Is It Truancy, Or Disability Related Absences, And Does It Matter?

Yes, it matters. In Pennsylvania, all children that are of compulsory school age must attend school. This means that from the time the child enters school, which can be Kindergarten, but which cannot be later than age 8, the child must attend school and remain in school until at least age 17, or until graduation, whichever occurs sooner. The persons caring for the child, which is usually the parents but can be someone else, are responsible for making sure the child attends school, and a failure to get the child to school can result in legal penalties to both the child and the parents.

But sometimes, parents are unable to get their child to school, not because the child does not want to be in school, but because the child cannot attend school for some reason; the reason could be a need related to a known disability or unidentified disability. In these circumstances, truancy can actually indicate the need for a special education evaluation, a reevaluation, or changes to a 504 Plan or IEP, and filing truancy proceedings under these circumstances may be in violation of special education laws.

The school district should conduct an initial special education evaluation at the point where academic, social, emotional, behavioral, or other issues indicate that a child may have a disability. For example, in In Re: The Educational Assignment of A.G., a student in the Cumberland Valley School District (ODR # 1801), the student began experiencing problems in elementary school, such as difficulty with social skills, organization, anxiety, and attending school. Beginning in 5th grade and continuing, he received outpatient counseling services. By 8th grade, staff was expressing concerns about him, and he was seen by the Guidance Counselor on almost a daily basis. Between 9th and 11th grades, the student’s absences ranged from 25.5 days to 45 days. In 10th grade, a truancy elimination plan was begun, and in 11th grade truancy charges were filed. The student was eventually admitted to an in-patient psychiatric treatment facility.

All along, the parents had been very cooperative with district, followed suggestions that were made, and provided all doctor’s information, including numerous diagnoses, to the district. Despite all of this information, the school district did not evaluate the student but should have done so. It was held that the student’s disabling conditions clearly affected his educational performance as demonstrated by an inability to attend school regularly and on time, an inability to make-up missed work, and a corresponding inability to earn grades commensurate with his ability. Because of the failure to evaluate the student and provide him with special education services, he was awarded a significant amount of compensatory education.

Similarly, the need for a district to reevaluate a student, or to change a student’s IEP, begins at the point where academic, social, emotional, behavioral, or other issues indicate that a child may have an unidentified disability or a need that is not currently being addressed. For example, in the case of In re: The Educational Assignment of B.S., a student in the Lakeland School District, (ODR # 2057), the student had been diagnosed with ADHD, and specific learning disabilities, and had received an IEP in his 7th grade school year. However, by 9th grade, teachers expressed concerns about the student’s behaviors, such as disrupting class, eloping, and verbal aggression. These behaviors were not addressed in the student’s IEPs, and they progressively worsened to the point that they were interfering with teacher instruction and the student’s progress. In addition, the student had numerous absences. The district instituted truancy proceedings and also sent the student to an alternative education program. What should have happened is that the student should have been reevaluated and his IEP should have been revised to address the behaviors and absences that were interfering with his progress. Because this did not happen, the student was awarded a significant amount of compensatory education.

Finally, perhaps it is helpful to mention a case where it was clear that the student’s absences, which were between 55 and 121 days per school year for the last 5 years, were not related to his handicapping condition—migraines. In In Re: Mathematics, Civics and Sciences Charter School, ODR #00252 (12/2/2009), the hearing officer found a number of circumstances that persuaded her to rule in favor of the school district. First, the student’s doctor recommended that he attend school, even when he had headaches, but he did not do so. The doctor had also noted in a report that medication changes had been successful, yet the student continued to miss school. The hearing officer also found it striking that the student had so few doctor’s visits in contrast to so many absences. Then, there was also the student’s testimony, wherein he stated that he played guitar in a band that practiced every day, indicating that headaches were not interfering. In addition, he told the hearing officer he loved school, but he was not attending even though his doctor said that he should do so. In this case, it was determined the handicapping condition was not the reason that the student was not attending school.

If your child is having difficulty attending school, it may be because of a need related to a known or unidentified disability. You may want to ask for an evaluation, reevaluation, or changes to your child’s IEP or 504 Plan.

If you have any questions about the article above, please contact Jacobson & John at 215-240-7500.

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