OSEP LETTER: April 18, 2018 to David Kane
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Topic Areas: Free Appropriate Public Education, Related Services
OSEP LETTER: April 18, 2018 to David Kane
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OSEP LETTER: April 18, 2018 to David Kane
400 MARYLAND AVE., S.W. WASHINGTON, D.C. 20202-2600
www.ed.gov
The Department of Education’s mission is to promote student achievement and prepar ation for global competiveness
by fostering educational excellence and ensuring equal access.
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
April 18, 2018
David Kane, Esq.
Sargent Rehabilitation Center
800 Quaker Lane
Warwick, R hode Island 02818
Dear Mr. Kane:
This letter responds to your correspondence to Lisa Pagano, State Lead/Policy Specialist, Office
of Special Education Programs (OSEP), U.S. Department of Education (Department). In your
letter, you ask that OSEP clarify the obligation of local educational agencies (LEAs) to provide
compensatory services to make up special education and related services missed when children
with disabilities participate in required scheduled State assessment testing. We regret the delay in
responding.
We note that section 607(d) of the Individuals with Disabilities Education Act (I DEA) prohibits
the Secretary from issuing policy letters or other statements that establish a rule that is required
for compliance with, and eligibility under, IDEA without following the rulemaking requirements
of section 553 of the Administrative Procedure Act. Therefore, based on the requirements of
IDEA section 607(e), this response is provided as informal guidance and is not legally bindi ng.
This response represents an interpretation by the Department of the requirements of IDEA in the
context of the specific facts presented, and does not establish a policy or rule that would apply in
all circumstances.
In your letter, you present two scen arios and ask whether an LEA has a responsibility to provide
compensatory services to make up any special education and related services missed: (1) during
the time a child participates in a required State or districtwide assessment program; and (2) when
t he parent withholds his or her child from participating in the State or districtwide assessment
program ( e.g., the parent keeps the child home from school during the time that assessments are
being administered).
Part B of the IDEA requires each LEA, along with the State educational agency, to ensure that a
free appropriate public education (FAPE) is made available to all eligible children with
disabilities within the jurisdiction of the LEA . 20 U.S.C. 1412(a)(1) and 20 U.S.C. 1413(a)(1). In
order to make F APE available, each child’s individualized education program ( IEP) must be
developed and implemented in accordance with the requirements in 20 U.S.C 1414(d). 20 U.S.C.
1401(9). T he IEP for each child must include, among other content , a statement of the specific
special education and related services to be provided to the child, the projected dates for
initiation of the services, and the anticipated frequency, location, and duration of the services.
(Emphasis added). 20 U.S.C 1414(d)(1)(A)(i)(IV). 34 CFR §300.320(a)(4) and (7).
In addition, all children with disabilities must be included in all general State and district wide
assessment programs, including assessments described under section 1111 of the Elementary and
Secondary Education Act of 1965 (ESEA), with appropriate accommodations, and alternate
assessments where necessary and as indicated in their respective IEPs . 20 U.S.C. 1412(a)(16).
A ll children, including children with disabilities, benefit from participating in State and
districtwide assessmen ts, which are an integral part of the educational accountability system
under Title I of the ESEA and Part B of the IDEA, and are often used to measure student
progress for the purpose of promotion, graduation, and access to educational services. In
additi on, assessment is an integral aspect of educational accountability systems that provide
valuable information which benefits individual students by measuring individual progress against
standards or by evaluating programs.
Participation in assessments is also addressed in the child’s IEP. The IEP Team determines how
the child will be assessed, including whether any individual appropriate accommodations are
necessary to measure the academic achievement and functional performance of the child and
whether the child must take an alternate assessment. 20 U.S.C. 1414(d)(1)(A)(i)(VI). Thus,
children with disabilities must participate in all general State and/or districtwide assessments and
during the administration of such tests , the LEA must implement the child’s I EP by providing
any required acco mmodations or an alternate assessment if determined necessary by the child’s
IEP Team.
Generally, a special education or related service missed due to participation in required
scheduled assessment s would not constitute a d enial of FAPE and the LEA would not be
required to make up the missed service. For a child who is absent from school on testing days
due to a parent’s choice, the LEA would not be obligated to make other arrangements to make up
the missed services.
If you have any further questions, please do not hesitate to contact Ms. Pagano at 202-245-7413
or by email at Lisa.Pagano@ed.gov
.
Sincerely,
/s/
Ruth E. Ryder
Acting Director
Office of Special Education Programs
Summary
Addresses missed Individualized Education Program (IEP) services due to participation in State or districtwide assessment programs.
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Last modified on May 30, 2023