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January 2017

The current "burden of proof" law forces School Districts to make a business decision about a child’s education to protect the financial interests of the District rather than an educational decision that benefits the needs of the individual child. Additionally, the law diverts increasingly underfunded resources away from all students in the district. We implore you to consider this proposal and look forward to working with you on behalf of the children of Connecticut.

Reassign “burden of proof” to the party seeking relief.

We are superintendents. We were elementary, middle and high school teachers. We were psychologists, guidance counselors and social workers. We were school principals. We are parents and grandparents as well as brothers and sisters of general education and special education students. We are stewards of the education for all of the children of the districts we lead. We have chosen a profession and devoted our lives to be advocates for meeting the needs of children to ensure they receive the best education possible. In the spirit of providing the best education for the students we serve we implore our legislators to consider revising the “burden of proof” that now falls solely on the School Districts. Inherent in Connecticut’s regulation on burden of proof is an assumption of wrong doing. We question the logic of this supposition and request that the burden of proof be reassigned to the "party seeking relief" as it exists in all but five states and is authorized through federal legislation. We ask you to consider this change because the current law is harming the very same children it is intended to protect. As written:

Connecticut's burden of proof requirement is not part of the special education due process statute (CGS § 10-76h). Rather, it is SBE regulations that require that, “in all cases . . . the public agency has the burden of proving the appropriateness of the child's program or placement, or of the program or placement proposed by the public agency” (Conn. Agencies Regs. § 10-76h-14).

There are significant unintended consequences from this law that we are compelled to highlight because they negatively impact our children’s education. The current lopsided burden of proof emboldens parents to sue and it has created a cottage industry for lawyers who now “specialize” in special education lawsuits against school districts. This can best be shown through the following case study:

  • Consider a beginning third grade student who is cognitively average to above average.
  • Consider the same student is a struggling reader and is reading at the end of the first grade level, clearly below expectancy.
  • Consider the student has received general education reading intervention services both in the classroom and subsequently out of the classroom.
  • Consider the parents’ frustration about their child’s “lack of growth” and their expressed displeasure with the school’s intervention.
  • Consider the parents unilaterally place the child in a private school (withdraws the child from the public system) that they believe will better serve their child.
  • Consider the parents subsequently provide the district with a FERPA request for disclosure of all materials (emails, documents and testing information).
  • Consider the parents request an outside evaluation be performed at the District’s expense.
  • Consider the parents request a formal Planning and Placement Team (PPT) meeting where they arrive with a Parent Advocate and attorney. School personnel in attendance include:
    • The child’s public school third grade teacher
    • The child’s second grade teacher
    • The general education reading teacher who worked with the child and has evaluated the child’s reading during the prior year
    • The principal of the school
    • The school psychologist who evaluated the child cognitively
    • The school librarian
    • The Director of Special Education who chairs the meeting
  • Consider the school district also needs an attorney at the same meeting.
  • Consider at the PPT the parents demand the district to pay the $66,000 private school tuition, the associated $30,000 transportation cost, and the $6000 expense for outside “expert” evaluations.

While daunting in its presentation, this fact pattern is common and regularly experienced throughout the State. At first glance there is a logical flow to the sequence of events. But what happens next is neither logical nor in the best interests of the child.

What is missing in these facts is the conversation that a child’s reading level evolves at different rates. School personnel who have specialized training in reading confirm this in the meeting. They worked with the child twice per week for one year. Their view is supported by both the second and third grade teachers, who note the child’s continued progress (albeit not to grade level) and emphasize the research based strategies they used and would use if the child remained in the school. They are confident they can educate the child.

However, for the parents who compare their child to their neighbor’s child who reads above grade level, one can see why they would be alarmed. This is exacerbated by an outside evaluation that further quantifies that the child is dyslexic, a term that is certain to raise concern levels of any parent. The outside evaluator (specialist) spends a total of six hours testing the child to yield these results.

With all of the data presented to the PPT charged with making a determination, the PPT team is left with the undeniable fact that the child has already been unilaterally placed by the parents and most importantly, hovering over their decision of whether or not to accede to the parents’ demand is the burden of proof regulation. Stated differently, as part of the unspoken calculus in making a determination, is the understanding that to deny the parents’ request would mean that the district must prove to an arbitrator that the child is receiving an appropriate program that is addressing this child’s reading needs, that every technicality leading up to the meeting has been followed without fault, and that the parent had the proper participation in the PPT process. Failure in any of these areas likely would result in a decision favorable to the parent. The decision may include full payment as described above, pendency (continuous placement for the child at the unilateral placement through age 21), which in this case could cost $66,000 tuition x 10 years or $660,000 plus $30,000 transportation x 10 years or $330,000, and reimbursement for all legal fees.

Conversely, if the burden of proof was on the parents, it would require them to prove that the district did not have a program that could serve their child, a very different conversation indeed including non-reimbursement for legal fees or pendency expenses.

The most disturbing aspect of this process is that those with the most intimate knowledge of the educational well-being of the child—the teachers, psychologist and learning specialist are very quickly dismissed from the conversation. Because school districts are faced with daunting financial consequences for losing in arbitration, in our example a $1,000,000 dollar decision, administrators are faced with turning the process over to the attorneys who “negotiate a deal.” It no longer becomes about what is in the best interest of the child but instead becomes a “business decision.” Gone is the voice of the educator who knows the child’s educational needs best. Gone is the opportunity to provide an education to the child in the least restrictive environment. Gone is the opportunity for the child to be educated in his / her community school with peers. Gone is the opportunity to participate in school based extra-curricular activities. We are left with lawyers talking to lawyers about children they have never met.

We submit we should never be making decisions about a child’s education strictly as a good business decision.

Scenarios like the one described above play out in school districts all across the state. The high cost and high risk of taking a case to arbitration creates a perverse incentive for districts to negotiate agreements through a mediated settlement process where lawyers negotiate outcomes. In a survey of 7 Fairfield County districts, the total cost of mediated settlements in 2015-2016 was $8,323,142 or an average of $1,189,020 per district. In states where the Burden of Proof is assigned to the party bringing the complaint, this number is dramatically lower and even more importantly, decisions about a child’s program are made by the experts – the teachers and school specialists.

Sadly, in this environment when educational decisions are replaced by business decisions, not only do districts incur extraordinarily high costs and see taxpayer dollars diverted away from educational programs that serve all students, but relationships between schools and families are often damaged. Mediated settlements generate bitter feelings and strain relationships between districts and families. School personnel who should be a child’s strongest support and a family’s greatest resource are thrust into an adversarial position which deprives them the opportunity to foster critical connections.

Beyond re-assigning the burden of proof to the party seeking relief, we call on the legislature to reform the special education dispute resolution process. As part of that reform, the legislature should restrict arbitrations to a maximum of three days, and define policies and procedures for standards of practice which guide hearings including developing procedures to ensure consistency among hearing officers, establishing an oversight mechanism for supervisory review, consistency of rulings, and logic of decisions, as well as establishing standards for advocates and outside evaluators.

When educators’ voices are silenced, children lose. In the current environment utilized for special education dispute resolution, educational decisions are being supplanted by business decisions led by non-educators. This environment fails children and diverts needed resources away from the classroom. In light of the fiscal crisis facing Connecticut, legislators have an opportunity to correct a wrong, fundamentally serve children more effectively and redirect dollars toward classrooms without impacting taxes. We implore you to consider this proposal and look forward to working with you on behalf of the children of Connecticut.

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