The Office of Special Education Programs (OSEP) for the United States is on fire. Earlier this week I found out OSEP sent a memorandum to the State of New Jersey regarding Independent Educational Evaluations (IEEs) and when a parent has the right to request an IEE. Now OSEP has weighed in on timely evaluations and stated that initial evaluations cannot be delayed due to summer vacations. The letter to Reyes can be found below.
UNITED STATES DEPARTMENT OF EDUCATION
OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES
APR 11, 2012Ruben A Reyes Executive Director Exceptional Children’s Programs Cumberland County Schools P.O. Box 2357 Fayetteville, North Carolina 28302
Dear Mr. Reyes:
This is in response to your October 10, 2011 letter to me in which you seek clarification of the requirements for timely initial evaluations under the Individuals with Disabilities Education Act (IDEA) as reported in North Carolina’s State Performance Plan/Annual Performance Report (SPPI APR) under IDEA Part B Indicator II. Under 34 CFR §300.301(c)( I), the 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. Pursuant to 34 CFR §300.301(d), the timeframe does not apply if: (1) the parent of a child repeatedly fails or refuses to produce the child for evaluation; or (2) a child enrolls in a school of another public agency after the relevant timeframe in 34 CFR §300.301(c)(l) has begun, and prior to a determination by the child’s previous public agency as to whether the child is a child with a disability under 34 CFR §300.8. In the regulations, a day is a calendar day unless otherwise indicated as a business day or school day. 34 CFR §300.11. In general, Indicator 11 measures a State’s compliance with the timely initial evaluation requirements in 34 CFR §300.301(c). Each State, in turn, must measure and report on each local educational agency’s (LEA’s) compliance with this indicator. 34 CFR §300.602(a).
As contemplated in the regulation, a State is permitted to establish a time frame that is different from the 60-day timeframe. North Carolina has established a timeframe of 90 days from receipt of the referral to conduct the initial evaluation and make the initial placement determination. This State-established timeframe generally also incorporates the exceptions in 34 CFR §300.301(d), as described above. There is no exception in 34 CFR §300.301(d) that would permit the applicable initial evaluation time line to be suspended because of a school break.
The State and its LEAs have an affirmative obligation to identify, locate and evaluate all children with disabilities (34 CFR §300.111) and ensure that a free appropriate public education (FAPE) is available to all eligible children (34 CFR §300.1 00). A meeting must be held to develop an individualized education program (IEP) within 30 days of a determination that a child is an eligible child with a disability under 34 CFR §300.8 and requires special education and related services. 34 CFR §300.323(e)( I). An IEP must be in effect at the beginning of each school year for each eligible child with a disability attending a public school within the LEA’s jurisdiction. 34 CFR §300.323(a).
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.
Based on section 607(e) of the IDEA, we are informing you that our response is provided as informal guidance and is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented. If you have additional questions, please do not hesitate to contact Lynne Fairfax, State contact for North Carolina, at 202-245-7337 or by email at Lynne.Fairfax@ed.gov.
Melody Musgrove Ed.D. Director Office of Special Education Programs cc: State Director of Special Education
I cannot wait to see how this letter affects different State law. For instance, California Education Code States, “An individualized education program required as a result of an assessment of a pupil shall be developed within a total time not to exceed 60 days, not counting days between the pupil’s regular school sessions, terms, or days of school vacation in excess of five school days, from the date of receipt of the parent’s written consent for assessment, unless the parent agrees, in writing, to an extension.” The guidance from OSEP states that IDEA does not make an exception to timelines based on extended breaks from School but as you can see from above California State law does. Since, State Education Code is not allowed to provide worse protections than IDEA the State of California’s regulations seem to do just that. I’m not sure how many other States have similar language to California but I will be interested to see how this latest guidance from OSEP plays out with all of the States.