Determining Eligibility: How Many Days is 60 Days?

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

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PSYCHOEDUCATIONAL EVALUATION

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

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

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…

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

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?

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

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)

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.

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.

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.

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.

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