MoCo BOE Fails to Take Position on Burden of Proof Proposed Legislation

SB691/HB1286 Education-Due Process Hearings for Children with Disabilities-Burden of Proof
Sponsor Senators Montgomery and Benson
Sponsors Delegates Carr and Braveboy
Synopsis
FOR the purpose of requiring certain public agencies to bear a certain burden of proof in due process hearings that are held to resolve a dispute relating to the provision of a free appropriate public education to children with disabilities; and generally relating to the burden of proof in certain due process hearings.
Analysis
This bill would require school systems to bear the burden of proof in special education due process
hearings.
Congress has never explicitly stated which party should bear the burden of proof at IDEA hearings. In other words, the law is silent with regards to which party bears the burden of proof. As such, longstanding legal precedent requires the party seeking relief to bear the burden of proof. In Shaffer v. Weast
(2005), the Supreme Court confirmed this legal precedent and determined that the burden of proof in an administrative hearing challenging an Individualized Education Program (IEP) is properly placed upon the party seeking relief. The proposed legislation would result in the presumption that all IEPs developed
for students with disabilities in the state of Maryland are invalid and would likely increase the number of mediations and hearings filed due to the presumption of an invalid IEP.
In 2011–2012 school year, there were 17,444 students receiving special education and related services in MCPS. However, there were only 128 filings for mediation and due process. Of these, approximately 81 percent of the cases were successfully mediated in part due to improvements in the continuum of services available for students with disabilities in MCPS, as well as outreach efforts and the successful use of the mediation and resolution processes, along with professional development for staff related to instruction  and compliance
MCPS continues to focus efforts on ensuring that a full continuum of services is available for students with disabilities, in both public and non-public schools.
Recommendation: Oppose