Due Process - Burden of Proof

[Anonymous]

There is new legislation on the floor of the Maryland Statehouse regarding shifting the burden of proof in Special Education disputes. Senate Bill 691 was recently introduced my Senator Karen Montgomery of Montgomery County. The following article gives a brief synopsis of the bill:

http://articles.baltimoresun.com/2013-03-06/news/bal-legislation-seeks-to-shift-burden-of-proof-for-special-education-placements-20130306_1_special-education-shift-burden-educational-program

In response to this issue, MCPS Superintendent Starr asked at the last BOE meeting (3/12) for parents to email him their stories regarding problems they have had with due process, mediation, and resolving issues and disputes.

If you are interested, you can send an email to: [e-mail]

To lend support for Bill 691, you may contact Senator Montgomery's office at 301-858-3625 / 410-841-3625 and they can assist you with the contact information with Representatives and Senators in your district.

[Anonymous]

Thank you for posting this! This legislation is so important. I encourage all MD parents to call/write and support it, as well as emailing Starr.

[Anonymous]

+1000 - Over the past 6 years I have been the parent of 2 children in the MCPS system who have often had staff members turn a blind eye to my children's rights. They know I do not have the financial means to hire an attorney. To do so requires a $5000 retainer and will cost about $300 per hour. MCPS on the other hand uses their own attorneys (sometimes even hiring private attorneys) when disputes arise. It's not an even playing field and the net loser is the disabled child.

By shifting the Burden of Proof, all public school systems in the state of Maryland will have to prove during a dispute resolution process that they are providing a Free Appropriate Public Education to children with disabilities. The new legislation will shift this burden from parents/children to the entity that has a responsibility of providing FAPE. A much needed change. A change that might encourage schools to be more diligent about addressing children's needs.

I also encourage all parents in the state of Maryland to contact Starr and their representatives in Annapolis. Send the email, place a call. Ten minutes of your time can greatly help this effort. For those parents in Virginia and DC, contact your school systems and legislators and start a similar movement for your children.

[Anonymous]

Does anyway know whether any of the organized disability groups are lobbying /organizing call in days or marches in support of this bill? Years ago I was very involved in the legal issues surrounding due process hearings but have lost touch with the movement. But this would be a good change. Another would be legislation requiring the state to reimburse a prevailing parent for not just attorneys fees, but also expert witness fees. Even with a shifted BOP, if the school puts on its experts (who are usually employees so cost nothing extra) and a family cannot afford any experts, the state will usually carry its BOP. If a family can put on its own psychologists, speech/OT therapists, etc., much better chance fo ra different result.

[Anonymous]

Anonymous wrote: Does anyway know whether any of the organized disability groups are lobbying /organizing call in days or marches in support of this bill? Years ago I was very involved in the legal issues surrounding due process hearings but have lost touch with the movement. But this would be a good change. Another would be legislation requiring the state to reimburse a prevailing parent for not just attorneys fees, but also expert witness fees. Even with a shifted BOP, if the school puts on its experts (who are usually employees so cost nothing extra) and a family cannot afford any experts, the state will usually carry its BOP. If a family can put on its own psychologists, speech/OT therapists, etc., much better chance fo ra different result.

Great point PP. The Maryland Senate has an Education Caucus so maybe start by contacting members there (Sen. Montgomery is a member) to see if such legislation can be proposed. The prevailing party should have all costs (attorney fees, expert witness fees, and any required testing cost) reimbursed.

[Anonymous]

I believe attorneys fees are covered by the statute, but the S. Ct. several years ago held they couldn't get expert fees. Chris Van Hollen introduced bipartisan federal legislation to reverse that S. Ct. decision, but I don't believe it has gotten passed yet by the house (they've had a few other things on their plate). So if there isn't a federal repeat, a state repeal may work.

[Anonymous]

Awesome! Thank you for posting this!

[Anonymous]

At my child's school, instead of trying to partner with families, the staff seems to have their agendas and work out their game plan/strategy prior to the meeting taking place. We have been rebuked if we comment or have questions. In the end, if we think the staff has not considered all the information available or we are unhappy with the out come, instead of listening and discussing our concerns we always get the challenge "You don't like it, then file for Due Process".

If schools actually had the Burden of Proof that they were providing a Free Appropriate Education for the child, then maybe they wouldn't be so quick to push families into Due Process to resolve disagreements. Such processes are lengthy and expensive for both sides. MCPS would be better off using the funds they spend on legal battles toward supporting kids in Special Education and developing better means of resolving disputes.

[Anonymous]

Anonymous wrote:At my child's school, instead of trying to partner with families, the staff seems to have their agendas and work out their game plan/strategy prior to the meeting taking place. We have been rebuked if we comment or have questions. In the end, if we think the staff has not considered all the information available or we are unhappy with the out come, instead of listening and discussing our concerns we always get the challenge "You don't like it, then file for Due Process".

If schools actually had the Burden of Proof that they were providing a Free Appropriate Education for the child, then maybe they wouldn't be so quick to push families into Due Process to resolve disagreements. Such processes are lengthy and expensive for both sides. MCPS would be better off using the funds they spend on legal battles toward supporting kids in Special Education and developing better means of resolving disputes.

This has been our experience as well. During the IEP meeting, the school basically said no to every one of our requests, and refused to consider extensive data provided by us both from examples of school work and from outside, qualified experts.

It got so bad during our IEP, during the umpteenth time we disagreed, I said, "hey, isn't this supposed to be a team decision? are you supposed to be compromising or considering how to address my point of view as a team member?" they threw me the bone -=- "we'll collect more data and talk to you in 6 wks.) because they knew that I had already spent thousands of dollars in advocate and assessment fees just to get to the IEP meeting.

Were burden of proof different, I'm sure that there would have been more compromising going on.

The idea of attorney's fees is nice, but it takes years to pursue a case to that point and meanwhile, you are paying out of pocket.

If you can't afford to front the attorney's fees, the school knows it can do what it wants

If you can afford to front the attorney's fees, the school knows your time is likely too valuable to waste it on them -- you will either place your child privately and pay yourself or spend what money you do have on supplemental therapy.

[Anonymous]

Sometimes I wonder why some of the people at the table went into education to begin with? MCPS Administration is notorious for losing focus for the needs of the child. If MCPS had the Burden of Proof they were providing FAPE, maybe they would actually do it. As it stands, the IDEA and COMAR only protect children whose parents can afford to hire attorneys to get a Free Appropriate Public Education in MCPS.

Ironic isn't it? If an appropriate public education was free, why do you have to have the financial means for representation at Due Process to get it?

[Anonymous]

Wonderful! Taxes aren't high enough. I am sick of the nanny state.

[Anonymous]

Check out the Mcneeds listserv (mcneeds.org). Several members have been very active with this legislation. Many attended the hearings and testified. One person in particular regularly posts email messages that can be forwarded to legislators.

[Anonymous]

Thank you for the list serve info.

[Anonymous]

I whole heartedly support the proposed legislation. If public schools systems in Maryland had to prove they provided a Free Appropriate Public Education (FAPE), then maybe they would focus on that objective from the beginning.

[Anonymous]

Unbelievable. I had the IEP meeting from H*LL today. My child is in high school, so we have many years of experience dealing with multiple schools and their style of conducting the meetings. I honestly am doubting if my child's high school know anything about the IDEA because they failed to give proper Prior Written Notice, failed to protect the confidentiality of the IEP documents, and failed to implement the last IEP. Today, they did not update the IEP as changes were agreed to and I did not get a copy of the revised IEP prior to leaving the school. God knows what they are going to send me in the mail. God knows if it is going to reflect the meeting and all the decisions the team made. Sure they are not legally required to update the computer as the meeting takes place, but it does seem like a good practice to follow.

In the end, I am not even sure what Goals and Objectives were agreed to and if we have a valid IEP. The General Educator left the meeting 15 minutes after it started (for a 2 hour meeting). Doesn't the IEP meeting cease to exist as soon as a vital member such as the General Education Teacher leaves? Would this new IEP hold up under scrutiny since so many mistakes were made?

If we are unhappy with the final product, we will be hiring an attorney for representation because the school just seems to be walking over my child's rights. What good is the IDEA if the school does not follow it?

Why doesn't Montgomery County Public Schools do a better job policing their own staff and training them on knowing what the law is and how important it is for them to follow it? Hopefully, changing the Burden of Proof would encourage them to do so.