Under federal law, initial evaluations for special education must be conducted within 60 days of receiving parental consent for the evaluation or, if the State established a timeframe within which the evaluation must be conducted, within that timeframe. 34 C.F.R. § 300.301(c). However, the 60-day timeframe does not apply under two circumstances: (1) the parent repeatedly fails or refuses to produce the child for evaluation, or (2) the child enrolls in a school of another public agency after the 60-day timeframe has begun, and prior to a determination by the child’s previous public agency as to whether the child is eligible for special education. 34 C.F.R. § 300.301(d).
California has similarly established a 60-day timeframe for an initial evaluation. Ed. Code § 56344. However, California law further provides that school breaks in excess of five (5) days, and/or days between regular school sessions/terms do not count in the 60-day calculation. Ed. Code § 56344.
Until very recently, the California Special Education Management Information System, or CASEMIS, listed vacation days in excess of 5 days, or “school breaks”, as an exception to the 60 day timeline for initial evaluations in addition to those listed under the federal law mentioned above. However, during the week of October 20, 2013, the California Department of Education (“CDE”) removed “school breaks” from CASEMIS as a possible exception to the 60 day initial evaluation timeline.
CDE representatives have indicated that the “school breaks” option was removed from CASEMIS in an effort to more accurately comply with federal law. In fact, in April 2012, the US Department of Education’s Office of Special Education Programs (“OSEP”) released a letter clarifying that states are indeed free to establish a timeframe within which initial evaluations must be completed under federal law. (Letter to Reyes, April 11, 2012). However, OSEP explained that any timeframe established by a state must incorporate the two exceptions enumerated under 34 CFR 300.301(d), and none others. While the OSEP letter is not binding legal authority, OSEP’s clear guidance is that there is no exception that would permit the applicable initial evaluation timeline to be suspended because of a school break.
OSEP acknowledged that conducting evaluation activities during extended breaks, such as the typical school’s summer vacation, could be challenging for local educational agencies given the possible unavailability of some school staff members. Nevertheless, the IDEA mandates 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 FAPE.
What This Means for Local Educational Agencies:
On one hand, a reasonable argument can be made that California’s “school breaks” provision does not necessarily establish an unlawful exception to the 60 day timeline, but rather it establishes an extension of the 60 day timeline, which is permissible under 34 CFR § 300.301(c). On the other hand, failure to conduct initial evaluations within 60 days may cause compliance errors in reporting data to the state given that “school breaks” is no longer listed as an option in CASEMIS, and would be contrary to OSEP guidance.
Given that the law is unsettled in this area and due to the lack of regulatory guidance specific to California, local educational agencies are advised to use best efforts to conduct initial evaluations within 60 days of receiving parental consent for the assessments, without regard to school breaks in excess of 5 days.