To: Maryland House Ways and Means Committee
sheila.hixson@house.state.md.
Sent: 3/9/2013
Subj: Please support HB 1286 (SB 691) as a step toward a fair, right and just outcome
I am writing to ask that you support House Bill 1286, which places the burden of proof on the public agency in a due process hearing. HB 1286 is a step toward a fairer balance between the parent amateur and the professional school district staff when real controversies exist that can only be resolved by access to an impartial decisionmaker through the special education hearing procedures.
The Individuals with Disabilities Education Act requires States to ensure that a “free appropriate public education” is available to all children with disabilities. A “free appropriate public education” includes the special education and related services necessary to meet each child’s unique needs, as set forth in an individualized education program (IEP) developed by the local school district in consultation with the child’s parents.
The State must make available an “impartial due process hearing” to resolve disputes between parents and state or local school officials. Maryland statute does not specifically designate which party has the burden of proof in the due process hearing. HB 1286 would place the burden of proof on the public agency, which includes a local school system.
I listened to the March 6 testimony before the Ways and Means Committee on HB 1286 on the Maryland General Assembly website, and was moved by the comments of the former mayor of College Park, as well as a current delegate, who clearly understood from personal experience the critical need for this legislation.
I heard the Assistant State Superintendent assert that specifying the burden of proof would undermine “the collaborative process”. Why would this be the case? IDEA describes a collaborative process through which an IEP must be developed. 20 U.S.C. § 1414(d). At least annually, the existing IEP must be reviewed and revised by the IEP team, which consists of school district personnel and parents. If a parent and school district agree to change the IEP, the change will be incorporated into a revised IEP. It is when the parent and school district disagree with regard to any recommended change to the IEP, that IDEA provides a procedural safeguard-- for the IEP to be challenged at a due process hearing. 20 U.S.C. § 1415(b)(6) and (f)(1)(A). IDEA is silent as to the burden of proof. HB 1286 merely clarifies which party-the school district-will bear the burden of proof.
At the beginning of my daughter's junior year in high school, 12 Montgomery County Public Schools staff had a role in developing her IEP, with the help of the Director of Quality Assurance for the Maryland Office of Administrative Hearings (an administrative law judge who has a background in special education), who served as an IEP team facilitator at the request of the Maryland State Department of Education. Yet, that second quarter of her junior year in high school, I received a progress report on her IEP, on which her special education case manager and resource class teacher reported that not one of 11 short-term objectives for the six annual goals listed on the IEP had been addressed. Should I have had to bear the burden of proof in a due process hearing brought at that point?
The Assistant State Superintendent also mentioned to the Ways and Means Committee March 6 that the state complaint process is an alternative to the due process hearing, and that the state can order corrective action. But what happens when the school district fails to follow through on corrective action?
The Maryland State Department of Education issued 9 separate decisions over a period of 5 years determining that Montgomery County Public Schools denied my daughter required instruction;
did not provide required accommodations during the school year and on the Maryland State High School Assessment;
inaccurately measured and reported her educational progress;
failed to provide her with required access to assistive technology;
denied her parent access to her educational record;
did not provide teachers the information needed to carry out their responsibilities for implementing her IEP;
and did not fulfill its obligation to take corrective actions within the timeline required.
The Department advised me that I had the right to initiate a due process hearing-should I have had to bear the burden of proof?
Placing the burden of proof on the public agency in a special education due process hearing is an important step toward a fair, right and just outcome for Maryland families of children with disabilities. Please support HB 1286.
Sincerely,
Kathleen Gilhooly
Thank you for submitting your testimony. It is astounding to hear that the State Asst. Superintendent poses that a burden of proof switch would cause more harm to the collaboration with parents. Since she is new to this position, I would strongly recommend that she realign her mindset. The collaboration is usually destroyed when her system does not appreciate that parents know their children sometimes better than the school experts. The system at times is mean, nasty and quite dismissive of parents, who advocate for the child. I wish the State would just follow what they say. I become very skeptical when I see so many parents coming forward and the State continues to minimize the issues.
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