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Proposed IDEA 2004 Regulations:
Testimony by Pete Wright at Public Hearing
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 Wrightslaw: IDEA 2004

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[Note: Pete Wright provided this testimony on the proposed IDEA 2004 regulations at the Public Hearing in Washington, DC on July 12, 2005. Read Pete's description of the hearings.]

My name is Pete Wright and I'm from Deltaville Virginia. You hit a home run with the fast track, the re-organization of the regs, and the incredible attentiveness and interest you have shown this evening, hour after hour. Sadly, to the disappointment of many parents, the United States struck out with the brief filed in Schaffer v. Weast.

I'm going to talk about the 60-day eligibility window in proposed regulation 300.301(c), but first some background.

I have been involved with disability issues since 1950 when Washington, D.C. public school staff told my parents I was borderline retarded and emotionally disturbed.

I am an attorney and have represented children with disabilities since 1978.

As an attorney, I have had seven special education cases before the U. S. Courts of Appeal in the Fourth and Sixth Circuits, and won five. In the two I lost, I came into the cases late, after the case was lost below.

I represented Shannon Carter before the U. S. Supreme Court where we prevailed against the Florence County South Carolina school district in a 9-0 decision in 34 days.

My wife and I are the co-authors of four books about special education and No Child Left Behind. We maintain the wrightslaw website. Next week, I will provide you with my written comments about proposed changes to the regulations.

Proposed regulation 300.301(c) should be changed to read: "The initial evaluation and determination whether a child is a child with a disability must be conducted within sixty calendar days of receiving parental consent for the evaluation, or, if the state establishes a shorter timeframe within which the evaluation must be conducted, within that timeframe."

The United States Code at 1414(a)(1)(C) reads that "Such initial evaluation shall consist of procedures to determine whether a child is a child with a disability within sixty days of receiving parental consent for the evaluation, or, if the state establishes a timeframe for such evaluation, within such timeframe."

Your proposed regulation states that "The initial evaluation must be conducted within sixty days of receiving parental consent." What is critical is that the determination of eligibility must be made within sixty days.

The proposed regulation conflicts with and is inconsistent with the United States Code which states that both the initial evaluation and the determination of eligibility must be conducted within sixty days. In many jurisdictions, the mere completion of an evaluation is not the same as determination of eligibility.

I also recommend that you insert the phrase "calendar days" since this is already clear in proposed regulation 300.11 and Rule 6 of the Federal Rules of Civil Procedure. Too often school district staff assume that the word "days" when in a regulation, automatically means either "school days" or "business days."

I also recommend that the language, "or, if the state establishes a timeframe for such evaluation, within such timeframe," be modified to read "or, if the state establishes a shorter timeframe for such evaluation, within such timeframe."

In the congressional discussions, it was clear that the purpose of this sixty day eligibility window was to correct the problems encountered by homeless and migrant children where the eligibility process is drawn out over many months. With those delays, the child is lost.

The Virginia special education regulations provide a 65 "business day" timeline for determination of eligibility, in other words, ninety-one calendar days. I understand that Virginia and many other states are intending to use the exception clause to extend the eligibility timeline far beyond the sixty calendar day window envisioned by Congress.

In 27 years of special education practice, I have regularly seen school districts complete the evaluation process at the end of three months, only to explain that the determination of eligibility will be delayed because, even though your son is in the eighth grade and reading at the 4th grade level and has an average IQ, we are not sure if the primary disability is a learning disability or if he has emotional problems. We are going to delay eligibility until we can have projective personality testing and perhaps a psychiatric consultation.

Six months later what happens, the child has dropped out of school or been expelled.

That was not the intent of Congress. The language in the proposed regulation needs to be changed."

END OF REMARKS BY PETE WRIGHT

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