Tales from the Field: Students with IEPs

Many of our helpline calls involve cases with students who have disabilities with an Individualized Educational Plan (IEP) and special class placements. The role of the district liaison is to work collaboratively with the special education office to assist the family with enrollment, school selection, and transfer of school records (including the IEP) if it is in the best interest of the student. Often times, liaisons are not aware of the variety of options available for students with special needs. This tale is based on several calls we’ve fielded in the past month.

The Tale: A family with three children was permanently housed in a district in the western region of NY when they lost their housing due to job loss and moved into a temporary shelter in the neighboring district. One of the children is a student with a disability and has an IEP for a special class placement. Upon enrollment attempt in the new district of current residence, the district told the parents they do not have any special class placement openings that would meet the child’s needs so suggested he remain enrolled in his school of origin. The parents are concerned that an almost 1-hour bus ride would not be in their child’s best interest given his disability.

Questions to ask:

1- Is the Family McKinney-Vento eligible?

2- Can a school district decline enrollment based on lack of special education openings?

3- Who determines best interest for the student with an IEP?

Resources:

1- Review the McKinney-Vento Act and New York State guidance regarding families and McKinney-Vento eligibility. As always, you can find a wealth of resources on eligibility right here on our NYSTEACHS website.

2- After reviewing the rules on eligibility, if you’re still unsure of what to advise, you are absolutely encouraged to call the helpline for assistance: 1-800-388-2014.

Question 1: Is the Family McKinney-Vento eligible?

The McKinney-Vento Act defines “homeless children and youths” as individuals who lack a fixed, regular, and adequate nighttime residence. The term includes children and youths who are: sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason (sometimes referred to as “doubled-up”); living in motels, hotels, trailer parks, or camping grounds due to lack of alternative adequate accommodations; living in emergency or transitional shelters; or abandoned in hospitals; (Education Law §3209(1)(a); 8 NYCRR §100.2(x)(1); see also 42 USC §11434A(2)(B)(i); U.S. DOE’s Non-Regulatory Guidance, Question A-2,)

Answer: Yes, Based on the family living in temporary housing in a shelter, this family is McKinney-Vento eligible.

Question 2: Can a school district decline enrollment based on lack of special education openings?

1. 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-

2. 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).

Answer: No, a school district may not decline to accept a student with special needs based on having an IEP. The district must convene a Committee on Special Education (CSE) meeting – or if the child is a preschooler, then the Committee on Preschool Special Education (CPSE)- to determine the best placement decision for the student based on his/her present levels of performance and needs for accommodations and modifications as well. Children with IEPs may not be excluded from enrollment based on availability of seats in a special program. Districts must work with the CSE/CPSE, BOCES and private providers to secure an appropriate placement to meet his/her needs. If an appropriate placement is full, the district may apply to NYSED for a waiver to overenroll by one student given the student's homelessness and need for special program, those children will receive priority. Districts may reach out to the Special Education Quality Assurance (SEQA) representative at NYSED for assistance if needed.

Question 3: Who determines best interest for the student with an IEP?

Factors that an LEA may consider when determining the best interest of a child include: • the age of the child or youth, • the distance of the commute to and from the school of origin and its impact on the student’s education, • personal safety issues, • the student’s need for special instruction (e.g., special education and related services), • the anticipated length of stay in a temporary shelter or other temporary location, and • the time remaining in the school year.

The concept of best interest appears in the McKinney-Vento Homeless Assistance Act in relation to a student's school selection options, which include the school of origin and the local attendance area school. The law states the following:

(B) SCHOOL STABILITY.-In determining the best interest of the child or youth under subparagraph (A), the local educational agency shall-

(i) presume that keeping the 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 or youth's parent or guardian, or (in the case of an unaccompanied youth) the youth;

(ii) consider student-centered factors related to the child's or youth's best interest, including factors related to the impact of mobility on achievement, education, health, and safety of homeless children and youth, giving priority to the request of the child's or youth's parent or guardian or (in the case of an unaccompanied youth) the youth;

(iii) if, after conducting the best interest determination based on consideration of the presumption in clause (i) and the student-centered factors in clause (ii), the local educational agency determines that it is not in the child's or youth's best interest to attend the school of origin or the school requested by the parent or guardian, or (in the case of an unaccompanied youth) the youth, provide the child's or youth's parent or guardian or the unaccompanied youth with a written explanation of the reasons for its determination, in a manner and form understandable to such parent, guardian, or unaccompanied youth, including information regarding the right to appeal under subparagraph (E); and

(iv) in the case of an unaccompanied youth, ensure that the local educational agency liaison designated under paragraph (1)(J)(ii) assists in placement or enrollment decisions under this subparagraph, gives priority to the views of such unaccompanied youth, and provides notice to such youth of the right to appeal under subparagraph (E).

McKinney-Vento Homeless Assistance Act, (Pub. L. No. 114-95, § 9102(5), 129 Stat. 2129).

In NYS the Commissioner of Education has stipulated that there is a 50 mile limit Ed Law 32094.c.

https://www.nysteachs.org/nys-ed-law-3209

Ed Law 3209 states that 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.

Answer: The district liaison, family and CSE/CPSE must convene and discuss the best interest and options for a student with a disability who has an IEP. Oftentimes a student may need amendments to the IEP including more supports or services if the exact placement is not identical. The committee can reconvene at intervals to determine if the IEP is appropriate to meet the student's needs at any time. This is an area of McKinney-Vento where cooperation within the district (MV Liaison and Special Ed Director) and between districts is essential to ensure a temporarily housed child's special education needs are met.