SES Fall 2013 - Nonattendance


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SES Fall 2013 - Nonattendance

  1. 1. 1 Special Education in the Modern Age Nonattendance Issues and School Responsibility
  2. 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. 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. 4 California’s Compulsory Attendance Requirements
  5. 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 )
  6. 6. 6 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. 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
  8. 8. 8 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)
  9. 9. 9 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
  10. 10. 10 Nonattendance and Students with Disabilities
  11. 11. 11 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
  12. 12. 12 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
  13. 13. 13 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
  14. 14. 14 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)
  15. 15. 15 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)
  16. 16. 16 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)
  17. 17. 17 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)
  18. 18. 18 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!
  19. 19. 19 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)
  20. 20. 20 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)
  21. 21. 21 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?
  22. 22. 22 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)
  23. 23. 23 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)
  24. 24. 24 Eligibility But think about the following cases where ED warning signs were missed when students stopped attending school . . .
  25. 25. 25 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)
  26. 26. 26 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)
  27. 27. 27 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?)
  28. 28. 28 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
  29. 29. 29 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))
  30. 30. 30 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))
  31. 31. 31 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)
  32. 32. 32 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)
  33. 33. 33 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)
  34. 34. 34 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!
  35. 35. 35 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
  36. 36. 36 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)
  37. 37. 37 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)
  38. 38. 38 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)
  39. 39. 39 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
  40. 40. 40 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
  41. 41. 41 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)
  42. 42. 42 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)
  43. 43. 43 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)
  44. 44. 44 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
  45. 45. 45 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
  46. 46. 46 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)
  47. 47. 47 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)
  48. 48. 48 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
  49. 49. 49 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
  50. 50. 50 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. 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 .