Chronic Absenteeism and Truancy: 1) Why Do We Care So Much? 2) Applicable Rules Requiring District Action. 3) Legal Challenges and Practical Ways to Successfully Blend Statutory Obligations to Help Ensure Student Success.

1. Education Law

2. Education Law
PRESENTED TO ACSA-2017 EVERY CHILD COUNTS SYMPOSIUM
February 3, 2017
Cathy S. Holmes, Esq.
Partner
When the Chair is Empty…
How Do We Provide FAPE
When Students Aren’t In School?
©2017 Best Best & Krieger LLP

3. Education Law
What We Will Cover Today
Chronic Absenteeism and Truancy:
 Why Do We Care So Much?
 Students fall behind when consistent instruction is missed
 In addition to academic progress, social skills development can be
significantly impacted when students are chronically absent
 Direct correlation with attitude toward school, teacher and peers, and
graduation rates
 Statistics link socioeconomic status and problems with school attendance
 Applicable Rules Requiring District Action.
 Compulsory Attendance Laws and Processes Designed to Compel
Attendance
 Meeting FAPE Obligations to Students with Disabilities
 Legal Challenges and Practical Ways to Successfully Blend Statutory
Obligations to Help Ensure Student Success.
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4. Education Law
Compulsory School Attendance
California Education Code Sections 48200-48350
currently set forth what is commonly referred to
as the “Compulsory Education Laws”
 § 48200 - Each person between the ages of 6 and 18 years not exempted under the
provisions of this chapter or Chapter 3 (commencing with Section 48400) is subject to
compulsory full-time education. Each person subject to compulsory full-time education
and each person subject to compulsory continuation education not exempted under
the provisions of Chapter 3 (commencing with Section 48400) shall attend the public
full-time day school or continuation school or classes and for the full time designated
as the length of the schoolday by the governing board of the school district in which
the residency of either the parent or legal guardian is located and each parent,
guardian, or other person having control or charge of the pupil shall send the pupil to
the public full-time day school or continuation school or classes and for the full time
designated as the length of the schoolday by the governing board of the school district
in which the residence of either the parent or legal guardian is located.
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5. Education Law
Compulsory School Attendance
Education Code Section 48293 provides for
penalties against parents, guardians or other
persons having control or charge of any pupil
who fail to comply with the compulsory
attendance laws.
 This presumes that the student is a minor, without
the right to make educational decisions on his/her
own behalf.
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6. Education Law
Compulsory School Attendance
California Family Code
 An individual reaches the “age of majority” (or the age at which
an individual is legally considered an adult and therefore no
longer a minor), when he or she reaches 18 years of age. At this
point in time, students can make their own educational
decisions, which can include not attending school at all.
• A minor is an individual who is under 18 years of age. The period of
minority is calculated from the first minute of the day on which the
individual is born to the same minute of the corresponding day
completing the period of minority. (California Family Code Section 6500).
• California Education Code Section 56041.5 clarifies transfer of rights to
special education students reaching the age of 18.
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7. Education Law
Compulsory School Attendance
Historical Caselaw
 Courts have historically established that states
have the right, with reasonable exceptions, to
compel minors to attend public school.
• People v. Turner, 121 Cal.App.2d Supp. 861 [263 P.2d 685]
• In re Shinn, 195 Cal.App.2d 683, 694 [16 Cal.Rptr. 165]
• In re Application of Daedler, [194 Cal. 320, 329-330 (Cal. 1924).]
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8. Education Law
Pyramid of Absentee Intervention
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9. Education Law
SART/SST/SARB v. FAPE
Districts must comply with attendance policies and procedures required by
state law and district board policy/administrative regulation.
• SART/SST/SARB Process:
 Definition of “Truant”
• Truancy is defined by State law.
 Counts unexcused absences
 Relies on legal and administrative solutions
 Distinguish from “Chronic Absenteeism”
• Considers the effect on all absences (collectively) on a child’s education.
 Includes excused absences, unexcused absences, and time away from school
resulting from suspension/expulsion
 Every Student Succeeds Act (ESSA) requires reporting of
chronic absenteeism
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10. Education Law
http://oag.ca.gov/truancy/2013/ch6
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11. Education Law
http://oag.ca.gov/truancy/2013/ch6
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12. Education Law
SART/SST/SARB v. FAPE
Helpful Resources:
 http://www.cde.ca.gov/ls/ai/tr/;
 https://oag.ca.gov/truancy/2013/ch6
SART/SST/SARB actions can help get Parents to the table to
bring about effective discussion about a child’s needs. They
can also lead to allegations of retaliation, harassment, and
denial of FAPE.
So What to Do??
 Continue to implement policies with fidelity while
simultaneously considering other actions that might be required
under laws protecting students with disabilities.
And therein lies the challenge...
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13. Education Law
Absenteeism= “Behavior”
• Refusal or inability to come to school is a behavior
that interferes with learning, regardless of whether it
stems from a disability.
• Absences that impede access to learning or learning
itself cannot be ignored.
• Behaviors that impede a student’s learning could be
related to the student’s disability and must be
addressed by IEP/504 Teams.
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14. Education Law
Where Do Districts Get Into Trouble
From a FAPE Perspective?
Truancy, regardless of the cause, can impact:
 Child find duties
 Eligibility determinations
 Placement determinations
These concerns apply to both the IDEA and
Section 504!
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15. Education Law
Where Do Districts Get Into Trouble
From a FAPE Perspective?
“Child Find” – Under IDEA
 School districts are required to identify, locate, and evaluate all
children residing within the jurisdiction (from birth to 21 years of
age, inclusive, that either have, or are suspected of having,
disabilities and need special education and related services as a
results of those disabilities. (California Education Code § 56300,
§ 56301, 34 C.F. R. § 300.111)
“Child Find” – Under Section 504
 School districts must conduct an evaluation of students who,
because of a handicap, need or are believed to need special
education and related services. (34 C.F.R. § 104.35)
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16. Education Law
Where Do Districts Get Into Trouble…?
Failing to investigate reasons for the absences:
 Medical Conditions (Asthma, Headaches)
 Excessive absenteeism by itself is not a per se basis for suspecting the
child has a disability.
• Board of Educ. of Syracuse City Sch. Dist., 37 IDELR 232 (SEA NY 2002).
 But rely on this with caution!
Failing to consider parent provided information:
 Hacienda La Puente Unified Sch. Dist., 30 IDELR 720 (OCR 1998): Student
involved in joint effort between school district and DA’s office. Parent offered
copies of doctor’s visit slips to clarify absences caused by asthma. DA declined
to review information and insisted upon statement from doctor about impact
of asthma on schooling and that parents execute a medical release for records.
OCR determined District’s duty to evaluate was triggered.
 Query: What documentation can be requested/required for
excused absence?
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17. Education Law
Where Do Districts Get Into Trouble…?
A school district's child find obligation may be triggered where there
are significant absences, a reason to believe the absences are linked
to a disability, and a need for services.
• Department of Education, State of Hawaii v. Cari Rae S., 35 IDELR 90
(D. Hawaii 2001)
 Student's 159 absences, numerous behavioral referrals, and failing
grades should have triggered referral during the student's sophomore
year.
• Hilliard City Sch. Dist., 60 IDELR 58 (SEA OH 2012)
 District violated child find where private evaluation reports clearly
linked the student's attendance problems with disabilities.
• Broward County (FL) Sch. Dist., 61 IDELR 265 (OCR 2013)
 Because a district failed to evaluate two often-absent kindergartners
within a reasonable period after learning that they were being treated
for bipolar disorder, it violated its child find duty.
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18. Education Law
Where Do Districts Get Into Trouble…?
Excessive absenteeism can be the basis of finding that a
student requires placement in a residential treatment
center in order to receive FAPE
 Palos Verdes Pennisula Unified School District v. Student (OAH Case No.
2015050838): District’s offer of placement in RTC constituted FAPE in the LRE
because student’s severe social-emotional problems resulted in chronic
absenteeism which, in turn, affected her ability to access the curriculum in
general education classes at a comprehensive high school.
 Note: No appearance for student in the litigation.
 Caution: Student v. East Side Union High School District and Santa
Clara County Office of Education (OAH Case No. 2016061098,
September 21, 2016).
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19. Education Law
Considerations For Ensuring FAPE
Other Placement Concerns:
Teams should consider whether an IEP/504 Plan needs to be
revised to address a student’s resistance to attending school
where such behavior is related to his/her disability and prevents
the student from benefitting from his/her education.
 Joaquin v. Friendship Pub. Charter Sch., 66 IDELR 64 (D.D.C. 2015)
 Forest Grove Sch. Dist. #15, 65 IDELR 278 (SEA OR 2015)
Practice Tip: Do not unilaterally provide “Home and Hospital
Instruction/Home Teaching” as an informal “stop-gap”
response. Get to the table to appropriately go through the
correct process.
Education Code 56361; 5 CCR 3051.4
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20. Education Law
How Can the Attendance Process and
FAPE Obligations Work in Tandem?
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21. Education Law
Considerations For Ensuring FAPE
Is student’s eligibility under the IDEA or Section 504
appropriately determined?
 In order to properly address a student’s absenteeism
in an IEP/504 Plan, the District may need to reevaluate
the student and revise the educational plan.
 Is further evaluation (psychoeducational, mental
health behavior, etc.) needed to understand student’s
refusal/reluctance to attend school, identified
eligibility categories, and/or current unique needs?
 Practice Tip! Remember the importance of the reevaluation
(including complete triennial evaluation planning).
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22. Education Law
Considerations For Ensuring FAPE
Does the student’s IEP/504 Plan sufficiently address the
special needs related to the student’s attendance?
 Why is the student absent? (Obtain information from parents,
teachers, counselors, medical providers, etc.)
 Is student refusing to come to school? What is the basis for that
refusal?
 Are there health issues preventing the student from attending
school?
 What prior interventions have been implemented to address
attendance concerns?
 Practice Tip: Districts should train staff how to spot and probe
into the reasons for a child’s absence to help determine if such is
related to a disability and could require either further evaluation
or revisions to the child’s educational plan.
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23. Education Law
Considerations For Ensuring FAPE
Does the student’s current IEP/504 address the special
needs and/or concerns related to the student’s behavior
patterns?
 Should a functional behavior assessment (FBA) be
conducted?
 Does the student have a Behavior Support Plan
(BSP) or a Behavior Intervention Plan (BIP)?
• If so, is it being implemented?
• Does it need to be modified to address attendance
concerns?
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24. Education Law
Considerations For Ensuring FAPE
What additional services, supports and/or strategies are
needed to address the attendance problem?
• Consider the need for transportation, DIS counseling, mental health
services relating to attendance (including fear of and/or reluctance
to attend school), development or revisions to BSPs/BIPs; regular
home/school communication, reward/incentive systems, modifying
schedules, providing an assistant, home visits, truancy contracts,
parent training and/or other positive behavioral interventions,
supports and strategies to address attendance concerns.
 Pocono Mountain School District (114 LRP 23161): A district that addressed a
kindergartener’s absenteeism “early and often” established that it did not deny
the child FAPE. District responded to sporadic attendance in numerous ways,
including assigning an individual to monitor the student for seizure activity,
developing a seizure action plan and placing the student in a small group setting.
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25. Education Law
Considerations For Ensuring FAPE
What additional services, supports and/or strategies are
needed to address the attendance problem?
 Do IEP Goals need to be revised and/or developed
to meet the unique behavioral needs of the
student?
 If an alternative placement is being considered,
are services available at that alternative
placement?
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26. Education Law
Considerations For Ensuring FAPE
If a student is being considered for significant
interventions (Home Visits - Sheriff or Probation/Truancy
Court Involvement):
 Has the District fully addressed and documented the student’s
attendance issues through the IEP/504 process?
• San Diego Unified School District Office for Civil Rights, Case 09-14-1281 (June 19, 2014):
Numerous attempts to schedule an IEP meeting to address the absenteeism of a 20-year-
old 8th grader with a seizure disorder and adrenal insufficiency did not engage in disability-
based harassment.
 Practice Tip: At each stage of the attendance intervention process, attendance
personnel, special education staff and Section 504 Coordinators shall remain in regular
and consistent communication regarding the process, timelines, and the needs of the
student.
 Have the listed services, accommodations, supports and strategies
been implemented, and if so, what has been the effect?
 Are there any additional revisions or additions to the supports and
services that could be expected to impact the student’s non-
attendance?
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27. Education Law
Practical Take-Aways
 Remember: Children change and circumstances change! We must react appropriately to
these changes.
 Always be diligent if a child starts missing school.
 Ask questions! Follow up on the student’s whereabouts.
 Carefully monitor attendance data and convene IEP and Section 504 Team Meetings to
discuss attendance before too much time passes.
 Be careful that attendance officers are not making decisions IEP or 504 Team should be
making.
 Create internal policies and procedures that lay out a process for attendance personnel,
special education staff and Section 504 Coordinators to remain in regular and consistent
communication during each stage of the attendance intervention process.
 Positively and proactively engage students and parents.
 Proceed in a legitimate, non-discriminatory manner that complies with both
federal and state laws.
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28. Education Law
Questions?
Thank you for attending.
Cathy S. Holmes
Partner
Best Best & Krieger LLP
Riverside, CA
Phone: (951) 686-1450
Email: cathy.holmes@bbklaw.com
www.bbklaw.com
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