Connecticut’s Burden of Proof, Redux

Published on March 6, 2010 by Jennifer Laviano

Here we go again.

Last Spring, I wrote about how parents of children with special education needs in Connecticut, as well as their advocates and attorneys, organized to successfully oppose efforts by school districts to switch the Burden of Proof in Special Education Due Process Hearings from the school district, who has the burden now, to the party who initiates the hearing…which is, in almost all cases, the Parents.  That post ended with the following comment:

“Luckily, this latest effort by school districts to alter the Burden of Proof was unsuccessful, but those of us who care about the opportunity for parents to access their rights will likely need to remain vigilant on this issue, as I doubt it’s going anywhere for long.”

Well, it didn’t even take a full year.

This Monday, March 8, 2010, many of us will be back in the Legislative Office Building in Hartford, once again, for a Public Hearing on this same issue.  If the school districts are successful in changing the Burden of Proof in this legislation, they will be be making a process that is already so very difficult for parents that much harder, and upending a State practice that has been in effect for over a decade.

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Taking on a school district in a special education Due Process Hearing is an incredibly difficult task, even when parents are represented by experienced counsel, and have the means to hire experts to testify on their behalf!  The parents who fall into that category, however, are by far the minority.

Most parents can’t afford lawyers or experts.

Such parents are already facing an uphill battle, as their school district has special education teachers, school psychologists, occupational therapists, speech pathologists, physical therapists, social workers, regular education teachers, and administrators, all on their payroll, all of whom can testify on the school district’s behalf.  And remember, all of the education records and most of the evidence is within the possession and control of the school district.  Doesn’t it make sense that the Burden of Proof would fall properly on the school district, whose obligation it is to offer a Free and Appropriate Public Education?

The information as to how you can voice your opinion on H.B. 5425 follows, including how to write your legislators if you can’t be present.  The portion of the bill which affects the Burden of Proof in Due Process Hearings is found in section 3.  

The Education Committee will hold a public hearing on Monday, March 8, 2010 at 3: 30 P. M. in Room 1E of the LOB. Please email a PDF copy of your written testimony to chris.calabrese@cga.ct.gov by 10: 00 A. M. on the date of the hearing and include the word “TESTIMONY” in the subject line. Written testimony will be accepted in Room 3100 of the LOB until 12: 00 P. M. on the date of the hearing. Please submit 50 copies. Written testimony submitted after 12: 00 P. M. will not be distributed in hard copy form. Sign-up for the hearing will begin at 12: 00 P. M. in the First Floor Atrium of the LOB, will be conducted by lottery, and will conclude at 1: 00 P. M. The first hour of the hearing is reserved for Elected Officials. Speakers will be limited to 3 minutes of testimony. Unofficial sign-up sheets have no standing with the Committee. All testimony will be available at http://www.cga.ct.gov/ed/.

If you care about the rights of children with disabilities, it would be best if you could be there Monday afternoon to express yourself and let your voice be heard, and join me in opposing Section 3 of H.B. 5425!

4 Responses to Connecticut’s Burden of Proof, Redux

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  3. Michelle Bidwell
    January 16th, 2011 | 2:26 pm

    UPDATE: Jan. 2011–Not sure if any of you receive legislative updates from Beth Leslie at OPA but thought I’d pass this along. Apparently, the Burden of Proof bill has been re-introduced this month (proposed HB 5197. Here’s a link to the bill: http://www.cga.ct.gov/2011/TOB/H/2011HB-05197-R00-HB.htm . No word yet on whether or when there might be public hearings scheduled.

    When this issue has been raised the last two times, the State Advisory Council for Special Education (SAC), as well as many other professionals, orgainzations, and parents, took a strong stand against this proposal. The SAC cited that there are as many as 12 other states who maintain the BOP to be always on SD’s (and that other states are considering changing their legislation to require this). Aside from me locating each state’s respective sped statues and regulations, does anyone know how I could find an accurate, current accounting of this info–or is CT (as CABE maintains) one of only two states who place the BOP always on SD’s? I think this is important info to know and need to be able to cite where it came from. Anybody aware of anyone anywhere who might have a current & accurate list of how many, and which, states, place the BOP on SD’s? This might be very valuable data to be able to provide to the Education Committee. Thanks

  4. Susan McGuinness Getzinger
    May 2nd, 2011 | 10:28 pm

    http://cga.ct.gov/2010/rpt/2010-R-0480.htm
    .ct.gov/2010/rpt/2010-R-0480.htm
    “SCHOOL ACCOMMODATION

    State law requires school districts to provide accommodation, by transportation or otherwise, so that school-age children living in the district may attend public school (CGS § 10-186(a)). When there is a dispute over accommodation, the statute is specific about which party has the burden of proof during due process hearings, but it is not the same party in all situations.

    In cases where a district denies schooling based on residency, because it believes a student lives in another district, the student’s parent or guardian has the burden of proving, by a preponderance of evidence, that the student lives in the district in question. In all other issues of accommodation (these are often transportation related) the burden of proof is on the party claiming the student is ineligible (typically the district) (CGS § 10-186(b)(1)). In these accommodation matters, the law is explicit about which party bears the burden of proof.

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