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- What is special education?
Special education programs in Maryland are governed by both federal and state law. In most instances, state law is the same as federal law. In others, it may provide greater or more specific protections than federal law—but under no circumstances may state provisions limit the protections offered under federal law. Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (“FAPE”).
The Federal Government defines special education as “specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities.” Specially-designed instruction means “adapting, as appropriate to the needs of an eligible child . . . the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. § 300.38(b)(3).
Maryland expands on the Federal Government’s definition of special education by identifying the particular settings where a child with a disability is entitled to receive special education. The State defines special education as “specially designed instruction, at no cost to parents, to meet the unique needs of a child with a disability, including (1) instruction in the classroom, in the home, in hospitals and institutions and in other settings; and (2) instruction in physical education.” Md. Code Ann., Educ. § 8-401(5). In addition, Maryland law requires institutions to provide special education “related services,” defined as “transportation and such developmental, corrective, and other supportive services as may be required to assist a child with a disability to benefit from special education.” Md. Code Ann., Educ. § 8-401(4).
- Who is eligible for special education?
Children with a disability are entitled to receive special education services. A “child with a disability” is defined as a child, under the age of 21 at the beginning of the school year, who has been determined through appropriate assessment as having a qualifying impairment, and, because of that qualifying impairment, needs special education and related services. Qualifying impairments include:
- hearing impairment (including deafness);
- visual impairment (including blindness);
- emotional disability;
- intellectual disability;
- multiple disabilities;
- orthopedic impairment;
- other health impairment;
- speech or language impairment;
- and traumatic brain injury.
Md. Code Ann., Educ. §§ 8-401(2), 8-404(a).
An “appropriate assessment” includes a referral to an admission, review, and dismissal committee for a determination that a child suspected of having a disability indeed does meet the statutory definition. Miller v. Bd. of Educ., 690 A.2d 557, 559 (Md. Ct. Spec. App. 1997).
- What is a “free appropriate public education”?
Under both federal and state law, school districts must provide a free appropriate public education (“FAPE”) to each child with a disability; the State and local school boards hold this responsibility jointly. Md. Code Ann., Educ. § 8-403(a). FAPE is defined as special education and related services that (i) are provided at public expense, and under public supervision and direction; (ii) comply with State Board regulations and the Individuals with Disabilities Education Act (IDEA) (see 20 U.S.C. § 1400 et seq.); (iii) include preschool, elementary, and secondary education; and (iv) are provided in conformance with the requirements of the child’s individualized education program (“IEP”). Md. Code Ann., Educ. § 8-401(3). The standards for the education of a child with a disability who attends a private school may not be lower than the standards for the education of a child with a disability in the local public school system. Md. Code Ann., Educ. § 8-404(c).
- What is the “least restrictive environment”?
Special education must be provided in the least restrictive environment (“LRE”). To the maximum extent possible, a child with a disability must be educated with his/her nondisabled peers. A child with a disability may be removed from the regular educational environment only when the nature or severity of the disability is such that modifications and supplementary aids and services are insufficient in the general education environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114.
Special education can be offered in the mainstream classroom, in a resource room, at home, or in hospitals or residential programs. 20 U.S.C. § 1412(a)(5)(A) referencing White ex rel. White v. Ascension Parish School Bd., C.A.5 (La.) 2003, 343 F.3d 373.
- What is an “individualized education program”? Who is on the “individualized education program” team?
All children who receive special education services have their own individualized education program (“IEP”). An IEP is a written statement for a child with a disability that is developed, reviewed and revised by a child’s IEP team. 34 C.F.R. § 300.320(a); 20 U.S.C. 1414(a)(5)(b).
Among other individuals, an IEP team includes
- eneral and special education teachers,
- participating public agency representatives,
- technical evaluators, and,
- where appropriate, the child. Md. State Dep’t of Educ., Understanding the Evaluation, Eligibility and Individualized Education Program (IEP) Process in Maryland, at 10, 11 (Sept. 2007), available at http://resourcefinder.kennedykrieger.org/pdfs/iep_md.pdf [hereinafter, “IEP Process”].
When devising a child’s IEP, the IEP team takes a variety of academic and social factors into account. At a minimum those factors include:
- the child’s special education and related services needs;
- present level of academic and functional performance;
- measureable annual goals;
- benchmarks and short-term objectives; and
- strategies and accommodations needed to measure performance. 34 C.F.R. § 300.320(a).
- What steps must a parent take before a child may be placed in a special education program?
A parent (or school personnel) may request a special education assessment and evaluation of a child at any time by writing to the child’s principal or local special education administrator. IEP Process, at 2.
The parent of the child must provide written consent to the assessment, evaluation, and placement of the child in a special education program. Parental consent to assessment and evaluation does not count as parental consent to placement in a special education program, and parental consent may be withdrawn at any time. Md. State Dep’t of Educ., Parental Rights: Maryland Procedural Safeguard Notice, Infants and Toddlers/Preschool Special Education and Special Education, at 3-5 (updated Jan. 2010), available at http://www.msde.maryland.gov/NR/rdonlyres/D182E222-D84B-43D8-BB816FBB816F4C4F7E05F6/22796/MarylandProceduralSafeguardsNotice_updatedjanuary2.pdf [hereinafter, “Procedural Safeguard Notice”].
Assessments of a child’s disability may include printed tests, observations, and other sources of information administered by trained and knowledgeable personnel. IEP Process, at 3.
After such assessments are completed, an evaluation of a child’s disability is conducted by the IEP team. Factors considered at an IEP evaluation include
- the child’s academic performance;
- general intelligence;
- motor ability;
- and social, emotional, and behavioral status. IEP Process, at 4.
The parent of a child with a disability must also meet with a team of qualified professionals (typically members of the potential IEP team) to discuss the identification and evaluation of the child’s disability and whether special education is appropriate for the child. An expedited meeting may be necessary to address disciplinary issues, the placement of a child not currently enrolled in school, or to meet another urgent need of the child. Md. Code Ann., Educ. § 8-405(a).
At least 5 days prior to a meeting of the IEP team or other multidisciplinary team to discuss placement of a child with a disability, the parent of the child must be provided with a copy of any assessments, reports, or other documents to be discussed at the meeting, unless extenuating circumstances exist. Md. Code Ann., Educ. § 8-405(c).
No later than 5 days after such a meeting, a copy of the child’s completed IEP will be provided to the parent. If the IEP is not yet complete at that time, a draft of the IEP will be provided to the parent. Md. Code Ann., Educ. § 8-405(d).
If a parent of a child with a disability disagrees with the evaluation of his or her child conducted by a public agency, the parent may request that an independent evaluation of the child be conducted by a nonpublic agency at public expense. If the public agency objects to an independent evaluation, it may request a due process hearing. If, at the due process hearing, the judge determines that the public agency’s evaluation is appropriate, the parent may still acquire an independent evaluation for his or her child, but not at public expense. The judge may also order a separate, independent evaluation of the child’s disability at public expense as part of the hearing. At any time, a parent may obtain an independent evaluation of his or her child at the parent’s own expense, the results of which must be considered by the IEP team in any evaluation of the child’s disability. Procedural Safeguard Notice, at 6-7.
If the IEP team believes that reevaluation of the child is necessary, it must obtain parental consent. Nevertheless, if the parent does not respond, the IEP team may proceed with the reevaluation. Procedural Safeguard Notice, at 5.
On an annual basis, the IEP team must determine whether the child with a disability should receive extended year services during the normal school break, so that he or she is not deprived of a FAPE. Md. Code Ann., Educ. § 8-405(b).
- Who may serve as a child’s parent for purposes of special education laws?
If a child with a disability is designated as a ward of the State, a homeless youth, or the parents of the child are unknown or otherwise unavailable, the local school superintendent will appoint a “parent surrogate” for the child. The parent surrogate must have no conflicts of interest with the child and must have the knowledge and skills to ensure adequate representation of the child. Md. Code Ann., Educ. § 8-405(b).
Under certain circumstances, the most significant of which being that the parent (not including a parent surrogate) of the child is unavailable, upon turning 18, a child with a disability may file for a full transfer of rights otherwise accorded to a parent or parent surrogate. Md. Code Ann., Educ. § 8-412.1.
- What if a public school cannot meet the needs of a child with a disability? Are other special education services available outside a public school to meet the needs of such children?
A child with a disability who has special education needs that his or her public school is unable to provide will be placed in an appropriate nonpublic educational program. In such cases, documentation must be procured from a State or local agency specifying that the child cannot attend public school because of medical necessity or the child’s home circumstances. Services that nonpublic educational programs may offer to a child with a disability include:
- behavioral aide in home;
- educational tutoring;
- family therapy;
- medication management;
- respite care;
- vocational mentoring; and
- environmental accessibility adaptations. Md. Code Ann., Educ. § 8-406(a-b).
Unless a child with a disability is eligible for funding for out-of-state placement, or alternative federal, state, or local funding is available, the nonpublic education program will be funded fully by the State and local school board. State approval of the nonpublic education program is only necessary if funding from the State is required. Md. Code Ann., Educ. § 8-401(6)(d-f).
- What are the disciplinary procedures for a child with a disability?
State law defers to federal law for most of the disciplinary rules for special education students. A child with a disability may be removed from his or her current placement for no more than 10 days at a time for a disciplinary violation, unless the removal constitutes a “change in placement.” A change in placement occurs when the child is suspended or placed in a short-term alternative educational setting or new permanent educational setting. When a change in placement occurs, the IEP team must meet with the parent of the child to review all relevant information in the child’s file.
If the IEP team concludes that the disciplinary violation was a “manifestation of the child’s disability,” the IEP team must consider the creation or modification of a behavioral intervention plan for the child. Furthermore, the child must be placed back in the school (or alternative educational setting) from which he or she was removed, unless the parents and IEP team agree otherwise or the child has been removed to an interim alternative educational setting for possessing drugs, weapons, or causing serious bodily injury. Procedural Safeguard Notice, at 12. See also 20 U.S.C. §§ 1412(a)(1), 1415(k)(1); 34 C.F.R. § 300.530(d)(1).
Conduct is considered a manifestation of the child’s disability if
(1) it is caused by the child’s disability or has a direct and substantial relationship to the child’s disability, or
(2) the conduct occurred as a direct result of the failure of the IEP team to implement the child’s IEP.
A child not enrolled currently in a special education program may assert that his or her conduct was a manifestation of his or her disability if the participating public agency had knowledge of the child’s disability before the disciplinary violation occurred.
- The public agency has knowledge of a child’s disability if a parent of the child has expressed concern that his or her child may have a disability or requested an evaluation for his or her child’s disability.
- The public agency also has knowledge of a child’s disability if school personnel have expressed concern about the child’s disability to the public agency.
- However, if the parent of the child has refused to allow the public agency to evaluate or place his or her child in a special education program, or a conclusion that the child does not have a disability was reached based on a previous evaluation of the child, no such knowledge exists. Procedural Safeguard Notice, at 12-14.
If a child with a disability possesses a weapon or drugs at school, or inflicts serious bodily harm upon another individual at school, the child may removed to a short-term alternative education setting for no more than 45 days without consideration of whether such conduct was a manifestation of the child’s disability. Procedural Safeguard Notice, at 13. See also 20 U.S.C. § 1415(k).
If a parent of a child with a disability disagrees with a determination of whether his or her child’s disciplinary violation occurred as a result of their child’s disability, or with his or her child’s change in placement, the parent may file a due process complaint with the participating public agency and the Office of Administrative Hearings.
Likewise, the participating public agency may file a due process complaint if it believes that leaving the child in his or her original setting will result in a substantial likelihood of injury to the child or others. The child must remain in his or her short-term alternative educational setting until an administrative law judge reaches a decision on the due process claim, which may take no longer than 30 days after the due process complaint is filed. Procedural Safeguard Notice, at 13. See also 20 U.S.C. § 1415(k)(1)(F); 34 C.F.R. § 300.530(f).
- Can parents see the special education records of their child?
Yes. A parent is entitled to view his or her child’s special education records. The parent may request a reasonable explanation or interpretation of the records from the public agency that keeps the records, although a fee may be charged if the parent requests a copy of such records. If the parent disagrees with the records, he or she may request that the public agency amend them. If, after a hearing, the public agency determines that amending the records is not appropriate, the parent may submit a statement to be included with the records detailing the parent’s position.
A child’s special education records are confidential. The names of those public employees who have access to the records must be listed for public inspection. If the public agency wishes to disclose such records to parties not eligible to view the records under the IDEA, parental consent must be obtained. Once a child’s special education records are no longer needed by a public agency, the agency must destroy the records at the request of the parent. Procedural Safeguard Notice, at 10-11.
- Do students receiving special education services have to meet the same academic achievement standards as other students?
Students receiving special education services are eligible to be placed under modified academic achievement standards. A modified academic achievement standard is “an expectation of performance that is challenging for eligible students, but is less difficult than a grade-level academic achievement standard.” U.S. Dep’t of Educ., Final Regulations on Modified Academic Achievement Standards, at ¶ 2 (2007), available at http://www2.ed.gov/policy/speced/guid/modachieve-summary.html [hereinafter, “Academic Achievement Standards”].
Note that a modified academic achievement standard may in no way alter the content and curricula standards mandated by the State. In other words, the same content is covered on a test, but the questions are less difficult or present fewer answer choices. Before students receiving special education services are placed under modified academic achievement standards, the student’s IEP team must have objective evidence demonstrating that the child’s disability has prevented the child from reach grade-level proficiency and that the child likely will not reach such proficiency within the school year. Academic Achievement Standards, at ¶¶ 2-3. See also 34 C.F.R. § 200.
In Maryland, students being evaluated under modified academic achievement standards that demonstrate they cannot take the Maryland School Assessment at a grade-proficient level may take the Modified Maryland School Assessment (the “Mod-MSA”). Based on his or her Mod-MSA results, a student is assigned to 1 of 3 proficiency levels in reading and mathematics:
- proficient or
Maryland counts “proficient” scores from the Mod-MSA in calculating its Adequate Yearly Progress report for the Federal Government. Modified Maryland School Assessment, Md. Dep’t of Educ., available at http://www.mdk12.org/assessments/mod_msa/index_b.html.
- Are infants or toddlers eligible for any special education services?
Yes. Maryland law establishes an Infants and Toddlers Program for special education services. The Program provides “comprehensive early intervention services” to infants and toddlers through age 2, as well as their families. The Program is funded and run by the State, which oversees local agencies established in each county (and Baltimore City). Md. Code Ann., Educ. § 8-406.
Instead of an IEP, infants, toddlers, and their families are eligible for an “Individualized Family Service Plan” (“ISFP”). An IFSP is similar to an IEP, but emphasizes family support services. After the parents of an infant or toddler with a disability consent to an IFSP, they meet with at least 2 qualified professionals to set specific goals for their infant or toddler’s physical, cognitive, social, emotional, and adaptive development.
An IFSP should strive to help a child become independent and adapt new skills in his or her natural environment. Basic skills such as eating, dressing, and playing with others are typically targeted under an IFSP. The family’s resources, priorities, and concerns determine how much support the State provides. 20 U.S.C. § 1436.
Once a toddler turns 3, and becomes eligible for an IEP, the child’s IEP team may opt to continue the child’s ISFP as the child’s IEP through age 5. 20 U.S.C. § 1414(a)(2)(B).
- Do blind or visually impaired children receive Braille instruction as part of their IEP?
Generally, yes. A blind or visually impaired child will receive instruction and materials in Braille as part of his/her IEP, unless the IEP team determines after a comprehensive evaluation of the child’s reading and writing skills that Braille is not appropriate. Md. Code Ann., Educ. § 8-408.
The Maryland School for the Blind is also an option for blind or visually impaired children (likewise, Maryland has a similar School for the Deaf). Md. Code Ann., Educ. § 8-306.
- Who provides transportation for a child with a disability?
The State, local school board, or local management board funds and provides transportation to school (or alternative education setting) for a child with a disability. Md. Code Ann., Educ. § 8-410.
- Are there any special requirements for special education teachers?
Special education teachers that teach core academic courses (English, Math, Science, Foreign Languages, Civics, Economics, Arts, History and Geography) must be “highly qualified.” This means that, in addition to being licensed in the course material, a “highly qualified” special education teacher must obtain separate certification from the State to provide special education services. Further, a “highly qualified” special education teacher must hold at least a bachelor’s degree. In some cases, a teacher that is close to obtaining State special education certification may be permitted to teach a core academic special education class. Note that there is no requirement for any special education teachers at private schools to be “highly qualified.” 34 C.F.R. § 300.18.
- Can the State or School Board require that a child take medication to be evaluated for a disability or be placed in a special education program?
No. State and local agencies are prohibited from requiring a child with a disability to attain a prescription for any medication that falls under the Controlled Substances Act before evaluating the child’s disability or placing the child in a special education program. 20 U.S.C. § 1412(a)(25).