How does your child with a disability become eligible for special education and related services? For starters, it is not simply having a disability. Read on to understand this process from a legal perspective.
First step is that either you or one of the teachers (or school staff) suspect your child has a disability. This can come from you, the parent, after seeing the child’s physician or an outside diagnosis of a disability; after observing behavior or frustrations with homework; or generally seeing a decline in the child’s ability to function in school. A teacher or school staff may observe something similar, like awkwardness or lack of attention in class; declining grades; or other signs of inability to do the work at grade level.
Second step is to have the child evaluated. An outside evaluation, although usually helpful, is not the main criteria. Because schools must consider outside evaluations, but they are not required to adopt them. A request for school evaluations must follow. If the parents request their child be tested, that gives consent to the school to conduct evaluations. If the school initiates the testing process, parents are given an opportunity to consent. If the parents withhold consent, then the school is not required to consider the child eligible for special education and related services or the school might follow a prior written notice or due process procedure to force evaluation of the child (this is rare).
Evaluations must be completed within 60 days of the request and then reports must be shared with the parents. Typically, evaluations include a social evaluation (which usually includes a form for parent observations of their child) and observations of the child in the school context; an educational evaluation (what we previously called an ‘IQ Test’) which shows the ability of the child to learn or any obstacles; a psychological or neuropsychological evaluation which tries to determine whether there is a neurological or mental disorder, e.g. Autism, ADHD, Dyslexia, etc., disability; and sometimes a behavioral evaluation, a speech-language evaluation, or a specific disability evaluation (such as an ADOS for Autism or test for Dyslexia or hearing test for Auditory Processing Disorder).
Once the reports from those evaluations are done, then the IEP Team meets to determine if the child needs an IEP or some lesser accommodations in a 504 plan. This is sometimes referred to as an “eligibility meeting”, although such a meeting is not required by law.
If the school district members of the IEP Team disagree with the parents as to eligibility for services, this can be challenged. For example, if the parents believe that the evaluations were not done properly or reached a false conclusion, the parents can demand an Independent Educational Evaluation (IEE) be performed by a physician / provider of their choice at the expense of the school. The school may file for due process to deny the IEE. Another way for parents to challenge the eligibility determination is to file for due process themselves.
If the child is deemed eligible for special education and related services, the IEP Team (including the parents) is then required to develop an IEP for the child to set forth services to address the challenges faced by the child in school due to his/her disability. If any of the steps described above are denied by the school district or blocked by the parents, an IEP will not be developed and it may result in a due process complaint.
For more information, please contact a special education attorney in your state or if you are in New Jersey, contact us at SchoolKidsLawyer.com.