Parents of special ed students score big victory

Sen. Harold French, R-Canterbury, foreground, speaks with Sen. Lou D’Allesandro, D-Manchester, while Sen. James Gray, R-Rochester, left, listens in on Thursday as the state Senate met in person for the first time this year. The 24-member Senate met in the 400-seat Representatives Hall. During the session, the Senate unanimously approved legislation shifting the burden of proof to school districts when parents appeal an Individualized Educational Plan for their student with special needs.

CONCORD — Parents of students with special needs achieved a landmark victory Thursday, with the state Senate unanimously passing legislation to put the burden of proof on school districts in hearings over a student’s Individualized Education Plan.

In the rare cases that go to court in New Hampshire, parents currently have to convince a judge their child’s plan (IEP) is inappropriate.

The House-passed bill (HB 581) will eventually head to the desk of Gov. Chris Sununu, who has yet to weigh in on the change, which was opposed by school boards and school administrators.

The parental push came after the U.S. Supreme Court in 2005, in Schaffer vs. Weast, decided, 6-2, that the burden of proof was on the parents.

The seven states that already have passed laws to shift the burden of proof to school officials include Connecticut, New York, New Jersey and Delaware.

Virginia Hennighausen said she’s currently in a battle with the Hudson School District over an IEP for her son.

“I’ve been working tirelessly to fight for my child ever since he was a baby and was diagnosed with multiple medical issues,” she said. “I never thought getting him help from taxpayer money would be so hard. This is such a joyful day for all of us fighting for our kids.”

In a recent op-ed, three leaders of the parents’ movement — Katherine Shea, Moira Ryan and Tracy Walbridge — said the process casts families in the role of David facing a Goliath school district.

“If one does not agree to an IEP, there is no veto power; parents have no power. An IEP will fall back to what it was previously, no needed services will be provided. Goliath always wins, the child goes without help,” the parents wrote.

State Sen. Erin Hennessey, R-Littleton, said parents who fight over IEPs in court get overwhelmed by school districts that have lawyers and consultants to rebut any criticism.

“They struggle to get through each of those steps ... this becomes their whole life, and it’s a struggle for the life of their child,” Hennessey said.

Lawyers and lobbyists for school boards and administrators maintain the bill was unnecessary and would only make disputes more expensive for all parties.

They had urged legislators to strip from the bill everything but a study committee on the issue.

Gerald Zelin, a lawyer representing school administrators, said school districts already are required to defend their IEPs at hearings, and most disputes are resolved before they go to court.

Advocates say the change is needed because the federal Individuals with Disabilities Education Act does not allow for pre-trial discovery.

Parents said this gives them fewer rights with school districts when it comes to interviewing teachers and other school professionals in advance. School districts have access to all of this information, they said.

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

This cost barrier becomes more critical in view of national studies showing that 12% of families living below the poverty level have children with disabilities, while only 8% of families with higher incomes have disabled children.

“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.

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