On Friday March 3, the U.S. Department of Education issued updated Non-Regulatory Guidance on the McKinney-Vento Act. The update consists of the addition of three questions: J-10 through J-12.

Question J-10 clarifies that a student who was considered to be “awaiting foster care placement,” and subsequently was placed into permanent housing before December 10, 2016, is entitled to complete the school year in his or her school of origin, if that is in the student’s best interest, and receive transportation. The Guidance further clarifies that: “Beginning on December 10, 2016 [in all states but AR, DE and NV], those students who are awaiting foster care placement under the McKinney-Vento Act and have been placed in foster care, will be covered under the foster care provisions in Title I of the ESEA.” Federal regulations define “foster care” as follows:

“Foster care means 24-hour substitute care for children placed away from their parents or guardians and for whom the title IV-E agency has placement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and preadoptive homes. A child is in foster care in accordance with this definition regardless of whether the foster care facility is licensed and payments are made by the State, Tribal or local agency for the care of the child, whether adoption subsidy payments are being made prior to the finalization of an adoption, or whether there is Federal matching of any payments that are made.”

Question J-11 of the updated Guidance addresses transportation to extra-curricular activities, stating that, “to the extent that lack of access to transportation is a barrier to extracurricular activities for a particular student, an LEA would be required to provide this student with transportation to or from extracurricular activities.”

Finally, Question J-12 provides a general rule for allocating transportation costs for students who have Individualized Education Programs (IEPs) that include transportation as a related service, and who are crossing state lines to attend their school of origin. The Guidance suggests that when students are crossing state lines, the two involved local educational agencies (LEAs) should adhere to the McKinney-Vento requirement to agree upon a method to apportion the responsibility and costs of providing the student transportation, or share the costs equally. The Guidance adds that when an LEA is being reimbursed for a portion or all of the cost of providing transportation as a related service, or if McKinney-Vento or Title IA funds permit, the SEA may “recommend or offer that this LEA pay more than half of the cost.”

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