VACo voices concerns over bill shifting burden of proof for Due Process Hearings for children with disabilities

January 29, 2019

VACo registered its concerns over HB 2463 (Tran) at a January 28 meeting of the House Education Committee’s Subcommittee #1. The bill specifies that in any due process hearing (DPH) before a hearing officer to resolve certain disputes relating to the education of children with disabilities, the local school division has the burden of proof, including the burden of production and the burden of persuasion. This would represent a major shift of burden of proof in the current practice for resolving such disputes. A DPH is an impartial procedure used to resolve disagreements over issues related to special education services that arise between a parent and a school division. The right of the parents or the school division to request a due process hearing is guaranteed by federal and state laws governing the education of children with disabilities.

The concern in shifting the burden of proof entirely to local school divisions is that the number of Due Process Hearings filed would grow exponentially, leading to increased litigation in court, and increased attorneys’ fees paid by school divisions.  The bill also has the potential to lead to increased private placements for students, which could have a significant fiscal impact to the State through increased Comprehensive Services Act (CSA) costs. The bill also has troubling legal implications as in almost all types of litigation in the United States, the burden of proof currently lies with the party seeking relief.

Representatives of numerous state education associations testified to the potential negative impact of this. One large school division recently expended approximately $976,000 in attorney’s fees to address 25 DPH in one year. The Subcommittee moved by voice vote that the bill be referred to the Joint Legislative Audit and Review Commission (JLARC) study on the effectiveness of Virginia’s Special Education programs.

VACo Contact: Jeremy Bennett

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