December 17, 2017

Priority Issue: Special Education

General Assembly Enacts Major Special Education Bills

Parental Consent – Limited to Three Decisions (HB 174/SB 710) (Del. Luedtke/Sen. Conway)

This bill requires the individualized education program (IEP) team to 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 high school diploma; (2) identify the child for the alternate assessment aligned with the State’s alternate curriculum; or (3) include restraint or seclusion in the IEP to address the child’s behavior.

If the parent does not provide written consent, the IEP team must send the parent written notice within five business days of the IEP meeting that (1) the parent has the right to either consent, or refuse to consent, to an action described above, and (2) if the parent does not provide written consent or refusal to consent within 15 business days of the IEP team meeting, the IEP team may implement the proposed action. If a parent refuses to consent to the proposed action, the IEP team may use the dispute resolution process to resolve the matter. The bill takes effect July 1, 2017.

MABE opposed this bill, and urged adoption of the amendment to remove the category of parental consent regarding IEP team decisions to initiate a change in the child’s educational placement. (MABE Testimony)

Seclusion/Restraint – Taskforce to Update Regulations (SB 786) (Sen. Zucker)

This bill requires the Maryland State Department of Education (MSDE) to convene a task force to examine policies and practices related to behavioral interventions in schools, including the use of restraint, seclusion, and trauma-informed interventions. The task force must report to the State Board of Education and the General Assembly by October 1, 2017 on its findings and recommended regulations related to seclusion. In general, the task force must consider the circumstances under which restraint and seclusion shall be prohibited; training requirements for school staff; minimum requirements for school system policies; and standards for monitoring compliance.

Regarding seclusion, the task force must make specific recommendations on the use of seclusion such as the types of doors and locking mechanisms and observation and safety standards. Following the task force recommendations, MSDE must propose regulations to the State Board by December 1, 2017.

The bill also requires public agencies, as defined by the bill, and nonpublic schools to report annually on the use of physical restraint and seclusion, as well as on professional development provided to school personnel related to positive behavior interventions, strategies, and supports and trauma-informed interventions. MSDE must provide guidance to public agencies and nonpublic schools and also report to the General Assembly on related matters. The bill takes effect July 1, 2017; statutory provisions related to the task force are repealed June 30, 2019.

MABE opposed this bill as introduced, and yet also acknowledged that the statute may be in need of updating relative to the more recently updated and highly regarded set of state regulations. Therefore MABE urged that any statutory changes closely reflect the regulations that now govern these practices. MABE appreciates the support of Senate Zucker for amendments to ensure significant progress in updating the standards for utilizing seclusion rooms or physical restraints of students through the development of new State regulations. (MABE Testimony)

Specialized Intervention Services – Reports (SB 1) (Sen. Conway)

This bill requires that, beginning with the 2018-2019 school year, each local board of education must, by December 1 of each year, submit a report on specialized intervention services to the Maryland State Department of Education (MSDE). The report must include information on the number of students in kindergarten through grade 3 receiving the services, the grades in which the services were provided, and the annual budget (including federal, State, and local funds) for the services. MSDE must establish guidelines for the report that each local board must submit. MSDE and each local board of education must annually post the information required under the bill on their respective websites.

MABE supported this bill with amendments, in the context of recognizing the importance of the services at issue, but requesting amendments to establish an interim study of the complex statutory and regulatory issues, and the reporting requirements relating to specialized intervention services and to the federal, state and local funding being provided for such services. The House proceeded to amend the Senate bill and House bill (HB 286) to include much more onerous reporting requirements and MABE ultimately urged the adoption of the SB 1 as introduced. (MABE Testimony)  

IEP Study (No Shifting of Burden of Proof) (HB 1240) (Del. Kaiser)

By July 1, 2018, the Maryland State Department of Education (MSDE) must contract with an outside entity to conduct a study of the individualized education program (IEP) process in the State. MSDE must report the findings and recommendations of the consultant to the General Assembly by July 1, 2019. In addition, MSDE, in consultation with each local school system, must review and assess staff allocations and resources that are available to assist the parents and guardians of children with disabilities to participate in the IEP process, as well as current population densities of children with IEPs and of special education teachers. The findings and recommendations from MSDE’s review and assessment must be submitted to the General Assembly by December 31, 2018.

MABE opposed this bill as introduced, and as amended prior to passing in the House, based on concerns regarding the potential scope of the types of decisions subject to the shifted burden of proof. Specifically, the bill would have MABE did not oppose the final iteration of the bill as amended in the Senate to require extensive studies of the State’s approach to delivering special education services. (MABE Testimony

Remote Classroom Technology Grant Program – Establishment (Peyton's Bill) (SB 485) (Ch. 322) (Sen. Serafini)

This bill establishes the Remote Classroom Technology Grant Program to provide grants to public schools to purchase technology to allow students with medical conditions to participate in classrooms remotely if in-person attendance is not possible. The Governor may include funding in the State budget annually for the program. MSDE must administer the program and may adopt regulations to implement the bill. The bill takes effect July 1, 2017.

Background

In 2016, legislation was considered but not enacted which would have required the Individualized Education Program (IEP) team to obtain written consent from a parent prior to certain decisions (HB 778/SB 950). The bill would have introduced this new parental consent authority when the IEP team was proposing to: (i) enroll the child in an alternative education program that does not issue or provide credits toward a Maryland high school diploma; (ii) identify the child for the alternate assessment aligned with the state’s alternate curriculum; (iii) use restraint or seclusion to correct the child’s behavior; (iv) reduce or terminate the amount of instructional or related services that are provided to the child; or (v) initiate a change in the child’s educational placement. 

MABE opposed these bills based on opposition to shifting decision-making authority away from the professional judgement of educators, in conjunction with parents and guardians as required by federal law, and instead providing a parental “veto” of IEP team proposals and decisions. Local boards of education have great respect and appreciation for the dedication and commitment of educators and parents who are collaborating throughout the school year to ensure that the educational needs of students qualifying for special education services are being met. MABE does not believe these bills are consistent with the overarching goal to achieve a successful collaborative relationship among parents and educaors on behalf of students.

Specifically, MABE is concerned that in instances when the IEP team determines the parent’s unilateral decision is not in the student’s best interests, the litigious dispute resolution process is triggered. This is likely to have the unintended consequence of dramatically increasing the rate of such disputes and therefore result in many more time consuming and costly mediations and due process proceedings. Local boards opposed this bill not only because it would result in increased costs, but also because the duration of IEP challenges could result in delays in students receiving the services they need until the completion of the dispute. These outcomes are not in the best interests of students, families, and the educators involved in the collaborative and intensive process mandated under the current law. 

During the 2016 session, both SB 950 and HB 778 were amended, in different forms, to establish a task force to consider the issues raised by the original bill. During the 2016 interim, MSDE has held meetings to discuss this legislation and related issues with MABE and other edcuation stakeholders. MABE anticipates the introduction of parental consent legislation in the 2017 legislative session.

Burden of Proof

In 2015, the General Assembly considered and rejected legislation to place the burden of  proof on the public agency (local school system or MSDE) in special education-related due process hearings held to resolve disputes about the identification, evaluation, or educational placements of children with disabilities or the provision of a free appropriate public education (Senate Bill 390/House Bill 344). MABE strongly opposes such legislation, and supports the Supreme Court decision in a Maryland case (Shaffer v. Weast (2005)) which maintains that parents should meet the burden to contest the IEP developed for their child (MABE Testimony).

While the “burden of proof” bill has failed to pass in multiple legislative sessions, several other special education-related bills have become law; and are intended to make significant improvements in the delivery of and communication to parents regarding special education programs and services.

Recently Enacted Special Education Legislation

In 2016, bills passed to authorize the parents of a child with a completed individualized education program (IEP) or individualized family service plan (IFSP) to request that the IEP or IFSP be translated into the parents’ native language, if that language is spoken by more than 1% of students in the local school system. School personnel must provide the parents with the translated document within 30 days after the date of the request. These bills took effect July 1, 2016 (HB 86/SB 421)

Also enactedin 2016, HB 551 requires the IEP team to provide a parent who disagrees with a child’s IEP or special education services with, in plain language: (1) an oral and written explanation of the parent’s right to mediation; (2) contact information for receiving information on the mediation process; and (3) information regarding pro bono representation. The parent may request this information at any IEP team meeting. The Maryland State Department of Education (MSDE) must make staff available to assist a parent in understanding the mediation process. The bill took effect July 1, 2016. 

And HB 895/SB 823 passed in order to extend the reporting deadline for the Task Force to Study the Implementation of a Dyslexia Education Program from December 30, 2015, to December 30, 2016, and extend the termination date of Chapter 411 of 2015, which established the task force, from June 30, 2016, to June 30, 2017. The bill also adds to the membership of the task force and adds to the task force’s mandate by requiring that it (1) make recommendations regarding how the terms “dyslexia” and “targeted students” should be defined and (2) determine the components and costs of successful dyslexia education programs established in other states. The bill took effect June 1, 2016. 

In 2014, House Bill 413 passed to require each local board of education to develop and publish on its website a list of all special education service delivery models in the local school system; and the new law ensures that parents are provided a verbal and written explanation of the parents’ rights and responsibilities and the procedural safeguards in the IEP process. Similarly, legislation passed to require each local school system to provide to parents of a child with a disability verbal and written information about access to habilitative services (Senate Bill 701/House Bill 798).

A Commission on Special Education Access and Equity was created by legislation in 2013 (House Bill 1161). The Commission was charged with studying the extent to which parents and guardians of students with disabilities are made aware of their rights under the Individuals with Disabilities Education Act (IDEA) and State law and regulations, and ways to improve the awareness of these rights; the effects of workload, caseload, and paperwork requirements related to the special education process on the ability of educators to provide a free and appropriate public education, and potential methods for mitigating these factors; and the disparity between the parties in special education due process hearings and potential methods for improving the process.

Importantly, the Final Report of the Commission on Special Education Access and Equity made several recommendations for further actions to improve the delivery of special education services, but did not recommend shifting the burden of proof.

To learn more, read MABE’s testimony opposing legislation to shift the burden of proof to the school system, or visit the MSDE web page for the Commission, and read the Commission's Final Report.


For more information, contact John R. Woolums, Esq., MABE's Director of Governmental Relations, at jwoolums@mabe.org or 410-841-5414.