All American children are guaranteed the right to a public education.  The primary right afforded children with disabilities is the right to a Free Appropriate Public Education (FAPE). 

But sometimes it takes legal help to make it happen.

Issues may vary from schools refusing to provide services, to providing inappropriate services, violating regulations; or failing to notify parents of tests, placements, or actions as required by law.

Three laws in Maine govern special education specifically, with federal regulations that were drafted to support their implementation.

• The Individuals with Disabilities Act (IDEA)
• A section of the Rehabilitation Act of 1973, known as “Section 504”
• Maine’s Special Education Regulations, known as “Chapter 101”

Other relevant laws include:

• The Americans with Disabilities Act (ADA),
• The Family Educational Rights and Privacy Act (FERPA)
• The Maine Human Rights Act

Who is eligible?

In Maine, children with disabilities under age 5 may be eligible to receive early intervention support services through the Department of Education’s Child Development Services (“CDS”).

Children with disabilities between the ages of 5-20 are eligible for special education and related services if their disability adversely affects his or her educational performance or school experience. Categories of recognized disabilities include:

Categories Eligible for Special Education

Autism		“Other Health Impaired”
Deaf and Hard of Hearing		Orthopedic Impairment
Blindness and Visual Impairment		Specific Learning Disability
Emotional Disability		Speech and Language
Mental Retardation		Traumatic Brain Injury
Multiple Disabilities

A student with Attention Deficit Hyperactivity Disorder (ADHD) can be identified under "Other Health Impairment," "Specific Learning Disability," or "Emotional Disability" or under Section 504.

Referral for Special Education

A written referral for Special Education is the first step in determining eligibility. Numerous timelines and deadlines apply once a referral is made. Referrals can be made by school staff and teachers, parents, DHS or other state agencies.  Parents must give their written consent before a child is subjected to testing and evaluation; and schools must give written notice to the parent if they plan on testing a child, and report any evaluations and placement plans that result.

Services

Special Education services are provided through an Individual Education Program (“IEP”).  Members of the IEP Team typically include the child’s parent(s), classroom teachers, special education staff, a representative from the school’s central administration, and others who have special knowledge or understanding of the child. Once found eligible for services, a child receives services at or by school administrative units or early intervention programs.

The law also guarantees eligible children preparation designed to help the student prepare for the shift from school to adult life, known as Transition Planning. In Maine, the process must begin when the student reaches the age of 14 (recently amended under Emergency Regulations to “Grade 9”), or earlier if it is deemed appropriate. The IEP goals should be tailored to reflect transition planning and relate directly to the student’s long-term goals for life after high school

Your Child Is Guaranteed Due Process By Law

Parents (and school districts!) have the right to disagree with any decisions made by the IEP Team and may challenge those decisions through mediation, complaint, or by requesting a due process hearing. The term "due process" as used in the special education context is no different than the traditional definition of due process guaranteed by the Maine and U.S. Constitutions, i.e., an individual may not be deprived of "life, liberty, or property" without notice or a fair opportunity to be heard.

In Maine, regulations implementing Individuals with Disabilities Act (IDEA) are overseen and administered by the Department of Education (DOE).  Due process challenges are governed under a set of procedural safeguards set forth in DOE regulations and provided to every parent of children receiving special education services.  In addition to the Parental Notification and Consent requirements, some of the more important procedural safeguards include:

• The “Stay Put” Rule, which provides that the child must remain in the current educational placement for the duration of the proceedings unless otherwise agreed;
  
  
• The right to an Independent Educational Evaluation, provided at no cost to the parent if they disagree with the school’s evaluation(s);
  
  
• The right to retain an attorney and/or special education advocates, who may accompany the parents to IEP Team meetings or due process hearings and mediations (in some cases attorneys fees are awarded to parents by a court of competent jurisdiction);
  
  
• Numerous safeguards governing the discipline and removal of students with disabilities, including what is known as a “manifestation determination” when questions surround whether a student’s disability contributed to the behavior or conduct leading to discipline, which may or may not trigger the need for the school district to implement a Functional Behavioral Assessment (FBA) or Behavior Intervention Plan (BIP); and
  
  
• The right to appeal the hearing officer’s decision in a court of law (the vast majority of legal challenges are brought in the U.S. District Court for the District of Maine)

Related Legal Terms and Definitions

FAPE – Free Appropriate Public Education – A right guaranteed all American children

IEP – Individual Education Program – A written education program describing in measurable detail the specialized instruction to be provided to the student. The IEP is developed and overseen by the IEP Team during regular meetings where decisions about the educational program are made through consensus. Once the IEP is in final form, it is considered a legal document and must provide the student with FAPE. 

Parental Consent – The requirement that parents give signed written consent to schools before the school may proceed with evaluations, placements, or release of records.

Parental Notification – The requirement that the school notify the parent(s) in their native language before proceeding with an initial referral for special education, results of tests or evaluations, the time and place of an IEP Team Meeting, implementation of the IEP, and any changes in the IEP.

Special Education is a very complex area of law,
driven by the individualized needs of the special education student,
regulated by ever-changing state and federal laws, and very often fueled by emotion, conflict, and uncertainty. Parents and guardians of children with disabilities should proceed with caution and if possible, should give serious consideration to
hiring a lawyer specializing in special education.

We can help.

For Referral to an Appropriate Maine Special Education Attorney

1-800-860-1460

or

click here.

© MSBA  2007, 2010