What Are My Child’s Rights?

Under the federal Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act, students with disabilities are entitled to a “free appropriate public education” (FAPE) in the least restrictive environment. Appropriate special education and related services are available to a child with a disability from birth through age 21. For children age 0-3, services are provided as part of a written Individualized Family Services Plan (IFSP). Thereafter, they are part of an Individualized Education Program (IEP). The school system is required to meet the child’s needs at no additional cost to parents, whether it be by specialized classes, tools, or an environment. If the school is not providing this, then the student may be entitled to a placement at another school that can (which could include a specialized program at a private school).

Under Maryland law and the IDEA, the term “Least Restrictive Environment” means “An educational environment which meets the needs of a student requiring special education and related services as set forth in the student’s IEP and which, to the maximum extent appropriate to the student’s needs, ensures that the student will be educated with nondisabled peers. To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a student is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” (Source: MSDE Division of Early Intervention/Special Education Services)

What Is an Individualized Education Program (IEP)?

The term “individualized education program” or “IEP” means a written statement for each child with a disability that is developed, reviewed, and revised in accordance with the IDEA.

The United States Supreme Court held in Endrew F. v. Douglas County School Dist. Re-1, 137 S. Ct. 988 (2017), that “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

At the core of the IDEA is the requirement that states “offer instruction ‘specially designed’ to meet a child’s ‘unique needs’ through an ‘[i]ndividualized education program.'” (Endrew F.) Thus, whether an IEP is appropriate depends on your particular child

There are three main steps in the IEP Process;

1. Evaluation and eligibility determination: Often a teacher will notice a child is struggling in class and refer a child to be evaluated. If you believe your child may have a disability or developmental delay, you can also request they be evaluated. The evaluation process must be completed within 90 days after a request is submitted, and includes screening, assessments, and an initial IEP team meeting. 
2. Development of the IEP: If the IEP team has determined the child is eligible for special education services at the initial meeting, they meet again within 30 days to create the written IEP. A child’s placement is based on the IEP, and should be as close to the child’s home as possible.
3. Parental consent for initiation of services: Once written consent is received, the school will begin providing special education services in accordance with the child’s IEP. (Source: MSDE Division of Early Intervention/Special Education Services) 

Who Is on the IEP Team?

An IEP Team includes the student’s parents, teachers, qualified special education professionals, and other individuals or personnel who know the student. If appropriate, the student can also be on the team.

What Does an IEP Include?

Under Section 1414 of the IDEA, an IEP must include;

• A statement of the child’s present levels of academic achievement and functional performance
• A statement of measurable annual goals, including academic and functional goals, designed to meet the child’s educational needs
• A description of how the child’s progress toward meeting these goals will be measured
• A statement of the special education and related services and supplementary aids and services that will be provided
• An explanation of the extent, if any, to which the child will not participate with nondisabled children in class and other activities
• A statement of any accommodations necessary to measure the child’s academic achievement and functional performance on State and district-wide assessments, and a justification for any alternate assessments that will be used
• The projected date when services and modifications will start, along with their anticipated frequency, location, and duration
• When age appropriate, an assessment of post-secondary goals and services as well as a statement that the child has been informed of any rights that will transfer to them upon reaching the age of majority

What If I Don’t Agree with My Child’s Evaluation, IEP, or Placement?

If you do not believe that your child’s plan is adequate, the team can meet and perform additional testing in the areas of suspected disability and/or adjust the strategies and tools your child may require for the plan to be properly implemented.

Under Md. Code, Education Law § 8-405, if you disagree with your child’s IEP or services during an IEP team meeting, the IEP team must provide you — in plain language — with an explanation of your right to request mediation, how to obtain more information, and about available legal services. Schools and parents often reach mutually agreeable solutions through IEP meetings and informal negotiation, but if there is still disagreement, parties can enter mediation. In order to have a due process hearing, however, you will need to exhaust other methods of resolving the dispute with your child’s school.

If your child has been referred for an evaluation, either by you or school personnel, it is a good idea to consult with an experienced special education lawyer. Parents can bring their attorney to any IEP meetings, mediation sessions, and due process hearings. Even if your attorney does not attend, he or she can help you prepare, collect helpful information and materials, and review any documents before you sign them.

How Long Is an IEP in Effect?

Review and Revision of IEPs

Under 20 U.S. Code § 1414, an IEP team is required to review a child’s IEP at least annually to determine whether the annual goals for the child are being achieved and to revise the IEP as appropriate to address issues such as; 

• Lack of expected progress toward the annual goals and in the general education curriculum
• The results of any reevaluation
• Information about the child provided to, or by, the parents
• The child’s anticipated needs

Procedural Safeguards

Under Md. Code, Education Law § 8-405(b), when a team of qualified professionals and the parents meet for the purpose of discussing the identification, evaluation, educational program, or the provision of a free appropriate public education of a child with a disability, you have important rights, including;

• The right to participate in the IEP meeting, and be given at least 10 calendar days notice before the meeting, unless an expedited meeting is needed to address an urgent issue. 

• At least 5 business days before a scheduled meeting, school personnel shall provide the child with an accessible copy of each assessment, report, data chart, draft individualized education program, or other document that the IEP team or other multidisciplinary team plans to discuss at the meeting.

• At the initial evaluation meeting, the parents of the child shall be provided:
  • In plain language, an oral and written explanation of the parents’ rights and responsibilities in the individualized education program process and a program procedural safeguards notice; and
  • Written information that the parents may use to contact early intervention and special education family support services staff members within the local school system and a brief description of the services provided by the staff members.

Additional Requirements for Parental Consent in Maryland

Under the IDEA, parental consent is required for a child’s initial evaluation, the initial provision of special education services, and reevaluations. Parents have the right to revoke consent in writing. 

In 2017, a Maryland law expanding parental rights during the special education process went into effect. Under Md. Code, Education Law § 8-405(f), an IEP team shall obtain written consent from a parent if the team proposes to:

1. Enroll the child in an alternative education program that does not issue or provide credits toward a Maryland high school diploma;
2. Identify the child for the alternative education assessment aligned with the State’s alternative curriculum; or
3. Include restraint or seclusion in the individualized education program to address the child’s behavior

If you do not consent, the IEP team cannot implement the proposed action. They may proceed by using the dispute resolution options outlined by Maryland education law, including further meetings, mediation, and due process hearings. 
 

Consulting an Experienced Attorney

Navigating the IEP Process can be complex and frustrating, especially if you and your child’s school cannot reach an agreement. Your child has a right to a free appropriate public education in the least restrictive environment. We can help you enforce these rights to ensure that your child’s needs will be met. 

For years, Bethany Shechtel, Esquire has guided parents through the IEP process, and has a deep understanding of the educational system from her experience as a teacher.

If you have questions about special education laws or believe your child’s rights have been violated, contact BGS Law today.