It’s a nightmare scenario: You come back to school rested after a well-deserved summer break to find a parent complaining that their child should have been evaluated over the summer and had an IEP in place on the first day of school. You received the request for an evaluation, either near the end of the school year or during the summer, but those pesky timelines can be so hard to keep up with when the sun is shining and vacation is on the horizon. What rules can help you avoid the timing trap for special education eligibility requests during the summer?
Under 34 CFR § 300.301(c)(1), an initial evaluation must be conducted within 60 days after receiving parental consent for the evaluation or, if the State establishes a timeframe within which the evaluation must be conducted, within that timeframe. In a 2012 letter, the Office for Special Education Programs recognized 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,” but noted that “[t]here is no exception in [the IDEA regulations] that would permit the applicable initial evaluation timeline to be suspended because of a school break.” So if a state does not provide a different timeline, the 60-day timeline under federal law runs right through the summer like a child through a sprinkler on a steamy summer day. Letter to Reyes, 59 IDELR 49 (OSEP 2012).
Lucky Illinois: In the Land of Lincoln, state law does provide some relief. The School Code states that an eligibility determination must be made and the initial IEP meeting must be completed no later than 60 school days after the parent signs the written consent to perform the needed assessments. In those instances when written parental consent is obtained with fewer than 60 pupil attendance days left in the school year, the eligibility determination must be made and the IEP meeting must be completed prior to the first day of the following school year. 105 ILCS 5/14-8.02(b). Illinois regulations also grant a school district 14 days after receiving a request for an evaluation to determine whether an evaluation is warranted. 23 Ill. Admin. Code § 226.110(c)(3).
Timelines for Summertime Evaluations in Illinois
So what does that all mean for Illinois rules about summertime evaluations?
- Consent < 60 School Days Left. If a parent consents to an evaluation with less than 60 school days left until the summer, and the District agrees that an evaluation should be completed, the evaluation must be completed and the IEP must be ready to go by the first day of school the next fall. School districts must have practices in place to ensure that eligibility determinations can be completed when needed over the summer. This includes preparing early enough in the prior school year to ensure the evaluations occur and allotting sufficient compensation to personnel for the time needed to complete evaluations over the summer. See ISBE Indicator 11 Resource Guide.
- Consent < 14 School Days Left. If a parent consents to an evaluation with less than 14 school days left in the school year because the school district has 14 school days to consider the request the District can conduct the evaluation within the first 60 days of the following school year. Does that mean a school should wait until the last day of school to agree to the evaluation? Not necessarily. For example, if a school district receives a request for evaluation on June 1, and the last day of school is June 7, the school can technically take the entire 14 days and get back to the parent at the beginning of the next school year. But if the student had a hard year the previous year and was not responding to regular education interventions, we might advise moving forward with the evaluation quickly. This can ease the tension and worry the parent has about the student’s performance and prevent hard feelings and disputes. Conversely, if the student about whom the June 1 request was received made straight As the previous year and seems to be doing well all around, there is less concern with waiting the entire 14 days and responding to the parent in the following school year.
- Consent in the Summer. If a student’s parent consents to an evaluation after the end of the school year/during the summer, the District can conduct the evaluation within the first 60 days of the following school year.
Of course, like any other rules, there are open questions and exceptions to keep in mind:
- The clock starts ticking when a parent gives consent, but some hearing officers have found that unnecessary delays in seeking consent from parents after they have requested an evaluation can lead to a denial of FAPE. Other hearing officers have disagreed, but to be safe we recommend that schools promptly obtain consent for evaluations from parents.
- In some circumstances, schools may wish to conduct an evaluation over the summer even if not required. For example, there is no direct legal authority requiring summer school days to be counted as “school days.” And the Illinois statute and regulations seem pretty clear that an IEP must be ready to go by the next fall when a request is made with less than 60 days left in the school year. Nonetheless, if a student for whom an evaluation has been requested is in summer school, the district may wish to complete the evaluation during the summer to avoid any challenges or disputes.
- The law recognizes exceptions where the 60-day timeframe does not apply, including where the parent of a child repeatedly fails or refuses to produce the child for evaluation. 34 CFR § 300.301(d).
Following these rules will help ensure that you sail smoothly into every new school year without challenges based on overdue evaluations.