025-12 School Division Closures & Obligation for Services
If a school division is closed for inclement weather, emergency situations, holidays, or teacher workdays, is the school division obligated to provide the IEP services that would have been provided had school been in session?
A school division’s obligation to provide specific, quantifiable services in accordance with an IEP is an enforceable obligation. In the events noted above, a holiday is the only event that has been addressed by the courts. A Virginia federal district court has ruled that no services are required during Thanksgiving or Christmas Break. (Smith v. James C. Hormel School of the Virginia Institute of Autism and Greene County School Board, 2009, U.S. District Court, LEXIS 114892, aff’d in relevant part 2010 U.S. District court, LEXIS 29026). It is reasonable to apply this same standard to Spring break and designated holidays, such as Columbus Day, when those holidays are so noted on the school division’s school year calendar as a planned closure.
The same reasoning may be applied to other non-holiday closures, whether planned or unplanned. As one hearing officer ruled in a due process decision, "there is no expectation that a school will provide any services when the school is closed." (Student with a Disability Department of Defense-Defense Legal Services Agency, 109 LRP 47582, 2008). Additional authority may be found in the federal and state regulations governing special education in the definition of "school day". (34 CFR § 300.106(b); corresponding Virginia Regulations at 8 VAC 20-81-10). "School day" means "any day, including a partial day, that children are in attendance at school for instructional purposes. The term has the same meaning for all children in school, including children with and without disabilities." Put most simply, services cannot be provided when the school division is closed, for either general education or special education students.
We then turn to the question of whether or not school divisions are responsible for making-up special education services following events involving school division closures. To answer this question, we look to the following due process case decision and additional principles, based on a "rule of reason".
- A hearing officer noted that "With regard to school closures for holidays, parent-teacher conferences, and other school-wide activities, no services would have been anticipated by the IEP team during these regularly scheduled events. Therefore no make-up time is called for." (In re: Student with a Disability, 109 LRP 13190, Montana State Educational Agency, January 16, 2009). This holding is consistent with the above referenced decisions that are equally applicable. This principle also would apply to unplanned closures due to emergency situations or inclement weather.
- As part of general practice, school divisions may "bank" instructional hours in calculating what constitutes a regular school year to ensure that the division meets the number of instructional hours/days. If the unscheduled closures exceed this "banked" time, the school division is required to make up the missed time for students in general education, as well as special education. Therefore, IEP services that were not provided on a day of closure must be provided on the school division’s make-up days (whether banked or additional).
Practice Tip
- Regardless of these principles, an IEP meeting may be convened, either at the request of school personnel and/or parent, to review the impact that a planned or unplanned closure had on the student’s right to receive FAPE.
- School divisions may wish to develop specific language in their IEPs that provides a clear understanding of the application of the above referenced points. As part of an electronic series of Tips for implementing the special education requirements, one school board attorney suggests the following language:
Tip No. 3702011 (9/16/11) IEP Implementation
It is a good idea to have a provision on the service page of the IEP that provides notice to parents that scheduled IEP services, despite any statement in the IEP to the contrary, are not provided on or made up for days the school division is closed for any reason, such as holiday or weather and may not be provided during a partial day. This clarifying statement is necessary so that students may not be entitled to compensatory education services in the event of a school closing. For example, if speech services are specified in the IEP with a frequency of three thirty minute sessions per week and are actually provided on Monday, Wednesday and Friday, if the school division is closed on Wednesday through Friday, the speech services are provided only on Monday and the other two days are not made up per the terms of the IEP. This clarification assists in avoiding parent complaints that the three sessions had to be rescheduled for Monday and Tuesday or made up at later date.
[Reprinted with permission; Kathleen Mehfoud, ReedSmith LLP, 2012]1
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