The Maryland State Bar Association’s Public Awareness Committee and the Advocates for Children and Youth, the Maryland Disability Law Center has prepared this information. It is intended to inform the public and not serve as legal advice.
Please note that the online version contains information not available in the print edition.
Under the federal law called the Individuals with Disabilities Education Act (IDEA) and corresponding state law, a child with a disability, which affects his or her learning has a right to a free and appropriate public education. A child is entitled to a program, which is designed to meet his or her individual learning needs. This includes specially designed classroom instruction and related services needed by the child to benefit from the education program.
Who is Eligible for Special Education Services?
- Children with disabilities from 3 to 21 years old may be eligible for special education services.
- Infants and toddlers up to age 3 may receive early intervention services through the Infants and Toddlers Program.
- A child is considered eligible for services if he or she is having trouble learning in school because of mental, physical and/or emotional disabilities.
Some of the disabilities that can make a child eligible for special education and related services are: mental retardation, emotional disturbance, learning disabilities, autism, deafness or hearing impairment, blindness or visual impairment, physical or orthopedic disabilities, brain injury, speech and language impairment, traumatic brain injury, multiple disabilities or other health impairments.
What is the Process for Determining Whether a Child is Eligible for Special Education Services?
A child becomes eligible for special education services when he or she is identified as disabled by the school’s Individual Education Program (IEP) team.
A parent or guardian is a member of the IEP team and has the right to participate in the IEP meetings about the child. Other members of the IEP team include a special education teacher; a regular education teacher; a school official who knows about the special education system and the general curriculum; and school personnel who can interpret evaluation results. The student may be a member of the IEP team if it is appropriate. Also, the parent may bring anyone else to the meeting, who would be helpful, such as a family friend, an advocate or other professionals who know the child.
Before the child is identified as disabled, the school system must evaluate the child. The evaluation process consists of three parts: (1) screening, (2) assessments, and (3) a review of the assessments.
The IEP team must complete the evaluation process, including the initial meeting, completion of the assessments, within 90 days of receiving the written request for an evaluation.
Screening: If a parent or guardian believes that his or her child may need special education services, the parent or guardian should make a request for an evaluation in writing and send it to the principal of the child’s school.
The IEP team will meet to determine if additional assessments are needed and decide whether the child is eligible for special education services. If the IEP team suspects that the child may have a disability and needs special education, the IEP team will order additional assessments after obtaining permission from the parent or guardian.
Assessments: During the assessment stage, the tests recommended by the IEP team are given to the child. School professionals, such as a psychologist, educator, speech pathologist, and physical or occupational therapists assess the child. The types of assessments that should be performed depend on the child’s suspected disability. Assessments determine the child’s disability and what kind of educational services he or she needs as a result of the disability. The school system is responsible for scheduling and paying for all the assessments it has recommended.
Review of the Assessments: Once the assessments are completed, the IEP team must meet to review the assessment results and determine whether the child qualifies for special education services.
The Individualized Education Plan
Within 30 days after the IEP team meets to review the assessments and determines that a student needs special education services, the IEP team meets again to develop the IEP. The IEP is a document, which sets the plan of services, and accommodations that the child will receive through the school system.
For a child who is already receiving special education services, the IEP team must meet at least once a year to review the child’s progress and revise the IEP’s accordingly.
The IEP has many requirements. For example, the IEP should describe a child’s disability, strengths, and needs and the present levels of educational performance. In addition, the IEP should set annual goals for the child and short-term objectives, all of which must be related to enabling a child to be involved in the general curriculum.
The IEP must also include any of the following that the child may need: related services, such as occupational or physical therapy, or transportation, assistive technology devices or services; behavior strategies; extended school year services, Braille; language and communication services; and/or transition services.
Once the IEP is developed, it must be implemented as soon as possible and must be in effect at the beginning of the school year.
A “placement” refers to the actual class and school a child attends in order to receive his or her special educational services. The IEP team determines the placement after the IEP document has been developed.
The law requires that a child receive his or her special education services in the “least restrictive environment.” This means that an eligible child must receive special education services with non-disabled children as much as possible and preferably in the neighborhood school. This is often referred to as “inclusion.” The school system must provide extra aid or services if it would allow a child to participate in a less restrictive environment.
What Can a Parent or Guardian Do if an Agreement Cannot be Reached with the School System?
There are times when a parent or guardian may not agree with the evaluation, IEP or placement offered for his or her child. If a parent or guardian disagrees with the school system at any stage of the process, he or she has the right to request mediation or a due process hearing.
Mediation is a voluntary process in which a trained mediator tries to help the family and the school system reach an agreement. If a parent requests mediation and due process at the same time, the mediation must be held within 20 days from the date of the request.
A due process hearing is a formal way to resolve a dispute between the parent and the school system. The hearing is set up by the Office of Administrative Hearings and takes place before an administrative law judge. A parent can request a dues process hearing by submitting a request in writing to the school system. The hearing must be held within 45 days of the date the school system receives the request.
Parents have the right to bring an attorney or advocate to represent them at the hearing. There are important rules regarding due process hearings, which families should be aware of before requesting a hearing. For example, parents and school official must exchange a list of witnesses (including potential witnesses) and copies of all documents they intend to use at the hearing at least 5 business days prior to the hearing. If a party does not comply with this rule, the administrative law judge could exclude that party’s evidence.
If a parent believes that his or her child is not getting the services listed on the IEP, or if the school system does not comply with the timelines or other procedures, the parent can file a complaint with the Maryland State Department of Education. Under federal law, the state has 60 days to investigate the complaint and issue a decision.
What is Section 504?
Some children with disabilities may not qualify for special education services under the IDEA, but may still need specific adaptation to their educational program to allow them to participate fully in their classes. For example, a child who uses a wheelchair may not need special education services but may need some accommodations to access the school building. The federal law that applies to these children is referred to as Section 504 of the Rehabilitation Act.
Children with disabilities who need accommodations and services under Section 504 are entitled to a Section 504 Plan. This Plan sets forth the accommodations and services that the student will receive from the school system. As with the IEP, the Section 504 Plan should be reviewed and revised regularly to ensure that the child’s needs are being met.
Suspension and Expulsion of Children with Special Needs
Schools must provide an education to all students and may not discriminate against students with disabilities. This means that the school may not suspend or expel a disabled student for behavior that results from his or her disability.
Children who are eligible for special education services or who have a 504 Plan are entitled to a manifestation meeting when the school proposes to suspend them for more than 10 days in a semester or to expel them. This meeting determines whether a child’s actions were caused by his or her disability and must be held within 10 days of the child’s removal from class. At this meeting, the IEP team must determine:
- Was the child’s IEP appropriate?
- Was the IEP implemented as written?
- Is it true that the child’s disability did not impair his/her ability to control the behavior subject to disciplinary action?
If the answer is no to any of the above, then the child must be returned to class immediately, unless the charges involve weapons or drugs. If the team determines that the child’s behavior was not caused by his/her disability, then the child goes through the regular suspension/expulsion process.
What Services are Disabled Students at the College Level Entitled to?
College students with disabilities are in a slightly different position from students in elementary and high schools. The Americans with Disabilities Act (ADA) protect students at the college level, rather than IDEA.
College students with disabilities are entitled to reasonable, appropriate accommodations in the instructional process. A student is responsible for informing the college of his or her disability and needs, and for utilizing the support services provided. Accommodation plans should be written for eligible students; however, these plans will not modify the curriculum or reduce course requirements. Generally speaking, the accommodation plans will simply address the learning differences.
For more information, college students should contact their schools’ ADA Coordinators.
Where to Get Help and More Information
Maryland Coalition for Inclusive Education
7484 Candlewood Road
Hanover, Maryland 21076
Maryland Disability Law Center
1500 Union Avenue
Baltimore, MD 21211
Parents’ Place of Maryland
801 Cromwell Park Drive
Glen Burnie, MD 21061
University of Maryland Law Clinic
500 W. Baltimore Street
Baltimore, MD 21201-1786
School Law in Maryland – Education Rights of Children with Special Needs © 2000, MSBA, Inc.
All rights reserved. No part of this work may be reproduced in any form without written permission from the Maryland State Bar Association.