For more than a decade, advocates have been fighting to change the way Maryland public schools handle special education due process hearings.

The hearings are a last resort for parents appealing their child’s individualized education program, or IEP, a set of customized goals required by law to support a student with learning disabilities. Currently, parents must prove that a school’s IEP is not meeting their child’s needs, but a bill co-sponsored by Dels. Vanessa Atterbeary of Howard County and Mike Griffith, who represents Cecil and Harford counties, would flip the burden of proof to all county boards of education.

“For me, it’s just a matter of equity,” said Atterbeary, a Democrat. “How is it remotely fair that [parents] have to go up against an entire school system to prove a certain legal standard to get benefits for their child?”

Proponents of HB294 say the hearings take a heavy toll on parents, who must hire attorneys and expert witnesses as well as take time off of work to attend proceedings.

“It is a very stressful event for families,” said special education attorney Selene Almazan. “You can’t really prevail in a due process case unless you have an expert. ... School systems have in-house experts. They already have school psychologists; they already have speech and language pathologists that work for them.”

Ellicott City resident Barb Krupiarz, who served as deputy director of the Maryland Office of Education Accountability from 2018 to 2020, is a strong supporter of the bill and past attempts to change the burden of proof. An initial statewide bill failed in 2013, and in 2022, a Howard County-specific version passed the House of Delegates unanimously but was never brought to a vote in its Senate committee.

Krupiarz said she’s talked to parents who have spent up to $100,000 on court and legal fees for due process hearings. Parents who can’t afford a lawyer can represent themselves, but no such Maryland parent has won a case in the past decade, according to Almazan.

“Parents are not lawyers,” Krupiarz said. “If they even don’t realize that they have to admit the IEP into evidence, they automatically lose, and the school system doesn’t even have to present their case.”

Krupriarz knows firsthand how taxing individualized education program meetings can be, having quit her job to better advocate for her own son, who attended Howard County schools and has attention deficit/hyperactivity disorder. She spent hours meeting with staff and outside experts to try and craft a better IEP, rather than taking the school system to court.

“I never went to due process, and I never would because I knew the chances of winning,” she said. “Going to court is very stressful and it’s costly.”

Due process hearings in Maryland

The number of due process hearings in Maryland is relatively low, as school districts try to resolve special education disputes through mediation and other means before parents proceed to litigation. When hearings do occur, parents are not often on the winning side.

Of the 92 due process hearings held between 2018 and 2022, school districts prevailed in 74% of cases, according to Maryland State Department of Education data analyzed by Project HEAL, a medical-legal partnership run by the Kennedy Krieger Institute. A study of due process hearings in Texas found districts prevailed in about 72% of cases from 2011 to 2015. Another analysis in Massachusetts found school systems won in a little more than half of hearings during an eight-year span.

In fiscal 2022, Maryland parents represented themselves in four of 16 hearings, which lasted an average of 9.6 days.

“That’s nine days of a parent taking off of work, finding child care, finding transportation for their children,” said Project HEAL founder Maureen van Stone.

The significant time and monetary cost of hearings dissuade many low-income families from challenging school systems, according to van Stone and other proponents of the bill.

Ellicott City resident Cheryl Bruns has already spent $15,000 on special education consultants and attorney fees on her daughter’s individualized education program, which covers ADHD but not her dyslexia and reading struggles. Bruns is hoping a consultant can write new IEP goals the school can deliver before proceeding with a due process hearing.

“It’s so frustrating and hopeless,” Bruns said. “I think about so many people in this county and this country who don’t either have the resources or information, and they might not even speak English as a first language. How are they knowing what [services] their kid is or is not getting?”

Leveling the playing field

Even if the statewide bill passes, advocates say the school system will still be at a significant advantage over parents when it comes to due process.

“It’s like David and Goliath,” said Ashley VanCleef, an attorney and former special education teacher based in Frederick. “You’ve got parents who’ve got very, very few experts, who don’t get to spend as much time with the kid, and you’ve got this giant school system [that] has all the resources in the world behind them.”

Bill co-sponsor Griffith also introduced a Harford County version, which he said would serve as a safety net if the statewide effort fails. Similar local bills were also introduced this legislative session for Howard County, Baltimore County and Baltimore city.

While the Howard Board of Education supports both its county and the statewide versions of the bill, the Maryland Association of Boards of Education and Maryland State Education Association oppose Atterbeary and Griffith’s legislation.

“If there is a presumption, essentially, that special educators are not providing the appropriate services, there’s going to be an increase in paperwork and in having to prove that they’re actually providing these services,” MSEA Director of Political and Legislative Affairs Samantha Zwerling testified on Feb. 8.

MABE said a statement that the bill would “result in the unlimited potential for such complaints to be filed and unlimited burden on the school system to devote staff time and legal resources to refuting such claims.”

The bill’s sponsors counter that rather than increasing litigation, shifting the burden of proof would encourage school systems to settle cases before they advance to a hearing. They pointed to states like New York that already shifted the burden to schools and experienced a subsequent decline in cases.

Griffith said the bill requires no new reporting by educators, and that if schools are already meeting a student’s individualized education program requirements they shouldn’t be worried about having to prove their case.

“Just because the burden of proof is with the school doesn’t mean they don’t have less attorneys, or less experts or less data and doesn’t mean the parent has more of those things,” he said. “It just makes the playing field a little less uneven.”