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Wednesday, February 26, 2014

My testimony-Burden of Proof in Maryland



Michelle R. Davis, M. Ed.


February 24, 2014


As an education consultant with over 25 years in the field of special education, I have worked with thousands of families in Maryland—both as a consultant and as a teacher in Montgomery County Public Schools-- as they try to navigate the special education process.  Even parents with the highest level of education and experience, even some parents who also are educators, are confounded by the special education process. Parents don’t understand the child’s basic rights to a free appropriate public education, and many feel overwhelmed at the amount of information, jargon, and complexity that is common in the special education process.


The special education process starts with evaluations.  The child who is eligible for special education receives an Individualized Education Program (IEP).  The IEP has multiple parts required by federal and state law.  It contains statistical, assessment and other technical information.  The IEP also specifies what services, accommodations, and placement the child will receive.  The evaluations, paperwork, and actions related to the process are completed by the school team members, also called the multidisciplinary team.  The multidisciplinary team contains professionals such as psychologists, speech language pathologists, occupational therapists, behavior specialists, experts in certain disability categories, administrators, and teachers (to name just a few).  As you can tell by this list, there are usually decades of experience from multiple disciplines that make up the multidisciplinary team.  


While the parents are invited to attend the meetings that discuss the actions of the team, the parents have no decision making ability, the parents cannot stop the actions or recommendations of the team, and the parents do not have a ‘vote’ or voice when it comes to disagreements.  In fact, the parents must file a request for a due process hearing to stop the actions of the team.  The way the process works now, the parent has to file the request for a hearing, but the parent would not have anticipated any disagreement, so the parent is at an extreme disadvantage at that point.  Most of the time, parents simply do nothing, despite remaining concerned about the child’s education.  As time passes and parents are more disgruntled and frustrated, parents look for options.  This is when parents begin to explore alternate placements and ask the school district for funding.  If the burden of proof in hearings is shifted to the school district, I believe the number of unilateral placement in nonpublic schools would be reduced.  I am saying this because opponents to this bill have been arguing that this bill only applies to wealthy parents who can afford to unilaterally place the child in a nonpublic school.  But this is simply not the case.  


The school district recommends the evaluations, conducts the evaluations, makes recommendations, develops the IEP and determines the child’s services.  The school district has an almost endless supply of experts, where parents have to hire experts at great expense.  The school district develops and holds the records for the child, while the parent’s right is only to inspect the records.  The school district is responsible for providing the child with a free appropriate public education, while the parent is an observing participant in the process.  


A due process hearing is an extremely stressful, expensive and complicated process in itself.  It requires legal knowledge, experience and expertise.  While I am not an attorney, I have testified in hundreds of hearings and have seen many skilled attorneys present precedent, enter evidence in the record, examine and cross examine witnesses, put together opening and closing arguments and otherwise perform tasks that are well beyond a parent’s capability.  


This is the topic of this bill.  


I believe passing this bill into law will improve the parent’s ability to be an equal partner with the school team.  I believe passing this bill shifting the burden to the school district will reduce the number of disputes.  Passing this bill will remove the school districtcommon stance of ‘if you don’t like our decisions, go ahead and take us to a due process hearing’.  


I'll give two common examples. Student A has an individualized education plan, IEP. That student receives 10 hours per week of special education, and one hour per week of speech language therapy. The school team convened a meeting with the parents, and recommends that the child no longer receives any speech language therapy, and the special education hours are reduced to five per week.


Even if the parents disagree with the team's decision, the parent must file a request for a hearing or in some cases mediation, in order to stop the recommendations from going forward.


This places parents in a position of having to navigate a legal proceeding, which usually involves attorneys, experts, and other monetary, time, and family resources. In addition, many times this sets up a situation that compromises the partnership between the parents and the school.


Student B is in the fifth grade at the neighborhood elementary school. After an evaluation, the school team decides that the child will no longer be receiving a diploma. This school team recommends that the child attends a special program, which is located in a different school. Even if the parents do not want the child to change schools, and disagree with this decision, the decision will move forward unless a parent files a request for a due process hearing.


So, the school team makes the decisions even over parent objection. And, the school team is full of educational experts, where the parent is not an expert. In these situations where parents and school teams do not agree, especially in light of Maryland law of consent, I believe the school district should have the burden to show that its actions are appropriate.


The school districts know that, as things stand now, the parent has little likelihood of prevailing in a hearing.  So the school team often tells the parent who disagrees that the hearing is available. But the parents don’t have any understanding of what the hearing entails, while the school districts hire very skilled attorneys who prevail against parents the vast majority of the time.  Furthermore, the dynamic and relationship between schools and parents who have been to a hearing against one another usually declines, and affects the performance of the child.


If the school districts had the burden of proof, it would likely spend more time and effort in the team meeting process to assure that parents understand and agree to the decisions of the team.  


If the school districts had the burden of proof, it would not have to produce any added paperwork or do anything different from what it currently does, because it already has the responsibility to provide a child with a free appropriate public education.  It already has to report progress of a child and do evaluations.  So there would not be any added actions or paperwork should this bill be passed.  


Give parents a more equal ability to be true partners with the team, as is the spirit and intention of the Individuals with Disabilities Education Act.  Pass SB799.  Thank you for your attention and support.  

Respectfully S


Michelle R. Davis, M. Ed.


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