CONCORD, N.H. — Moira Ryan of Londonderry, mother of a 16-year-old son with disabilities, says parents are outgunned when they appeal decisions made by special educators about their child’s individualized education program.

Ryan and several parents urged a state Senate committee in New Hampshire this month to flip the burden of proof to make school districts show their IEP decisions were valid during any hearings about a dispute.

“I am asking you to help us restore some fairness to the system,” Ryan said.

The House-passed bill (HB 581) before the Senate Education Committee would add New Hampshire to eight states and the District of Columbia that make local governments, rather than parents, defend their points of view about IEP decisions.

The states with this reform include Connecticut, New York, New Jersey and Delaware.

But representatives for school boards and school administrators said the legislation would make the hearings more drawn out and expensive for parents.

Becky Wilson, director of government relations for the New Hampshire School Boards Association, said her group is focused on greater use of alternative dispute resolutions, which resolve these disagreements more quickly and cheaply than drawn-out hearings do.

“It is unclear how this bill provides anything different from what they would gain from the due process hearing,” Wilson said. “These are significant investments from both sides.”

More poor parents with children with disabilities

Advocates say this change is necessary because the federal Individuals with Disabilities Education Act does not provide pre-trial discovery, which means parents have no rights to interview teachers and other school professionals in advance.

Meanwhile, school districts have access to all of this discovery.

Schools already have lawyers, but many parents are unable to afford an attorney or experts.

This wage barrier becomes more critical since national studies conclude 12% of families living below the poverty level have children with disabilities, while only 8% of families with more income have children with disabilities.

“The deck is plainly stacked against them. Parents are, by definition, at a disadvantage in facing a due process hearing,” said state Rep. Glenn Cordelli, R-Tuftonboro, who sponsored the bill.

Supporters of parents across the country have pursued this change at State Houses since the U.S. Supreme Court, in the case of Schaffer vs. Weast in 2005, ruled, 6-2, the burden of proof was on the parents.

“The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief,” wrote Justice Sandra Day O’Connor in the majority opinion.

Cordelli said the high court was silent on whether states could change that burden of proof.

Ginsburg sided with parents

The late Justice Ruth Bader Ginsburg dissented in that decision, maintaining the first priority of education administrators was to avoid high expenses.

“Understandably, school districts striving to balance their budgets, if ‘(l)eft to (their) own devices,’ will favor educational options that enable them to conserve resources,” Ginsburg wrote.

Andrew Feinstein, a private attorney in Mystic, Conn., is a leading advocate on behalf of parents across the country challenging these IEP decisions.

With roughly 35,000 IEPs in this state, officials said only about three cases a year in New Hampshire reach a due process hearing.

“There are many disputes but very, very few actually go to the hearing stage,” Feinstein said.

Michael Skibbie, policy director with the Disabilities Rights Center, said passing this bill would lead to productive reform earlier in the process.

“If they are doing the right thing, they shouldn’t have any concern about defending their actions to anybody,” Skibbie said. “It’s likely the changes will occur upstream of these hearings.”

Gerald Zelin, a lawyer representing school administrators, urged the Senate panel to strip this burden of proof change from the bill, but keep the rest of it, which creates a four-person study committee of legislators to study the system and recommend changes this November.

Katherine Shea, a parent from Goffstown, said she’s seen both sides of the system with two children with autism, one whose IEP went fine, the other who had a denied IEP that turned disastrous, resulting in her child being held back two grades.

“These are inefficient, unnecessary debates. Our family now had to pay out of pocket for something we already have paid for,” Shea said. “Educational hearings should not be treated like divorce hearings in which neither side wins.”

© 2021 New Hampshire Union Leader
Distributed by Tribune Content Agency, LLC

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