The Wrightslaw Way

to Special Education Law and Advocacy

The Wrightslaw Way random header image

Determining Eligibility: How Many Days is 60 Days?

12/17/08
by Pete Wright

Determination of Eligibility

IDEA 2004 at 20 USC 1414(a)(1)(C)(i)(I) explains that the determination of eligibility as to “whether a child is a child with a disability . . . [shall be] . . . within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted . . .” (Wrightslaw: Special Education Law, page 93)

calendar, pen, journalSince IDEA states “60 days” and not “60 business days” or “60 school days,” by operation of law and pursuant to 34 CFR 300.11(a), the word “day” always means calendar day unless otherwise indicated as business day or school day.” (See US Dept of Ed Spec Ed Regs, Wrightslaw, page 195)

In other words, in the statute and in the regs, if something is to be done within xyz number of days from abc event, then it always means calendar days.

However, if the word ” days” is preceded by business or school, then of course, it does not mean calendar days and you will want to look at Reg 300.11(b) and (c) for those definitions. Since the regs state that IEP meetings must be convened “within 30 days” of determination of eligibility, then that absolutely and always means calendar days. (See Spec Ed Reg re IEPs at 300.323(c)(1), Wrightslaw, page 248)

Timelines in State Regulations

Virginia’s determination of eligibility has always been “65 business days,” i.e., 91 calendar days, unless there is a Federal or State holiday, which will extend the timeline.

Perhaps the worst state is Florida. Their state regs provide a 60 school day timeline. Imagine a referral the last week or two of the school year and impact of the summer vacation. Then visualize the number of days the school may be closed due to a Hurricane or Tropical Storm between August through October. Such a child might be found eligible sometime between Thanksgiving and Christmas, with an IEP to begin in January. In other words, the practical impact of referral to services can be half an academic year, if the clock is watched and no violations.

This is inexcusable, but permitted by IDEA 2004. (On the other hand, IDEA 97 did not even have a timeline!)

How many school days make up an academic year? Typically it is usually a minimum of 180 school days and probably not beyond 190 school days. Florida permits 60 of those days to pass before determining eligibility.

I have heard that a lawsuit and also a legislative change may be pending to change the Florida Dept of Ed’s Regs on that matter. I do not have any specifics about either or the truth of the rumors.

From my reading of the IDEA 2004’s legislative history and hearings, it was my understanding that some members of Congress intended that IDEA 2004 would read that the determination of eligibility as to :

whether a child is a child with a disability . . . [shall be] . . . within 60 calendar days of receiving parental consent for the evaluation, or, if the State establishes a shorter timeframe within which the evaluation must be conducted . . .

Shorter Timelines Benefit Our Kids

While the insertion of the word calendar was not necessary, insertion of the word “shorter” would have changed the impact nationwide, for the benefit of our kids. However, since the statute was worded as it was, evidently the US Dept of Ed in their regs did not see fit to adopt my proposed two word insertion into the eligibility timeline reg. (I filed a letter and also testified on this issue at the US Dept of Ed hearings re their proposed regs. Obviously, a waste of time.)

On another note, in my training, I emphasize to parents that the clock does not run from the date of the request for the evaluation, but instead, as the statute reads, it begins to run upon “receiving parental consent for the evaluation.” In other words, have your written request also note that this letter is the consent for the evaluation. (And, if you did not do it in writing, it never happened!)

Print Friendly

Tags:   · · 34 Comments

Leave A Comment

34 responses so far ↓

  • 1 Karen 07/15/14 at 12:32 pm

    A child starts summer school on July 15 because current IEP calls for ESY. New district is out in Aug. Interim 30 day signed July 15. When is the 30 days up. Parent says Aug, but school is not in session in Aug. and district says Sept., but I thought the rule of s5 days or more was for the 60 day assessment period. Can you clarify? Thanks. Karen

  • 2 Jim 04/25/14 at 11:30 am

    The solution you think would be easy in that case, just hire more SLPs. It isn’t that easy. There simply aren’t that many SLPs to meet that demand, plus districts usually don’t have the money laying around to hire extra SLPs. This is the end result of free mandated services. It has well intentions, but it doesn’t work and the end result is that fewer people actually receive appropriate services.

    The American Speech-Language and Hearing Association did do a study aiming to determine what the maximum caseload should ethically be. They determined that a school SLP should not have a caseload over 40 and even 40 was pushing it. I have a caseload of 95. Most years my caseload is around 70-75. Is that ethical in terms of providing adequate services for these students? No it’s not, but who else is going provide these services?

  • 3 Jim 04/25/14 at 11:19 am

    Hearing and vision screenings are not stall loop holes. Reading and listening are key components of special education assessments. If it turn out a student has a hearing loss, or is visually impaired and he or she had already been tested, then those results would not be valid. You can’t just assume the student has normal vision and hearing capabilities.

    It’s my understanding that states control timelines. So why did they choose x number of days. Probably two reasons. 1. So that the student can be observed over time to reflect a more accurate picture of the student’s abilities.
    2. It’s a barrier to entry. There are more students referred for special education assessments than there are personnel on hand to complete these assessments.. As an SLP, I’ve had as many as 15 assessment plans signed around the same date, across multiple sites.

  • 4 Jessica 12/12/13 at 6:14 pm

    Oh and if you don’t agree with the IEP team not to test, then you have the right for due process. Just because you request it does not make it happen. Although you are part of the team and the decision, the IEP team had to suspect a disability and have data proving student is years behind. Many parents have caught onto the fact that students with special needs get accommodations on testing and will request when there child is on level and performing on level.

  • 5 Jessica 12/12/13 at 6:08 pm

    After you write a letter requesting testing, within 30 days the IEP team will meet and review data and decide if testing is appropriate. Giving your permission to test in the letter requesting testing does not start the time line. It has to be a form provided from the county and it has to state which areas will be tested. Don’t bother giving permission in the letter, because it means nothing and does not start the time line. Besides, if the IEP team decides that other things have to be met first, for example an intervention, then there will be no testing. If they do decide to test, the date you sign is day one in the 60 day time line.

  • 6 Cristina 11/18/13 at 11:41 pm

    Lets please also consider the perspectives of the teachers and related service professionals. As an speech-language pathologist, I see kids back to back 40 hours a week. While I believe it is important for kids to get the services they need asap, it is also important for us educators to maintain our health. I have been stuck in situations where the referral lands on my desk 30 days in and I just about have a stroke trying to meet those deadlines. I haven’t had time to find out if extensions allowed. I figure it’s more trouble if I don’t meet the deadline, so who cares if I die in the process – I am no stranger to being a workaholic in my field and I love my job (teaching students that is). I am a healthy 44 yr old, but there is only one of me.

  • 7 Jennifer 11/13/13 at 11:17 am

    Trina and David–
    In our state, the evaluation cannot take place unless the hearing and vision screenings are passed. It is a safeguard to make sure that the testing will be valid.

  • 8 Elaine 11/10/13 at 4:15 pm

    A school psychologist comes to Initial IEP with a draft psych-educational report with large portions of information missing. My understanding is that the case carrier (sp. ed. teacher) can have a draft but the psychologist’s report is a final copy to get given to the parent at the IEP meeting or before the meeting. In fact, I thought in CA a report needs to available to the team and parents 3 days prior. This psychologist sometimes comes to IEP meeting with no report

  • 9 David1 09/01/13 at 10:16 am

    Trina,

    The sooner the evaluation, the sooner interventions can begin.

    We found on our school district’s web site a note to their psychologist that indicates that they are not to give parents the permission to evaluate form until all hearing and screening has been completed. The clock doesn’t start until the permission to evaluate form is signed.

    We gave permission to evaluate on the request for evaluation letter.

  • 10 trina 08/29/13 at 2:38 pm

    What are the pros and cons of have a 60 day marker in the referral process?

  • 11 Sharon L. 05/24/13 at 10:48 am

    Shirley,
    No they cannot. WE requested an evaluation in June & the school performed it in September. If you want to be closer to the start of school just fill out the consent form in July & they will perform the test in early September. That should still work but they should not refuse it.

  • 12 Shirley 05/23/13 at 12:44 pm

    Colorado law states 60 calendar days, the parent wishes to sign for evaluation, and the district will not provide the permission form because of summer break, and state so to the parent in an email. Are they allowed to do this? Can a district just delay the whole process because of summer break?

  • 13 Jeff 04/24/13 at 2:59 pm

    This is so muddy! Our district is saying that they can’t meet to have a “referral” meeting for another 3 months (!), and that the 60 days does not start until after that meeting…???
    What is stopping them from saying “we can’t meet with you for 6 months”? or a year??

  • 14 Marilyn 01/08/13 at 6:18 pm

    Are public schools legally required to evaluate a residential non-enrollee for any disabilities?

  • 15 Mark 01/04/13 at 9:50 am

    Florida DOE says that they have 60 school days after the parent signs the District’s Informed Consent Form. That typically happens at the meeting to evaluate the need for an evaluation – typically 30 days after the initial letter is sent.

    If a parent’s letter specifically gives Informed Consent — what is the law — 60 schools days from the letter, or can the state rules change that to be 60 school days from the date the parent signs the District’s Form

    HELP!!!

  • 16 Ali 03/21/12 at 5:44 pm

    The following is related to SSTs and IEPs. When a parent writes a letter to detemine eligibility for Special Ed (signs, seals and it is delivered with consent to begin assessment), then about 2-3 weeks later the school plans an SST meeting to address parent’s concerns, does the 60 day timeline to make a determination for special education begin with the date of the letter delivered 2-3 weeks ago or does it begin with the date of the SST? Thank you.

  • 17 kim 02/21/12 at 10:28 pm

    What is the time line for texas to determine eligibility once ard was done and doctors made their diagnoses received to ard on same date.

  • 18 33Eileen 02/10/12 at 7:48 am

    Do weekends count as calendar days before and after a school holiday?
    I gave consent for evaluations in my request for the initial evaluation and was told that clock does not start ticking 90 days until I give my consent at the initial evaluation meeting. Is this true? This would bring me to the end of May to implement an IEP.

  • 19 Maureen 05/17/11 at 6:24 pm

    Regarding the timeline for reevaluations, particularly reevals that are not triennials, what is your interpretation of the timeline for assessment and reporting from the time of consent? Is it also 60 days?

  • 20 Sharon L. 03/25/11 at 4:13 pm

    Larry – If a school refuses something they must put it in writing in a “prior written notice”. You have every right to request that. You may also request a copy of their written policy on how to request assessments. If they do not have such a written policy they are already out of compliance with the state and you can file a complaint. IF they have a policy they must give it to you. They may ask for cost of copying and that is their right. Once you get the prior written notice and/or the policy they may be more willing to work with you. You can then follow their policy on how to request the assessment and if they still refuse you can go to the superintendent or higher up the ladder. Don’t give up. The schools many times will resist to see if you will go away.

  • 21 Larry 03/22/11 at 5:33 pm

    My school refuses to assess a student even when the parent has written two letters to have their child assessed for special education services. Should they follow the 60 days of IDEA?
    Student is in the first grade with delays in ability when compared to peers.

  • 22 Emily 02/26/11 at 8:35 am

    I’ve been searching all over the web, for clarification on two different subjects.

    1. Can a district deny SLD eligibility over 9 absences (out of 120 school days so far) stating poor attendance and environmental disadvantages(we’ve been late to school a few times he’s being assess’d for ASD)? (Dx w/prag lang disorder 5th%ile, processing disorder, and 6th%ile in reading, writing. Missed school for therapy appts, being sick, and bad asthma(Dx) days.) Youngest of five kids 4 w/spec needs , kid #2 has dx ASD w/meltdowns.

    2. Can school district claim refusal to assess because of conditional consent voiding out parent signed assessment plan, because I wrote in (on area provided) for additional tests not listed by the school? I also wrote in that it was an “Annual” assessment not a “Triennial” Assess as he’d only been on an IEP for 1 year.

  • 23 Raylene 01/14/11 at 4:46 pm

    I’m in Florida and my little boy was transferred out of the “regular” kindergarden class after the first day of school. My husband and I had gone to the Principal 2 weeks prior to alert the school that regular class placement was probably inappropriate. No one mentioned eval or gave us anything to let us know we HAD to request an eval. in writing. After a month in a special class, the school psychol., principal, counselor and teacher(s) [reg and special] met with us and asked if we had insurance to eval our son. Again, no one told us our rights. The school psychol refused to allow our son to continue in special ed without an eval. and he was moved to regular classes. We formally requested an eval on Sept. 6, 2010. It’s now Jan. 14 2011 and we still haven’t had an eval. report card says he’d be retained, and we’re halfway thru K!!!

  • 24 Ashley 12/15/10 at 4:52 pm

    PSYCHOEDUCATIONAL EVALUATION

    Is a parent interview required as part of a psychoeducational evaluation?

  • 25 Sharon L. 11/21/10 at 8:06 pm

    Brenda – You must sign the school’s consent form for the 60 day clock to start ticking.

  • 26 Brenda 11/20/10 at 11:07 pm

    Pete-

    Please clarify if “receiving parental consent for the evaluation” can be a parent letter consenting an evaluation (receipt date) or must the LEA signed consent form begin the 60 day time-line? In either case, I’m getting push back that the parent letter is not “informed consent” from LEA and SEA. Please advise…

  • 27 Beckey 09/11/10 at 9:51 pm

    Where would I find a list of Federal and state (TX) cases concerning timelines?

  • 28 Rita 10/01/09 at 5:09 pm

    Is the 60-day timeline for Initial evaluations between the consent date & last evaluation date or is it between the consent date and the MDT date when the final meeting to place the student is held?

  • 29 Lori 09/22/09 at 10:08 am

    Illinois is also 60 school days. It is September and evaluations will not be completed until January 6th!!

  • 30 Brian 09/19/09 at 7:49 pm

    The timeline is 60 days in NJ. It had already long run out when when we had the IEP eligibility meetings (3 kids) I refused to sign IEP’s and took them to court – 3 days into trial and I am pulverizing them … and have not used this one yet ???? What is the result if you go through the IEP process after informed consent has run out (I did not know of the 60 day deadline at that time)

  • 31 Dr. Ann G 06/09/09 at 10:02 pm

    If a child had an initial eligibility in 2001 at age three, in 2004 had 3 other psychologicals, in 2006 a psychological, when does the the law require that another eligibility be done based on the updated psychologicals rather than a continum of redeterminations. On August 29, 2008 the child had another psychological completed by the school system but a redetermination meeting was not held until April of 2009…at this point the child had been in school for 8 years without another full eligibility report…should one have been completed after the 08 psychological or do you just keep completing redeterminations. Based on the date of the redetermination was the system out of compliance and therefore the redetermination/eligibility is null and void. Any help would be appreciated.

  • 32 Chad 04/13/09 at 10:52 pm

    The issue that I have encountered is in regards to the 60 day timeline and federal holidays. With the RTI, 9-12 weeks of intervention, unfortunately you get referrals for psyhological evals right before Christmas break. Thus you lose approximately 2 weeks of evaluation time. In my opinion holidays that last over 5 school days should not count against the 60 day timeline.

  • 33 David1 12/18/08 at 8:35 pm

    We were told in an IEP meeting that we could not sign permission to evaluate until the school did a hearing and vision screening. (stall loop hole)

    They explained “a child must be able to hear and see in order to be tested”. My son was making his was to the bus stop and through school and responding to peers and teachers. No need to suspect a hearing or vision problem.

    Beside the signatures on the IEP, I signed OK to test my child for ………

    This seamed to really speed things along.

  • 34 Debbie 12/18/08 at 7:35 pm

    NY has regulations with a timeline much like Florida, with one important difference. Here, the regs say that during the months of July and August, regular business days shall count as school days. That means that the time line runs during the summer vacation.

    If a parent wishes, in their letter of referral, they can add that the letter gives their consent for “psychoeducational testing”. That starts the timeline at once.