Advancing the Rights of Marylanders
with Disabilities.
1800 N. Charles Street; Suite 400
Baltimore, MD 21201
410.727.6352 1.800.233.7201
www.mdlclaw.org
Special Education Law and the
Rights of Students Involved in the
Juvenile Justice System in
Maryland
Maryland Disability Law Center
October 2010
Who is MDLC?
 Maryland Disability Law Center is a non-profit
organization of lawyers and paralegals dedicated
to protecting the rights of people with disabilities.
 Provides free legal services and advice
 See our website for more information:
www.mdlclaw.org
 Call our special education intake line Monday
through Friday between 10am and noon to seek
information or legal help for a child with a
disability.
Students with Disabilities
Involved with DJS
 Students with disabilities make up about
12% of the student population in Maryland.
 Yet, national studies have shown that up to
30% to 50% of youth involved in the
juvenile justice system have special needs.
The connection between school
performance and delinquency
 Youth with educational difficulties have a heightened risk
of behavior problems.
 Youth in custody have a high nonenrollment rate (21%) at
the time they enter custody, more than four times the rate
of peers in the general population (5%).
 Nearly one-half (48%) of youth in custody are currently
functioning below the grade level appropriate for their age,
compared to 28% of youth in the general population.
(Juvenile Justice Bulletin, OJJDP, April 2010).
Prevalent Disabilities
 Serious mental illness
 Emotional disabilities
 Developmental disabilities
 Learning disabilities
 ADHD
How can special education issues
impact a delinquency case?

Use special education issues to help the juvenile delinquency
case

Use special education issues to impact placement once a juvenile
is adjudicated

Identify special education issues that warrant referral to an
outside agency, such as MDLC

Identify current school discipline issues that warrant
representation

Identify post adjudication special education issues
Same Right to Services
 Student with disabilities who are involved
with DJS have the same right to services as
any other student no matter where they are
placed.
 Students with disabilities placed in a DJS
detention facility or youth center are
entitled to special education and related
services pursuant to their IEPs.
Youth in Adult Correctional
Facilities
 Incarcerated youth still have the right to
special education and related services while
in an adult facilities, such as a county jail or
a state adult facility.
 Exception: Youth in adult facilities
between the ages of 18 to 21 who have not
been previously identified as eligible are not
entitled to services.
Barriers to Services
 Failure to screen, identify and evaluate youth suspected of having a






disability.
Delays in accessing school records or records are incomplete.
Parents or guardians are not involved in the special education process.
Services, such as related services or supplementary aids and services,
may be provided based on what exists at the facility rather than what
the youth needs.
The use of seclusion, segregation or other behavior issues may disrupt
access to educational services.
Access to the general education curriculum may be limited.
Transition between placements may lead to gaps in services.
The Relevant Laws
 Individuals with Disabilities Education Act,
20 U.S.C. Sec. 1400 et seq.
 Section 504 of the Rehabilitation Act,
34 C.F.R. Part 104
 Code of Maryland Regulations,
COMAR 13A.05.01
What is FAPE?
Federal and state law guarantees a
“free and appropriate public education”
to all eligible children with disabilities.
FREE
 At no cost to the parent.
 Schools may bill Medical Assistance for services
such as counseling or physical therapy if:
• parent consents;
• it is at no cost to the parent;
• it does not result in a decrease in lifetime
coverage.
APPROPRIATE
 Educational services must be designed to meet the
individual needs of the child.
 The IEP (Individualized Education Program) sets
forth what services the child will receive in order
to benefit from his/her education.
PUBLIC
 The public school system must:
– Provide an appropriate education at a public
school, or
– Arrange for it to be provided through a nonpublic school.
EDUCATION
 Special education means specially designed
instruction:
– The content, methodology, or delivery of instruction
has been adapted to meet the unique needs of the
student.
– Allows the student to have access to the general
curriculum.
 Includes Related Services
“Child Find”
 All schools, including those inside DJS
facilities, have an obligation to identify,
locate, and evaluate all students who have a
suspected disability.
Eligibility
 Who is Eligible for Special Education Services?
• Children with disabilities, from birth to 21.
• Because of their disability, they need special
education and related services.
 Who Decides?
• The IEP team determines eligibility.
– (IEP means Individualized Education Program)
Disabilities








Intellectual disability
Emotional disability
Learning disabilities
Autism
Hearing impairment
Visual impairment
Physical disabilities
Traumatic brain injury




Speech or language impairment
Multiple disabilities
Deaf-blindness
Other health impaired
(including ADHD and
Tourette’s Syndrome, among
other health conditions)
NOTE: A student with a
developmental delay within the
age range of 3 through 9 years
old may also be eligible.
Who Makes Up the IEP Team?
 Parent(s)
 A regular education teacher
 A special education teacher
 A representative of the school system who knows
about special education, the general curriculum,
and the availability of resources
IEP Team (cont.)
 A person who can interpret the assessment results.
 Other individuals at the discretion of the family
and the school who have knowledge about the
child.
 The student if appropriate.
 Meeting and attendance requirements have been modified
to permit people to attend meetings only when they are
directly relevant to the meeting and to allow IEP revisions
without meetings if parent consents.
Who Is a Parent under the IDEA?
 A biological or adoptive parent
 A guardian
 A person acting as a parent of a student, including a
grandparent, stepparent, or other relative with whom the
child lives, or an individual who is legally responsible for
the child’s welfare
 A foster parent if granted limited guardianship for
educational decision–making purposes by the court
 A surrogate parent
[20 U.S.C. § 1401 (25)] [34 C.F.R §300.30]
Parent Surrogates
 Under federal law, juvenile courts now have authority to appoint an
education surrogate parent.
 A surrogate must be appointed whenever the parents of the child are
not known; after reasonable efforts, the parent cannot be located; or the
child is a ward of the State.
 The surrogate parent cannot be an employee of the State educational
agency, the local educational agency, or any other agency that is
involved in the education or care of the child.
 A school system must make reasonable efforts to ensure the
assignment of a surrogate not more than 30 days after there is a
determination that the child needs a surrogate.
Referral to the IEP Team
 Children are usually first referred to an IEP
team by parents, teachers, doctors, or other
professionals.
 The purpose of the referral is to determine
whether the student needs additional
assessments.
When a Parent Requests an
Evaluation
– Requests for a special education evaluation should be made
in writing.
– Parents can request a special education evaluation while
their child is in a detention facility or other DJS placement.
– Youth in detention centers can undergo an array of
assessments, including psychological, psychiatric and
educational evaluations.
– Parents should consider sharing any outside evaluations
that they may have that would support the need for special
education services.
The Evaluation Process
 The initial evaluation must be completed within 60 days
from parental consent and within 90 days from the date of
the written referral and includes:
• An initial meeting with the IEP team to review
existing information on the child and determine if
assessments are necessary
• Completion of assessments within 60 days
• A follow-up IEP meeting to review assessment
results
Assessments
 Must:
► be in the area of the suspected disability.
► be consented to by the parents.
► use a variety of tests and procedures.
► be performed and interpreted by professionals.
► be done in the language and form most likely to yield
accurate information on what the child knows and can
do academically, developmentally and functionally.
Special Rule for Learning
Disabilities
 When determining whether a child has a specific learning
disability, the school system is not required to consider
whether the child has a severe discrepancy between
achievement and ability in oral and/or written expression,
listening and/or reading comprehension, and mathematical
calculation and/or reasoning.
 The school system may use a process that determines if the
child responds to scientific, research-based intervention–
also referred to as Response to Intervention (RTI).
Emotional Disability
A condition exhibiting one or more of the following characteristics over a long
period of time and to a marked degree, which adversely affects educational
performance:
(a)
An inability to learn which cannot be explained by
intellectual, sensory or health factors;
(b)
An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers;

(c)
Inappropriate types of behavior or feelings under normal
circumstances;

(d)
A general pervasive mood of unhappiness or depression; or

(e)
A tendency to develop physical symptoms or fears associated
with personal or school problems.
 (II) The term includes children who are schizophrenic. The term does not
include children who are socially maladjusted, unless it is determined that they
have an emotional disturbance.

Cite: 34 C.F.R. § 300.8(c)(4)
Assessment Review
 The IEP team meets to review the assessment
results and to consider the results of evaluations
by outside agencies.
 Parents are entitled to copies of the assessments
and should request copies prior to the IEP
meeting.
Assessment Review (cont’d)
IEP Team Determines:
 Whether the child has or continues to have a disability and
needs special education and related services.
 The present levels of performance and educational needs.
 Modifications needed to enable the child to meet annual
measurable goals and to participate, as appropriate in the
general curriculum.
Re-Evaluations
 Should occur at least every three years.
 IEP team reviews the IEP and determines the need
for new assessments.
 If the team determines that no new assessments
are needed, it must notify the parents.
 The parents can request new assessments.
Independent Evaluations
 Parents may disagree with the assessment results
and/or the decision of the IEP team regarding
eligibility.
 If parents disagree, they can request that the
school system pay for an independent evaluation.
 If the school system refuses, it must put its reason
in writing and is required to file for a due process
hearing.
The IEP
 The IEP is a document that describes the special education
and related services that the child is to receive.
 Within 30 days from the evaluation meeting, the IEP team
must meet to develop the IEP.
 The school system must implement the IEP as soon as
possible after the meeting.
 An IEP meeting must be held at least once a year to review
the child’s progress and the IEP.
IEP Checklist
 Current levels of academic and functional performance
 Academic and functional annual goals and short-term
objectives
 Related services
 Supplemental aids, services, modifications
– Includes program modifications and staff supports that are provided in educationrelated settings and extracurricular and nonacademic settings in order to allow the
student to be educated with nondisabled peers to the maximum extent appropriate.
This underutilized provision helps to individualize the IEP and gives
teachers/providers assistance in meeting the needs of the student.
 Measuring Progress
 Programs/activities with regular education students
IEP Checklist (cont.)
 Amount of special education
 Behavior programs
 Assistive technology
 Transition services
 Under MD law, transition planning begins at 14.
 Extended school year services (ESY)
 Adapted physical education
 Health concerns
Related Services
 Transportation
 Speech pathology
 Audiology
 Psychological services
 Physical and occupational therapy
 Social work services
 Medical, school health services and school nurse
services
Related Services (cont.)
 Rehabilitation services
 Parent counseling and training
 Counseling
 Assistive technology devices or services
 Orientation and mobility services
 Interpreting services
 RELATED SERVICES MUST BE:
– Specified in the IEP, including the type, amount and
frequency.
Developing a Behavior
Intervention Plan (BIP)
 A Functional Behavior Assessment (FBA) is an
integral part of developing an effective behavior
plan.
 The FBA is a systematic process for identifying
and describing challenging behavior exhibited by
a student, determining the functions of the
behavior, and identifying the environmental and
other settings that contribute to or predict the
occurrence, non-occurrence, and maintenance of
the behavior over time.
Placement
 The IEP determines where the student will
be placed in order to implement the IEP.
 School systems must maintain a continuum
of placement options.
Placement in the Least Restrictive
Environment (LRE)
 Students with disabilities must be educated with non-
disabled peers to the greatest extent possible. This is
called the least restrictive environment (LRE) for the
student.
 Inclusion means that the student is truly a part of the
general education program and participates in general
education classes with students without disabilities. The
word “inclusion” does not appear in the law.
 Schools must provide supplementary aids and services to
allow a child to stay in the least restrictive environment.
Range of Placement Options
 From least restrictive to most restrictive:
•
•
•
•
•
•
•
•
•
Regular classroom in a neighborhood school.
Some time in a “resource” room.
More than half the day in a “resource” room.
A self-contained class in a regular school.
A self-contained class in a separate public school.
A self-contained class in a non-public school.
A residential facility.
Home and hospital instruction.
It is possible to combine options and have students spend some
time in a self-contained class and some time in general
education, or some time in a regular school and some time in a
separate school, for instance.
Non-Public Placements
 If the school system cannot find an appropriate
public placement, then the school system must pay
for the child to attend a non-public school.
 There is a list of MSDE approved non-public
school placements. (www.mansef.org)
 The IEP must support the need for a non-public
school placement.
Home and Hospital Instruction
 Provided for children who cannot attend school due to
medical or mental health reasons.
 It is a temporary placement: not more than 60 consecutive
school days unless a child’s IEP allows for an extension.
 Related Services must also be provided.
 Cannot be forced upon a child.
 Cannot be used as an alternative educational setting when a
student has been suspended or expelled.
Transition Issues/Returning to
the Community
 Transition Planning at least 30 days prior to release to
ensure that there is not a gap in services.
 If there are significant special education issues, such as
school placement, an IEP meeting should be held prior to
release with the receiving school system present.
 The goal is for the student to leave a facility or placement
with a current IEP that accurately reflects the student’s
needs.
 Centralized Transition Teams should include special
education issues, but do not take the place of an IEP
meeting.
Enrollment Issues
 Out-of-County Placements:
Students placed by a state agency in out-of-county living
arrangement have the right to attend school in the county
where they are placed. See Md. Code, Education § 4-122.
 Informal Kinship Care:
A county superintendent shall allow a child who is a
resident of this State to attend a public school in a county
other than the county where the child is domiciled with the
child's parent or legal guardian if the child lives with a
relative providing informal kinship care in the county and
the relative verifies the informal kinship care relationship
through a sworn affidavit. See Md. Code, Education §7-101
and §4-122.1
Prompt School Enrollment
 Maryland law requires that Maryland
children in state-supervised care who
experience a change in physical residence
that necessitates a change of schools shall
be promptly enrolled in school and their
school records shall be promptly
transferred.
Md. Code, Education § 8-502.
The Transfer of School Records
 A placement agency responsible for the student in
state-supervised care must provide notice to a
receiving school regarding the enrollment or
imminent enrollment of the student.
 Within 2 school days the receiving school must
– Inform the sending school of the enrollment
– Request, in writing, the educational records
– Provide a copy of the records request to the placement
agency
 Within 3 school days following receipt of the
notice from the receiving school, the sending
school must send
– A completed student withdrawal or transfer record
– The records of the student, including
• Academic records
• Discipline records
• Immunization records
• IEPs, Section 504 plans, and the most recent
evaluations
Students With IEPs Transferring from
Other Maryland School Districts
 When a student with a disability transfers
to a new county, the new school system
must provide FAPE including services
comparable to those provided by the
former school district until the new district:
– Adopts the IEP; or
– Develops a new IEP
COMAR 13A.05.01.09(E)(1)
Ways to Resolve
Disagreements and
Procedural Safeguards
Facilitated IEP Meetings
 Trained, independent volunteer to help keep IEP team focused on
needs of child when trying to resolve problems. All parties are
supported in a non-confrontational manner;
 Can be requested by either parent or school but both must agree;
 Occurs at a regular IEP meeting and all legal requirements are the
same;
 No cost to parent or school;
 Who to call: the Office of the Director of Special Education for the
school system responsible for student’s educational program or
Community Mediation Maryland (410-553-0206).
Notice Requirements
 NOTICE: Parents are entitled to a 10 day notice
of all IEP meetings.
 WAIVER: Parents have the right to waive the 10
day notice if they need an immediate IEP meeting.
The 10 day notice requirement is waived for
manifestation meetings.
Parents’ Right to Documents
 Under a new state law, school personnel are
required to provide copies of any documents 5
days in advance of an Individualized Education
Program (IEP) or interdisciplinary team
meeting at which parents and school staff will
be making education decisions based on those
documents.
Resolving Disputes
 Mediation.
 Administrative Complaints may be filed
with the Division of Special Education,
Maryland State Department of Education.
 Due Process Hearing.
Mediation
 An informal conference with an independent mediator through the
Office of Administrative Hearings.
 A request for mediation must be made in writing to the school system.
 It is a voluntary process and either party can refuse to mediate.
 Any agreement must be in writing and is legally enforceable and
binding.
 Discussions during mediation are confidential and may not be used in
subsequent due process hearings and civil proceedings.
Administrative Complaint Process
 Parents/Advocates can file a written complaint with the Maryland State
Department of Education if they believe a child’s rights have been violated. A
copy of the complaint should also be sent to the local director of special
education.
 Examples of possible complaints:
– Student did not receive services set forth in IEP.
– School system failed to conduct timely evaluations.
– School system violated discipline procedures

MSDE must complete its investigation within 60 calendar days.
 The 60 day time period can be extended if the parent and school system agree
to engage in mediation or other alternative means of dispute resolution.
 The complaint must be filed within 1 year of the violation.
How to File for a Due Process
Hearing
 A hearing request must be sent to the school system and to the Office of
Administrative Hearings.
 The hearing request must
– Allege a violation that occurred within 2 years of the date that parent or
school system knew or should have known
– Include the name, address and school of the child
– Describe the nature of the problem; and
– Include a proposed resolution.
 The non-complaining party must respond to the hearing request within 10
days.
 STAY PUT: A student stays in his or her last agreed upon placement until a
due process hearing is resolved. (There are some exceptions under school
discipline).
SCHOOL DISCIPLINE
ISSUES
Removal of Student with Disabilities for
Not More Than 10 Consecutive Days
 A student with disabilities may be removed from school
for up to 10 consecutive days just as a non-disabled
student, for each incident of misconduct (as long as
cumulative effect is not a change in placement). Student
may be removed:
• To an alternative educational setting
• To another setting
• By suspension
Removal for More Than 10 Consecutive
School Days is a Change in Placement
 For students with disabilities a suspension of more than
10 consecutive school days constitutes a change in
placement.
 Parents must be notified in writing.
 The IEP team must conduct a “manifestation meeting”
within 10 school days of the date school personnel
removed the student from school.
Change in Placement can also occur
after 10 days have “accumulated”
 Removal constitutes a “change in placement” if a student
with a disability is:
– (1) removed from the student’s current placement for more
than 10 consecutive days; or
– (2) subjected to a series of removals that constitutes a pattern
of removals that accumulates to more than 10 school days in
a school year.
Series of Removals or Short-Term
Suspensions
 For special education students a series of short-term suspensions may be
considered a change in placement if it constitutes a pattern of removals that
accumulates to more than 10 school days in a school year.
 To determine if it is a pattern of removal, the IEP team is to consider:
▪ length of each removal;
▪ whether the child’s behavior is substantially similar to the child’s
behavior in previous incidents that resulted in the series of removals;
and
▪ additional factors such as:
- length of each removal;
- total time the student was suspended; and
- proximity of the removals to one another.
The Manifestation Meeting
 The IEP team must convene an
manifestation meeting:
– Determine if the student already has a behavior
plan and if s/he does, the team must review and
revise it.
– If the student does not have a behavior plan, the
team must order a functional behavior
assessment and develop a plan.
Determining “Manifestation”
 The IEP team must review all relevant information in the
student’s file, any teacher observations, any relevant
information provided by the parents and the IEP and
determine:
– 1) if the conduct was caused by, or had a direct and
substantial relationship to the student’s disability; or
– 2) if the conduct was the direct result of the school’s failure
to implement the IEP.
If the Team Finds
Manifestation
 If the answer is “yes” to either of the 2 manifestation questions, the
team must find manifestation, rescind the suspension, and return the
student to the placement from which the student was removed unless
parent and school system agree to a new placement.
 If the team answers “yes” to the second query (“Was the conduct the
direct result of the school’s failure to implement the IEP?”) the school
system must take immediate corrective action.
 Remember: if it has not already done so, team must also conduct a functional behavior
assessment and develop a behavior intervention plan or, if a BIP is already in place,
review the plan and modify it as necessary.
If Team Finds No
Manifestation
 If the team finds that the conduct was NOT a manifestation of the
disability, the student is treated like a regular education student and
will have a conference with the Superintendent’s Designee.
 The Designee may remove a student with disabilities for more than 10
consecutive school days provided the student continues to receive
educational services in another setting and participates in the general
education curriculum and works towards IEP goals. Student should
also receive “as appropriate” an FBA and BIP to prevent a
reoccurrence of the incident that led to the removal.
Manifestation Exceptions
 Drugs, Weapons or Serious Bodily Injury:
– For incidents on school premises or at a school-sponsored function
involving any of the above, a student with disabilities may be
unilaterally moved to an alternative education setting (AES) for up
to 45 school days even if the conduct was related to the student’s
disability.
 The IEP team determines the interim AES.
Appealing Manifestation
Determination
 If the student and parent do not agree with the manifestation
determination they may appeal the decision to the Office of
Administrative Hearings (OAH).
 Appealing a manifestation determination in a drugs, weapons, serious
bodily injury case, may prevent the student from being removed
beyond the 45 school days.
 The hearing shall occur within 20 days from the date of the hearing
request and a decision is to be rendered within 10 days after the
hearing.
Placement During An Appeal
 If a parent requests a due process hearing to challenge the
manifestation determination, the student remains in the
interim alternative education setting until the appeal is
resolved or until the end of the removal period, whichever
comes first.
 The parents and school system may agree to another
placement pending the appeal.
Alternative Education Setting
Requirements
The setting must:
 Enable the student to progress in the general curriculum
 Provide services and modifications that are in the student’s
IEP
 Meet the goals of the IEP
 Provide services to address the behavior
 Home teaching is not an appropriate AES.
Exclusion, Restraint & Seclusion
 School staff may only resort to restraint, exclusion or seclusion after less restrictive
approaches have failed or been deemed inappropriate.
 Exclusion can be used if student’s behavior unreasonably interferes with learning and/or
in an emergency to protect the student and others from imminent harm. Exclusion must
be done in a safe, unlocked setting where the child will be safe and can be monitored. A
period of exclusion may not exceed 30 minutes and must be appropriate to the
developmental level of the student and severity of the behavior.
 Mechanical restraint is prohibited in public schools. (Does not include protective or
stabilizing device).
 Seclusion can be used if the on the IEP/BIP and/or in an emergency to protect the
student and others from imminent harm after less intrusive interventions have been
attempted or deemed inappropriate. It must be on the IEP and take place in a room
where the child will be safe and can be monitored at all times. Only to be applied by
trained staff and may not exceed 30 minutes. Must be appropriate for student’s
developmental level and severity of behavior. May not restrict the student’s ability to
communicate.
Physical Restraint
 Can only be used in an emergency to protect the student and others from
imminent, serious physical harm;
 Can not be used to place a student face down nor in any position that will
obstruct a student’s airway or impair the ability to breathe or obstruct the
student’s face or restrict student’s ability to communicate distress, etc.;
 School personnel may not straddle a student’s torso;
 Must be done only be trained staff.
 Must be removed as soon as child is calm but may not exceed 30 minutes
 Must be on a child’s IEP. Only reasonable force can be used.
OTHER ADVOCACY
ISSUES
Section 504 of the Rehabilitation Act
of 1973
 Prohibits discrimination in federally funded programs.
 Students with disabilities are entitled to participate fully and without discrimination in
school programs.
 For those students who have a disability but are not eligible under the IDEA because
they do not require special instruction, Section 504 requires that they receive reasonable
accommodations in regular classes with “related aids and services” if such are
necessary.
 Reasonable accommodation does not require a fundamental alteration of the program.
 Accommodations and services should be set forth in a Section 504 Plan.
 Section 504 requires an evaluation prior to a significant change in placement.
Examples of Accommodations
Under Section 504
 Provision of medication
 A note taker or tape recorder
 Special seating
 Extra time to complete tests or work
 Behavior plan
 Section 504 also applies to physical barriers that
prevent a student with a disability from
participating in school.