Is It Legal To Keep My Child with Special Needs Home From School?

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A majority of parents with students in special education programs (or with IEPs or 504s) have felt the desire to, or actually kept their child out of school for an extended period of time (from a couple of days to an infinite amount of time) for reasons such as an issue with a teacher, testing, bullying by other students, certain school rules and/or placement decision disagreements, just to name a few.

Many of my clients have adamantly informed me that their child will not return to the school until the issue has been resolved to their satisfaction.

Obviously, no parent wants to send their child (neurotypical or with learning or disability issues) to a place such as a school, where they are being bullied on a daily basis, or they have been placed in a class or program that is above or below their performance abilities. This is understood and I will be sympathetic to their plight.

The Hard Truth

However, the parent(s) are often shocked when I inform he/she that they are in violation of state truancy laws when they keep their children home from school because of a dispute with the school administration.

Truant officers (now called attendance officers) still exist, and are often employed by the intermediate school district, to be used by the member school district when a child is out of school for an extended period of time without meeting a statutory exemption.

Homeschooling vs. Just Staying at Home

There is a difference between homeschooling one’s child and just keeping one’s child at home. This is the number one question I am often asked during these types of disputes.

In most states, a parent or guardian is required to send a child between the ages of 6-16 for compulsory education at the school district in which they reside during the entire school year.

A parent or guardian may legally also opt to send their child to either a state-approved, non-public school, such as a parochial school or non-parochial private school or educate the child at home in an organized educational program.

These are typically the three statutory options a parent has to educate their child: public school, private school or an organized, educational program within the home.

Failure to Comply is Not an Option

In most states, the attendance officer has the powers of a deputy sheriff within the school district and performs official duties such as pursuing cases of nonattendance.

Once an attendance officer has been informed of a student’s nonattendance, the attendance officer will either in person, or by certified mail, give written notice that the absent student is required to appear at school on the next regular school day and to continue regular and consecutive attendance.

If a parent fails to comply with the notice, the attendance officer shall make a complaint against the individual in the proper court for refusal or neglect to send the child to school. The court will then issue a warrant for the parent and legal proceedings will ensue.

In the state of Michigan, a parent who has failed to comply with the compulsory attendance statute is guilty of a misdemeanor. In other states, the punishment may be less or more severe.

Exceptions

The only other exception in most states where a child is allowed to not attend school without penalty is when the child qualifies for homebound and hospitalized services.

Homebound and hospitalized service is provided to pupils unable to attend school because of a medical condition. The provider brings the curriculum from the teacher of record to pupils in the home or in the hospital to help the pupils keep up with their studies.

Public school pupils certified by their attending physician or a hospital as having a medical condition that requires the pupil to be homebound or hospitalized for a period longer than five school days are eligible.

Parents must notify the school district their child attends when the pupil is homebound or when plans are being made for a future hospitalization that will result in the loss of more than five consecutive school days.

In Michigan, students receiving the service under the special education rules receive a minimum of two nonconsecutive hours of instruction per week. The two one-hour sessions for a student with an IEP may be on the same day; however, there must be an adequate break between the two sessions.

With special education students, the qualifying medical issues tend to be psychological. Examples are where medically-certified anxiety is heightened and not responding to medication or other mental disorders or other mental health issues have been exacerbated by an event.

Medical documentation is important and schools have a right to review the medical documentation and ultimately hold an IEP with the option to decide the student is ready to attend their program at the school.

Moral of the Story

Children belong in school and thrive best when interacting with their peers and learning from specially trained instructors. Don’t visit your animosity towards the administration upon your child. Meaning, your child is not a pawn.

There will be times when your child won’t get on the bus or refuses to attend school. If this is a repetitive behavior, work jointly with the school to determine why your child is exhibiting such a reluctance.

If the issue is bullying, there are state laws to address this. If you ultimately decide to homeschool your child, you must dis-enroll him from the district and you will receive none of the services that you would be entitled to under IDEA.

Think before keeping your child home for a long period of time. If it’s psychological or medical, get the documentation, then work with the school and the specialists on a plan of re-introduction to the school.

However, nothing the school does or says is worth you having a criminal record.

Michael Dorfman

Written on 2016/02/04 by:

Michael Dorfman

Michael R. Dorfman is an attorney and partner at Nykanen Dorfman, PLLC in Farmington Hills, Michigan.  In his special education law practice, Michael represents students and their families when there is a conflict with the school district or when an appropriate education is not being provided.