Delaware IEP evaluation deadline: how long does the school have?

You signed consent for the evaluation. Here is exactly what Delaware law requires next, and what to do if the date passes.

The part most parents miss: "whichever is less" is not a choice

This is the single most misread rule in Delaware. "Whichever is less" does not mean the district picks the one it likes. It means both clocks run at the same time, and the first one to expire is your deadline.

Count both. Then use the earlier date.

During the school year, 45 school days almost always lands first — roughly nine weeks of instruction. Over a summer or a long break, school days stop accumulating, so the 90-calendar-day cap becomes the one that bites. That is the point of having two: a referral signed in June cannot be parked until the fall, because the calendar keeps running even when school days do not.

How to count your deadline

1. Find the date the district received your signed consent. Not the date you mailed it — the date they got it.
2. Count forward 45 school days. Only days students are in attendance for instruction count — weekends, holidays, breaks, and summer do not. Write that date down.
3. Separately, count forward 90 calendar days from the same start date, including weekends, holidays, and summer. Write that date down too.
4. Whichever of the two dates is earlier is your deadline for the evaluation and the eligibility decision.

What to do if the deadline passes

1. Put it in writing the same week. Email the case manager and the special education director. State the consent date, both counted dates, which one came first, and that it has passed. A phone call creates no record.
2. Ask for prior written notice. If the district refuses or delays, you are entitled to a written explanation of what it is doing and why.
3. File a state complaint. A missed timeline is a straightforward compliance violation. In Delaware this goes to the Delaware Department of Education, Exceptional Children Resources. It is free and does not require a lawyer.
4. Keep the paper trail. Every date, every email, every response.