...If any cost/benefit analysis is performed prior to sending a matter to outside counsel, that effort is completely hidden from view. In an illustrative recent case, MCPS spent $12,000 in outside legal to contest a parent's request for an lEE (independent educational evaluation) that would have cost the school system $2,500.
MCPS, which likes to imagine itself an educational leader, spent 12 years under Jerry Weast dismantling options along the special education services continuum, and Weast's hardball tactics against the parents of kids with disabilities appear to have continued under Starr... footnotes from page 2 of document shown below.
Showing posts with label Schaffer v. Weast. Show all posts
Showing posts with label Schaffer v. Weast. Show all posts
Thursday, March 14, 2013
"Weast's hardball tactics...appear to have continued under Starr"
Public Comment of Montgomery County attorney Karen Smith presented to Montgomery County Council's Education Committee on March 11, 2013, regarding litigation in MCPS special education disputes.
Please support HB 1286 (SB 691) as a step toward a fair, right and just outcome
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
Monday, November 28, 2011
" I ask Maryland to join states such as New Jersey, New York, and DC..."
November 16, 2011, Priorities Hearing of the Montgomery County Delegates
Testimony of Julie Reiley, Parent of an MCPS Fourth Grade Student
Good evening. My name is Julie Reiley. My son is a 4th grader. He also has autism.
Tonight I ask Maryland to join states such as New Jersey, New York, and DC (among others), and enact legislation lifting the unjust burden placed on parents of children with disabilities by the Supreme Court’s IDEA decision Schaffer v. Weast, 126 U.S. 49 (2005).
The IDEA mandates that Maryland schools provide children with disabilities with special education services that provide a meaningful educational benefit. These services are provided in an IEP (individualized education plan).
The burden of Schaffer - unless the state chooses otherwise - is that, when an IEP is disputed, the "party seeking relief” bears the burden of proof in any litigation. This is unjust for two reasons: (1) in reality it places the burden on parents; and (2) , as Justice Ginsburg stated, “policy considerations . . . and fairness call for the assigning of burden of proof to the school district . . . .” Schaffer, 126 U.S. at 63 (Ginsburg, J., dissenting).
The burden ends up on the parents because each year a child gets a new IEP, whose services take effect even over the parents’ objections. Thus, each year the school district determines the nature or quantity of services provided, and if the parents object, they bear the burden of proving the district violated its mandate.
The burden of proof rightfully belongs on the school district for many reasons. Among them, the district has superior access to critical information; litigation forces parents to ask principals and teachers to testify against their employers. The district, “familiar with the full range of educational facilities” and how similarly situated children have fared at them, is in a far better position to demonstrate compliance. Schaffer, 126 U.S. at 64 (citations omitted). Placing the burden on the districts “will strengthen [their] resolve” to place the educational needs of these vulnerable children over budgetary concerns. Schaffer, 126 U.S. at 65. Finally, parents typically lack legal training. In short, parents have numerous factors against them in litigation. Burden of proof should not be one of them.
Thus, I ask Maryland to restore fairness to the IEP process, and place the burden of proof on the school districts.
Attached via email: Schaffer v. Weast, 126 U.S. 49 (2005); Brief of the Common Wealth of Virginia and Eight Other States as Amici Curiae in support of petitioners in Schaffer v. Weast, 2005 WL 1031635 (2005).
Saturday, August 6, 2011
"Schaffer v. Weast simply got the law wrong for New York"
New Law Gives Parents Power To Challenge School District
by Colin Gustafson, Assistant Editor
Queens Chronicle
August 23, 2007
by Colin Gustafson, Assistant Editor
Queens Chronicle
August 23, 2007
Thanks to a new state law, parents of learning-disabled students now have more power to challenge their local school district when they think their child is getting shortchanged on special education services.
Gov. Eliot Spitzer signed a bill last week that puts the so-called “burden of proof” on school districts to show that disabled students are receiving all the necessary accommodations at their public school.
Under federal law, school officials must create personalized education plans for every student diagnosed with a disability — and parents have always enjoyed the right to challenge the officials’ recommendations if they think the services are inadequate.
Traditionally, New York State’s school districts had been responsible for defending their plan whenever a parent objected. But a 2005 U.S. Supreme Court ruling shifted that responsibility to the parent in every state — including New York — where the law does not clearly delegate the “burden of proof.”
The bill signed by Spitzer last Thursday delegates that burden to the district.
“Shaffer v. Weast simply got the law wrong for New York,” said Assemblywoman Catherine Nolan (D-Ridgewood) of the 2005 Supreme Court decision. “This new law restores to our ... families their ability to fairly advocate for their children’s educational needs.”
Advocates have long worried that school districts would cut back on services if they weren’t required to defend their assessments before a judge. The new law ensures that school officials live up to the federal mandate, while making it easier for parents to demand better, often pricier services.
However, the law stops short of giving parents the benefit of the doubt when a child’s condition may be so severe that it merits intensive private services — which the district must fund. In those cases, parents bear the burden of proof in court.
“The law strikes a balance between a parent’s desires for private placements and a school district’s obligation to pay for costly out-of-district services,” Spitzer’s office wrote in a statement. “The bottom line here is that we need ... a system that works in the best interest of children.”
The law comes as attorneys for the city’s Department of Education prepare to argue before the U.S. Supreme Court over when the city should be required to pay for disabled students’ private school tuition.
The department maintains that the city should only pay for private tuition once a family has tried enrolling a child in the recommended public school program before they deeming it unsuitable.
Advocates contend that the city’s policy denies some children immediate access to the services they need but can only get in private schools.
Weast's win was the USA's loss
As Congress looks to undo some of the damage done by Superintendent Jerry Weast's litigation against parents, we look back at what Superintendent Weast had to say about Schaffer v. Weast...
The Washington Post: Exit Interview: MoCo superintendent Jerry D. Weast on lessons learned
You fought a special education case all the way to the Supreme Court. Schaffer v. Weast tested the power of parents who challenge education plans for students with disabilities.
And we won.
But you made a lot of parents unhappy.
I’ve also made a lot of friends. There are 17,000 of these children who have special needs in the school system, and we’re not talking about 17,000 of them having problems.
Why did you fight so hard?
I don’t want special education kids sorted out of classes. I want them to be pushed like all children. I want them to have a great teacher. And I want them to be around all the children, not off in some other wing of the building or in some special school.
Countering Schaffer v. Weast
Permission is granted to share this important announcement with others.
Yesterday, on March 17, 2011, federal legislation was introduced to allow parents to recover expert witness fees in due process hearings and litigation under the Individuals with Disabilities Education Act.
The IDEA Fairness Restoration Act was introduced in the Senate (S.613) by Senator Tom Harkin (D-IA), Chair of the Senate Health Education Labor and Pensions Committee; Senator Barbara Mikulski (D-MD), and Senator Bernie Sanders (I-VT); and introduced in the House of Representatives (H.R. 1208) by Congressman Chris Van Hollen (D-MD) and Congressman Pete Sessions (R-TX).
As COPAA members are likely aware, in its Arlington Central School District v. Murphy (2006) decision the Supreme Court decided that parents who win/prevail in their IDEA cases cannot get expert witness fees under the provision in the law that allows parents who win/prevail to get attorneys’ fees. Although the legislative history to the IDEA fees provision clearly states that expert fees are covered the Supreme Court refused to consider that history.
COPAA has worked hard since that damaging decision was announced to obtain a legislative fix. Congressmen Van Hollens and Sessions have championed this issue for us in previous legislative sessions. This is the first bill time a bill was introduced in the Senate. COPAA is grateful to all of the members of Congress who are taking the lead on this important legislation.
The bipartisan IDEA Fairness Restoration Act will restore Congress’ original intent and make due process hearings more equitable and affordable for parents of children with disabilities.
Without the ability to recover their expert witness fees, few parents could afford to exercise their constitutional and IDEA rights to challenge denial of FAPE to their children by school districts.
This is because parents, who increasingly have the burden of proof after the Supreme Court decision in Schaffer v. Weast, must present admissible evidence about educational methodology, complex behavioral supports, medical issues, and other technical subjects. Only qualified expert witnesses can present this technical testimony and such testimony can easily cost many thousands of dollars, money that few parents have.
There can be no equal opportunity and access to a public education that is both free and appropriate unless all families of children with disabilities–rich, poor and those in the vast middle–can obtain an education on the same terms. Without the ability to recover expert costs, the due process playing field ceases to be level or fair.
Robert Berlow, Co-Chair, Governmental Affairs
Denise Marshall, Executive Director
Denise Marshall, Executive Director
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