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Evaluation Timelines

Question:
We requested that our school system evaluate our son -- who is already on an IEP -- for attention deficit disorder when his teacher told us he lacks focus in class and his educational aide requested strategies to keep him on task. That was over a month ago. Two weeks ago they agreed to have the school psychologist do an evaluation, but we have not heard from anyone since then. At this rate the school year could be over before we have the information we need to change his IEP. How long can a school system legally take to complete an evaluation once requested?

Answer:
Unless your state has required that school systems meet specific deadlines, there is more ambiguity about timelines than one would expect. Therefore we must rely on a general "reasonable time" standard.

State Regulations
The first place to look is your state's special education statutes or regulations which may establish specific timelines for school systems to complete evaluations and to develop an IEP. In Massachusetts, for example, the school system must complete evaluations, convene a TEAM meeting, and develop and present an IEP, or an explanation of why there has been a finding of no special education needs within 45 school working days after receipt of the parents' consent. Within that 45 day period, the school system must complete evaluations by 30 school working days after receipt of parents' consent. Your state's requirements might set outside limits between the parents' consent and the school's presentation of an IEP, or they may set time limits for each step of the process, or they may not set any time limits at all.

IDEA Timelines
If your state does not provide any specific timelines for these tasks, you will have to turn to IDEA for guidance on this question. Unfortunately, however, you will find little direction there. Neither the statute nor the current IDEA regulations establish deadlines for identification and evaluation of children with special education needs. (There is an exception under the regulations for special education that pertain to Native Americans, where it is required that evaluations be administered within "30 days from the date of written parental consent." [25 C.F.R. ? 45.26(a)].) These regulations do require that once an evaluation is completed the school conduct a meeting to develop an IEP within 30 days [34 C.F.R. ?300.343(c)].

The U.S. Office of Special Education is currently proposing a revised set of regulations to implement the newly amended IDEA. These include no specific timelines for evaluations either, but they do include a requirement that "an offer of services in accordance with an IEP is made to parents within a reasonable period of time from the agency's receipt of parent consent to an initial evaluation." [34 C.F.R. ?300.343(b)(1)]. A discussion note attached to this proposed regulation states that "for most children, it would be reasonable to expect that a public agency offer services in accordance with an IEP within 60 days of receipt of parent consent to initial evaluation." If the proposed regulations are adopted, at least this comment will help to create a presumption that, unless there are unusual circumstances, school systems must complete evaluations and present an IEP (or finding of no special educational needs) within 60 days. Notice that these proposed regulations do not speak of "school working days" and would be interpreted to mean "calendar days."

Courts interpreting IDEA have held that unreasonable delays in evaluating or reevaluating a student with special educational needs violate IDEA. In W.B. v. Matula, 67 F.3d 484 (3d Cir. 1995), for example, the Court interpreted IDEA as having an implied requirement that school systems' obligations to identify and evaluate children with special needs be completed in a "reasonable time." In that case the school was found in violation where it failed to evaluate a student until April when they received the parents' request in December.

The Role of the Teacher
One other observation on your circumstances: You report that a teacher commented on your son's "lack of focus" and an educational aide working with him has asked for help developing strategies to work with him. Remember that it is not only the parents' job to refer for an evaluation. In this case, I would think that the teacher and/or the aide should have requested an assessment themselves. Now that you have requested it, they should be urging the school's evaluator(s) to get it done.

Also, since your son is already on an IEP, the school must provide him with appropriate services and reasonable accommodations on an ongoing basis. The aide's request for strategies indicates the program is not entirely appropriate at this time. It would be appropriate for the school psychologist to propose some strategies to improve your son's focus even before a formal evaluation has been conducted in this case. If so, you should be told what the strategies are and given a chance to object to any you consider inappropriate.

Robert K. Crabtree is a partner at Kotin, Crabtree, and Strong, LLP, a general practice law firm in Boston, Massachusetts. Among other areas of practice, Mr. Crabtree concentrates in special education and disability law.

Copyright ? 1998 Kotin, Crabtree, and Strong, LLP

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