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Expert Q&A

Is a child considered to be receiving an “appropriate education” if their occupational therapist is absent half of the time?

My son has Aspergers. Has an IEP. He is supposed to receive OT twice a week. If he is lucky he gets it once a week. The OT is out sick a lot. Is the school required to hire a sub? We live in NY. Who do I speak to? What are our rights?


Dear Christine:

You are concerned that due to provider absence and other circumstances, your child is only receiving half of the related services that he is supposed to. As would be true in general education, the schools are granted some small lee way in relation to things that come up that cause teacher absence, emergency school closure (snow storms) and the like. With regard to implementation of IEP or 504 services, a school would generally be allowed some small wiggle room in relation to missed services.

For example, it is not unusual for related services to start a few weeks after school starts, in order for the staff to get organized. While I disagree with this practice, few courts would rule that a few missed sessions constituted a denial of a free appropriate public education.

However, when the services missed reach the level of exceeding 15% or more (my own arbitrary number), let alone missing 50%, there is clearly a denial of FAPE. The service level and frequency was established based on the professionals’ judgment about what was needed.

If 50% of services are being missed, the child is not getting what is needed. Solutions could include the one you made, to wit to have a substitute provider available. I would want to insure that any substitute provider was aware of the child’s program, familiar with what was being worked on, and able to interact with the primary provider before and after the substituted service to make sure that it was meaningful, rather than just baby sitting.

An alternative would be to seek compensatory services to make up for the missed time. For example, if the therapist missed 15 sessions, the school should provide those 15 sessions at some other time during the school year to make up for what was lost. This is called compensatory education and is well established as a remedy when the school fails to provide appropriate services it has promised to an extent that interferes with the child’s educational progress or functioning.

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