The purpose of this document is to provide updated guidance, in light of the recent statutory changes to Texas Education Code (TEC) §25.087, regarding students with disabilities who are absent for part of the school day for the purpose of receiving treatment from a health care professional. This guidance only applies to students with disabilities who receive special education and related services to ensure a free appropriate public education (FAPE).
Under Texas Education Code (TEC) §25.087(b)(2), a school must excuse a student’s temporary absence resulting from an appointment with a health care professional if the student comes to school the day of the appointment, either before or after the appointment. In addition, 19 Texas Administrative Code (TAC) §129.21(l) provides that a student may be excused, in accordance with TEC §25.087, for medical, dental and psychological appointments; for special education assessment procedures; and for special education related services.
In a To the Administrator Addressed Letter issued in 2001, the Texas Education Agency (TEA) advised school districts that regularly scheduled daily or weekly absences to obtain ongoing treatment for a chronic health condition related to a student’s disability cannot be considered “temporary” absences within the meaning of TEC §25.087. This guidance continues to apply to students with disabilities who have regularly scheduled daily or weekly absences to obtain ongoing treatment for a chronic health condition. Recent legislation amending TEC §25.087, however, has added a new provision relating to students diagnosed with autism spectrum disorder. This document provides guidance with regard to this new provision.
The new TEC §25.087(b-3) provides that a temporary absence under subsection (b)(2) includes the temporary absence of a student diagnosed with autism spectrum disorder resulting from an appointment with a health care practitioner to receive a generally recognized service for persons with the disorder, including applied behavior analysis, speech therapy, and occupational therapy. The intent of this amendment was to clarify that these types of absences must be excused as temporary absences under TEC §25.087(b)(2). Thus, a school must excuse any absences that fall within TEC §25.087(b-3).
In response to this statutory change, the State Board of Education has amended 19 TAC §129.21(k) to provide as follows:
(11) The student has a documented appointment with a health care professional during regular school hours, if the student begins classes or returns to school on the same day of the appointment, as provided in the TEC, §25.087. The appointment should be supported by a document such as a note from the health care professional. An appointment with a health care professional includes an appointment of a student diagnosed with autism spectrum disorder with a health care practitioner, as described by the Texas Insurance Code, §1355.015(b), to receive a generally recognized service for persons with that disorder, including applied behavioral analysis, speech therapy, and occupational therapy.
It should be noted that the provisions in TEC §25.087 do not alter a school district’s obligation under federal law to provide a student with a disability a FAPE. If a student has recurring absences, the student’s ARD committee should address the issue when developing the student’s IEP. Furthermore, the ARD committee must be mindful that 19 TAC §89.1075(d) requires that: (1) students with disabilities must have an instructional day that is commensurate with that of students without disabilities; and (2) the ARD committee determine the appropriate instructional setting and length of day for each student which must be specified in the student’s IEP. The ARD committee, therefore, has the authority to decide whether to shorten a student’s instructional day, and, if so, how to shorten it. The ARD committee’s deliberation of this issue should include meaningful input from the student’s parents.
When developing an IEP for a student with a disability who has recurring absences to receive treatment from a health care professional, the ARD committee’s considerations should include: (1) how the ongoing treatment for which the student will be absent is related to the student’s disability; (2) how the recurring absences may affect the student’s educational program needs; and (3) whether any program modifications, including a modified instructional day or week, will be necessary to accommodate the student’s need to be absent.
A student whose absence is excused under TEC §25.087(b) may not be penalized for the absence and shall be counted as if the student attended school for purposes of calculating average daily attendance. Also, the school district must allow the student a reasonable time to make up missed school work. If the student satisfactorily completes the school work, the day of absence shall be counted as a day of compulsory attendance. The ARD committee, therefore, should consider the expected length of the student’s recurring absences and determine how the student will make up missed work.Even when a student’s absences are excused, the student is subject to TEC §25.092 which conditions credit for a class on a student’s attendance for at least 90 percent of the days a class is offered. This provision is commonly referred to as the “90 percent rule”. Finally, the new provision in TEC §25.087(b) should not be construed as creating a “dual enrollment” option (i.e., the option to concurrently enroll a student in a public school and a private school) for students who are in kindergarten through twelfth grades. The new amendment merely allows temporary absences for part of the school day to attend appointments with health care practit
 H.B. 192, Acts of the 81st Legislature, Regular Session, 2009.
 Texas Insurance Code §1355.015(b) describes a health care practitioner as someone: (1) who is licensed, certified, or registered by an appropriate agency of this state; (2) whose professional credential is recognized and accepted by an appropriate agency of the United States; or (3) who is certified as a provider under the TRICARE military health system.
 Additional information regarding the 90 percent rule may be found in TEA’s To the Administrator Addressed Letter Regarding Attendance, Admission, Enrollment Records and Tuition, which is updated annually. This year’s letter may be found at: http://ritter.tea.state.tx.us/taa/legal072811.html.
Division of Federal and State Education Policy
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Austin, Texas 78701