EDU-09-08-00010-P Education of Homeless Children and Youth

2/27/08 N.Y. St. Reg. EDU-09-08-00010-P

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 9

February 27, 2008

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-09-08-00010-P

Education of Homeless Children and Youth

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed action:

Amendment of section 100.2(x)(1)(vi) of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101 (not subdivided), 207 (not subdivided), 215 (not subdivided), 305(1) and (2), 3202(1) and (8), 3209(1)(a) and (7) and 3713(1) and (2)

Subject:

Education of homeless children and youth.

Purpose:

To clarify the definition of “unaccompanied youth” in the commissioner's regulations and subtitle B of title VII of the Federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended; and clarify disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E).

Text of proposed rule:

1. Subparagraph (vi) of paragraph (1) of subdivision (x) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective June 12, 2008, as follows:

(vi) unaccompanied youth means a homeless child [for whom no parent or person in parental relation is available] or youth not in the physical custody of a parent or legal guardian. The term unaccompanied youth shall not include a child or youth who is residing with someone other than a parent or legal guardian for the sole reason of taking advantage of the schools of the district.

2. Subparagraph (ii) of paragraph (7) of subdivision (x) of section 100.2 of the Regulations of the Commissioner of Education is amended, effective June 12, 2008, as follows:

(ii) Dispute resolution. 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 (Public Law 107-110, title X, section 1032, 115 STAT. 1998; Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402-9328; 2002; available at the Office of Counsel, State Education Building, Room 148, Albany, NY 12234), 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) …

(c) …

Text of proposed rule and any required statements and analyses may be obtained from:

Anne Marie Koschnick, Legal Assistant, Office of Counsel, Education Department, State Education Bldg., Rm. 148, Albany, NY 12234, [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Johanna Duncan-Poitier, Senior Deputy Commissioner of Education — P16, Education Department, 2M West Wing, Education Bldg., 89 Washington Ave., Albany, NY 12234, [phone], e-mail: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

This action was not under consideration at the time this agency's regulatory agenda was submitted.

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Education Law section 101 continues the existence of the Education Department, with the Board of Regents as its head, and authorizes the Regents to appoint the Commissioner as chief administrative officer of the Department, which is charged with the general management and supervision of public schools and the educational work of the State.

Education Law section 207 authorizes the Regents and Commissioner to adopt rules and regulations implementing State law regarding education.

Education Law section 215 provides the Commissioner with authority to require schools to submit reports containing such information as the Commissioner may prescribe.

Education Law section 305(1) designates the Commissioner as chief executive officer of the State system of education and the Regents, and authorizes the Commissioner to enforce laws relating to the educational system and to execute the Regents' educational policies. Section 305(2) authorizes the Commissioner to have general supervision over schools subject to the Education Law.

Education Law section 3202(1) specifies the school district of residence as the school district in which children residing in New York State are entitled to attend school without the payment of tuition. That section is intended to assure that each child residing within the State is able to attend school on a tuition-free basis in accordance with Article XI, section 1 of the New York State Constitution. Moreover, it is the policy of the Legislature, as expressed in Education Law section 3205(1) to require instruction for each child of compulsory school age within the State.

Education law section 3202(8) provides that a homeless child, as defined in Education Law section 3209(1), over the age of five and under twenty-one years of age, who has not received a high school diploma, shall be entitled to attend a public school without the payment of tuition, in accordance with the provisions of Education Law section 3209.

Education Law section 3209 sets forth requirements for the education of homeless children. Subdivision (7) of section 3209 authorizes the Commissioner to promulgate regulations to carry out the provisions of the statute.

Education Law section 3713(1) and (2) authorizes the State and school districts to accept federal law making appropriations for educational purposes and authorizes the Commissioner to cooperate with federal agencies to implement such law.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the authority conferred by the above statutes, and is necessary to clarify the definition of an unaccompanied youth in the Commissioner's Regulations and the federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E).

3. NEEDS AND BENEFITS:

The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and Subtitle B of Title VII of the federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended, in order to resolve concerns among school districts as to when a student should be considered a homeless unaccompanied youth under State and federal law. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). The State and school districts are required to comply with the requirements of the McKinney-Vento Act as a condition to their receipt of federal funds.

4. COSTS:

Cost to the State: None. The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and the federal McKinney-Vento Act, as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E).

The State is required to comply with federal statutes as a condition to its receipt of federal funding. The proposed amendment will not impose any costs on the State beyond those imposed by State and federal statutes.

Costs to local government: None. The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and the federal McKinney-Vento Act, as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). School districts and other local educational agencies are required to comply with federal statutes as a condition to their receipt of federal funding. The proposed amendment will not impose any costs on school districts beyond those imposed by State and federal statutes.

Cost to private regulated parties: None. The proposed amendment applies to school districts and does not impose any costs or compliance requirements on private parties.

Cost to regulating agency for implementation and continued administration of this rule: None. The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and the federal McKinney-Vento Act, as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). The State is required to comply with these federal statutes as a condition to its receipt of federal funding. The proposed amendment will not impose any additional costs on the Department beyond those imposed by State and federal statutes.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and the federal McKinney-Vento Act, as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). The proposed amendment will not impose any additional program, service, duty or responsibility beyond those imposed by State and federal statutes.

6. PAPERWORK:

The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and the federal McKinney-Vento Act, as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). The proposed amendment will not impose any additional recordkeeping or other paperwork requirements.

7. DUPLICATION:

The proposed amendment does not duplicate, overlap or conflict with State and federal rules or requirements, and is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and the federal McKinney-Vento Act. (42 U.S.C. sections 11431 et seq.), as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E).

8. ALTERNATIVES:

There were no significant alternatives and none were considered. The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and the federal McKinney-Vento Act. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E).

9. FEDERAL STANDARDS:

The proposed amendment does not exceed any minimum standards of the federal government for the same or similar subject areas. The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and the federal McKinney-Vento Act. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E).

10. COMPLIANCE SCHEDULE:

It is anticipated that regulated parties will be able to achieve compliance with the provisions of the proposed amendment by its effective date. The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and the federal McKinney-Vento Act. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). The proposed amendment does not impose any compliance requirements beyond those required by State and federal statutes.

Regulatory Flexibility Analysis

Small businesses:

The proposed rule applies to school districts and relates to the education of homeless children and youth. The proposed rule does not impose any economic impact, or other compliance requirements on small businesses. Because it is evident from the nature of the proposed rule that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local government:

EFFECT OF RULE:

The proposed amendment is applicable to all public school districts in the State.

COMPLIANCE REQUIREMENTS:

The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and Subtitle B of Title VII of the federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended, in order to resolve concerns among school districts as to when a student should be considered a homeless unaccompanied youth under State and federal law. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). The proposed amendment will not impose any additional reporting, recordkeeping or other compliance requirements on school districts beyond those imposed by State and federal statutes.

PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional professional services requirements on school districts.

COMPLIANCE COSTS:

The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and Subtitle B of Title VII of the federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). The proposed amendment will not impose any costs on school districts beyond those imposed by State and federal statutes.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any new technological requirements or costs on school districts.

MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and Subtitle B of Title VII of the federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). School districts are required to comply with the requirements of the McKinney-Vento Act as a condition to their receipt of federal funding The proposed amendment does not impose any additional reporting, recordkeeping or other compliance requirements, or costs, on school districts beyond those imposed by Federal and State statutes.

SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed amendment were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.

Copies of the proposed rule were also provided to the State Committee of Practitioners (COP), which consists of teachers, parents, district and building-level administrators, members of local school boards, and pupil personnel services staff, who are representative of all constituencies from various geographical locations across the State. The COP includes teachers and paraprofessionals from around the State representing a variety of grade levels and subject areas, directors of teacher-preparation institutions, officials and educators representing the New York City Board of Education, several other urban and rural school systems, nonpublic schools, parent advocacy groups, teacher union representatives and community-based organizations.

Copies of the proposed rule were also provided to the Homeless Advisory Committee (HAC) which consists of liaisons for homeless students from BOCES and school districts from various geographical locations; staff from the NYS-TEACHS (technical assistance center for homeless students); representatives from NYCDOE that oversee the homeless education program; representatives from Head Start, VESID, Office of Children and Family Services (OCFS); Department of Social Services (DSS); NYC Domestic Violence & Emergency Intervention Services; NYC Early Intervention Program; NYC Dept. of Homeless Services; NYC Dept. of Youth and Community Development; The Partnership for the Homeless; NYC Administration for Children's Services; HRA — Dept. of Social Services; and NYS PTA. The HAC includes professionals from around the State representing a variety of school district liaisons for homeless students, officials and educators representing the New York City Board of Education, parent advocacy groups, agencies and community-based organizations that represent homeless students and/or their families.

Rural Area Flexibility Analysis

TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to each school district in the State, including those located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and Subtitle B of Title VII of the federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended, in order to resolve concerns among school districts as to when a student should be considered a homeless unaccompanied youth under State and federal law. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). The proposed amendment will not impose any additional reporting, recordkeeping or other compliance requirements on school districts in rural areas beyond those imposed by State and federal statutes.

The proposed amendment does not impose any additional professional services requirements on school districts in rural areas.

COSTS:

The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and Subtitle B of Title VII of the federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). School districts are required to comply with the requirements of the McKinney-Vento Act as a condition to their receipt of federal funding. The proposed amendment will not impose any costs school districts in rural areas beyond those imposed by State and federal statutes.

MINIMIZING ADVERSE IMPACT:

The proposed amendment is necessary to clarify the definition of “unaccompanied youth” in the Commissioner's Regulations and Subtitle B of Title VII of the federal McKinney-Vento Homeless Education Assistance Act (42 U.S.C. sections 11431 et seq.), as amended. The proposed amendment also clarifies that disputes regarding transportation or a child's status as a homeless child or unaccompanied youth are includable as disputes that are subject to prompt resolution procedures in accordance with 42 U.S.C. section 11432(g)(3)(E). School districts are required to comply with the requirements of the McKinney-Vento Act as a condition to their receipt of federal funding The proposed amendment does not impose any additional reporting, recordkeeping or other compliance requirements, or costs, on school districts beyond those imposed by Federal and State statutes. Since these requirements apply to school districts across the State, it was not possible to exempt, or provide a lesser standard for, school districts in rural areas. The proposed amendment will not impose any additional compliance requirements or costs beyond those imposed by State and federal statutes.

RURAL AREA PARTICIPATION:

Comments on the proposed amendment were solicited from the Department's Rural Advisory Committee, whose membership includes school districts located in rural areas, and from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.

Copies of the proposed rule were also provided to the State Committee of Practitioners (COP), which consists of teachers, parents, district and building-level administrators, members of local school boards, and pupil personnel services staff, who are representative of all constituencies from various geographical locations across the State. The COP includes teachers and paraprofessionals from around the State representing a variety of grade levels and subject areas, directors of teacher-preparation institutions, officials and educators representing the New York City Board of Education, several other urban and rural school systems, nonpublic schools, parent advocacy groups, teacher union representatives and community-based organizations.

Copies of the proposed rule were also provided to the Homeless Advisory Committee (HAC) which consists of liaisons for homeless students from BOCES and school districts from various geographical locations; staff from the NYS-TEACHS (technical assistance center for homeless students); representatives from NYCDOE that oversee the homeless education program; representatives from Head Start, VESID, Office of Children and Family Services (OCFS); Department of Social Services (DSS); NYC Domestic Violence & Emergency Intervention Services; NYC Early Intervention Program; NYC Dept. of Homeless Services; NYC Dept. of Youth and Community Development; The Partnership for the Homeless; NYC Administration for Children's Services; HRA — Dept. of Social Services; NYS PTA. The HAC includes professionals from around the State representing a variety of school district liaisons for homeless students, officials and educators representing the New York City Board of Education, parent advocacy groups, agencies and community-based organizations that represent homeless students and/or their families.

Job Impact Statement

The proposed amendment applies to school districts and relates to the education of homeless children and youths. The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.