Schools by the National Forum on Education Statistics.
Can a student be covered under the McKinney-Vento Act if her family left their home voluntarily and was not evicted by authorities?
Yes, if as a result of the move the student now lacks a fixed, regular and adequate nighttime residence. For instance, if a family flees due to domestic violence or agrees to vacate an apartment after a landlord threatens them with an eviction.
Is there an age limit to qualify for the protections of the McKinney-Vento Act?
The McKinney-Vento Act covers all school-age children, which in New York State includes all children until they receive their high school diploma, or through the school year in which they turn 21 years old, whichever comes first. N.Y. Educ. Law § 3202; Chancellor's Regulation A-240; See also, School Executive's Bulletin, Office of Elementary, Middle and Secondary Education, New York State Education Department, June 1989.
What are the educational rights and protections of students experiencing homelessness?
Students who are homeless have the right to:
- Go to school, no matter where they live or how long they've lived there. 42 U.S.C. § 11431 (1).
- Choose between the local school where they are living, the school they attended before they lost their housing, or the school where they were last enrolled. 42 U.S.C. § 11432 (g)(3)(A); N.Y. Educ. Law § 3209(2)(a); 8 N.Y.C.R.R. § 100.2(x)(2).
- Enroll and participate in school without proof of residency, immunizations, school records, or other documents normally needed for enrollment. 42 U.S.C. § 11432 (g)(3)(C); N.Y. Educ. Law § 3209(2-a); 8 N.Y.C.R.R. § 100.2(x)(4).
- Receive free transportation to school and to school-related programs for the duration of homelessness and for the remainder of the school year if they move into permanent housing and continue to attend the same school. 42 U.S.C. Sections 11432(g)(1)(J)(iii), 11432 (g)(4)(A), and 11432 (g)(6)(A)(vii); N.Y. Educ. Law § 3209(4); 8 N.Y.C.R.R. § 100.2(x)(6).
- Receive credit for full or partial coursework satisfactorily completed at a prior school. 42 U.S.C. § 11432(g)(1)(F)(ii).
- Receive the same special programs and services, if needed, provided to all other students served in these programs. 42 U.S.C. § 11432 (G)(1)(A) & (F), 11432 (g)(4); N.Y. Educ. Law § 3209(2-a); 8 N.Y.C.R.R. § 100.2(x)(4)(iii).
- Enroll and attend class in the school of their choice, even while the family or youth and school district resolve disagreements about enrollment. 42 U.S.C. § 11432 (g)(3)(E); N.Y. Educ. Law § 3209(2-a); 8 N.Y.C.R.R. § 100.2(x)(7)(ii)..
Do students who have dropped out of school or earned a GED have the right to return to school?
Yes. If a student has dropped out of school or earned a GED, the student can re-enroll in school to earn a high school diploma through the year during which she turns 21 years old or until he or she graduates with a high school diploma, whichever occurs first. N.Y. Educ. Law § 3202(1).
Is there a limit on the amount of time a person can be considered homeless?
No. A youth can be designated as homeless for an unspecified amount of time as long as housing is not fixed, regular, or adequate. Given the limited availability of affordable housing across the state, it is not unusual for a temporarily housed student to be designated as homeless for multiple academic years.
What happens if families who are temporarily housed do not identify as nor consider themselves homeless?
Families and youth who are homeless oftentimes do not identify themselves as such for a variety of reasons. Most families and youth are unaware of the McKinney-Vento Act, and school districts must work to ensure that these individuals are informed about the Act, its eligibility criteria and its protections. Those who are aware of the Act often do not self-identify because of the stigma attached to being homeless. Families and youth in temporary living situations do not have to self-identify as homeless in order to be eligible for protection under the Act. 42 U.S.C. § 11432(g)(6)(A)(i) & 11432(g)(6)(A)(iv).
Must a student be poor to be covered under McKinney-Vento? Are there income eligibility requirements under McKinney-Vento?
No. There are no income eligibility requirements under the McKinney-Vento Act. There are a wide range of reasons under which anyone may lose their housing. All students who lack a fixed, regular, and adequate nighttime residence are considered homeless under the Act.
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11/29/16 Workshop in Albany
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