Chronically Absent Special Ed Students

Kelley Baker

Karen Haase

kbaker@hslegalfirm.com

khaase@hslegalfirm.com @KarenHaase

Steve Williams

Bobby Truhe

swilliams@hslegalfirm.com @SteveisEsteban

btruhe@hslegalfirm.com @btruhe

Chronically Absent Special Education Students This is the time of the year when students who have chronic attendance problems begin to reach the absenteeism benchmarks which may result in referral to the county attorney for the filing of charges. However, if the student has been verified for an IEP or a 504 Plan, the district must provide behavioral interventions before referring the family for prosecution.

A good example of how a school can address attendance problems comes from Pennsylvania. In Downingtown Area School District, 113 LRP 34703 (SEA PA 08/11/13), an eighth-grader with learning disabilities who also suffered from anxiety and depression had 97 absences in one school year. The parents alleged that the district violated the student's rights when it referred them for a truancy prosecution without addressing the truancy through interventions.

The school defended the parents' claim by pointing to all of the steps it took to address the problem before filing charges. The school developed multiple attendance plans, provided small-group therapy, and asked the parents to call the assistant principal when the student was refusing to leave home. The hearing officer found that the school tried and failed to get the student to attend school and only then did it resort to reporting the child truant.

As this case illustrates, addressing a student's absenteeism through behavioral interventions and supports and attempting to work with the student's family before filing a truancy petition may help protect a district from liability and ensure a student receives FAPE. Under Nebraska's newly-revised attendance laws, schools are required to create attendance plans for all students who are chronically absent. However, when the child is also a special education student, the school should show that it considered taking additional steps to assist the child in overcoming barriers to attendance if the poor attendance is related to the child's disability.

One way to address a child's refusal to attend school might be to place him or her on a shortened schedule, where the student attends fewer hours per day

or fewer days per week than his or her typically developing peers. Under this system, the student wouldn't be truant if he or she attended during the shortened schedule. The team can then look at modifying the student's schedule to expose the student to gradually longer periods of time in school.

All schools should keep detailed records of interventions and contacts with parents. Documentation should include when and how the district communicated with the student's parents and their responses. The documentation will help show that the district made good faith efforts to address the poor attendance before referring the case to the county attorney and may demonstrate the parents' level of cooperation.

If you have questions about attendance problems for general or special education students we will be happy to discuss them with you. Feel free to contact Kelley, Karen, Steve or Bobby or your school district's attorney to be sure that your district is complying with both the mandatory attendance statutes and the IDEA and Rule 51 of the Nebraska Department of Education.

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