Tale from the Field: Ensuring McKinney-Vento Rights when Guardianship Changes

Many of our helpline calls are used to determine eligibility.  Unique situations can make determining whether a student is eligible for the 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 called the helpline seeking support in determining eligibility and school selection for a 9th-grade special-education student who had previously attended an out-of-district BOCES placement through her former District of Origin.

Until mid-April 2025, this student’s great-aunt and uncle had been her primary custodial guardians. She attended the District of Origin from 1st grade through 9th grade and lived in permanent housing with her great-aunt and uncle.

Over Spring Break in April, her great-aunt and uncle disenrolled her from the District of Origin when the student’s biological mother became her primary custodial guardian.

The 9th-grader now lives with her mom in a neighboring district with the student’s grandmother (Mom's mom) in a house that is undergoing renovation. The student and her mother can remain doubled-up with the grandmother until June, at which point they are unsure of where they will live.

Questions to Consider:

1. Is this student McKinney-Vento eligible?

2. What are her school selection options?

3. Can the student return to her BOCES program?

4. Can the District of Origin deny re-enrollment since her former guardian disenrolled her?

5. Can the student/family change their mind after they’ve made a decision about school selection?

Answers:

1. While she is currently living with her mom, the student experienced a loss of permanent housing as she had lived with guardians, her great-aunt and uncle, for many years. In addition, the student and her mom are living in temporary housing, doubled up with her grandmother in a home that's under construction.

The law considers students who lack a nighttime residence that is fixed, regular, and adequate to be homeless. [42 U.S.C. §11434a(2)(A); Education Law § 3209(1)]. Education Law § 3209(1)(a)(iv)]. The definition of homeless is “lacking a fixed, regular and adequate nighttime residence.” That means regardless of any other factors if a residence is lacking in any ONE of those three conditions, the student is homeless. 

• A “fixed residence” is one that is stationary, permanent, and not subject to change. For example: a tent is not "fixed," but a house or an apartment are usually fixed to the ground. 

• A “regular residence” is a place that a student can return to consistently and count on, night after night. Example: If the family has a lease or they own their own home, the housing is usually "regular," but if the students are staying in someone else's home with the host's permission, the housing may not be regular.

• An “adequate residence” is one that is sufficient for meeting both the physical and psychological needs that are typically met in home environments. For example: A home without heat, running water, or with an infestation may not be adequate.

In this situation, the home is not considered "regular" as they could be asked to leave at any time and have no legal recourse to live there.  In addition, due to the construction, the adequacy of the home could be in question.  Based on this information, the student qualifies as McKinney-Vento eligible.

2. The McKinney-Vento Act presumes that keeping students in their school of origin is in the best interest of the student.  The provision of school selection provides choices to the family. Therefore, a student in temporary housing has the right to choose between their school district of current location (the i.e., the school where their temporary living arrangement is located) and their school of origin. 42 U.S.C. § 11432(g)(3)(A); N.Y. Education Law § 3209(2)(a). The school of origin can be defined as:

   • The public school the student attended when last permanently housed

   • The school where the student was last enrolled, or

   • The school where the student would have been entitled or eligible to attend based on his or her last residence before losing housing. N.Y. Education Law § 3209(1)(c).

This student has the legal right to enroll in either the District of Origin or the District of Current Location.

3. As a courtesy, the BOCES program she attended offered to hold her spot for 30 days, should she be able to return.

Her IEP outlines specific programming needs and her school of attendance will need to meet those needs through comparable programming.  Should the school she attends contract with the same BOCES program, she can return.  However, if they don’t, they are obligated to provide a “comparable” program to meet her needs. The district must convene a CSE meeting within 60 days of enrollment.

4. If a student is identified as McKinney-Vento after leaving a district, or being disenrolled by a family member or guardian, student rights for school selection remain.

While a unique situation, the District of Origin is within the student’s McKinney-Vento rights even if they were not identified as McKinney-Vento prior to being disenrolled.

5. Students in temporary housing have the option to change their school selection at any time during a 60-day grace period or until the end of the semester, whichever date arrives later. To change the student’s school selection, the designator will need to complete a new STAC-202 form. 8 N.Y.C.R.R. § 100.2(x)(2)(vii).

Resources

• NCHE Eligibility Brief 

• NCHE Confirming Eligibility Brief

• NCHE School Selection Brief

• NCHE Guiding the Discussion on School Selection Brief