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Howard parents fight to shift IEP burden of proof

Dannene Drummond, right, and her son, Zachary Drummond-Bednarz.
Dannene Drummond, right, and her son, Zachary Drummond-Bednarz. (Photo courtesy of Dannene Drummond)

Dannene Drummond knows first-hand that her son, Zachary Drummond-Bednarz, can be a model student.

When she's homeschooling him, he'll stay engaged for hours. "He's the easiest child to work with," she said.

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But Zachary, a 13-year-old who has autism, wasn't progressing the way she knew he could while enrolled at his local middle school a few months ago. In fact, she remembers, he didn't seem to be learning much at all.

"We started at this school and he started acting really weird," Drummond said. She began to receive notices saying that Zachary was "not available for instruction."

So Drummond went to the school to ask for data on his progress. Like other students with learning disabilities, Zachary has an individualized education program, or IEP, a tailored set of educational goals to achieve over the course of the school year.

Drummond, a board-certified behavior analyst who works with special-needs students at schools in the county, was flummoxed by what she found.

"There was absolutely zero progress in all his IEP goals after two months," she said. "It was just unbelievable."

On visits to the school, she said, she saw her son, who spent most of the day in a regular education classroom, doing everything but work. Sometimes he would sit slumped in a rocking chair, headphones on and oblivious to the lesson at hand, and other times he would walk around the room, switching the lights on and off. He even ran out of the classroom several times.

To Drummond, it was clear that the school wasn't meeting Zachary's needs. But staff there didn't agree.

"This obviously is not an appropriate placement for him," she told them. "But they said, 'We believe it is.'"

Denied a transfer to another program, Drummond decided to pull her son out of public school and teach him at home instead.

Her story is not a unique one. Many parents of students with learning and emotional disabilities have come forward in recent weeks to share their own experiences of frustration with what they see as inadequate services for their children, not just in Howard County schools but across the state.

Now, a bill before the General Assembly proposes to make it a little bit easier for some of these parents to appeal a school's decision not to let their child leave a program they feel isn't working. Supporters and opponents are set to testify on the bill Thursday at 1 p.m. before the House's Ways and Means committee.

The legislation addresses the burden of proof in due process hearings for children with disabilities. Currently, parents must prove that the education their child is receiving doesn't meet his or her needs. The bill would flip the burden, so that school systems would instead have to prove that the educational program they are providing is appropriate.

Barb Krupiarz, an Ellicott City resident who has a 14-year-old son with an emotional disability, is a strong proponent of the bill, which she has supported for the past three years. Previous attempts have failed.

Krupiarz testified about her own struggles with the school system at a public hearing held by Howard County's state delegation on Feb. 11.

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"By failing to follow accommodations designed to help my son in school, the teacher and staff are failing him," Krupiarz said. "This bill does not provide any special favors for children with disabilities; all it asks is for schools to prove that that they're meeting federal law," which requires school systems to offer a free, appropriate education to children with disabilities.

Krupiarz said parents, who don't have access to all the data that schools do and who might not have the money to pay for a lawyer, are up against a Goliath in the school system, which has attorneys well-versed in due process hearings.

"When parents have the burden, but can't afford an attorney, their case can be thrown out because they don't know how to present evidence, cross-examine a witness or write a legal brief," she wrote in a letter to the Howard County Board of Education last week. "Parents could lose even the most egregious case that they should have won, simply because of their income."

Sen. Guy Guzzone, a Democrat from District 13 who has signed on as a co-sponsor of the bill, said shifting the burden of proof is "the right thing to do."

"People have reached out to me over the years; I've witnessed individuals going through the process, and it can be really incredibly challenging for a family to fight for the rights of their children," he said. "It can be heartbreaking when they know what's needed and keep hitting up against a wall."

The bill also has support from delegates Trent Kittleman and Warren Miller, both Republicans from District 9A, as well as Eric Ebersole, a Democrat from District 12 and a longtime teacher in the Howard County public school system.

But Sen. Gail Bates, a District 9 Republican who had previously signed on as a co-sponsor of the bill, recently decided to withdraw her support.

While she said she has sympathy for parents advocating for their kids, she has some serious concerns about the way the bill would be implemented.

"The problem is it turns the whole area of jurisprudence on its head," she said, noting that school systems might have to defend themselves against arguments they can't anticipate. "Anything can be brought up in the case and [parents] can come back and challenge anything and everything. It's very hard to defend [against] that."

The bill is also unpopular among teachers' unions, who worry that shifting the burden could create more work. The Maryland State Education Association has taken an official stance against the proposed burden of proof shift.

Howard County's school board voted Feb. 26 to oppose the legislation. The Maryland Association of Boards of Education is also opposed.

In a document detailing its official position, the board noted that most due process disputes in the county have been resolved through settlement.

According to the board, the Howard County Public School system has had 57 requests for due process hearings in the past four years, but only 12 hearings were actually held. Thirty-four cases included a request for mediation and 24 of those cases ended up with a settlement, the board said.

The burden of proof bill, board members agreed, "implies that the special education experts responsible for the IEP lack the capability to recommend a program in the best interest of the student. Our dispute resolution process demonstrates that disputes can be settled amicably."

Howard County Public Schools Superintendent Renee Foose echoed that view at the delegation's February hearing. "Howard County schools provide an array of outstanding services to special education students and do much to enable parents to participate fully in decisions about their children's education without needing to resort to litigation," she said.

But Krupiarz hopes shifting the burden of proof might lead to some changes in the classroom so disputes won't happen in the first place.

"The reason that I'm doing this is I believe that if schools have the burden of proof, it will provide some accountability," she said.

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Though the Howard County teachers' union has no official position on the bill, Paul Lemle, the union's president and a former special education teacher, said he's unsure whether shifting the burden of proof will improve special education services. His focus, he said, is on time and training for teachers.

"I think one place that parents and educators agree is that having the right training in place is really important, and a lot of our special education teachers and support staff don't feel like they have adequate support and training from the school system," Lemle said. "That's a missing piece here, and that's probably part of what many of the parents want, and – I know from talking to them – that's what many educators want."

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