IDEA, Maryland law, and case law provide guidance regarding special circumstances in which students with disabilities shall be entitled to FAPE. These circumstances include when students transfer into MCPS from another county or out of state, when students are incarcerated, not attending school and in state-supervised care. Additional special circumstances where students may be eligible to receive FAPE include when students are enrolled in private or religious schools and where students are unable to physically attend school due to a medical or mental health issue, as verified by a physician or mental health provider, respectively.
Transfer Within the State: When a student with a disability with an IEP in effect transfers from one public agency to another public agency in the State of Maryland, the public agency in which the student intends to enroll, in consultation with the student's parents/guardians, shall provide FAPE to the student, including services comparable to those identified in the former public agency's IEP, until the public agency:
Adopts the student's IEP from the former public agency; or
Develops, adopts, and implements a new IEP.
Transfer from Outside the State: When a student with a disability with an IEP transfers to a public agency in Maryland from another state, the public agency in which the student intends to enroll, in consultation with the student's parents/guardians, shall provide FAPE to the student, including services comparable to those identified in the former public agency's IEP, until the public agency:
Conducts an initial evaluation; or
Develops a new IEP, if appropriate.
IEP teams shall draft a new IEP for students who are found eligible after conducting an initial evaluation. The IEP shall be considered an initial IEP and shall require written parental consent to initiate the recommended services in the new/initial IEP.
Transmittal of Records
To facilitate the transfer of a student, the new public agency in which the student enrolls shall take reasonable steps to promptly obtain the student's records from the previous public agency in which the child was enrolled, including:
The student's IEP;
Supporting documents; and
Any other records relating to the provision of special education or related services to the student.
Students in Adult Correctional Facilities
Each school system is required to provide special education and related services to students with disabilities incarcerated in local adult correctional facilities located within the jurisdiction of the local school system to ensure a free appropriate public education.
Local adult correctional facilities do not include adult correctional institutions under the jurisdiction of the Maryland Department of Public Safety and Correctional Services (DPSCS). Maryland Department of Labor provides special education and related services to students with disabilities incarcerated in institutions under DPSCS jurisdiction.
The following requirements do not apply to students with disabilities incarcerated in adult correctional facilities. IEP teams do not need to consider or include in the IEP:
A statement of any appropriate individual accommodations that are needed to measure the student's academic achievement and functional performance on statewide or districtwide assessments;
Any determination related to why a student may not participate in a particular statewide or districtwide assessment; and
A determination regarding transition services if a student with a disability incarcerated in an adult correctional facility, whose eligibility under Part B of the Act will end before the student is eligible for release, based on the consideration of the sentence and eligibility for early release.
When a student with a disability is incarcerated in an adult correctional facility, placement may be modified by the IEP team if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.
Students in the Care and Custody of the Maryland Department of Juvenile Services (DJS)
Educational services in DJS owned and operated facilities offer comprehensive, quality education that enhances the development of each youth who has been placed in the care and custody of DJS. Current programming includes provision of the core curriculum that is aligned with MSDE Core Learning Goals and Learning Outcomes for English, mathematics, science, and social studies. Special Education services are provided to all youth who have an IEP in accordance with federal and state law and schools implement an aggressive Child Find process. MCPS does not provide special education and related services to students in the care and custody of DJS.
IEPS of Nonattending Students
If a student is age 18 or older and is not attending school, the school should schedule an IEP team meeting to discuss the student’s lack of attendance and determine whether changes can be made to the student’s IEP that will address the student’s needs, especially in the area of transition. The pupil personnel worker (PPW) and TST should participate as IEP team members. If, ultimately, the student refuses to attend school, the student may be withdrawn after reasonable efforts have been made and documented to reengage the student. The school should coordinate with the PPW to conduct outreach to the student including communication (telephone or emails) and home visits, as necessary.
MCPS Form #565-4a, Educational Interview for Student Permanent Withdrawal must be completed and signed by the person interviewing or attempting to interview the student, the PPW, and the principal. In addition, the letter providing prior notice to the parent/guardian and student should indicate that the student is welcome to return to school through the school year in which they turn age 21. After completion of the student interview, MCPS Form #565-4, Student Permanent Withdrawal also must be completed. For additional information on attendance procedures, please refer to MCPS Regulation JEC-RA, Student Withdrawals from Classes and School, which include the Maryland compulsory attendance laws
MCPS Regulation JOA-RA, Student Records, defines “a child in state-supervised care” as a child who is in the custody of, committed to, or otherwise placed by a placement agency."
Placement agencies shall include
Montgomery County Department of Human Services
DJS
Maryland Department of Health (DMH)
A private agency that engages in placement of children in-home or with individuals and is licensed by the Social Service Administration (SSA) pursuant to applicable governing code
A child in state care is any child or youth who is in the custody of, committed to, or otherwise placed by any of the above placement agencies. This includes foster care, group homes, or other agency placement. This does not mean a child at the Charles H. Hickey, Jr. School in Baltimore County who receives an educational program pursuant to the applicable governing code.
Students in state-supervised care are entitled to prompt enrollment and transfer of records from the prior school system. MCPS Form 560-35, Enrollment of Child in Maryland State-Supervised Care and Transfer of Educational Records is used to facilitate enrollment of students in state-supervised care.
Upon enrollment, MCPS must provide comparable services and/or an evaluation, if applicable, for these students in compliance with the requirements for Transfer Students, as set forth in the above section. For additional information on the appointment of a surrogate parent, please see the Parent Surrogate and Transfer of Rights section of this Manual.
In this section, the terms "Private Schools" and "Private Separate Day School" are used interchangeably and mean a school that is not a part of the public school system that may or may not be licensed or sanctioned by MSDE. This section does not include information on students enrolled in religious schools. For more information on MCPS's obligations related to students enrolled in private and/or religious schools, please see the section Private/Religious School Students.
Students Placed in Private Schools by MCPS
A child with a disability who is placed in or referred to a private school or facility by MCPS shall be provided special education and related services in the same manner as a student enrolled in and attending a public school, at no cost to parents. Students enrolled in private schools who are placed by MCPS have all of the rights of a child with a disability who is served by MCPS in a public school.
Students Enrolled in Private Schools by Their Parents when FAPE is at Issue
MCPS is not required to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if MCPS has made FAPE available to the child and the parents elected to place the child in a private school or facility. However, MCPS must include such students in the population whose needs are addressed through the private/religious school requirements of IDEA. For more information, please see the section Private/Religious School Students and Unilateral Private School Placements.
Disagreements between parents and MCPS regarding the availability of a program appropriate for a student with a disability and the question of financial reimbursement for a parent's placement under this section are subject to IDEA due process procedures. For more information, please see the section Resolving Special Education Disputes.
A parent may choose to teach a student with a disability at home through regular and thorough instruction during the school year in the studies usually taught in the public schools to students of the same age. When a parent opts for a home instruction program, MCPS continues to have the obligation to locate, evaluate, and identify such students as students with disabilities under IDEA. MCPS does not, however, have an obligation to provide FAPE.
When a student participating in home instruction is found eligible for special education and related services, the IEP team will draft an IEP that addresses the student's needs and provides necessary supports and services; however, MCPS is not required to implement the IEP, or any portions thereof, in the home during home instruction. If a student enrolls or re-enrolls into MCPS, the IEP team may consider whether additional assessments are needed to determine the student's needs and continued eligibility and draft an initial IEP to be implemented upon the parent's written consent to initiate services.
Legal Authority:
COMAR 13A.05.01.09; COMAR 13A.05.01.16; 34 C.F.R. § 300.323; 34 C.F.R. § 300.324