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Shifting the burden [Commentary]

When my daughter was diagnosed with autism four years ago, our family was determined to make sure she received the right education, one that would meet her needs and give her a chance to fulfill her potential. We never imagined how hard we would have to fight — or how much money we would spend — to give her that.

Now 7 years old and in second grade at the Gateway School in Baltimore, my daughter is thriving and continues to progress academically. But her enrollment at one of the state's "nonpublic" special education schools was threatened last year.

We spent our savings and took out a home equity line of credit to pay for lawyers' fees and an education consultant in our ultimately successful effort to convince an administrative judge that our daughter's appropriate education setting required a special school like Gateway. Cases like ours normally cost families in excess of $60,000.

The way the system is set up now, we had to provide "a preponderance of evidence" that proved a non-public setting was the appropriate education setting for our daughter. This exhausting process took more than eight months and placed enormous emotional and financial strain on our family. While we were fortunate enough to be able to bear this financial burden, many Maryland families with disabled children are not.

Maryland legislators are considering bills in the House and Senate that will make it easier for families like ours to find the right school or services for their children with special needs. The legislation, the "Due Process Hearings for Children With Disabilities — Burden of Proof" civil rights bills, will require that school districts — not parents — carry the burden of proof in due process hearings like the one we just went through.

Not surprisingly, most families lose these fights. Each year, school systems win more than nine out of 10 such cases because they are not required to present much evidence supporting their proposed educational plans; that is the burden for the families. Additionally, parents do not have the same access to documents, experts and school information that school systems do. We also aren't able to interview teachers or school professionals testifying at the hearing for the school system.

Maryland should follow such states as New York, New Jersey and Connecticut, which recently passed legislation to place the burden of proof on the school system in these types of cases. Although New York and New Jersey were known for being extremely litigious previously, both have seen a decrease in cases since the burden of proof shifted. Fewer litigated cases benefit both parents and schools.

During our search for the right school, we learned about Gateway and the state's other "nonpublic" special education schools — 95 schools that serve more than 3,500 students across Maryland. Most of these students cannot have their needs met effectively in traditional public schools.

These schools are, in effect, part of the state's public educational system and help students like my daughter excel academically and become active members in their communities. It should not be so difficult for parents who are coping with a child's disability to obtain an appropriate education for that child.

Although we won our case last year, we may well have to repeat the process again soon as the ruling is open to an annual review. As parents, we are not willing to risk our daughter's future and see her regress in an unsuitable academic environment. We do not blame the school system. It is under-funded and ill-equipped for many special needs students. We have started a search for a scholarship fund that would help parents in this same situation. If we cannot locate such a fund, we would like to begin such a program. Until the system can successfully integrate these students into a general setting, we believe that no parent should have to assume that risk.

Kate Hollander is a Baltimore resident. Her email is khollander2012@comcast.net.

To respond to this commentary, send an email to talkback@baltimoresun.com. Please include your name and contact information.

Copyright © 2015, The Baltimore Sun
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