Special Education Law, PreK-12

The special education law or IEP process can be complicated and frustrating for families navigating the system on their own. School staff often mean well, but ultimately must represent the school’s interest even if that leaves a child without necessary services. Parents are left feeling that they alone are acting in their child’s best interest and quickly learn that advocating for their child while making sense of evaluations, test scores, and IEP progress can become a full time job. We see our job as to take that stress off your shoulders– we’ve been there before and we know the law. Having someone on your team can make all the difference.

Parents often tell us that they don’t know that a school can –and may even be required to– provide more for a student more than they are offering. Parents can and should object when schools deny services on the basis that “this is just how we do it,” or “this is what all students get.” We often hear that staffing shortages or scheduling concerns are preventing students from getting what they need– this is illegal. Students needs must come first. Similarly, we hear that students aren’t “far enough behind.” This is commonly a misconception or misunderstanding of the student and we are well-versed in working through those arguments.

The Individuals with Disabilities in Education Act (IDEA), which is the federal law that provides an entitlement to special education for children in public schools, demands that students receive individualized instruction, and that decisions are made for the individual child. There is no one way schools “do” things, despite what staff sometimes say.

The IDEA says that each student is entitled to a “Free and Appropriate Public Education” in the “Least Restrictive Environment.” This means that public schools should be providing each student who has a disability with instruction and intervention that is appropriate for that child and those services should be provided, as much as possible, in general education classrooms. However, that doesn’t mean that all students can be successful in their neighborhood schools. When a child isn’t making progress under their current plan, something needs to change, including sometimes more intensive, different, or better researched services.

Often, there is disagreement as to what is appropriate under the law. Section 504 states that a student at any school receiving federal funding cannot “be excluded from the participation in, be denied the benefits of, or be subjected to discrimination” because of their disability. Public schools in Maryland are required to administer their special education programs and services according to the IDEA, Section 504, and state law, so it is critical that parents understand these laws in order to make sure that their children get what they need. That’s a lot to expect of parents, and that is where we can help.

Parents need to know, for example, that school systems are required to identify whether a student has a disability through evaluations, classroom performance and standardized data.

In some cases, schools say that children are not eligible for especial education services when in fact they are. That’s a problem, since schools are affirmatively obligated to identify every child with a disability in their district.

If a student is found to have a disability covered by the IDEA, the school must develop an individualized plan to help the student, make sure that plan is followed, and track the student’s progress in achieving specific learning goals at regular intervals. Parents who are not trained in special education law may not know when a school is failing to fulfill its obligations, or when their child’s rights are being violated.

Yet, we find that parents are almost always right when they “feel” something is wrong. In some cases, parents know that their children are struggling even when they are not identified as needing services. In other cases, caring teachers have told parents that they have concerns, but the school still does not help. Often, that is when parents seek legal assistance. When families work with our education attorneys, we help them resolve a variety of issues related to special education, such as:

  • Their child is in need of services, but the school system says that the student does not qualify for special education (or an IEP or 504), or that “everything is fine” or “it will come”
  • Children are not learning to read at the same rate as their peers
  • School systems tell parents that their child’s deficits are COVID related and will eventually even out
  • A school system denied a child’s eligibility for a 504 Plan or does not provide the agreed upon accommodations
  • The student has an IEP, but they are not making progress on their IEP goals and objectives
  • The school is not following the IEP or 504 Plan
  • The child has an IEP, but the services they are getting are ineffective services
  • The school system insists on using “interventions” that do not have evidence behind them or are not aligned with the latest research (for example, reading programs that are not evidence-based and do not follow the science of reading)
  • The child needs “non-public” placement (private, specialized school at the school district’s expense) and the school has said no
  • The school district tells families “this is how we do it here,” or “we can’t afford that” or “we don’t have the staffing for that” in order to avoid providing needed services
  • The public school system is excluding a child from general education
  • The school team will not accept outside evaluations of the child or says that the school’s own data contradicts the outside evaluations
  • School staff are using counterproductive (or illegal!) behavioral interventions that only make a child’s behaviors worse

In addition to accommodations for their academic issues, students with disabilities that affect behavior, such as ADHD and autism, are entitled to special considerations in the school discipline. The school is required to follow special discipline processes and rules if your child’s behavior is a “manifestation” of (caused by or related to) their disabilities. Failure to do so violates the student’s rights and results in an unfair and discriminatory discipline process.

In each of these situations, our lawyers and parent advocates will work with you to analyze your child’s individual needs and achieve results that meet their best interests and protect their rights. In some cases, this may mean developing a plan for you to continue advocating for your child on your own. In other cases, you may decide it is time for a special education attorney or non-attorney parent advocate to become actively involved. Each of these approaches has pros and cons, and we will help you identify which is best for you.