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)
Since 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!)
Shorter timelines do indeed benefit our kids, but when are states going to have enough funding to hire enough school psychologists to make shorter timelines possible? There’s a national shortage in public education not just of gen ed and special ed teachers, but also of school psychologists. People usually go into public ed because they really want to help students. Across the country, demands on schools are increasing without proportional increases in manpower.
When the 60 timeline is “tolled” do you stop counting on the last day school before the break or the first day of break over 5 days? In other words do you stop counting day on Friday (last day in session) or Monday (first day school is not in session).
parent signed consent to evaluate in another state in October. Then student left school beginning of November and has been out of school since. Now student is enrolling in a different state in March after having missed all the days in between. No data from previous school is available. has this consent elapsed?
Because the student was in another state, and this much time has past, I feel a new consent is needed.
I have a student with a re-eval due the end of January. The parents wanted the re-eval done earlier so we scheduled the meeting of eligibility to take place December 18th. They signed consent November 7th and I received it November 8th. They did not attend meeting and we are now going through Christmas Break. We have rescheduled for January 9th. Am I still in compliance since his re-eval is not due until the end of January? I teach in the state of Colorado.
You should be since the testing was completed before then. Re-evals are to determine if a student is still eligible for special ed services. If a student is still determined to be eligible, going past the deadline, would only be a minor violation in most states.
In FL, it’s calendar days to evaluate,not 60 days to hold an eligibility meeting.The school has 60 days to evaluate,another 10(loosely,some take longer&the district allows it)to complete a report,then they are required to give parents 10 days notice for a meeting.Prior to that, in order for a student to be eligible for a program there have to be interventions in place at a certain level of intensity over a period of time trying different interventions.(RtI)This typically takes 10-18 weeks minimum.Additionally,you have to have 3 comparative standardized tests in the area of concern to show a deficit.Schools take such tests 4 times a year.This makes eligibility difficult to determine before the 3rd nine weeks.No other data matters.It take at least 1 school year.
According to OSEP Memo 11-07 and then clarified again in Feb 4, 2011, Response to Intervention can not be used to deny or delay an initial evaluation.
Does the 60-day timeline include evaluation AND eligibility meeting OR is it 60 days JUST to evaluate?
60 days to evaluate in my state- they just changed it this year. Used to be 60 days to eligibility.
60 days is for the evaluation to be completed. That does not mean they have to hold the eligibility and start services during the 60 days. That can be done later. I wish the law read 60 days to eligibility and IEP not 60 days to evaluate. Districts are using this loophole to delay services even longer.
Our son is having an independent evaluation from his Neuropsychologist but she is not able to see him until the school does their part. As of today the school psychologist has not done a basic IQ test which is needed before our doctor can see our son. The timeframe for 60 days is Dec. 11th. Can we ask for an extension, so that our son can be diagnosed properly. We are suspecting dyslexia and maybe other causes. I don’t want the school to push for finalizing his IEP unless we are at the root of his learning disability.
I am a special education teacher. There are only 35 days of school left and I have gotten 4 requests for initial testing. There are only 45 days including weekends until the end of the school year. Is it the expectation of the law that these all be completed by the last day of school? Or that we work into the summer?
Kristin: The U.S. ED Office of Special Education Programs (OSEP) responded to a letter requesting clarification of the requirement for a timely initial evaluation under 34 CFR 300.301 (c)(1). There are exceptions to when the timeframe does not apply in 34 CFR 300.301(d), but –
In Letter to Reyes, April 11, 2012, OSEP responded that: “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.”
“The Office of Special Education Programs recognizes that conducting evaluation activities during extended breaks, such as the typical school’s summer vacation, can be challenging for school districts, particularly if fewer staff members are available. Nevertheless, the IDEA contemplates that the initial evaluation of a child suspected of having a disability not be unreasonably delayed so that eligible children with disabilities are not denied a FAPE.”
See the Regulations in your Law Book, page 240. https://www.wrightslaw.com/store/selaw2.store.html
Letter to Reyes – https://www2.ed.gov/policy/speced/guid/idea/letters/2012-1/041012timelyintialeval1q2012.pdf
Thank you for clarifying this. I appreciate your time.
How many days does school have to complete testing when parent asks for reveal prior to 3 year mark in NYS
Technically, by law, the 60 day timeline does not apply to re-evaluations. Some districts tell their psychologists that the expectation is to complete it within the same 60 day timeline, however, they basically have until the re-evaluation is due to complete the evaluation. Example, a re-evaluation was opened in September with a re-evaluation date of May. The meeting is scheduled in the next two weeks. This is legal and acceptable.
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.
I agree. Its really easy to see what is needed but when there are not enough staff members we make mistakes that hinder the student even more. I wish I had another specialist to share the load. I live an area where we cant even find people to do the job… so how would this be ideal? Most people in this line of work are quitting for this exact reason. There will always be consequences or what I call a “domino effect”. We need more specialists and states should provide incentives for people to apply for these programs. That would be a real solution not shortening the timeline. If most people actually spent a day in our shoes this idea wouldn’t even cross their minds.
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.
In my state, the district must complete the eligibility in a reasonable amount of time after the evaluation is completed (suggested is 10 days). So technically 70 days from consent to eligibility. They then have an additional 30 days to implement the IEP. I wish more states were like your state JPsych! Services would occur much faster.
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
Schools do not have to evaluate every child. They must determine if a disability is suspected based on multiple sources of data and then decide if school based evaluations are warranted. Not every child needs to be evaluated, only those suspected of having a disability under 1 of the educational disability categories. Not every child needs specialized instruction. If schools evaluated every child for special education, there would be no one left to service the children who desperately need their support because their disability adversely impacts them educationally.
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.
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