Correction:

An earlier version of this story misidentified a Prince George’s County parent who moved his son from public school to private school as a result of his son’s learning disabilities. The parent is Chris Casey, not Chris Chase. This story has been updated.

Special-ed legislation would ‘level playing field’ for Md. parents, bill supporters say

The classroom for Gail Coleman’s son wasn’t the right fit. Diagnosed with both ADHD and autism, he was learning little to nothing in school for months and started threatening suicide.

“Why don’t you just chop my head off and get a gun and shoot me?” Coleman recalls her son saying once.

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Heartbroken, Coleman pulled her child out of the public school system in 2007 and enrolled him in a private school that caters to special education students.

Her son is now in high school, thriving socially and academically, Coleman said, but “why did we have to sue to make him a success story?”

With tuition at her son’s private school costing more $60,000 annually, she and the Montgomery County school system battled for two years over where he should be educated and who should foot the bill until an administrative law judge finally ordered the district to pay for private school.

Coleman is now one of hundreds of Maryland parents pushing a bill they say would make it easier for families to contest special education services schools provide for their children.

The party that files a special education legal complaint in Maryland — most often the parents of the child — has the responsibility of convincing a judge that a school system’s individual education program for a disabled child is or is not appropriate. But Senate Bill 691 and House Bill 1286 would change that. The legislation proposes requiring Maryland public school systems to defend the appropriateness of learning plans they create for students regardless of who files the complaint.

Placing the burden of proof on schools would encourage districts to work cooperatively with parents before cases reach a financially and emotionally draining legal fight, supporters say.

School districts have an advantage in special education disputes because they write the learning plans and have experts and attorneys to fight parents in administrative hearings, said Karen Smith, a special education committee member for the Montgomery County Council of Parent-Teacher Associations, which backs the bill.

“The parents have to jump through all the hoops,” said Smith, who is also an education lawyer.

Federal law says students with disabilities are entitled to a “free and appropriate education in the least restrictive environment” funded by public school systems, whether that cost is for 30 minutes of speech therapy a week or tuition for private school placement. When the two sides can’t agree on the services and mediation fails, parents can file a special education due-process complaint.

Maryland education officials say the bill placing the burden of proof on the school system is unnecessary because complaints are often resolved locally or through mediation before they reach a judge. Of the 247 special education due-process complaints in fiscal 2012, 24 couldn’t be settled in mediation or resolution sessions. Fifteen of those cases received a final decision from an administrative judge while the rest were dismissed, resolved or are still in the process.

William H. Fields, with the Maryland Office of the Attorney General, testified against the bill at a hearing in Annapolis this month. He said forcing schools to defend their education plans in legal hearings would “cut down on the collaborative process” between parents and school system.

“To switch the burden [of proof] assumes the school system has done it wrong and they need to prove that they have done it correctly,” Fields said.

The U.S. Supreme Court ruled in Schaffer v. Weast — a case that originated in Montgomery — that the party bringing legal action has the burden of proof in special education due-process hearings, unless state law says otherwise. New York, New Jersey and a handful of other states have passed legislation putting the burden of proof on schools.

Jennifer Halper, a special education lawyer in New Jersey, worked with other lawyers to shift the burden of proof to school districts after the Schaffer v. Weast decision in 2005.

“What we noticed as practitioners is that the school district began to not negotiate as much or work as much with parents” when the burden of proof was on parents, Halper said. “They would just say: ‘Go file for due process and see how you do when you are in court.’ ”

But after the law changed, New Jersey school systems were more eager to work with parents, Halper said. Schools wanted to avoid litigation they would be more likely to lose. Data from the U.S. Department of Education show such special education due-process hearings have dropped after an initial spike.

Chris Casey from Prince George’s County said forcing school systems to defend their education plans would help parents get their children the education they deserve.

Casey’s son has ADHD (attention-deficit hyperactivity disorder) and other learning disabilities. While other children were reaching a point where they “read to learn,” Casey’s son was still learning to read. Worried his son might fall further behind, Casey moved him to a private school.

It wasn’t until his family hired a lawyer that he felt confident enough to question school officials over his son’s learning plan, Casey said.

“We never forget the fact that we know so many people going through this struggle who didn’t have the means to at least get an advocate at the table with them and stand toe to toe with these administrators,” said Casey, who spent at least $10,000 on the process, which he said can be intimidating, full of legal jargon and bureaucracy.

The burden-of-proof bill could give parents leverage as they navigate the system, he said.

School systems are not allowed to factor in cost when determining the proper services for a disabled student’s education. But school systems must often juggle between providing a free and appropriate education, parents’ demands and a responsibility to taxpayers.

Maryland Gov. Martin O’Malley’s proposed fiscal 2014 budget includes $389.3 million in state funds for special education, according to a legislative report on the burden-of-proof bill. About $109.8 million would pay for placing disabled students in private schools.

Montgomery has the largest population of special education students in Maryland, with more than 17,000. Officials say it is clear that parents and schools are working together before disagreements arise because only nine cases from Montgomery went before a judge last year.

Dana Tofig, a spokesman for Montgomery school system, said the district is not resistant to parents’ concerns. Instead, its efforts are based on professional decisions from licensed therapists and other experts.

“Parents are going to advocate for whatever is best for their kids, and sometimes that is going to be adversarial,” Tofig said.

Coleman said some might argue that parents of disabled students are fighting the schools to get taxpayers to fund private education for their children. But she said that isn’t the case for her family. She and her husband are paying for private school for another son with special needs because they didn’t think Montgomery taxpayers should be responsible.

“We’re not trying to sponge off the system,” Coleman said. “We’re just trying to get our kids a good education where they can feel safe.”

 
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