A speech pathologist goes out on unexpected medical leave. Three paraprofessionals quit in one week. A special education teacher is abducted by aliens and no substitutes are available. Sometimes staff absences are unavoidable, and they are almost always unpredictable. Shortages in special education in particular are making it difficult to find qualified teachers, related services providers, and substitutes and replacements when one of those professionals is unavailable unexpectedly. As we previously explained, a recent Illinois law (HB 3586) added notification requirements when a student’s IEP services are not provided. Although we hope that this increased communication and proactive planning for compensatory services can decrease due process and Illinois State Board of Education (ISBE) complaints related to missed services, there is no doubt that special educators have many questions about how to comply with the new notice requirements. Let’s break down exactly when parental notification is required and what it should look like.
When is notice required?
The law says that parents must be notified if the student’s IEP services “are not administered within 10 school days after a date or frequency set forth by the child’s [IEP].” So, if the IEP calls for 30 minutes of occupational therapy per week and those services are not provided in a given week or in the next 10 school days (generally 2 weeks), the school would need to notify parents within 3 school days. This lack of services will be apparent on the related services logs that are also now required. Note, however, that the notification requirement is broader than the related services log requirement; it applies to all IEP services, not just related services. One caveat is if the student is out of school for a reason unrelated to the lack of IEP services, those days do not count.
What notice is required?
In addition to notifying parents that a service has not been administered, the notification must inform the parent of the ability to request compensatory services. You may want to include a proposed plan in your notification. Taking this affirmative step shows parents you understand that the services are important for their child and that the situation is under control. Parents may still request additional services, but you have a starting point to ground the discussion.
What compensatory services are required?
Remember, compensatory services are not always hour-for-hour. If a student misses 2 or 3 sessions of PT because the service provider is unavailable, it may be fairly easy to just make those sessions up. But if the services of a resource teacher or 1:1 aide are not provided for a quarter, what do compensatory services look like?
A recent decision following an ISBE complaint addressed the issue of compensatory services when a student went without the support of an aide, which was required by the IEP, for 20 days. Note that an aide might be listed on an IEP as a related service, in which case, missed services would trigger the notification requirement. Alternatively, an aide could be listed as a supplementary aid and accommodation, in which case, the missing support arguably would not trigger the notification requirement, though open communication is generally advisable. In this case, ISBE required the district to convene an IEP meeting to determine:
- If the student did not make expected progress as a result of not receiving services in accordance with the IEP.
- If the student did not make expected progress, what services are needed to make up for that lack of progress?
This analysis is also what a hearing officer or court would conduct if faced with a claim that missed services denied a student FAPE.
Accordingly, the determination will be individualized to each student. Consider how the student was impacted by the missed services and how the student is expected to respond to compensatory services. For example, a student may progress faster with 1:1 tutoring than in a resource class with multiple students, so fewer hours may be needed.
Indeed, some students may continue to progress despite the lack of services, and thus not require compensatory services. In the case mentioned above, the student met all but one of her goals and that goal was not one the aide was involved with. ISBE approved the IEP team’s determination that the student did not need any compensatory services.
Whether denying or offering compensatory services, the team should document the reasons for the determination, focusing on data related to the student’s progress with and without the missed service.
Can we get more flexibility to schedule and reschedule services in the case of an absence?
One way to build some flexibility into your IEP implementation is to document the services the student will receive per month or per quarter rather than per day or per week. While this will not help much if you are without a social worker for several months, it does make it easier to schedule and reschedule services if a staff member is out for a few days because of an illness or for professional development without providing notice each time there is a change made.
We know you are already doing everything you can to ensure students get all their IEP services. But when that just isn’t possible, we hope you now feel you have a road map for how to proceed.