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LAW Home > Legal Topics > School and Learning > Special Education

Your Child's Right to Special Education


Children who have disabilities and are eligible to receive special education have certain rights to ensure that they get a free appropriate public education (FAPE) based on their individual needs. The laws about special education can be complex and confusing. If you have any questions about your child’s right to receive special education, contact Legal Services at the number listed at the end of the article. This article is the first of several, designed to help parents understand their child’s rights.

What do I do if I think my child needs special education?

If your child is doing poorly in school or has or might have a disability, he or she may be eligible to receive special education and related services. The first step to take in order to find out if your child is eligible for special education is to send a letter to the school’s child study team. Each school has a child study team that reviews requests (often called referrals) for special education. In your letter to the child study team, you should ask that your child be evaluated for special education. Your letter should be dated, and you should keep a copy. In the letter, you should explain the problems your child is having in school and explain why you think an evaluation should be done. Evaluations are done year-round and can be requested at any time in the year.

Teachers or school staff can also request that your child be evaluated.

What happens after I request an evaluation?

When a request for evaluation is received, the child study team must hold a meeting within 20 calendar days (this does not include school holidays, but does include summer recess). You must be told about the meeting. The meeting includes the child study team, a teacher who knows how your child is doing in school, and you. The reason for this meeting is to decide whether—and what kind of—evaluations are needed. Within 15 days after the meeting, the school must tell you whether they plan to evaluate your child. If they do, they must tell you what types of evaluation(s) will be done, at least 15 days before they are done. If this is your child’s first evaluation, the school must get your consent (this is a legal term for your permission) to evaluate. If you do not consent, the school can only do the evaluation if they file a complaint, called a due process complaint, in court. A hearing is then held, and a judge decides if the school district can evaluate your child.

If the school refuses to evaluate your child, you can file an appeal (this is called due process).

Once you consent to the evaluation, the school has 90 calendar days to complete the evaluation, determine whether your child is eligible and, if so, develop an Individualized Education Program (IEP) and give your child special education and related services.

How will my child be evaluated for eligibility for special education?

The evaluation process begins with a review of information that the school already has about your child. The review is used to determine what other information will be needed to determine (1) whether your child has a disability, (2) how your child is doing in school, (3) what your child’s educational needs are, and (4) whether your child needs special education and related services.

An initial (first) evaluation must examine anything that might have an effect or impact on your child’s education. Evaluations may look at how your child is doing in school. This may include identifying behavior that affects their school performance, intelligence (IQ) testing, and mental health evaluation. Sometimes other types of evaluations will have to be done, such as medical/health, speech, physical therapy, occupational therapy, and psychiatric. Evaluations are paid for by the school district.

When the evaluations are completed, a written report must be given to the Individualized Education Program team (IEP team) for review. The IEP team includes you; your child (if over 18 or in some cases under 18); the case manager; at least one teacher who is familiar with how your child is doing in school; at least one member of the child study team who did the evaluation; and any other people who have knowledge about your child and are selected by you and the school.

What if I don’t agree with the results of the school’s evaluation and want another one?

If you do not agree with the school’s evaluation, you have the right to ask for a different (independent) evaluation. Your request for an independent evaluation should be made in writing and sent to your child’s case manager. You should date the request and keep a copy.

How is an independent evaluation arranged, and who pays for it?

Once you have made your request for an independent evaluation, the school district must send you a list of qualified evaluators and requirements for the evaluation. You, not the school, choose the evaluator. The school district must pay for the independent evaluation. The school district can only refuse to pay if they have filed a due process complaint within 20 days of your request. After a hearing, a judge will decide if the school district has to pay.

When is a child eligible to receive special education and related services?

Your child is eligible to receive special education and related services if your child has a disability, the disability has an adverse effect on your child’s educational performance, and your child is in need of special education and related services.

After being evaluated, the school must hold an eligibility meeting to determine if your child is eligible to receive special education and related services. You have a right to be at this meeting. You also have a right to review all of your child’s evaluation reports and any other documents or information that will be used to determine eligibility. These documents must be given to you at least 10 days before the eligibility meeting.

If your child is determined to be eligible, you must consent before your child can receive special education and related services. If you do not consent, the school district is not allowed to provide special education and related services.

School districts are not allowed to make a student take medication in order to attend school and may not require a student to be evaluated or to receive special education and related services.

How are my child’s individual educational needs determined?

Once your child is found eligible to receive special education and related services (classified), an Individualized Education Program (IEP) must be created. An IEP is the written plan that sets out the special education program and related services that must be provided to your child to make sure that he or she receives a free appropriate public education. An IEP must be reviewed and updated every year.

Within 30 days of the date that your child is found eligible for special education and related services, the school district must have an IEP meeting, complete the IEP, and begin educational services for your child. An IEP is created at a meeting with the IEP team (IEP meeting).

Where will my child be taught?

Once your child’s IEP has been created, he or she must be placed in an educational program that meets his or her individual needs and meets the requirements of the IEP. This placement must be in the least restrictive environment. This means that your child must be educated with non-disabled children as much as possible, based on his or her individual needs. Your child’s placement is determined by the IEP team and is reviewed every year. Some examples of possible placements are general education classrooms with support (tutoring, teacher aides, changes to the material or method taught); resource rooms (in-class or out-of-class individual or small group instruction); self-contained classrooms (classes with only special education students); and, in some cases, private schools for the disabled (paid for by the school district if they cannot provide an appropriate education in the school district).

At least 15 days before putting your child in the placement, the school must give you written notice of the intended placement. You have the right to visit this placement. If this is your child’s first placement, the school must get your consent. If this is not your child’s first placement, the school can put the child in the proposed placement unless you file for mediation or due process. If you file for mediation or due process, your child will remain in his or her current placement until the matter is resolved. This is called stay-put.

What if my child’s needs or disabilities change?

Once receiving special education, your child must be reevaluated every three years. This is sometimes called a triennial reevaluation. If you give written consent and the school district agrees, your child does not have to be reevaluated. The date of your consent will be the date that the deadline for the next triennial reevaluation is counted from. For example, if you waive the reevaluation in January 2007, the next triennial reevaluation will not be due until January 2010. Reevaluations may be done more often than that if your child’s educational or related services needs call for it, or if you or a teacher request one. Reevaluations cannot be done more than once a year unless both you and the school agree.

For a reevaluation, the IEP team must conduct a review similar to the one done when your child was first evaluated. If additional testing or assessments are going to be done as part of a reevaluation, the school district must get your written consent. If no additional testing and assessments are proposed, the school district must send you written notice informing you of your right to request them. If you request additional testing or assessments, the school must do them. Unless you and the school district agree, any additional testing or assessments must be completed within 60 days of the date you gave consent or the end of the three-year period following the last evaluation or reevaluation, whichever is sooner.

For additional information, contact Legal Services of New Jersey’s Education Representation Project by calling LSNJLAWSM, Legal Services of New Jersey’s statewide, toll-free legal hotline, at 1-888-LSNJ-LAW (1-888-576-5529).​​​