9th Circuit Decision Calls into Question 45-Day Evaluation Timeline

| Jan 22, 2009 | Special Education |

A decision recently issued by the 9th Circuit Court of Appeals in J.G. v. Douglas County School District, 108 LRP 71106 (9th Cir. 2008), calls into question the validity of relying on the 45-school-day evaluation timeline in the state special education regulations for the completion of an initial special education evaluation as “reasonable”.  In this case, a referral to special education of twins with developmental delays came into the school district in early May, and the twins were scheduled for evaluation consistent with Nevada’s 45-school-day evaluation timeline, which stopped during the summer months and picked up again in the fall.  In the middle of the summer, while the evaluations were in progress, the school district received word that there was a possibility that the twins might be autistic.  The evaluation plan was revised to include evaluations for autism, and meanwhile the children were identified as eligible for services based on a developmental delay, and were provided with an IEP.  Once the autism evaluations were completed in the fall, the IEP’s were revised to include the autism diagnosis and additional services appropriate for children with autism.  The parents argued that the school district unreasonably delayed the evaluation of the twins and provision of appropriate services, and the school district argued that the evaluation timeline was reasonable, in part because it complied with the state’s 45-day regulatory requirements.

The court found that the mere fact that the school district had complied with the state’s 45-day timeline did not necessarily mean that the evaluations were completed within the “reasonable” timeframe required by the federal regulations from 1999.  However, in this case, because the school district did not know that the twins might be autistic until mid-July and then had to revise the evaluation plan and complete the autism evaluations within a reasonable period of time, the court found that the evaluation timeline was reasonable.  The implication seems to be that if the school district had known earlier in the evaluation process that there was a possibility that the twins were autistic, relying upon the 45-school-day standard evaluation timeline might not have been considered “reasonable”, even though it would have been in compliance with the state requirements.

The court specifically noted that all of the events in this case occurred in 2003, which was prior to the 2004 IDEA amendments, so its decision was not intended to interpret new statutory and regulatory language from 2004 and 2006.  The new language provides that evaluations must be completed within 60 calendar days or “if the State establishes a timeframe within which the evaluation must be concluded, within such timeframe”.  Like Nevada, Connecticut has also established a 45-school-day timeline for completion of the evaluation process, which timeline in our case is measured from referral to the offering of an IEP if the student is eligible for such services.  

We think it would come as a surprise to most school districts to find out that they might comply with Connecticut’s 45-day timeline and still be found out of compliance with the federal statutory scheme.  Hopefully, the 2004 IDEA amendments took care of this issue and future cases will not need to deal with this ambiguity.  Look for new edits to this language in the 2010 Reauthorization. 

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