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

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Consent cannot be given in the written request because it is informed consent. Informed consent is required to begin testing.

I live in Illinois and my son just completed his reevaluation. The school scheduled an IEP and refuses to reschedule it even though myself, my wife, and my son are unable to attend.is there any law or statue that I can use to get them to reschedule? Any advice is appreciated.

I suggest sending an email to the special ed director, & to the special ed complaint office of the state education agency. This is a violation of a very basic rule of IDEA, parent participation.

If the student is receiving spec ed services under one eligibility criteria but the parents suspect the child has a different eligibility such as autism, would the parents make a request for re-eval to determine if the student has the additional eligibility or would that be an initial eval because the student has not been diagnosed with that suspected eligibility? What if the school refuses to evaluate because they say the new eligibility doesn’t matter because the student is already “maxed” out on services? How do you request that determination binational in writing? Thx!

It would be a re-evaluation because the child is already receiving special education services.

What happens if an evaluation is started, but the student is unavailable for testing due to extreme emotional distress. Therefore, no evaluation meeting took place in the 60 days.

“Shorter timelines benefit our kids”
True. However, speaking as an SLP in a title 1 school with over a hundred evaluations (re-evals and initials) in a 180 day school year, the ability to be thorough and comprehensive may be jeopardized with shorter timelines. I agree that a student who needs services should receive said services as soon as possible. However, when evaluations are rushed, important details and red flags fall through the cracks and elements of the “whole child” can be missed. Something to consider as one advocates for shorter timelines. In an ideal world, it is perfect. In an elementary school with over 1,000 students in a district that is understaffed? I would argue that a shorter timeline does not benefit the students.

So if the evaluation is completed, right at the 60 day mark, how long before the district has to hold the meeting????

That is determined by each state.

The IEP must be implemented by the 45th or 60th day. It is not the deadline for the results meeting. The date of referral is day 1 and the IEP must be IMPLEMENTED by the cutoff.

What happens if the district doesnt send the consent to evaluate to a parent who refers a child to the committee; since the 60 days to evaluate only starts from the date the parent gives consent not the initial referral? Is their a definite time frame under IDEA or state law by which the district is required to send a consent to the referring parent. (e.g., parent sends in a referral in September but doesnt receive a consent to sign from school until January so the districts 60 day timeline wouldnt start until January eventhough the parent referred 3 months earlier??) Thank you.

IDEA does not have a timeline on this, but your state may. Your state parent training & information project can tell you the state rules on this. http://www.parentcenterhub.org/find-your-center

Does the 60 law apply to testing that does not determine eligibility? For example a student who had IEP for speech…but is having testing to look at academics …does the 60 day law apply

No. The 60 day time line is only for initials and since your child is already in Special Ed (Speech), it would be considered a re-evaluation.

If a student already is receiving services, and consent for further testing (i.e. Adaptive) is signed at the annual review, is that assessment due within the same timeline as an initial (e.g., 45 school days/60 calendar days)? Or would it technically not be due until the reevaluation date? Do the same legalities exist in terms of being out of compliance?

It would be a re-evaluation and the 60 day time line does not apply.

Excellent. Thank you!

“Imagine a referral the last week or two of the school year and impact of the summer vacation. ” Oh, Florida.
Don’t have to imagine. This is precisely what is currently happening with my child. Excuse after excuse allllll year long until I DEMANDED that they provide us something in writing to sign to begin an evaluation process.
It’s pretty disgusting how Florida handles the entire process. At EVERY turn it is someone else’s fault why there is a delay. They truly could not care less about your child.

Hear this all the time re Evaluation timeline and Summer Break–

There is no exception in 34 CFR §300.301(d) that would permit the applicable initial evaluation timeline to be suspended because of a school break.

https://www2.ed.gov/policy/speced/guid/idea/letters/2012-1/041012timelyintialeval1q2012.doc

Wow.. This sounds a lot like what happened with my son. I also had to demand that they provide me with exact instructions on how to formally request an IEP eval because apparently I spent 4 months asking the wrong way. I made my original request on 9/6/16 and to date still have not had the eval completed. It’s very disgusting. What county are you in?

I thought state law had to always be WITHIN federal guidelines! How can it be legal, according to federal law, for the state to use language that EXTENDS timelines???

I feel that 60 days is an appropriate amount of time to complete evaluations. I work in a special ed office in NY and it is hectic as it is, anything shorter would make it difficult to properly administer the tests.. Assessments can take up to 2 hours to administer. The evaluators give those tests to every initial and reevaluating student as well as to every transfer student who needs them. There are also emergency situations (which happen every year) in which the timeline is waived because the child needs to be evaluated quickly.
Also it seems unfair for a student to have evaluations held off because of summer vacation. We have employees working during the summer so as to ensure that all students get the same consideration.

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

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