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When Two Laws Go Walking:IDEA and McKinney-Vento

Serving Students With Disabilities Experiencing

HomelessnessNAEHCY Annual Conference

November 2013Patricia Ann Popp, Ph.D.

Project HOPE-Virginiapxpopp@wm.edu

Special acknowledgement to Patricia JulianelleLegal Director, NAEHCY

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Mariela was living in School District A, which placed her in a nonpublic school pursuant to her IEP. She lost her housing and is staying

temporarily in School District B.

1. Is the nonpublic school Mariela’s school of origin under the McKinney-Vento Act?

2. How do we determine if remaining in the nonpublic school is in her best interest?

3. How does the IDEA requirement to educate Mariela in the least restrictive environment influence the determination?

4. If Mariela remains in her school of origin, which school district pays for her education?

5. Which district pays for her transportation? And with IDEA, McKinney-Vento, or district general funds?

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The Intersection of MV & IDEA

IDEA McKinney-VentoThis student is homeless: MV should take the lead

This student has an IEP: IDEA should take the lead

Who pays? Who pays?

No IEP from our LEA, no services (?)

Immediate enrollment without documents

Placement determined by IEP team

School of origin

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Scenario 1: Who Takes the Lead?

The Law MV takes the lead for rights and services

related to homelessness IDEA takes the lead for rights and

services related to a disability Beyond that, federal law does not assign

responsibility Practically, collaboration is essential

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Who Takes the Lead?The Practice

State level communication and collaboration State Advisory Panel (Part B) State Interagency Coordinating Council

(Part C) Informal meetings with colleagues

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Who Takes the Lead?The Practice

Gateways to collaboration: Compliance issues *Child find (1412(a)(3)(A), 1435; 300.103)

Cross-training Joint TA

http://www.k12.wa.us/HomelessEd/pubdocs/BriefFinal.pdf

*Virginia EC Example: MV-Head Start+ Task Force

First Mailing: Modified ParentPak

for young children Bookmarks Developmental

Wheels Description of State

EI and EC programs Children’s Books

To: EI ECSE Head Start Virginia Preschool

Initiative MV liaisons Shelters

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Who Takes the Lead?The Practice

Recent question: Can special education buses be used to transport homeless students without IEPs? Federal law does not prohibit IDEA funds may not pay for seats occupied

by students for whom transportation is not a related service per the IEP

State policies may address reimbursement via Medicaid or other funds

OSEP Dear Colleague Letter to NCHEAugust 5, 2013

IDEA funds to transport SWD experiencing homelessness to school of origin? Yes, IF specialized transportation in IEP

Can SWOD use special ed. transportation? Incidental benefit allowed

Remaining in school of origin and LRE? SOO does not constitute a change of

placement When SWD moves to new LEA, who

is responsible for FAPE? State responsibility to determine

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Scenario 2: Who Pays?

The Law IDEA: the LEA that develops the IEP and

makes the placement pays for tuition (and transportation, if it is a related services on the IEP) *possible exception?

MV does not assign fiscal responsibility for tuition…

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Scenario 2: Who Pays?

The Law (cont.) However, when students remain in the

school of origin but are staying in another district:Tuition: neither IDEA nor MV assign fiscal

responsibility. USDE Guidance: SEA must decide (E-2)

Transportation: IDEA silent MV districts must split cost 50/50 in absence of

another agreement or policy

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Who Pays?The Practice

Check your state policies: Ask your IDEA colleagues what policies exist on: Paying for out-of-district placements Paying for transportation Resolving inter-district disputes

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Who Pays?The Practice

Develop state policies. Formal or informal Mutually-agreed upon Deal with school of origin, tuition and

transportation Deal with MV funds vs. IDEA funds Deal with inter-district disputes Consult your IDEA colleagues on sticky

issues on an on-going basis See sample draft policy

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Scenario 3: Immediate Enrollment

The Law: McKinney-Vento Immediate enrollment With or without documents With or without parent/guardian Attending classes and participating fully in

school activities

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Scenario 3: Immediate Enrollment

The Law: IDEA– students w/ IEPs If IEP is current, new LEA must

immediately provide appropriate services. 1414(d)(2)(C)(i); 300.323(e)

Appropriate means “services comparable to those described” in the previous IEP, in consultation with parents.

1414(d)(2)(C)(i);

300.323(e)

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Scenario 3: Immediate Enrollment

The Law: IDEA– students w/ IEPs (cont.) New LEA must promptly obtain child’s

records from previous school, and previous school must promptly respond to records requests

New LEA can adopt old IEP or develop new one

1414(d)(2)(C); 300.323(e),(g)

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Scenario 3: Immediate Enrollment The Law: IDEA– students in evaluation process

Clock continues when students change LEAs, unless

(i) the new LEA is “making sufficient progress to ensure a prompt completion of evaluations,” AND

(ii) “the parent and the LEA agree to a specific time when the evaluation will be completed.” 1414(a)(1)(C)(ii); 300.301(d)(2)

Also, schools must coordinate with prior schools “as necessary and as expeditiously as possible to ensure prompt completion of full evaluations.”

1414(b)(3)(D); 300.304(c)(5)

OSEP Guidance Letter 7-19-13Highly Mobile Children

Timely and expedited evaluations Expedited timelines encourages (e.g., within 30

days) Eval. timeline continues when student changes LEA If evaluation has begun, CANNOT delay to

implement RTI Comparable services, ESY

Extended school year is part of IEP; therefore must provide if child changes school division as a comparable service

In-state and out-of-state transfer rules apply

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Immediate Enrollment:The Practice

Anticipate mobility Inter-district communication Rapid records transfer Talk with parents and youth Interim IEPs Work with SEA special education

colleagues to develop procedures

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Scenario 4: School of origin vs. IDEA placement

The Law. MV: keep students stable in the school

of origin, as long as it is in the child’s best interest (Special education needs are best interest factors)

IDEA: special education placements must be “as close as possible to the child’s home, unless the parent agrees otherwise” and must be in the least restrictive environment LRE

300.116

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School of origin vs. IDEA placementThe Practice

Which school is in the child’s best interest?

Consultation on local level (liaison invited to IEP meetings; IEP team members consulted on best interest determinations)

Payment for transportation: is it a related service on the IEP?

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And keep in mind…

IDEA now specifically defines “homeless children” to include all children and youth considered homeless by McKinney-Vento.

1402(11); 300.19

Any state receiving IDEA funds must comply with the McKinney-Vento Act for all children with disabilities who are homeless.

1412(a)(11)(A)(iii); 300.149(a)(3)

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Mariela was living in School District A, which placed her in a nonpublic school pursuant to her IEP. She lost her housing and is staying

temporarily in School District B.

1. Is the nonpublic school Mariela’s school of origin under the McKinney-Vento Act?

2. How do we determine if remaining in the nonpublic school is in her best interest?

3. How does the IDEA requirement to educate Mariela in the least restrictive environment influence the determination?

4. If Mariela remains in her school of origin, which school district pays for her education?

5. Which district pays for her transportation? And with IDEA, McKinney-Vento, or district general funds?

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You Try: The Intersectionof MV and IDEA

Group I: How will you start (or continue) working with your IDEA colleagues?

Group D: How will you get information or develop policies about who pays in the sticky situations in your state?

Group E: What can you do to facilitate immediate enrollment at the local level?

Group A: What can you do to facilitate students with disabilities remaining in their schools of origin?

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Resources NASDSE (www.nasdse.org)

Project FORUM (www.projectforum.org) Project HOPE-VA (www.wm.edu/hope)

Information briefs NAEHCY and NCHE

IDEA overviewhttp://center.serve.org/nche/downloads/briefs/idea.pdf

Implementing IDEA for Homeless Studentshttp://center.serve.org/nche/downloads/briefs/idea_qa.pdf

IDEA/MV Problem-Solving Processhttp://center.serve.org/nche/downloads/briefs/nav_idea_mv.pdf

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Resources (cont’d) NECTAC

http://www.nectac.org/contact/ptccoord.asp Parent Training and Information Centers

(888) 248-0822 CEC (www.cec.sped.org)

CEC Today – March 2003 Free legal resources for students with disabilities

National Disability Rights Network (www.napas.org) Resources for parents of students with disabilities,

from USDE www.ed.gov/parents/needs/speced/resources.html

USDE Office of Special Education Programs www.ed.gov/offices/OSERS/OSEP

Resources (cont’d) OSERS Q&A

http://www2.ed.gov/policy/speced/guid/spec-ed-homelessness-q-a.pdf

NAEHCY Response http://www.naehcy.org/dl/response_oser

s.pdf

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