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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!)

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42 Comments on "Determining Eligibility: How Many Days is 60 Days?"


Megan
03/19/2015

I met with my daughters team on February 23rd. I requested that she was tested for a couple of things and they stated they will have the letter that I would need to sign out that week. On 03/17/2015 I emailed one of the teacher to find out the status since I had not received the letter. She sent home the letter the next day for me to sign. I did return it but now do they have 60 days from the date they sent the letter or from the meeting? To extend that timeframe can they push out the letter that needs my signature? How does that work? Thank you! – IL

G. Barr
02/24/2015

Initial evaluations– which normally have a 60 day timeline– can be extended by 30 days. Is this also the case for reevaluations, so that the triennial reevaluation due date can be extended if need be? Can someone provide the law citation to show this is or is not the case?

karen
02/02/2015

Whats the rule for new jersey? I thought it was 60 days…but someone in a school today where we got an agreement to evaluate said 90 days.

Jay
12/10/2014

Shorter than 60 days? Are you kidding? This is not feasible for related service providers (Speech, OT, OT). Our case loads are so high (60-100 students over multiple locations) that simply servicing students takes all of our time. Trying to complete full assessments on multiple students within the 60 day time frame is hard enough. Shortening this time will negatively impact services to students. We can’t do two things at once.

12/08/2014

I am going through this exact thing right now. My son was given the OHI eligibility because his final evaluations for Autism were not in and we have been doing reevaluation since the end of last school year. They send home piece mail and take forever to do everything.