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A special education teacher asks:

"I'm a special ed teacher who is looking for information on timelines for IEPs. My administrator said we have a "90-day" reprieve on an IEP when a new child moves into the district. I have always tried to hold an IEP meeting within the first week of school with students from out of district.

Can you help me understand where this idea of a "90-day" reprieve comes from?"

Pam Wright responds:

On July 1, 2005, the Individuals with Disabilities Education Act of 2004 (IDEA 2004) went into effect.

On August 3, 2006, the U. S. Department of Education published the IDEA 2004 Regulations.

The reauthorization of any law brings questions. We now get answers from the IDEA 2004 statutes, IDEA 2004 regulations, and the Commentary to the Regulations that clarifies portions of the statute.

What the Law Says

There is no provision in the law or regulations that supports your administrator's position, nor was there any such provision in IDEA 97.

I'm not sure I understand what your administrator means in saying: "we have 90 days before we need to look at a student's old IEP." In other words, do not flag this student as special education to District officials upon enrollment.

Your administrator is wrong.

This statement is completely contrary to what the law says.

When children with disabilities move to a new different school district - in the same state or a different state - the new school district must provide services that are comparable to the services in the previous IEP.

There is no provision in the law to wait one day, one week, one month or 90 days to do this.

Congress added this provision to IDEA 04, apparently because they were fed up with administrators who dragged their feet when kids moved - causing harm to the child who is already dealing with issues related to the move and a new school.

Here is what IDEA 2004 says, quoted directly from Wrightslaw: Special Education Law, 2nd Edition, pages 102-103:

Transfer Within the Same State

"In the case of a child with a disability who transfers school districts within the same academic year, enrolls in a new school, and who had an IEP that was in effect in the same state, the LEA (school district) shall provide such child with a free appropriate public education, including services comparable to those described in the previously held IEP, in consultation with the parents, until such time as the school district adopts the previous IEP or develops, adopts, and implements a new IEP that is consistent with Federal and State law."

Transfer Outside State

"In the case of a child with a disability who transfers school districts within the same academic year, who enrolls in a new school, and who had an IEP that was in effect in another state, the school district shall provide such child with a free appropriate public education, including services comparable to those described in the previous IEP, in consultation with the child's parents until such time as the district conducts an evaluation, if determined to be necessary, and develops a new IEP, if appropriate, that is consistent with Federal and State law."

The Commentary to Regulation 300.323(f) states that "the Department interprets 'comparable' to have the plain meaning of the word, which is 'similar' or 'equivalent.'"

Transmittal of Records

The IDEA also sates that "the new school shall take steps to promptly obtain the child's records, including the IEP and supporting documents and any other records relating to the provision of special education and related services to the child..."

Get Your Own Copy of IDEA 2004

Wrightslaw: Special Education Law, 2nd Edition, includes:

• Full text of the Individuals with Disabilities Education Act of 2004 and IDEA 2004 regulations with analysis and commentary
• Section 504 of the Rehabilitation Act
• No Child Left Behind Act
• Family Education Rights and Privacy At (FERPA)
• McKinney-Vento Homeless Act
• Decision in special education cases from the U.S. Supreme Court
• References and resources

Moving This Summer? Tips for Selecting the Right School

Created: 11/19/07
Revised: 10/12/16