Parents petition for burden of proof switch in seeking help for children in schools

Vickie Fortney says her 10-year-old son, Dylan, struggles in the classroom, but she says getting him the extra help is a struggle of her own.

"I talk to Dylan on a daily basis. And I don't say, 'Is your teacher doing it?' I say, 'Are you having-- is your work too hard for you? Are they giving you any help? Does anybody ask you if your work is too hard?' Because I want to know. I need to know," she said.

Dylan was diagnosed with ADHD in third grade. Now, two years later, Fortney worries he's still falling behind.

"These kids lose focus very easily. Any kind of distraction can make them lose focus. And I'll say to Dylan, 'Dylan are they saying to pay attention? Dylan, focus on this.' Because those are things that they should be doing," said Fortney.

She says the school has told her that her son does not qualify for an Individualized Education Program, or IEP. She's not alone in her fight to make sure her child gets the extra help.

"You've got a big state with large school districts, and this is about accountability. This is about what do you do when you have the principal who's not going to implement the IEP?" Said Julie Reiley, a parent and advocate for the burden of proof switch.

Reiley says her battle started when her son was in preschool. The district wanted to switch his placement and package of services. If she didn't agree, she'd have to file due process to prove her son's needs.

"I opted to do it because I'm a lawyer and I knew that I could do the research in my son's interest. I also know that if you're not a lawyer, there's no way you could do it. It's really hard," she said.

In Maryland, if the district fails to meet its obligation, a parent can file a complaint, but it's up to the parent to prove the IEP doesn't provide the special education and related services needed.

"I thought about that a long time. I kept thinking that if it's this hard for me, then what's it like for parents who aren't attorneys or who can't afford one?" Reiley said.

She started a petition and got the support of lawmakers.

"It got real personal. I usually don't let my personal life get pulled into a lot of my legislation. But this hurt me where I felt and bled," said Senator Karen Montgomery.

Montgomery says she thought of her autistic son when she decided to take on the burden of proof bill. The bill would ultimately place the burden on the school system to prove why their decision for certain IEPs is the right one.

"Putting that burden of proof on the parents is, I think, absolutely unfair. The school has all of the, all of the materials, they have all of the background, they have the facilities, and they have the lawyers," she said.

For parents, having the burden of proof can mean hiring an attorney, filing complaints, and trying to get a hold of documents.

"I'm supposed to have the burden of proof to explain why the setting is inappropriate, but you won't let me have the instructional materials, you won't let me go to it. I mean, it's ridiculous," Reiley said.

The bill was introduced two years in a row, failing both times.

"We see that that's a big leap," said Cheryl Bost, the Vice President of the Maryland State Education Association. "And it's going to clog our system with a lot of maybe unnecessary concerns and cases that come forward, it could increase a lot of the compliance paperwork issues that come through. We don't want to set up that antagonistic set of circumstances."

She says in most cases the 'disagreements' are started when a parent thinks their child needs a different placement than what the educational experts suggested. She says that can typically be handled through better communication and an understanding of the process.

"I'm not making light of any of their circumstances, but maybe taking a step back and saying, what are the true root causes of their concerns and how can we start to address them, instead of rushing right to a piece of legislation," Bost said.

Montgomery says it's not just the burden of proof that needs to be switched; she says she'd like to see teachers getting more training in dealing with special needs children.

Reiley says the issue isn't with all districts, she stresses that she's had great teachers and aides along the way, but it's those outlier cases that cause hardship for families. She says across Maryland, the burden should be on the schools.

The State Education Association worries new legislation could mean more time spent doing paperwork and less time actually helping the students. They're hoping that before they get to the General Assembly, there will be an initiative to bring the groups together to talk about the root problems and what can be done.