Legislation that would change the way disputes between schools and families over special education services are resolved is gaining bipartisan support from state lawmakers.
House Bill 1107, which passed out of the House Education Committee in a 12-0 vote on Wednesday, would make changes to the complicated legal proceeding known as due process. Under the federal Individuals with Disabilities Education Act, parents of students receiving special education services can request a due process hearing if they believe the school isn’t providing appropriate services, accommodations or placement for their child.
Rep. Ed Clere (R-New Albany) authored the legislation with help from the Arc of Indiana, an advocacy organization for people with disabilities, and the legal organization, Indiana Disability Rights.
Shifting the burden of proof
Clere said the legislation was inspired in part by the findings from the Education Dispute Resolution Working Group, which was established by the legislature and met four times during 2019. Clere and other proponents of the bill say there is a clear imbalance of power between schools and families in disputes over special education.
“Schools don't have unlimited resources, but compared to parents, they have nearly unlimited resources,” Clere said.
One way the bill attempts to level the playing field is by shifting the burden of proof in due process cases from parents to schools.
In Indiana, and in most states, parents are required to prove to an independent hearing officer that the school hasn’t met their legal obligation to provide an appropriate education to a student with a disability.
The proposed bill would shift the burden to school districts in most due process cases. In an effort to appease opponents of the bill, including special education administrators, Clere said the language was amended to incentivize parents to pursue alternative forms of conflict resolution, including mediation and facilitated Individualized Education Program (IEP) meetings.
If a parent refuses to participate in mediation or a facilitated IEP, they can still pursue a due process request but they’ll have the burden of proving their case to an independent hearing officer. If they engage in alternatives and still can’t come to an agreement with the school, then they can pursue a due process request and the burden will be on the district to prove its case.
In all expedited due process cases, the burden of proof will be on school districts regardless of whether they pursued an alternative form of conflict resolution, according to the proposed legislation.
Tom Crishon, legal director for Indiana Disability Rights, said expedited due process cases largely involve student placement and discipline issues that are time-sensitive.
Crishon’s organization has represented numerous families in due process cases.
“And largely what we see is a power imbalance between the parties,” he said. “On one end are the families with a child with a disability. They're often … just trying to obtain appropriate services so their child can appropriately learn in school. And on the other end is the publicly funded school district.”
Crishon said due process proceedings are “a tough uphill battle” for parents and families.
“And what the burden shift would do is really just an attempt to rebalance things. So the schools are really in the best position to prove its case at these hearings,” Crishon said.
Database of special education issues
Decisions made by independent hearing officers in due process cases are posted publicly on the Indiana Department of Education’s website. But most requests for due process in Indiana result in confidential settlement agreements between parents and schools. A spokesperson for the IDOE told WFYI that the state does not keep track of the contents of settlement agreements.
That’s something this legislation would change. The bill would require schools to submit their settlement agreements to the Department of Education, which would then be responsible for creating a database that tracks:
- the reasons why parents request due process hearings,
- the issues addressed in settlement agreements that result from due process hearing requests,
- and the issues addressed in cases that result in due process hearings.
Under the proposed bill, IDOE would submit a summary of these issues to the state advisory council on the education of children with disabilities by Aug. 1 every year beginning in 2023.
Clere said tracking the issues that drive conflicts over special education will help policymakers come up with solutions.
“I expect we will see trends, you know, we will see certain issues that come up again, and again. And then we can start to address the reasons that those issues keep coming up,” he said.
Crishon agreed that such a database, if implemented well, would help advocates and policymakers identify systemic problems in special education.
“Our ultimate goal, obviously, is that students with disabilities need to receive appropriate services to obtain an appropriate education,” he said. “However we get to that end goal, the better. And if it's done systematically based on the collected data, then I think that's only a good thing.”
The bill heads next to the full Indiana House for consideration.The deadline for House bills to be passed out of the chamber is Jan. 31.
CORRECTION (Jan. 19, 2022): An earlier version of this article incorrectly identified Indiana Disability Rights as a nonprofit organization. Indiana Disability Rights is an independent state agency and the service arm of the Indiana Protection and Advocacy Services Commission.