When does a school have to ‘make up’ missed services?

One of the components of each child with a disability’s individualized education program (IEP) is, “A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided to …” 

These services are important – they are “provided to enable the child – To advance appropriately toward attaining the annual goals; to be involved in and make progress in the general education curriculum … and to participate in extracurricular and other nonacademic activities; and to be educated and participate with other children with disabilities and nondisabled children in the activities described in this section (including academic, nonacademic and extracurricular activities).”

But, what happens when a child misses one (or more) of those services?  The Office of Special Education Programs (OSEP), a part of the U.S. Department of Education in 1995 responded to this question in “Letter to Balkman,” which they confirmed in 2008. In her letter to OSEP, Kathy Balkman presented four scenarios and asked about the school district’s responsibility to provide IEP services that a child missed based on each of the scenarios. 

For two of the scenarios, “the student is ill, not present at school” and “the student does not attend school due to family or parent initiated activities,” OSEP’s response was that these were situations “where the student is absent from school because of the family’s or physician’s decision that the student not attend school” and they determined, “In the situations presented by these scenarios, the general rule is that if the school district makes IEP services available to the student at the normally scheduled time, the school district is not obligated to make other arrangements to provide services if the disabled student is absent from school at that time for reasons other than his or her participation in school-sponsored activities.” 

For the other two scenarios, “school personnel such as physical therapists or occupational therapists are attending professional conferences or other school-related activities” and “the student does not attend school because of a field trip or other school-related activities,” OSEP noted that these “appear to describe situations where the student cannot receive the services in his or her IEP due to reasons associated with participation in school-sponsored activities or the unavailability of needed personnel.” 

They added, “In those instances where a disabled student does not attend school in order to participate in school-related activities such as field trips, the school district generally will be responsible for making alternative arrangements for providing IEP services. If participation in the school activity is mandatory, the school district must arrange to provide the services specified in the student’s IEP so that the student can receive the IEP services and participate in other required school activities.”

Similarly, the provision of special education services should not operate to preclude disabled students from participating in optional, school-related programs or activities in which nondisabled students regularly take part.

In the scenario where the unavailability of school personnel prevented IEP services from being made available at the regularly scheduled time, OSEP noted, “If this is so, the school district would be required to make other arrangements to provide the services at that time or reschedule the required IEP services in order to meet its responsibility of providing FAPE [free appropriate public education] to that student in accordance with his or her IEP.”

OSEP policy letters along with OSEP memos and “dear colleague letters” may be found at www2.ed.gov/policy/speced/guid/idea/memosdcltrs/index.html.

Bonnie Dunham has worked at the Parent Information Center for nearly 30 years, currently as Special Education Law and Policy Specialist and Associate Director of NH’s Parent Training and Information Center on Special Education.  Dunham was honored in 2013 by the NH Council on Developmental Disabilities as the Advocate of the Year, and in 2014 she and her family received the NH Family Community Inclusion Award.

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