We need your help to push HB294 County Boards of Education - Due Process Proceedings for Children With Disabilities - Burden of Proof and HB1237 Special Education - Judicial Actions - Attorney's Fees and Related Costs over the finish line in Annapolis TODAY!
These bills will help level the playing field for parents or guardians in due process proceedings. HB294 shifts the burden of proof to the local education authority (LEA) to prove that they are delivering an appropriate education to students. This is important because LEAs have many more resources than the family in a hearing, causing a "David and Goliath" situation. HB1237 would cover attorney fees AND expert witness fees if a family wins their case. Again, the school system has access to experts, but a family must be able to pay for witness fees. This creates inequities. Unless these bills pass, families with means will continue to have a better chance at obtaining a free and appropriate education. Both bills passed the House of Delegates without opposition and passed 135-0! Both have stalled in the Education, Energy, and the Environment committee.
It’s rare for the parents of students with disabilities to prevail in legal battles against Maryland school districts. In the past five years, they’ve lost more than 85 percent of the time, state education department documents show, even after investing tens of thousands of dollars and countless hours in pursuit of a better education for their children.
Advocates, families and attorneys say the trend is alarming and discourages people from fighting for the rights kids are guaranteed under federal law.School systems are required to provide and pay for a range of specialized services — anything from speech therapy sessions to tuition at a private facility — to ensure that children with disabilities are properly educated. When parents dispute what’s being offered, they can file a complaint and take their case before a judge.
It’s a draining and complex ordeal that costs families time and energy and leaves their children’s education in flux. In recent years, roughly 100 families have gone through a so-called special education due process hearing. Judges have routinely sided with the school systems.
“I wouldn’t wish this upon anybody,” said Sarah Friedman, a parent who went through due process. “My daughter was let down first by the school system and then by the judicial system.”
Advocates say the odds discourage countless other families — especially low-income families — from attempting to go through with a due process complaint.
“Families see the data, and it’s like, why would we even try?” said Maureen van Stone, director of the Kennedy Krieger Institute’s Project HEAL, a medical-legal partnership. “This is not what you want when children with disabilities are guaranteed these rights by federal law.”
Special education due process decisions
Other states avoid such asymmetrical rates. A study examining due process hearings in Texas found districts prevailed in roughly 72 percent of cases from 2011 to 2015. A similar assessment in Massachusetts found school districts won in a little more than halfof the due process hearings over eight years.
Van Stone said she understands “not every case is a winner.” Still, she argues the lopsided success in Maryland should sound alarms.
A representative of the judges who oversee these cases said every judge is impartial and assesses each situation on its merits. A senior official in the school system that fields the most complaints said districts work tirelessly to settle problems outside court to best serve kids.
Still, some parents question why they so often lose in the fight for what they see as their children’s legal right to “a free and appropriate” public education — and why lawmakers in Annapolis have quashed legislation they say would’ve helped level the playing field.
A last resort
Before a due process hearing goes before a judge, school systems and parents are supposed to work together to reach a resolution out of court. The majority of special education issues are settled that way, through mediation and other means, keeping the number of due process hearings low.
Lori Scott, chair of the Howard County Special Education Citizens Advisory Committee, says her organization counsels families on how to secure better services for their children while avoiding a due process hearing. Taking that step, she says, is a last resort no parent relishes — but one they will pursue if they feel it’s their child’s only chance.
Montgomery County’s Associate Superintendent of Special Education Kevin Lowndes said the district “bends over backwards” to resolve issues with parents before moving into due process.
“The cases that get to that level are ones we’ve done everything in our power to make a successful resolution,” he said, “but for whatever reason the parent wants something we feel we just can’t give them.”
Friedman says she spent four years in classrooms and conference rooms, trying to get the Montgomery County public school system to better educate her daughter. The girl, who Friedman requested not be named, has severe dyslexia. As she approached third grade, she couldn’t read well enough to order off an unfamiliar menu. At Dunkin' Donuts, she would ask her mom for the white one with sprinkles, unable to decipher the treat’s proper name.
She continued to fall behind her peers. In third grade, she read at the level of a new first-grader, documents show. She called herself dumb. She developed anxiety and deep shame about her inability to read.
Friedman pulled her daughter out of the Montgomery County elementary school and transferred her to a private school in Washington that specializes in teaching kids with learning differences. Her daughter began thriving, once getting into her mother’s car after school and announcing that she’d had the best day of her life: She read a chapter book for the first time. She told Friedman she never wanted to go back to her old school, which she dubbed “the death school.”
The family initiated a due process hearing to compel Montgomery County to pay the steep private school tuition, arguing that the girl’s public elementary school failed to meet her needs. While it’s rare, judges can — and have — required public systems to pay private school costs. Districts can also agree to pay for private schools without going to due process; Baltimore, for example, plans to set aside $28 million next year to pay tuition for students who can’t be served in public schools.
Friedman and her husband burned through their vacation and savings during the adversarial 10-day hearing. It left Friedman wishing the school system would fight as hard for dyslexic kids as it does against them.
Last month, the Friedmans got the news: They, like so many other parents in Maryland, had lost.
“You deplete all your resources to fight for your child’s education,” she said. “I knew the world was unjust, but I never knew it could be like this for a child.”
The judge who oversaw the hearing concluded that Montgomery County Public Schools was able to provide Friedman’s daughter a “free and appropriate education,” and that she had in fact made academic progress in third grade. The school system, which declined to comment on an individual case, argued it provided necessary academic and emotional supports for the 9-year-old girl.
The judges who decide these cases can’t speak to their rulings, which are confidential, said John Leidig, deputy director of operations for the Office of Administrative Hearings. Each case is decided on its individual facts, and the office declined to comment on the trend of parents losing most of the time.
Administrative law judges are overseen by the state’s independent Office of Administrative Hearings. Each of the roughly 55 judges in the office worked as a lawyer before their appointment.
In testimony earlier this year in Annapolis, the chief administrative law judge assured lawmakers that every judge assigned to a due process hearing is “trained, competent, neutral and fair.”
‘David versus Goliath’
Some researchers believe districts prevail much more often because they have far greater legal and financial resources than a family does. Another explanation special education experts offer is the districts will attempt to resolve cases that are less likely to be won and go to a hearing only if they are supremely confident in their chances. Others believe judges give deference to the judgment of district officials.
“It’s always been a David and Goliath issue,” said special education attorney Selene Almazan.
Project HEAL produced a report analyzing each of the 105 due process hearings from fiscal year 2014 to the second quarter of fiscal year 2019, most of which were initiated by the parents.
Judges sided with school districts in all but 14 cases. No parents won if they represented themselves.
Advocates caution that for every parent who makes it to a due process hearing, there are countless others without the resources to even consider taking on a fight they’re likely to lose.
Karen Kwasny is debating going to due process to fight for the right for her daughter, who has a variety of learning disabilities, to be properly educated in Carroll County Public Schools. But she’s torn.
“I’m afraid I’ll lose and the money wouldn’t be used for her education,” she said. “It’d be used to fight a system that doesn’t favor families.”
Perry Zirkel, a Lehigh University professor and recognized expert in special education law, warned against looking at the percentage of district or parent wins alone. Due process hearings, he says, are complex and nuanced.
“It all depends on the perspective,” he said. The same people “looking at the same data, can have different perceptions about what is fair or who should prevail in these cases. It’s not like science or mathematics.”
Due process complaints are filed against school districts across the state. The systems in Baltimore, Howard, Carroll, Anne Arundel and Harford counties and Baltimore City have litigated several dozen. Montgomery County fields the most. It’s the largest school district in the state, and among the wealthiest.
For low-income families, due process brings additional, potentially insurmountable, hurdles. Project HEAL found an average due process hearing spans about four days — meaning a parent will likely have to take off work multiple days in a row. If they want a chance at winning, parents must bring in expert witnesses to testify on their behalf. These experts often come with a hefty price tag, as do lawyers.
The system’s “complex protocols and mandates disproportionately benefit wealthy, well-educated parents, who can deftly and aggressively navigate the due process system with the aid of private counsel and paid education experts,” according to an American Association of School Administrators report on national trends.
Meanwhile, the amount of money districts spend to fight parents in a due process hearing can sometimes exceed the cost of the service families are requesting.
That was the case for Sarah Davis, an Anne Arundel parent who asked the school system to pay for an independent evaluation to determine whether her daughter, then in eighth grade, is dyslexic. The district spent more than $30,000 in its dispute with Davis, according to documents provided to The Baltimore Sun. The evaluation — for which her family eventually paid — would have cost the district one-tenth of that.
“Anne Arundel County Public Schools exhausts all resources as we attempt to provide appropriate accommodations and/or services to all students with disabilities,” spokesman Bob Mosier said in a statement. “When there is disagreement about those accommodations or services, we attempt to reach resolution using collaborative means. There are times, however, when those avenues don’t result in an agreement. Our focus in all cases is meeting the needs of the student.”
School systems “shouldn’t be spending thousands of dollars to avoid paying for something that will cost a fraction of that,” said attorney Wayne Steedman, who represented Davis and other Maryland families in these cases.
Stalled changes
A Baltimore City delegate introduced a bill in this year’s session that would have imposed new regulations on the judges who preside over special education cases.
There are dozens of these administrative law judges, yet due process hearings are relatively infrequent. That means, according to Project HEAL, a judge will on average go 25 months between rulings on special education cases. Administrative law judges oversee cases stemming from more than 30 state agencies.
Judges' average time between special education decisions
Del. Stephanie Smith proposed mandating additional special education training for judges. The training would have discussed how to recognize and avoid implicit bias and understand the perspective of a parent whose child has a disability.
Chief administrative law judge Thomas Dewberry testified in opposition, saying it was unnecessary because judges already receive extensive training on special education, and the law would undermine the office’s independence.
Smith withdrew the legislation. She did not respond to requests for comment for this article.
That pattern has been repeated with due process-related bills.
Another bill introduced in the session would’ve enabled families to recoup expert and attorney fees. It received an unfavorable report in the Senate.
In Maryland, the party that files the due process complaint carries the responsibility of convincing a judge that the special education services that schools provide are inadequate — a standard stemming from a 2005 Supreme Court decision.
The General Assembly has many times in recent years considered shifting the burden of proof to the school system, as states such as New York and New Jersey have done. Legislation would have required school systems to defend the appropriateness of the learning plans they’d crafted for students, even if it was the parents who filed the complaint. The Maryland Association of Boards of Education, which represents all 24 school systems, opposed the bill, saying it would increase the cost and duration of these disputes.
Supporters argued it would force districts to work more collaboratively with parents.
Legislation that would’ve put the burden of proof on school systems repeatedly failed.
It is very interesting that in August 2007 UFT President Randi Weingarten issued the following statement following Governor Spitzer’s approval of legislation placing the burden of proof in special education hearings back onto school systems in New York State:
This is a big victory for parents of children with disabilities because it recognizes that most parents don’t have the means to hire a lawyer to fight school districts for what their children need. The union pushed so hard for this because, more often than not, it’s the special educators and support staff that stand alone with parents to advocate for parents of kids with special needs. So we would like to thank Gov. Spitzer and our elected representatives in the state Legislature for correcting the situation and removing this unfair burden on needy parents.
Yet here in Montgomery County the MCEA [Montgomery County Education Association/teachers' union/Apple Ballot] opposes putting the burden on the school system, stating that:
The legislature may be asked to consider legislation which would shift the burden of proof in appeals of IEP’s from the litigant, in this case the parents of the student, to the school system. We ask that you oppose such legislation- while we agree that parents of poor and minority students need greater access to information and assistance in advocacy for their children, we do not believe that shifting the burden of proof would achieve this goal. It would, rather, increase the amount of record keeping for both Special and general education teachers. It is not low income families* who are hiring lawyers to file due process appeals. This shift would create a further imbalance between the haves and the have nots.
* Note: All families can, and do, get legal representation when they need it. MCEA has not done a survey of the income of MCPS families to be able to make such an absurd statement. In fact, on this blog we have shown that one small child that was being raised by a relative did obtain legal representation. MCPS fought that one small child as hard as they could. In the end, MCPS lost, but the fight cost taxpayers almost $100,000.
“The Senate doesn’t want this bill to die, but if we send the bill back over [to the House], they will vote it down,” Montgomery said. “This is a worthwhile bill.”
Just another day in "We are actually not so "progressive" Maryland." Doing whatever the Apple Ballot handlers tell them to do because children don't contribute to their campaigns.
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.
