Before the IEP: Program Recap

Children and parents have certain rights in the State of New Jersey to ensure that educational opportunities are fair, free, and provided to all children, regardless of need or disability.

Thank you to Nina Peckman, staff attorney for the KidLaw Resource Center of the Advocates for Children of New Jersey, for an overview of the processes, rights, and legal responsibilities surrounding special services for students, specifically as it relates to an Individual Education Plan (IEP). IEPs are the most common outcome related to documenting a child’s special needs as well as how the school district will address those needs. However, the process can be very difficult to navigate for parents, especially since there are many laws and regulations (federal, state, and case law) that govern all aspects of the process. While this process can be daunting, it is important for all parents to understand the complexity, how to navigate the labyrinth of procedures, and what rights are afforded to them and their child. Buckle up for a wild ride!

*The information provided below is for informational purposes and does not constitute legal advice. It is recommended to reach out to an attorney for any interpretation of a law or regulation as well as the information presented below.*

Special Education in New Jersey

In New Jersey, children starting on their 3rd birthday through age 21 may be eligible for special education services provided for by the state or school district. To qualify, the student must have a designated disability that affects learning in school and requires special education services. However, unless the student is an adult, the parent is responsible for initiating any and all requests for special services from the school district. A parent, according to the State of New Jersey, is considered:

• The child’s birth or adoptive mother or father (unless removed by a court order)
• Person acting like a parent as a legal guardian or relative
• Resource parent
• Surrogate parent (should be appointed by a court)
• Adult student

*State agency representatives are not considered parents*

A large portion of the process for a child to receive special services must be documented and much of the originating consent must be provided in writing by the parent to the school district. This includes:

• Initial and re-evaluations from the Child Study Team (CST)
• Initial Eligibility Determination and the initial IEP (not any additional IEPs)
• Release of records to unauthorized individuals or entities
• Each time to access private insurance and the first time to access public insurance or benefits
• Excuse an IEP team member from a meeting
• Waive re-evaluations
• Amend the IEP without a meeting

Parental Rights at Meetings

Throughout the process of securing special services for a child, there will be a variety of meetings that the parents, CST, teachers, and other individuals will be required to attend. Parents have a host of rights as it relates to these meetings, including:

• Meetings must be scheduled at mutually convenient dates and times
• Parents must be given option to participate via phone, virtually, or in person
• Parents must write to CST in advance to record the meeting, request a translator, or bring a lawyer/advocate or other professional

School District Responsibilities

The school district must follow specific regulations and procedures throughout the process of assigning a child special services. The school district must provide written notice 15 calendar days before proposed decision or action on:

• Identification
• Evaluation
• Classification
• Program
• Place
• Proposed IEP changes
• Evaluation Planning document
• The IEP
• Any IEP amendments
• Eligibility statement

Notices must include a description of proposed decisions, reasons why options were considered and then rejected, parent’s appeal rights, organizations that provide information and assistance, and an annual copy of the Parental Rights in Special Education (PRISE).

School districts also have specific responsibilities as it relates to written request from a parent. School districts must reply within 20 calendar days of the receipt of the written request. If the parent is requesting a meeting, it must be scheduled within 20 calendar days (excluding holidays, but not summer vacation). Some types of written requests that a parent can make include:

• Initial evaluations
• Eligibility or classification issues
• Re-evaluations
• Placement and IEP implementation issues
• Concerns or requests to change the IEP

The above requests should be submitted to the case manager or Child Study Team; the director of special education may also be copied.

Once consent is received, the school district must act within established timelines, depending on the nature of the consent. For an Evaluation Planning Meeting, the school must schedule it within 20 calendar days from the referral. In regards to evaluations, the school district has 90 days from the written consent to conduct all evaluations, hold an eligibility meeting, hold an IEP Development Meeting, or implement the IEP. Once an IEP is implemented, there should be an annual IEP meeting around the anniversary of the initial IEP Development Meeting. Continuing every 3 years, the CST should conduct additional evaluations of the child.

The Processes

The CST Evaluation and Screening Process

Anyone can refer a child for a Child Study Team evaluation, including parents, teachers, guidance counselors, medical professionals, and social workers. A written request for the evaluation must be submitted to the CST or the director of special education. Once the request has been received, the school district is obligated to identify that child, meaning they must evaluate them in all areas of suspected disabilities. This initial request does not need to include any relevant doctor reports or diagnosis.

Within 20 calendar days of the referral, the CST must conduct a screening process. This process demands the CST confer with the school nurse to obtain current health information, the child’s teacher is consulted regarding their academic progress, and a CST member should observe the child in the classroom.

Upon the completion of the screening, there will be an Identification/Evaluation Planning Meeting consisting of:

• The parent
• Any individuals the parent invites to assist, including:
  • Specialist(s) who evaluated the student
  • Student’s treating health professional
  • Other community providers (social service agency representatives, therapists)
  • Student, if appropriate
  • Advocate or attorney
  • Other individuals to support the parent
• The Child Study Team (CST), including:
  • School psychologist
  • School Learning Disability Teacher Consultant
  • School social worker
  • Any other necessary school staff, such as speech specialist, occupational and/or physical therapist, or behaviorist
• A teacher who is familiar with the student
  • If there is no such teacher, than a teacher who is familiar with the district’s programs

If the CST decides to move forward with conducting evaluations as discussed in the meeting, they must conduct 2 of the following 3 types of evaluations:

• Educational – assess what the student has leanred
• Psychological – assess the student’s learning potential
• Social work – relevant health and family history

Educational and psychological evaluations, taken together, give a lot of information about how the child learns as well as the child’s strengths and weaknesses. The CST might also conduct a functional assessment of academic performance and behavior in the school setting. The CST team might also recommend other types of evaluations to assist in their assessment, including speech and language, physical or occupational therapy, or psychiatric or neurological evaluations to name a few.

During this meeting, the parent has the right to request evaluations that the CST did not suggest. Parents also have the right to refuse to provide consent for any of the evaluations, but the school district can file for Due Process to try to obtain a court order for the evaluations. Additionally, parents have the right to provide evaluation reports, which then must be considered in the development of any IEP; however, it is most helpful to share these reports prior to the meeting.

If you choose to have private evaluations done in advance or in response to the Identification/Evaluation Planning Meeting, those reports should identify the assessments used and observations that explain the professional’s reasoning, leading to a clear statement of the diagnosis, how the disability will affect the student in school, and any specific recommendations. The parent can share the current IEP and any relevant school evaluations with the private evaluator prior to the evaluator making any recommendations. Parents may also sign a release so that the evaluator and school staff can communicate, but may instruct the evaluator to keep any sensitive information confidential.

The IEP Eligibility Meeting

After the CST has conduct their evaluations and reviewed any reports submitted by the parents on behalf of the student, there will be an IEP Eligibility Meeting with the parent and CST. At least 10 days before the meeting, parents should receive copies of the CST evaluation reports. Once at the meeting, all participants should be recorded as present and that should be signed by all parties.

During this meeting, the CST will explain the evaluation results and discuss any evaluations that the parent provided. Next, the CST will propose what they believe is the primary basis, or classification, for special education services or explain why they believe the child is ineligible. The parent will have a chance to argue their case and a decision must be mutually agreed upon. The CST will provide the parent with an Eligibility Statement that explains the CST’s rationale for their decision.

There does not need to be a specific cognitive condition to receive special educational services. Students with behaviors that impact learning may have a right to an IEP regardless of learning abilities. If the student has a behavior plan, that should be included in the IEP as well as specific counseling and social-emotional goals.

The IEP

If all parties agree on the recommendations of the CST that special services are warranted, the student will be assigned an IEP team that will work to develop and implement the IEP. This team will consist of:

• The parent
• The student (if appropriate)
• A case manager
• At least one member of the CST who can explain why a program is being recommended
• One of the student’s regular education teachers, if applicable, or a regular education teacher who knows the school’s programs
• One special education teacher
• Any other specified school staff and professionals the parent requests to accompany the student
• An administrator with supervisory authority

Once the IEP team is established. there will be an IEP Development Meeting that usually takes place immediately after the end of the Eligibility meeting. All participants will sign an attendance sheet. During this meeting the case manager will discuss the proposed IEP after input from all IEP team participants. Parents can ask questions, request particular services and the type of class or school setting for the child.

Parents may receive the IEP draft before, during, or following the meeting. Parents cannot be required to sign the IEP at the meeting and they should review the IEP draft before making any final decisions. Parents have the right to negotiate changes to the draft before signing the final IEP. The IEP can be implemented even if other evaluations are agreed to or if the parent appeals some parts of the IEP through State Mediation or Due Process (the complaint process).

IEP Components and Review

An student’s IEP may contain any or all of the follow components:

• Classroom setting
• Related services
• Other services (aide, transportation, extended school year)
• Modifications
• Short-term measurable goals
• Transition services
• Parent concern section

Once the IEP is approved by all parties, its effect is immediate. If there are any changes to the IEP, the processes outlined above are followed.

Each year, around the anniversary of the initial IEP meeting, there will be an Annual Review IEP Meeting. This meeting is designed to review the current IEP, determine ongoing eligibility, and develop a new IEP if required. Starting for the 2025-2026 academic year, a new law in NJ requires that at least 2 days prior to the annual review, the parent must receive the following notice via regular mail and email (if the CST has the the parent’s email):

• What will be discussed at the meeting
• Student’s current levels of academic and functional performance
• Names of any required school staff IEP members who will not attend the meeting and a statement of their observations and recommendations for the program and services they are responsible for
• The right to reschedule the meeting if an IEP member cannot attend
• Parent’s right to provide input and feedback at the IEP meeting

A common aspect of the IEP that is evaluated annually is the classroom environment, which is often referred to as the “least restrictive environment”. This term relates to the appropriate placement of the child determined by the location(s) that will best meet the student’s individual needs while, to the maximum extent possible, provide access to their general education peers and activities. These environments include:

• General education class – with supports and possibly an inclusion classroom with regular and special education teacher
• Resource – smaller class size taught by a special education teacher, push-in or pull-out
• Self-contained – for serious disabilities with much more structure and smaller class size
• Out-of-District – only if the school district cannot meet the child’s needs in-district
• Residential/hospital setting
• Home

Students are entitled to a full range of placements in a variety of settings as needed.

In addition to the Annual Review IEP Meeting, there will also be CST Re-Evaluations that occur triennially, or every three years. These evaluations provide important updated and objective information about how the child is progressing; parents may agree to waive this right. However, re-evaluations should occur prior to discontinuing any services. Re-evaluations can occur sooner, specifically if new problems arise or due to an appearance of insufficient progress. Once the CST receives written consent from the parent for a re-evaluation, it must be completed with 60 days of receiving that consent.

Parental Disagreements

If a parent disagrees with the evaluation results or the IEP, they can write to the CST to have the child evaluated by a specialist not employed by the district. However, the parent can only disagree with how the evaluation was conducted, the validity of the report, or the accuracy or thoroughness of the report. The district can file for Due Process within 20 days of the parent’s written request to dispute the parent’s request or the school district can agree to the evaluations. If the CST refuses to conduct an evaluation or fails to conduct an evaluation that they should have realized the student needed, the parent can renew their request or ask for independent evaluations.

If an independent evaluation is approved by all parties, they must agree as to who will evaluate the child. Once that happens, then the district will pay for the evaluation. The CST should provide the parent with a list of potential evaluators and the parent can also suggest one of their own. The agreement between the parent and CST can include:

• Specific assessments that will be done
• Qualifications of the evaluator
• How evaluations should be conducted, including an observation or the setting for the evaluation
• Fee cap based upon the customary rate in a geographic area, as per the school district’s written policy

During any disputes throughout this process, parents should:

• Write to CST for copies of progress reports, data, and formal and informal assessments
• Write to the principal regarding behavior incidents or discipline records, if relevant
• Have a community provider provide written and/or verbal information or even participate in meetings
• Speak to teachers and ask for an IEP meeting to try to resolve issues
• Appeal any CST/IEP decisions to the district’s director of special education
• Consult with an advocate/attorney to understand applicable laws and strategies for resolving issues. Pro bono services are available.
• Request for Mediation or Due Process
• Request a Complaint Investigation
• File a complaint through the state’s Office of Civil Rights

Another option for any parent embroiled in a dispute or disagreement regarding the CST evaluations or IEP is to “stay put”. “Stay put” is the parent’s right to prevent proposed changes from going into effect pending the resolution of a Mediation or Due Process proceeding. The parent must request Mediation or file for Due Process within 15 calendar days of receiving written notice of a proposed IEP change that will go into immediate effect. For IEP changes that will not go into effect until a later date, the parent may request Mediation or file for Due Process before those changes are implemented and obtain “stay-put.”

More Information

If you have any questions regarding obtaining special education services for your child, the processes described above, or the rights for you or your child, please contact an attorney. You can also contact Nina Peckman at npeckman@acnj.org or 973-643-3876, x226. Please visit the Advocates for Children of New Jersey’s KidLaw Resource at https://acnj.org/kidlaw/education/ for further information.

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