1. 1
Special Education
in the Modern Age
Nonattendance Issues and
School Responsibility

2. 2
What We’ll Cover Today
 California’s Compulsory Attendance Rules
 Nonattendance and Students with Disabilities
 Special Ed and Compulsory Attendance Requirements
 Child Find and Referral
 Eligibility
 Addressing Nonattendance in the IEP
 Nonattendance and Placement Issues
 Potential Liability for Failing to Provide FAPE
 Nonattendance and Section 504

3. 3
Some Background . . .
 Estimated 75 million students nationwide
are “chronically absent”
 1.8 million “truant”
students in California
 Students with
nonattendance issues are more likely to
 Drop out of school
 Participate in risky behaviors
 Become involved with juvenile justice system

4. 4
California’s Compulsory
Attendance Requirements

5. 5
Compulsory Education Law
 Applicability
 Students between ages 6 and 18 subject to law
and must be enrolled in school
 Exceptions
 Private full-time day school
 Privately tutored
 Continuation education students
(Ed. Code §§48200, 48222, 48224, 48400 )

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Definition of Truancy
 “Truant” Defined
 “[a]ny pupil subject to compulsory full-time education . . .
who is absent from school without valid excuse three full
days in one school year or tardy or absent for more than
any 30-minute period during the schoolday without a valid
excuse on three occasions in one school year, or any
combination thereof…”
 Must be reported to attendance
supervisor or superintendent
(Ed. Code §48260)

7. 7
Watch for Truancy Risk Factors
Practice Pointer #1
 Family Factors: Lack of supervision, violence
 Student Factors: Social pressures, substance
abuse, poor physical health
 School Factors: Climate/culture, inconsistent
policies
 Economic Factors: Employment issues, high
mobility

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Consequences of Truancy
 Must notify Parent/Guardian
 Obligation to compel attendance
 Classification as “habitual” truant
 By third offense
 Referral to SARB
 Uses public and private services to correct
nonattendance
 Possible legal action if failure to cooperate
(Ed. Code §48260-48263, 48264.5, 48290)

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Engage Parents When Nonattendance
Becomes an Issue
Practice Pointer #2
 Build positive relationships
 Communicate the problem and the expectations
 Offer support
 Follow up; view parent involvement as ongoing,
not a one-time event

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Nonattendance and Students
with Disabilities

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Special Ed and Compulsory
Attendance Some Points on Interaction Between Laws
 Special ed student not exempt from compulsory
attendance requirements
 Truancy must be reported to attendance
supervisor
 Remember: FAPE obligation begins at age 3
(before compulsory education requirements take
effect)
 Due process hearings resolve FAPE disputes;
not vehicle to enforce compulsory education

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Special Ed and Compulsory
Attendance Districts may be reluctant to refer special ed
student to SARB or file truancy complaint
 Possibility that attendance difficulties are related
to disability
 Option to address issue through IEP process
 Nonattendance may trigger legal duty to
convene IEP meeting
 Examine lack of expected progress
 Determine whether truancy stems from disability

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IEP Teams: Getting Ahead of the Problem
Practice Pointer #3
 Convene meeting to determine reason(s) behind
nonattendance (Attention? Escape/avoidance?)
 Collaborate with parents (explain need for
meeting)
 Start interventions at first sign of attendance
difficulties – before sanctions become necessary
 Consider assessing or reassessing

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Child Find and Referral
 “Identify, locate and evaluate”
 Excessive absenteeism
 Absenteeism alone
won’t trigger child find
 Generally no duty to refer if nonattendance is
product of social maladjustment, family issues,
behavior within student’s control
 But: Duty exists where there is suspicion of
underlying emotional condition + failing grades
(34 C.F.R.§300.111; Ed. Code, §§56171,56301)

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Child Find and Referral
 Case Example #1: Behavior Plan Not Given
Chance to Work
 10th-grade Student placed on “behavioral contract” after
truancy/nonattendance issues emerged
 Parent removed Student and placed her in private facility
in Utah
 No child find violation for failure to assess
 District was obligated to consider available gen ed
resources prior to making special ed referral
(Student v. Capistrano Unified School Dist. (OAH 2006) No. 2005100440, 113 LRP
63886)

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Child Find and Referral
 Case Example #2: Excessive Absences But
No “Red Flags”
 8th-grade Student missed 60 classes in 4th quarter;
anxious about starting high school next fall
 Parent alleged child find violation
 But Student’s “demeanor and performance” gave District
no reason to suspect disability (honor roll grades and
favorable teachers’ comments despite excessive
absences)
(Montgomery County Pub. Schools (SEA MD 2010) 110 LRP 28793)

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Child Find and Referral
 Case Example #3: Truancy Prevention Plan
Didn’t Address Disability-Related Issues
 District filed truancy petition against middle-schooler and
developed various measures to increase attendance
 No referral for assessment despite psychiatrists’ reports
that emotional issues prevented Student’s attendance
 District violated child find obligations by not referring
Student
 “Truancy Prevention Agreement” did not consider or
address disability-related issues Student experienced
(Hilliard City School Dist. (SEA OH 2012) 60 IDELR 58)

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Know When to Refer
Practice Pointer #4
 Train staff on child find obligations
 Maintain two-way communication with attendance
office (Ask to be alerted)
 Watch for sporadic as well as consecutive
absences
 Inform parents about duty to assess
 Bring in other staff when needed
 Gather information!

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Eligibility
 ED category most frequently at issue for
students with chronic nonattendance
 ED eligibility criteria:
 Pupil exhibits one or more
of ED characteristics
 Over a long period of time
and to a marked degree
 That adversely affect
educational performance
(Cal. Code Regs., tit. 5,§3030)

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Eligibility
 ED characteristics:
 Inability to learn which cannot be explained by
intellectual, sensory or health factors
 Inability to build or maintain satisfactory interpersonal
relationships with peers and teachers
 Inappropriate types of behavior or feelings under normal
circumstances
 General pervasive mood of unhappiness or depression
 Tendency to develop physical symptoms or fears
associated with personal or school problems
(Cal. Code Regs., tit. 5,§3030)

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Eligibility
 In determining if nonattending student is
eligible as ED, ask:
 Does Student meet ED criteria?
 Has there been adverse affect on educational
performance?
 Does Student need special education as a result?

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Eligibility
 Case Example #1: “School Phobia” Was
Reasonable Following Assault; Not ED
 Student was assaulted after spreading rumors about
another student; became “afraid to go to school”
 Parent disputed District’s assessment that Student was
not eligible as ED
 ALJ: Student’s fear was “reasonable and justified”;
wasn’t afraid of school generally, only certain students
 Parents also caused academic difficulties by keeping
Student out of school
(Student v. Lakeside Joint School Dist. (OAH 2010) No. 2009090504, 110 LRP 24088)

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Eligibility
 Case Example #2: Truancy, Not Depression,
Caused Adverse Effect on Performance
 Parents believed 17-year-old Student’s truancy and
marijuana use stemmed from depression
 Court found “speculative” Parents’ effort to establish
causal link between Student’s behavior problems and
ED
 Evidence showed Student’s academic difficulties
resulted from his decision not to go to classes and his
multiple suspensions
(Nguyen v. District of Columbia (D.D.C. 2010) 54 IDELR 18)

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Eligibility
But think about the following
cases where ED warning signs were
missed when students stopped
attending school . . .

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Eligibility
 Case Example #3: Incident, Ensuing
Bullying Resulted in Nonattendance,
Depression
 Student was inappropriately touched by another student
 Diagnosed with anxiety, depression; expressed fear of
going to school and complained of bullying
 District should have found Student eligible as ED
 Condition affected her to such degree she would not
attend school; Student required psychotherapy and
associated school with trauma
(Neptune Township Bd. of Educ. (SEA NJ 2012) 112 LRP 20291)

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Eligibility
 Case Example #4: Severe Attendance
Problem Was Warning Sign of ED
 Student missed 75 days of school during 2009-10;
aggression toward peers escalated
 Feared ridicule because he was behind academically;
remained out of classroom when he did go to school
 Failure to assess for ED violated FAPE
 “Overwhelming evidence” linked behavior to suspected
disability
(Corpus Christi Indep. School Dist. (SEA TX 2011) 57 IDELR 240)

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Factors in Eligibility Determinations
Practice Pointer #5
 Nexus between absences and possible disability?
Are emotional issues a factor?
 Recognize factors that might rule out eligibility
 Evaluation considerations: Medical records,
interviews with Parent and Student
 Home observation can be crucial (Anxiety at home?
Family issues?)

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Addressing Nonattendance in the
IEP Is nonattendance the result of disability? If so,
 Develop goals/services to
assist Student in improving
attendance
 Attendance contract?
 Behavior plan?
 Does nonattendance
impact classroom performance? If so,
 Additional accommodations, modifications,
services

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Addressing Nonattendance in the
IEP Even if nonattendance is not result of
disability, IEP team must address if:
 Behavior impedes Student’s learning
 Behavior impedes learning of others
 If it does, law requires team to consider
 Positive behavioral interventions
 Behavioral supports
 “Other strategies” to address behavior
(34 C.F.R.§300.324(a)(2))

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Addressing Nonattendance in the
IEP Case Example #1: Truancy Wasn’t “Serious
Behavior Problem“; IEP Supports Were
Enough
 Student struggled with truancy and was arrested for theft;
IEP team developed BSP, which worked for short time
 Parent claimed failure to develop BIP denied FAPE
 9th Circuit: Student’s truancy didn’t constitute “serious
behavior problem”; BIP not required under California law
 (Note: Case decided pre-Hughes Bill repeal)
(Rodriguez v. San Mateo Union High School Dist. (9th Cir. 2009) 357 F. App’x 752,
53 IDELR 178 (unpublished))

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Addressing Nonattendance in the
IEP Case Example #2: IEP Should Have Provided
Assistance to Help Address Truancy
 District provided “additional adult assistant” to prevent
Student with ADHD from walking out of class
or leaving school
 Designated assistant was transferred and not replaced
 ALJ: Assistant was “substantial and significant provision of
IEP” designed to help resolve truancy
 Failure to provide substitute denied FAPE
(Student v. Compton Unified School Dist. (OAH 2011) No. 2011061439, 111 LRP 74057)

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Addressing Nonattendance in the
IEP Case Example #3: IEP Included Numerous
Interventions to Help Get Student to Class
 IEP of 11th-grader with ADHD focused entirely on class
attendance (escorts, rewards, breaks, check-ins, etc.)
 Nothing worked
 Court: IEP was appropriate when developed; included
interventions designed to prompt Student to attend
 Parent couldn’t identify anything further that might compel
Student to go to school
 Student did well in class when she attended
(Presely v. Friendship Pub. Charter School (D.D.C. 2013) 60 IDELR 224)

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Addressing Nonattendance in the
IEP Case Example #4: Nonattendance Adversely
Impacted Education; IEP Team Didn’t
Respond
 Student with SLD “just didn’t want to go to school”
 IEP identified regular attendance as a “need”
 Although attendance issues adversely affected classroom
performance, school never examined reasons why
 Failure to develop behavior plan denied FAPE
(Urban Pathways Charter School (SEA PA 2012) 112 LRP 27528)

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Tips for IEP Teams
Practice Pointer #6
 Don’t hesitate to call meeting
 If methods to address nonattendance aren’t
working, look at available alternatives (counseling,
increase in behavior supports, parent counseling)
 Consider consulting with additional staff for fresh
approaches
 Don’t give up!

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Nonattendance and Placement
Issues Does Student require
different setting to
address nonattendance?
 Perhaps, if appropriate aids and services in
classroom aren’t effective in curbing problem
 Continuum of placements
 In extreme cases of anxiety,
school phobia, Student may require
Residential placement
Homebound placement

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Nonattendance and Placement
Issues Case Example #1: Home Instruction Overly
Restrictive for Student with School Phobia
 High school Student’s anxiety prevented her form
attending; anxiety grew worse over summer break
 District should have known mental health assessment
was needed, but instead offered home instruction
 Home instruction would have exacerbated anxiety and
school phobia; assessment would have helped District
locate less restrictive placement
(Student v. High Tech High/Desert Mountain SELPA (OAH 2013) No. 2012020045, 113
LRP 878)

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Nonattendance and Placement
Issues Case Example #2: Therapeutic Day School
Allows Development of Coping Strategies
 Student’s anxiety prevented attendance
 District unsuccessful with various tactics; eventually
proposed therapeutic day school placement
 District’s placement was LRE; would help Student
develop strategies to transition back to public school
 Parents’ home tutoring proposal rejected
(Alex A. v. Lincoln School Committee (D.R.I. 2010) 54 IDELR 57, aff’d, 54 IDELR 94)

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Nonattendance and Placement
Issues Case Example #3: Academic Progress at
Day School Despite Nonattendance Issues
 Student with ED received good grades but missed 30
days of school in last quarter
 Court denied Parent’s residential placement request; no
denial of FAPE
 Student made progress in his day school placement
during sporadic periods he attended
 Emotional/behavior difficulties didn’t impact learning
(Y.B. v. Board of Educ. of Prince George’s County (D. Md 2012) 895 F. Supp. 2d, 59
IDELR 222)

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Making Sound Placement Decisions
Practice Pointer #7
 Consider less restrictive placement options first
 If student just can’t attend school because of severe
anxiety or school phobia, consider temporary online
options, tutoring
 Do advance planning for transition back to
classroom
 Remember: Homebound is among the most
restrictive placements

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Potential Liability for FAPE Violations
 Failure to address disability-related truancy
or chronic nonattendance that impacts
educational performance
 Can lead to finding of
denial of FAPE
 Potential remedies
Payment/reimbursement
for private placement
Payment/reimbursement for private services
Compensatory education

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Potential Liability for FAPE Violations
 Case Example #1: Truant Student “Had No
Interest in Obtaining an Education”
 9th-grader recorded 136 absences, ended up at juvenile
detention center
 65 unexcused absences to start the following year;
District never updated IEP; Student eventually left school
 Court: District violated IDEA but Student not entitled to relief
 “Unnecessary and wasteful” to award comp ed “just in case
Student changes her mind about getting an education”
(Garcia v. Board of Educ. Of Albuquerque Pub. Schools (10th Cir. 2008) 520 F.3d 1116, 49
IDELR 241)

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Potential Liability for FAPE Violations
 Case Example #2: Failure to Act After
Excessive Truancy Warrants Comp Ed
 Student with cognitive impairment missed 33 days of
school during first two months of school year
 District took no action until November, when it modified
IEP to include social/emotional/behavioral supports
 Student awarded 23 days of compensatory education
 Extent of truancy serious enough that District should
have responded sooner; failure to do so denied FAPE
(Springfield School Committee v. Doe (D. Mass 2009) 623 F. Supp. 2d 150, 53 IDELR
158)

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Potential Liability for FAPE Violations
 Case Example #3: Residential Placement
Reimbursement for “Unteachable” Student
 Student with Asperger syndrome stopped attending school
 District modified IEP, but never included counseling
 District required to reimburse for residential placement;
mental needs not segregable from educational needs
 Parent resorted to residential placement only after Student
was perpetually truant and unresponsive to District’s plan
(Lexington County School Dist. One v. Frazier (D.S.C. 2011) 57 IDELR 190)

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Nonattendance and Section 504
 Similar child find duty as IDEA
 Evaluation, FAPE, procedural safeguards
requirements
 Prohibition on discrimination/retaliation on
basis of disability
 Frequent OCR complaints following truancy
proceedings or SARB referral
 Must ensure nondiscriminatory application of
truancy/attendance policies

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Nonattendance and Section 504
 Case Example #1: Neutral Application of
Attendance Policy
 Parents claimed District discriminated against Student by
failing to consider disability before filing truancy charges
 OCR found no discriminatory application of attendance
policy between disabled and nondisabled students
 Policy provided for excused absences for medical reasons
and required documentation from parent
 Parent didn’t follow procedures to seek excused absences
(Freedom (PA) Area School Dist. (OCR 2011) 111 LRP 64831

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Nonattendance and Section 504
 Case Example #2: Truancy Notices Were
Nonretaliatory
 District sent “Irregular Attendance Letters” and SARB
referral notice based on Student’s excessive absences
 Parent advised District that absences were related to
Student’s disability (excused)
 District told Parent that notices were automatically
generated and should be ignored
 OCR: No retaliation by sending “form” notices; Student
was not referred to SARB and no adverse
consequences
(Fremont (CA) Unified School Dist. (OCR 2010) 110 LRP 67419)

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Nonattendance and Section 504
 Case Example #3: Attendance Issues
Should Have Been Addressed Through IEP
Process
 District did not engage in retaliation by summoning
Parents to SARB proceeding for truant Student
 But District violated Section 504 by not convening IEP
team meeting to address nonattendance/tardiness
before instituting SARB process
 Team should have considered need for additional
assessment, modification of IEP
(Buena Park (CA) Elementary School Dist. (OCR 2007) 108 LRP 63459)

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Don’t Ignore 504
Practice Pointer #8
 Watch for potential attendance-related
discrimination, harassment and retaliation
 SARB referrals aren’t substitute for IEP/504
processes
 Medically related nonattendance can trigger 504
evaluation duties

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Take Aways . . .
 Always Focus on Students’
Needs!
 Maintain Communication
with Parents, Social Services,
Community Resources
 Think Creatively to Develop
and Implement Strategies to:
 Resolve Nonattendance Issues
 Stop Problems Before They Occur

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .

51. 51
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .