Attorney Brower’s Response
First, any time a school official writes you and threatens some type of legal action the best thing to do is respond immediately. Preferably in writing so you have a record of your response. Responding in writing will also prevent an adverse action based on a claim that you failed to respond in a timely manner.
To help you understand the issues, a review of the law and policies applicable to school attendance may be helpful. First, school attendance is a mix of state law and local school policies. In Michigan we have a Compulsory Attendance Law that requires all children from 6 years of age to 16 years of age to attend public school full time. See MCL §380.1561. There are exceptions to the law including children who attend state approved private schools and children who are “home schooled”. There is also a limited exception in the state law for students who miss school to attend religious classes.
Violations of the law are handled by an Attendance Officer who works for the county wide Intermediate School District (ISD) or the local school district. The local school district regularly provides these officers with a list of students who have exceeded the number of allowed “unexcused absences” in a school year. That number is usually 10, but can vary. Once that limit is exceeded, a parent is at risk of a misdemeanor criminal charge of violation of the compulsory education law.
School Absence for ABA Therapy – There is no exception in state law for students who miss school to attend “therapy”. Therefore, it is left to the local school board to determine if such an absence is “excused” or not. What each individual school district defines as an excused absence is found in either your child’s Student Handbook or in a published school board policy. The latter is generally available on-line or by a request to the Board Office.
If therapy visits are not considered an excused absence the student will exceed even the most liberal number of allow unexcused absences. To avoid a charge of violation of the law, a parent will need to take some action. The easiest solution, and the one that the school administration would likely promote, is to schedule the therapy sessions outside of the normal school day. That may not be possible due to the ABA therapist’s hours. However, from my experience, two of the alternatives detailed below may eliminate the risk of a referral of a violation of the compulsory attendance law:
Medically Necessary Therapy – First, the parent obtains from the student’s physician a prescription declaring that ABA therapy is “medically necessary”. This is the same declaration that the insurance companies that cover ABA services require. Upon presentation of the medical documentation the school administration may agree to treat the therapy sessions as a medically “excused absence”.
Educationally Necessary Therapy – Another alternative, and the one I favor, is to request the student’s IEP Team document in the IEP that ABA (or any other private therapy) is appropriate for the student. It can be argued that ABA is “educational” due to its emphasis on communication skills development. A supporting argument is that IF the school was providing the student “x” hours a week of 1:1 ABA in the school, the student would also miss academic classes.
Finally, if a parent is required to appear in court to defend a charge of the violation of the Compulsory Education Law I would recommend obtaining the services of an attorney who understands school law issues.
1 The age of required attendance rises to 18 years of age for students who turned 11 years of age on or after Dec. 1, 2009 or who was 11 years of age and enters grade 6 in 2009.)
2 This response does not address the violation of civil rights issues that may arise if the referral to the Attendance Officer is made to retaliate against the parent for their advocacy efforts. It also does not address similar claims that may arise if the parent of a disabled student is subject to a truancy referral when parents of a non-disabled student is not.