School personnel frequently enquire about the proper time frames for acting upon referrals for special education and for implementing Individualized Education Programs (IEPs). Following is an outline of the time requirements from an initial referral to implementation of the IEP. The time requirements for many actions are not specific. The most important matter is to take all actions within a timeframe that allows for implementation within the 60-school day limit.

Required Timelines

1. Making a Referral.

   The regulations of the Commissioner of Education do not define precisely when a referral for a special education evaluation must be made. Section 200.4(a) provides that "a student suspected of having a disability shall be referred in writing to the chairperson of the district's committee on special education or to the building administrator of the school which the student attends or is eligible to attend for an individual evaluation and determination of eligibility for special education programs and services." A referral should be made promptly whenever there is a reasonable suspicion that a student might satisfy the criteria defining a "student with a disability" as defined in Section 200.1.

2. Follow-Up After a Referral.

   After a referral is made, additional steps must be followed. Section 200.4(a) explains the obligations of the committee chairperson or building administrator upon receipt of a referral. If a referral is received by the building administrator, the referral must be forwarded to the CSE chairperson immediately. If a referral is received by the CSE chairperson, a copy shall be forwarded to the building administrator within five school days. In addition, a committee chairperson who receives a referral must immediately notify the student's parents in accordance with 8 N.Y.C.R.R. Section 200.5.

3. Meeting About a Referral (and Possible Withdrawal of a Referral).

   Under 8 N.Y.C.R.R. Section 200.4(a), within ten days of receipt of a referral or a copy of a referral, the building administrator may request a meeting with the parent or person in parental relationship to the student to determine if the student would benefit from remaining in general education but with additional general education services. Depending upon who made the referral, that person either must attend the meeting or in some cases need only be invited to attend. If the parent or person in parental relationship and the building administrator agree in writing that the referral would be unwarranted if the student were provided with additional general education support services, the referral shall be considered withdrawn. A copy of the agreement must be given to specified persons. It must contain a description of the additional general education support services to be provided and the proposed duration of the program of services. A copy of the agreement shall also be placed in the student's education file. The holding of such a meeting can not delay the initiation of seeking consent for an evaluation.

   There is also a separate procedure under which the parent and the person who made the referral can make a written agreement to withdraw the referral. This process does not require a meeting with the building administrator, but instead the parent must be given the opportunity to attend an informal conference with the CSE or designated professionals, the person who made the referral, and counsel or an advisor of the parent's choice. Certain information must be incorporated into the agreement including the opportunity for a follow-up conference within a specific period of time. A copy of the agreement must be placed in the student's cumulative file. There is no specific deadline for reaching such an agreement.

4. Consent for Evaluation.

   Once an initial referral has been made, the district must promptly request parental consent for an evaluation. If consent is not obtained within 30 days of receipt of the referral, the CSE chair is obligated to initiate an impartial hearing to seek consent for the evaluation. (Caution: this rule may be changed when IDEA is reauthorized.)

5. The Evaluation.

   An individual evaluation should be initiated and completed promptly after parental consent is obtained (or an impartial hearing officer has ordered an evaluation). There is no specific time designated for completion of the evaluation, but any delay will jeopardize the ability to hold a CSE meeting and to implement any recommended IEP in a timely manner.

6. Time Frame.

   The reauthorized IDEA, effective July 1, 2005, adds a requirement that the initial evaluation AND a determination on eligibility must be completed within 60 calendar days of receiving parental consent for the evaluation. The new law, however, also allows states to alter this time frame depending upon nuances in state law. This rule may not have much significance in New York because the current practice in New York is to have determinations concerning eligibility made at a single CSE meeting which addresses both eligibility and the development of an IEP. As a result, it is still important to complete the evaluation as promptly as possible so as not to run afoul of the 60-school day IEP implementation requirement discussed in paragraph 7 below. There will, of course, also be new federal regulations at some point and New York may change its rules on implementation as well.

7. CSE Meeting.

   Although the Commissioner's regulations do not specify when the CSE must meet to make a recommendation, federal authority requires that a CSE meeting be held within 30 days of the date that the student is determined to be IDEA-eligible. 34 C.F.R. §300.343(b)(2). This requirement applies only to a student's initial IEP. Federal regulations allow for a determination of IDEA eligibility after an evaluation and before the CSE meeting that develops the initial IEP. In New York, however, after an initial evaluation, typically the CSE meets to both determine eligibility and to develop the initial IEP (make a recommendation for program and placement) at the same time. For all practical purposes, the evaluation and CSE meeting need to be completed promptly so that implementation can be accomplished with the 60-school day (or 30-school day) requirement explained below.

   If the evaluation and CSE meeting are not accomplished within 30 - 40 calendar days after receiving consent to evaluate, it could be difficult to meet the implementation deadlines – especially because of the schedule of Board of Education meetings. It is also frequently the case that when an out-of-district placement is being considered, it may take some time to find an appropriate placement with a current vacancy and to secure formal acceptance of the student.

8. Implementing the CSE Recommendation (IEP).

   Federal IDEA Regulations at 34 C.F.R. §300.342(b)(1)(ii) provide that an IEP must be implemented as soon as possible. The Commissioner's regulations provide that an IEP must be implemented within 60 school days of receipt of consent to evaluate (within 60 school days of receipt of the referral for review of a previously classified student). Before this implementation occurs, however, it is necessary that the Board of Education approve the CSE recommendation.

   Note: if the recommendation is for placement in a private school, the recommended IEP must be implemented within 30 school days of the Board's receipt of the CSE recommendation. The regulations do not provide how quickly a CSE recommendation must be sent to the Board.

   Since Boards typically meet only about once a month, a CSE recommendation should go to the Board as quickly as possible.

9. Special Notices to Parents.
   1. Written notice of a CSE meeting must be received by parents at least 5 days prior to the meeting. Section 200.5(c).

   2. A detailed written notice concerning a proposed IEP or other CSE action must be given to parents a "reasonable time" before the district proposes to act (or refuses to act). Section 200.5(a). This notice is typically sent after the CSE meeting but before the CSE recommendation has gone to the Board of Education.

   3. Parents must be provided with notice of the action of the Board of Education concerning the CSE recommendations. Education Law Section 4402[2][b](2). Notice should be given as soon as possible after the Board meeting.

   4. Certain other notices must be sent in connection with graduation from high school, the receipt of an IEP diploma, the first annual review of a student after turning 15 years of age in certain circumstances, and in connection with certain other events.

   The IDEA reauthorization was signed into law by President Bush on December 3, 2004. The new law takes effect in July 2005. There are many changes, and there are likely to be additional changes or interpretations provided in federal regulations that will be issued at some undetermined point. Harris Beach will be sending out more information in Legal Alerts this winter and spring.

   Conclusion

   This article provides a brief summary concerning the action times for special education referrals and required follow-up actions and does not purport to be a substitute for the advice of counsel on specific situations. If you have any questions regarding the issues addressed in this article or would like other assistance with special education matters, please contact Alfred L. Streppa at astreppa@harrisbeach.com, David W. Oakes at doakes@harrisbeach.com, or the Harris Beach attorney with whom you usually work at (800) 685-1429.