What Is the Difference Between an Excused Absence, Opting Out, and Refusing a Program?
Three different words describe three different records, and they are not treated the same way.
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Short answer
28 C.F.R. § 523.41(c)(4) lists opting out among the situations in which a person is generally not considered to be successfully participating, and § 523.41(c)(5) states that opting out is documented by staff and is not itself a disciplinary violation — although violating program rules, or refusing or withdrawing from a program, can be. A person who opts out is outside the framework until an opt-in is documented. An excused absence is a staff determination about a particular missed session. The record for the period is what matters.
Attorney review pending. This is general education, not legal advice.
Plain-English overview
28 C.F.R. § 523.41(c)(4) lists situations in which a person will generally not be considered to be successfully participating, and opting out is one of them.
Section 523.41(c)(5) addresses opting out directly. Opting out must be documented by staff, and opting out by itself is not a disciplinary violation — although violating the specific rules of a program, or refusing or withdrawing from one, can be.
A person who has opted out is excluded from further First Step Act benefits until they affirmatively opt back in, which staff also document.
Why this matters
These three words are used loosely in conversation, but they produce different records, and the record is what determines how a period is treated.
The three situations
Excused absence
A missed session that staff treat as approved. It is an operational determination recorded by staff, not a decision to leave the framework.
Opting out
Declining participation in the First Step Act framework. Documented by staff under § 523.41(c)(5); not itself a disciplinary violation; ends further benefits until the person opts back in.
Refusing or withdrawing
Declining or leaving a specific recommended program. This can be treated as a disciplinary matter and affects successful participation.
What the rule generally means
The regulation's core test is successful participation: the Bureau of Prisons determines whether a person participated in the assigned qualifying programming and complied with its requirements.
Opting out places a person outside that framework until they opt back in. Refusal or withdrawal from a particular program is treated within the framework and can carry disciplinary consequences.
An excused absence is an operational determination by staff about a particular missed session. It is not defined in the regulation text itself, which is why the record and the institution's policy matter here.
Conditions or exceptions that change the answer
- Whether the absence was approved by staff and how it was recorded.
- Whether the record shows an opt-out, and whether an opt-in has since been documented.
- Whether a refusal or withdrawal resulted in an incident report.
- Whether the program in question was one recommended based on the needs assessment.
- Institution-level operational policy on documenting absences.
Exactly where each statement above comes from — source checked: September 6, 2026
- Opting out is listed among the situations that are generally not successful participation: 28 C.F.R. § 523.41(c)(4)(v), current eCFR text read September 6, 2026.
- An opt-out must be documented by staff; opting out by itself is not a disciplinary violation, while violating a program's requirements or rules, including refusal to participate or withdrawal, may be: 28 C.F.R. § 523.41(c)(5)(i)–(ii).
- Opting out results in exclusion from further First Step Act benefits until the date the person opts back in, as documented by staff: 28 C.F.R. § 523.41(c)(5)(iii).
- Failing to complete a recommended program is entered in the Bureau's records with a fail or withdraw code and is not treated as opting out, though it does place the person in non-earning status: Program Statement 5410.01 CN-1 (February 6, 2023), change to section 5, read September 6, 2026.
- Declining a recommended program after being on a waiting list is recorded with a decline code and treated as declined or opted out for the waiting-list period: Program Statement 5410.01, section 5.
Unresolved source point
One point remains unresolved. Neither 28 C.F.R. part 523, subpart E, nor Program Statement 5410.01 CN-2 defines the term “excused absence” — both were read in full on September 6, 2026 and the phrase does not appear in either. How a particular missed session is approved and recorded therefore appears to be an institution-level operational matter, and CaseSteps cannot state a governing definition.
This reading is therefore not marked fully source-checked. Everything above about opting out, refusal and withdrawal is supported by the provisions listed in the source record; only the treatment of an approved missed session is unconfirmed. Ask unit staff or counsel how such an absence is recorded at that institution.
Records to request or review
- Program attendance and participation records for the affected period.
- Any documented opt-out or opt-in.
- Any incident report relating to a refusal or withdrawal.
- The FSA Time Credit Assessment for the affected period.
- Do not upload any of these records to CaseSteps. Nothing here accepts files.
Questions for the unit team
- How was this absence recorded?
- Does my record show that I have opted out at any point?
- If it does, what is the process for opting back in?
- Was anything recorded as a refusal or withdrawal?
- What does my record show for successful participation in that period?
What CaseSteps cannot do
CaseSteps does not calculate credits, good-conduct time, a release date, a PATTERN score or a placement date.
CaseSteps does not decide whether anyone is eligible, does not review an individual record, and does not draft or file anything.
The Bureau of Prisons controls official sentence computation, assessments, program assignment, credit records and placement decisions. Individual questions belong with the unit team and with qualified counsel.
Questions to discuss with counsel
- In general terms, how does the regulation treat opting out compared with refusing a program?
- What are the general consequences of an incident report in this area?
- Which records would show how a period was treated?
- If a record appears inaccurate, what is the general route for raising it?
- Does any of this affect matters before the court, or is it entirely a Bureau of Prisons matter?
Official sources
- 28 C.F.R. § 523.41 — Definitions (FSA Time Credits)
- 28 C.F.R. part 523, subpart E — First Step Act Time Credits
- Bureau of Prisons Program Statement 5410.01 CN-2 (March 10, 2023), with CN-1 (February 6, 2023) and the underlying Program Statement dated November 18, 2022 — First Step Act Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4)
- 28 C.F.R. § 523.42 — Earning First Step Act Time Credits
- Bureau of Prisons — First Step Act FAQ
- Bureau of Prisons — First Step Act information
This is general federal legal education, not legal advice. Procedures and outcomes depend on the facts, the controlling law, court orders and local practices. Confirm deadlines and decisions with qualified counsel.
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