Thank you to Kilpatrick Townsend & Stockton LLP for updating the below content with North Carolina information.
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14.1 – Overview
Federal law provides protections for students who are homeless or displaced as the result of natural disasters. See 42 U.S.C. § 11434a. The federal McKinney-Vento Act defines ‘homelessness’ as it applies to public school students in pre-Kindergarten through the 12th grade. See id. § 11434a(2). Under this law, the definition of ‘homelessness’ includes children and youth who do not have a regular and adequate nighttime residence and specifically applies to children and youth residing in shelters, transitional housing, cars, campgrounds, trailer parks, hotels, motels, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, and staying with friends or family temporarily as a result of economic hardship, loss of housing, and natural disasters. See id. § 11434a(2)(A)-(B). Families and youth living with others on a temporary basis and unable to return to their homes because of a disaster would even be considered homeless under the Act. See id. § 11434a(2)(B).
14.2 – Summary of the Law
14.2.1 – Homeless/Displaced Students Are Entitled to Immediate Enrollment
McKinney-Vento guarantees the right of homeless students to enroll immediately in the public school which serves the attendance area where the student is staying temporarily. See id. § 11432(e)(3)(E)(i)(II). Additionally, North Carolina General Statutes Annotated § 115C-366(a2) allows homeless students to enroll in a different school district in North Carolina in certain situations.
14.2.2 – Homeless/Displaced Students Can Enroll Without Documentation
Students displaced as a result of a natural disaster are entitled to immediate enrollment in public school even if they don’t have the documentation typically required for school registration, like proof of residency, birth certificates, immunization and health records, etc. See 42 U.S.C. § 11432(g)(3)(C)(i)-(ii). In fact, enrolling schools are required to help students obtain these important documents. See id. § 11432(g)(3)(C)(ii)-(iii). English Language Learners (ELLs) who enroll without documentation from their previous school should be provided protections that allow access to appropriate programming. See id. § 11432(g)(4)(B). Conversations with parents and the students and review of documentation within their possession will assist in this inquiry.
14.2.3 – Homeless/Displaced students are entitled to additional protections
First, under the McKinney-Vento Act, homeless students are specifically eligible for free school meals without delay. See id. § 11432(e)(3)(C)(i)(III)(cc). Second, homeless students have the right to go back to their “school of origin” (the school they attended before the disaster) and the school district must generally provide transportation to and from their “school of origin” if a parent or guardian makes a request. See id. § 11432(g)(1)(J)(iii). Students who enroll in a new school district as a result of displacement by a natural disaster must receive transportation services that are comparable to the transportation services that other regularly housed students receive. See id. § 11432(g)(4)(A). Next, school districts must assess the needs of homeless students and refer those students and their families to appropriate local resources, including health, mental health, dental, and other community-based supports and services. See id. § 11432(g)(6)(A)(iv). Third, homeless students are entitled to fully participate in any school and extracurricular activities. See id. § 11432(g)(1)(F)(iii). Finally, if a receiving school does not agree that a homeless student is eligible to attend that school, the student has the right to remain enrolled pending any appeals, to receive a written explanation of the reasons for the district’s objections to enrollment, and to receive assistance from the district’s homeless liaison to dispute the school’s decision regarding school selection and enrollment. See id. § 11432(g)(3)(E).
14.2.4 – Every school district is required to designate a Homeless Liaison
Every school district in North Carolina is required to have a homeless liaison who is responsible for coordinating efforts to assist and support homeless students. See id. § 11432(g)(1)(J)(ii). The North Carolina Homeless Education Program (NCHEP) maintains a current directory of these liaisons: https://hepnc.uncg.edu/local-liaisons/. See North Carolina Homeless Education Program, Local Liaisons, https://hepnc.uncg.edu/local-liaisons/ (last visited July 16, 2021). The North Carolina Homeless Education Program (NCHEP) also maintains a general contact number: (1-336-315-7400). See North Carolina Homeless Education Program, NCHEP Contacts List, https://hepnc.uncg.edu/contact/ (last visited July 16, 2021).
14.2.5 – Special Education
Homeless status is exclusive of special education identification, thus special education programming follows the student to any school in which he or she enrolls. See 42 U.S.C. § 11432(g)(4)(B). Parents who are forced to enroll a student with a disability in a different district because of displacement due to a disaster are entitled to the same and comparable services as previously received. See id.
A parent should disclose that his or her child was previously receiving special education services upon enrollment, to ensure expedited special education services. See National Association of School Psychologists, Natural Disasters and Relocated Students With Special Needs, https://www.nasponline.org/resources-and-publications/resources-and-podcasts/school-climate-safety-and-crisis/natural-disaster-resources/natural-disasters-and-relocated-students-with-special-needs (last visited July 16, 2021). For students with disabilities who enroll with missing or incomplete special education records, school districts must ensure those students receive a free appropriate public education (FAPE) by using whatever information is available at the time of enrollment, including but not limited to records provided by the parent, interviews with the parent and student and conversations with the student’s medical or mental health providers. See 42 U.S.C. § 11432 (g)(5)(D); N.C.G.S.A. § 115C-107.1(a)(3).
The Individuals with Disabilities Education Act (IDEA) imposes an affirmative obligation on North Carolina and its public agencies to identify, locate, and evaluate all children residing in North Carolina who are suspected of having disabilities and who are in need of special education and related services, regardless of the severity of their disability. 20 U.S. Code § 1412(a)(3). This obligation is called “child find.” Id.
For a student who has not been identified as eligible for receiving special education services under IDEA and is experiencing educational difficulties after a disaster, parents may consider identification under Section 504 of the Rehabilitation Act. See Public Schools of North Carolina, Students with Disabilities, https://www.dpi.nc.gov/students-families/parents-corner/students-disabilities (last visited July 16, 2021). Section 504 provides a wider definition of an individual with a disability and allows accommodations and supports within the education environment, which may be appropriate for a trauma-based diagnosis. See 29 U.S.C. § 701; Public Schools of North Carolina, Students with Disabilities, https://www.dpi.nc.gov/students-families/parents-corner/students-disabilities (last visited July 16, 2021).
14.2.6 COVID-19 Related Issues
The protections for homeless students and students with disabilities mentioned above are still available during the COVID-19 pandemic. Similarly, school districts remain obligated to carry out their obligations under the laws. And, three economic stimulus bills have been signed into law in response to the economic fallout of the COVID-19 pandemic in the United States. See Coronavirus Aid, Relief, and Economic Security (CARES) Act enacted on March 27, 2020, the Coronavirus Response and Relief Supplemental Appropriations (CRRSA) Act enacted on December 27, 2020, and the American Rescue Plan (ARP) Act enacted on March 11, 2021. Each of Act includes an Elementary and Secondary School Emergency Relief (ESSER) Fund. See Section 18003 of Division B of the CARES Act, Section 313 of the CRRSA Act, and Section 2001 of the ARP Act. The U.S. Department of Education (“Department”) has also been providing ongoing guidance and policies during the pandemic. See https://www.ed.gov/coronavirus (last visited July 16, 2021).
14.2.7 ARP ESSER – Homeless Children and Youth (ARP-HCY) Fund
The ARP ESSER Fund requires the Department to reserve $800 million to support efforts to identify homeless children and youth (ARP-HCY Fund), and provide them with comprehensive, wrap-around services that address needs arising from the COVID-19 pandemic and allow them to attend school and participate fully in all school activities. See Section 2001(b)(1) of the ARP Act. The Department is reserving $1 million of the $800 million for national activities. See the Department’s Letter to Chief State School Officers Announcing Grant Award, https://oese.ed.gov/files/2021/04/ARP-Homeless-DCL-4.23.pdf (last visited July 16, 2021).
The Department is allocating the remaining $799,000,000 to States based on the proportion that each State received under Title I, Part A (Title I) of the Elementary and Secondary Education Act (ESEA) in the most recent fiscal year. See Attachment 1 to the Letter, https://oese.ed.gov/files/2021/04/Attachment-1-ARP-Homeless-I-II-Total-Allocations.pdf (last visited July 16, 2021). The Department decided to award 25% of each State’s allocation immediately (ARP Homeless I) and will award the remaining 75% (ARP Homeless II) after promulgating regulations that will apply to ARP Homeless II. See the Department’s Letter to Chief State School Officers Announcing Grant Award, https://oese.ed.gov/files/2021/04/ARP-Homeless-DCL-4.23.pdf (last visited July 16, 2021).
For ARP Homeless I, the Department requires that the maximum State reservation amount for State-level activities is 25% and the minimum amount of funds that a State must award to LEAs is 75%. See the Department’s Letter to Chief State School Officers Announcing Grant Award, https://oese.ed.gov/files/2021/04/ARP-Homeless-DCL-4.23.pdf (last visited July 16, 2021). The funding for State-Level Activities is to provide support for LEA, such as training, technical assistance, capacity-building, identifying homeless children, and increasing access to summer programs. See the Department’s Letter to Chief State School Officers Announcing Grant Award, https://oese.ed.gov/files/2021/04/ARP-Homeless-DCL-4.23.pdf (last visited July 16, 2021). The funding for LEAs is to supplement existing EHCY LEA subgrants and to identify and support homeless children for the summer and fall. Id.
The $800 million fund provided to support the needs of students experiencing homelessness by section 2001(b)(1) of the ARP is in addition to the support and services provided with ARP ESSER funds. See the Department’s Letter to Chief State School Officers Announcing Grant Award, https://oese.ed.gov/files/2021/04/ARP-Homeless-DCL-4.23.pdf (last visited July 16, 2021). For example, a State may use the ARP-HCY funds to complement its existing EHCY program to launch an outreach campaign to support students experiencing homelessness in enrolling in the ARP ESSER summer learning and enrichment program. Id. A list of authorized EHCY activities is provided in 42 U.S.C. § 11433(d). Id.
14.2.8 Department Guidelines
During the pandemic, school districts are still required to ensure such students receive FAPE even when many schools move to distance learning and certain accommodations for students eligible to receive special education may no longer be feasible due to COVID-19. See Supplemental Fact Sheet – Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities, https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policy
guidance/Supple%20Fact%20Sheet%203.21.20%20FINAL.pdf (last visited July 16, 2021). Individualized Education Program (IEP) teams are still required to make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations. Id.
If a student with a disability, including one at high risk of severe medical complications, is excluded from school during an outbreak of COVID-19, and the student’s school remains open, then the student is entitled to certain protections under the IDEA. See Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf (last visited July 16, 2021). If the exclusion from school lasts longer than ten school days, then such exclusion from school may constitute a change in placement. Id. Under the IDEA, a change in placement is subject to certain procedural safeguards, including requiring decision-making by a group of persons, including the parents and other persons knowledgeable about the child and the placement options. See 34 C.F.R. §300.115-116. In addition, Section 504 of the Rehabilitation Act offers other evaluation and procedural safeguards for a change in placement, including periodic reevaluation of the disability determination. See 34 C.F.R. §104.35-104.36.
The Department released COVID-19 Handbook Volume I to provide strategies for safely reopening elementary and secondary schools. https://www2.ed.gov/documents/coronavirus/reopening.pdf (last visited July 16, 2021). When determining how to offer in-person instruction and to whom, school leaders should develop criteria for prioritizing such instruction if the school is not open for all students. See id., page 7. For example, schools might prioritize offering in-person instruction for younger students, students without reliable access to broadband or technology devices, students with disabilities, children in foster care, children experiencing homelessness, and others for whom remote learning is particularly challenging. Id. If using cohorts/pods leads to a reduction in the number of available courses or the number of classes or seats in a particular course or program, the school district should ensure that underserved students– including students from low-income backgrounds, students of color, American Indian and Alaska Native students, students in foster care, students experiencing homelessness, English learners, students who are migratory, and students with disabilities—are not disproportionately affected by reduced access to gatekeeper and advanced courses or programs at the elementary, middle, and high school levels. See id., page 15.
The Department released COVID-19 Handbook Volume II to provide a roadmap to reopening safely and meeting all students’ needs. https://www2.ed.gov/documents/coronavirus/reopening-2.pdf (last visited July 16, 2021). Some aspects related to homeless students and other underserved students are provided below.
Schools should provide school meals regardless of education setting to meet basic needs. See id., page 5. Meal planning should include an ongoing assessment of the needs of underserved students, including highly mobile students, such as students experiencing homelessness, migratory and foster youth. See id., page 6.
School district officials should work quickly to locate and reengage students who are chronically absent or disengaged, regardless of the reason for their absences. Id. Personal outreach to students should be conducted by a school official rather than law enforcement or school-based police because the presence of law enforcement or school-based police might cause confusion or be unintentionally intimidating. See id., page 13.
Schools and districts should also support equitable access and effective use of technology, including consistent access to broadband that can be a challenge for families who are experiencing homelessness and lack a permanent address or who are highly mobile. See id., page 25.
States and districts should adopt more equitable funding formulas to direct additional financial resources to schools in ways that account for the additional support students may need (such as students with disabilities and students experiencing homelessness), and promoting practices that help high-need schools recruit and retain qualified educators. See id., page 32. For example, funding provided under ARP, as well as state and local resources, can be invested in evidence-based strategies that have been shown to improve outcomes for students. See id., pages 32-33.
States and districts should increase availability of non-instructional staff who can identify and support students who are highly mobile or chronically absent, such as students who are migratory, students experiencing homelessness, and students in foster care. See id., page 38.
Schools and districts should use data about students’ opportunity to learn to help target resources and support. See id., page 28. In North Carolina, any homeless student that is identified as a direct result of COVID-19 should be included in the Homeless Module of PowerSchool and tracked using the NCHEP Disaster Tracking Log. See https://hepnc.uncg.edu/covid-19-resources-for-homeless-liaisons/ (last visited July 16, 2021).
In addition to each school district’s homeless liaison and the NCHEP hotline referenced above under Section 14.5, NCHEP is maintaining a list of COVID-19 Resources for Homeless Liaisons with guidance, support, and resources for meeting the educational needs of homeless children and youth. See https://hepnc.uncg.edu/covid-19-resources-for-homeless-liaisons/ (last visited July 16, 2021). The North Carolina Department of Public Instruction has assembled guidance on many topics related to the pandemic in a centralized location that continues to be updated. See https://www.dpi.nc.gov/news/covid-19-response-resources (last visited July 16, 2021).