Ohio’s New Truancy Laws

by Pamela Leist | Feb 14, 2017 | Legislation

Ohio House Bill 410 was signed by the governor on January 4, 2017, and takes effect on April 6, 2017. Despite its effective date, school districts are not required to implement many of the truancy provisions until the start of the 2017–2018 school year, the majority of which are codified in section 3321.191 of the Revised Code. To assist school districts in the implementation of the new truancy laws, the Ohio Department of Education (ODE) is expected to develop a model truancy policy to be completed in early July.

In response to this legislation, several school districts have asked for additional information on the details of the bill in order to comply with R.C. § 3321.191, including a timeline to implement absence intervention plans. As such, the following is a summary of the bill that organizes the new truancy provisions into categories to be more useful to districts.

Definitions

Chronic truant will no longer be used.

Habitual truant refers to a child of compulsory school age who is absent from school without legitimate excuse for the following number of hours (RC 2151.011):

30 or more consecutive hours or
42 or more hours in one school month or
72 or more hours in a school year

Unruly child refers to a habitual truant who has not previously been adjudicated for being a habitual truant (RC 2151.022), but if based solely on being a habitual truant, court shall consider alternatives to adjudication to divert the child from the juvenile court system

Delinquent child applies to a child who violates a court order regarding the child’s prior adjudication as an unruly child for habitual truancy, but no longer includes habitual (or chronic) truant (RC 2152.02)

Suspensions

Beginning July 1, 2017, districts may not suspend, expel, or remove a student solely on the basis of absence without legitimate excuse. (RC 3313.668)

Districts may not carry over suspensions from one year to the next for any type of student misconduct. However, for an out-of-school suspension, participation in a community service program or an alternative consequence may be imposed during summer break for a number of hours equal to the remaining suspension. The community service or other consequence must begin during the first full weekday of summer break. Each district has the discretion to develop “an appropriate list of alternative consequences.” If the student fails to complete the community service or alternative consequence, the district may determine the next course of action; however, it may not include imposing out-of-school suspension when the next school year begins. (RC 3313.66)

Districts have discretion to allow make-up homework during suspensions. (RC 3313.66)

Excessive absences may not be punished by suspension, expulsion, or other means of prohibiting a student from attending school. (RC 3313.668, RC 3321.191)

Attendance Officers

Attendance officers shall file a complaint in juvenile court on the 61st day after implementation of an absence intervention plan if all of the following apply:

The student has unexcused absences of 30+ consecutive hours, 42+ hours in one month, or 72+ hours in a school year
The district has made meaningful attempts to reengage the student through the absence intervention plan or other intervention strategies and alternatives to adjudication
The student has refused to participate in or failed to make satisfactory progress on the plan, strategies, or alternatives

If the student has absences as noted above, but the absence intervention team determines that the student has made “substantial progress” according to the plan, the attendance officer shall not file a complaint in juvenile court.

If the 61st day after implementation of an absence intervention plan falls during the summer months, the district has the discretion to allow the absence intervention team or attendance officer to extend the implementation of the plan and delay the filing of the complaint for an additional 30 days from the first day of school the next year. (RC 3321.16)

Juvenile Courts

Extensive changes were made to juvenile court procedures (RC 2151, 2152), including notifying the school district and the school of attendance within 10 days if a student is adjudicated an unruly child for habitual truancy (RC 2151.354, 2152.19). This is important to school districts because districts will be required to notify ODE when a child has violated a court order regarding prior adjudication as an unruly child for habitual truancy.

Student Travel

Absences for a student who travels out of state for enrichment activities or extracurricular activities may be excused up to 24 hours maximum for the school year. If the student will be absent for 24 or more consecutive hours for these activities, a classroom teacher employed by the district shall accompany the student for instructional assistance. (RC 3321.041)

Driver’s Licenses

For purposes of driver’s license suspension, a board of education may notify a superintendent of a student’s unexcused absence of 60 or more consecutive hours or 90 or more hours in a school year. (RC 3321.13)

If a board of education has adopted a resolution stating such, the superintendent shall notify the registrar of motor vehicles and the county juvenile judge of a student’s unexcused absences of more than 60 consecutive hours in a single month or at least 90 hours in a school year. The superintendent shall also provide the parents with written notice that the student’s driver’s license, temporary permit, or opportunity to obtain such permit has been suspended and that the student and parents may have a hearing with the superintendent as scheduled. (RC 3321.13)

Absence Intervention Teams

Schools may establish their own absence intervention teams. District superintendents shall establish an absence intervention team for the district to be used by any schools that do not establish their own absence intervention teams. Membership of the absence intervention team may vary based on the needs of each student but shall include:

a district or school representative,
another district or school representative who knows the student, and
the child’s parent (or guardian, custodian, etc.), and may include

a school psychologist, counselor, social worker, or public agency representative. (RC 3321.191)

If a student becomes habitually truant within 21 days of the end of the school year, a district may assign one school official to work with the child’s parent to develop an absence intervention plan during the summer, which shall be implemented no later than 7 days before the next school year begins. Alternatively, the district may toll the summer time period and reconvene the absence intervention process on the first day of the next school year. (RC 3321.191)

ODE will develop a format for parental permission regarding absence intervention teams to ensure compliance with FERPA. (RC 3321.191)

Districts with a truancy rate of less than 5 percent are exempt from assigning habitually absent students to absence intervention teams and may develop their own district strategies; however, if their strategies fail, the attendance officer shall file a complaint within 61 days of implementation. (RC 3321.19)

Absence Intervention Plans

Each plan shall vary based on the needs of the student, but all plans shall notify the student of the attendance officer’s obligation to file a complaint 61 days after implementation of the plan if the student has refused to participate in or failed to make satisfactory progress on the plan or other alternative to adjudication. (RC 3321.191)

As part of the absence intervention plan, the district may contact juvenile court and ask to have the student informally enrolled in an alternative to adjudication. If a district chooses to do this, the district must develop a policy regarding use of and selection process for offering alternatives to adjudication. (RC 3321.191)

Districts or schools may consult or partner with public and nonprofit agencies for assistance to students and families to reduce absences. (RC 3321.191)

Timeline for Absence Intervention Teams

Triggering event – Student surpasses the threshold for unexcused absences for habitual truancy. Districts are required to report to ODE when a student has exceeded this threshold.
Within 7 days of the triggering event – The school or district shall select the members of an absence intervention team and shall make at least three good-faith attempts to secure parent participation on the team. (RC 3321.191) If the parent responds but is unable to participate, the district shall inform the parent of the right to appear by designee. If the parent fails to respond, the district shall (1) investigate whether the failure to respond triggers mandatory reporting to children’s services and (2) instruct the absence intervention team to develop a plan notwithstanding the absence of the parent.
Within 10 days of the triggering event – The board of education shall assign a student who is considered a habitual truant to an absence intervention team. (RC 3321.19)
Within 14 days after assigning a student to an absence intervention team – The team shall develop an intervention plan. (RC 3321.191)
Within 7 days after development of the intervention plan – the district shall notify the student’s parents of the plan. (RC 3321.191)

Note: Districts are required to notify ODE when an absence intervention plan has been implemented.

Board Policy

Beginning 2017–2018, board policy shall include notifying parents of absences with or without legitimate excuse of 38+ hours in a month or 65+ hours in a year, within 7 days of the absence that triggered the notice (RC 3321.191). Districts are required to report this to ODE as well.

Zero-tolerance policies should no longer include “excessive truancy.”

Excessive truancy is no longer a reason for Big 8 schools to send students to alternative schools. (RC 3313.534)

Reporting to ODE

Beginning 2017–2018, districts shall report the following occurrences to ODE. (RC 3321.191)

When notification is provided to a parent of student’s absences with or without excuse of 38+ hours in one school month or 65+ hours in a school year
When a student is designated as a habitual truant
When a student who has been adjudicated unruly for habitual truancy violates a court order regarding that adjudication
When an absence intervention plan has been implemented

Supreme Court to Decide Level of Educational Benefit for Students with Disabilities

by Pamela Leist | Feb 3, 2017 | Special Education

On January 11, the U.S. Supreme Court heard arguments in one of the most significant special education cases in past three decades. In the 1982 case Board of Education v. Rowley, the Supreme Court determined that an individualized education program (IEP) must be “reasonably calculated to enable the child to receive educational benefits.” Since then, federal courts have weighed in on educational benefits, some determining that a minimum standard, de minimis, is enough, while others, including the Sixth Circuit (Deal v. Hamilton Bd. of Ed., No. 03-5396, 6th Cir. 2004), have held that a meaningful educational benefit is needed. With federal circuits divided on this federal issue, the Supreme Court agreed to hear the case at hand. The question before the Court is as follows:

What level of educational benefit must school districts confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act (IDEA)?

Endrew F., who goes by the name Drew, is a student with autism in Colorado. He was placed on an IEP from preschool through fourth grade. His proposed IEP for fifth grade contained goals that his parents say too closely resembled the goals from previous years. Dissatisfied with the progress Drew was making in public school, his parents withdrew him and enrolled him in private school.

Drew’s parents filed a complaint with Colorado’s Department of Education, claiming that Drew had been deprived of a free appropriate public education (FAPE). The parents also claimed that Drew had made academic, social, and behavioral progress in private school. They asked to be reimbursed for the cost of his private schooling, per IDEA, which provides for reimbursement of private school tuition and related expenses if a public school cannot meet the educational needs of a student with a disability. Drew’s parents and the school district argued their case in an administrative hearing, then in a federal district court, and finally on appeal in the Tenth Circuit Court. All of the rulings were in favor of the school district, finding that the public school had provided Drew with FAPE, that he had made “some academic progress” which was “more than de minimis,” and that his IEP was “substantively adequate.”

IDEA grants students with disabilities with the right to receive “appropriate” special education and related services at public expense. The IEP must be designed to provide for this “appropriate public education” under IDEA. However, IDEA does not define the term “appropriate,” nor does it define the required level of educational benefit.

Clearly, the law requires that special education be designed to each child’s individual needs and that schools provide services to benefit special education students. How far schools must go to benefit students, however, remains unclear.

The 1982 Rowley case involved a deaf student who was an excellent lip reader. Her parents asked for an interpreter, but the school said she was doing well enough that she didn’t need one. Her parents contended that she was not reaching her full potential, but the Supreme Court held that a school is not required to maximize each student’s potential. After the Rowley decision in 1982, many federal courts used the analogy that schools provide the educational equivalent of “a serviceable Chevrolet” but not a “Cadillac.”

The level of educational benefit therefore remains unclear and undefined, which results in inconsistent federal court decisions. The standards in federal court range from merely more than a minimum benefit, to some benefit, to a meaningful benefit. The Endrew v. Douglas case currently in the Supreme Court goes beyond the two extremes of minimum benefit and maximum potential and focuses specifically on the level of educational benefit required of schools under IDEA.

The Supreme Court requested input from the federal government, which urged the Court to reverse the Tenth Circuit’s ruling, noting that it “is not consistent with the text, structure, or purpose of the IDEA … and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law.”

A report summarizing the January 11 Supreme Court arguments notes that one thing was relatively clear: “The justices were dissatisfied with the U.S. Court of Appeals for the 10th Circuit’s ruling that school districts can satisfy federal education law as long as they offer a student with a disability an educational program that provides him or her with a benefit that is more than merely de minimis, or non-trivial.” The justices were also concerned with imposing additional costs on school districts by requiring them to provide increased services and creating educational standards without being educational experts. They considered the idea of flexibility in IDEA, possibly tailoring special education to the student rather than to the grade level.

Counsel for the U.S. Solicitor General argued that IDEA requires a program “aimed at significant educational progress in light of the child’s circumstances,” which led to discussion among the justices about the right words and adjectives to describe the standard. While Justice Sotomayer thought that IDEA “provides enough to set a clear standard,” Justice Roberts concluded the law has “really nothing concrete” for courts to review.

Neal Katyal, the attorney for the school district, argued that the level of “some benefit” is the same as “more than merely de minimis,” and this is the level he was advocating. Justice Breyer noted that IDEA has been amended so that an IEP is designed for students to “make progress in general education” and concluded that “some benefit” along with “make progress” equals more than a minimum standard. Katyal noted that the more-than-minimum standard has worked for many years, and Justice Ginsburg hinted that this standard had no precedent for the Court and could be replaced with something more stringent.

The U.S. Department of Education proposed a standard that school districts offer a program “aimed at significant educational progress in light of the child’s circumstances,” which the justices seemed to regard as most consistent with existing law.

Drew has garnered support from organizations such as the National Center for Learning Disabilities and the Parents Education Network in addition to more than a hundred members of Congress. Without taking sides, the National Association of State Directors of Special Education filed a legal brief saying that schools already provide a “meaningful benefit”through IEPs.

Although a decision is not expected until this spring or summer, this case is likely to have significant impact on special education programs throughout the country.