When is it time to hire a special education lawyer? I’ll explain how to keep this from being a $64,000 question.
I’ll answer this question in a moment, but the first thing to understand is the special education process.
Understanding the Special Education Process
Briefly, the process usually follows these steps: (1) either the parent or a teacher notices some delays or challenges in your child’s learning process; (2) your child is identified or diagnosed with a disability that interferes with his or her education; and then (3) a 504 plan or IEP is developed for your child. The process is designed to be “non-adversarial,” meaning the intention is for you and the school district to collaboratively develop an appropriate plan and services to help your child without the need for lawyers or court systems.
Unfortunately, the process has become adversarial because of pushback from school districts. When schools are asked to do more than just stick your child in a special education classroom that may or may not address the specific challenges your child faces, schools often respond “NO.” In other words, when the “cookie cutter” approach to disabilities does not work for your child and you want more, school districts have been trained to fight back. School districts know that they can usually win this fight because most parents don’t know special education laws or the rights of their children.
This is the time to, at a minimum, have a consultation with a special education lawyer. You should hire a lawyer as soon as the school district decides it is going to fight you on the services you want for your child. One of the biggest reasons is that the school district is going to bring in their lawyer at this point.
Why Not Hire an Advocate Instead?
But, you may ask, why not hire an advocate or just handle it myself instead of hiring a lawyer?
As for handling it yourself, I recall the old saying “the lawyer who represents himself has a fool for a client.” Because the case involves your child, it is nearly impossible to remain objective and keep your emotions out of it. You need someone besides yourself to represent you and your child.
The Limitations of Advocates
While advocates provide wonderful services, they are limited in what they can do. The Individuals with Disabilities Education Act (IDEA) provides that parents are entitled to have “other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate” with them at IEP meetings.(1) In other words, such “other individuals” can be advocates who are experts on your child’s diagnosis, testing methodologies or the requirements of 504 plans and IEPs. The advocate can help you prepare for an IEP meeting, accompany you to the meeting and take notes and assist you with interpreting test results.
However, that is where advocacy services must end. Anything more might be considered the Unauthorized Practice of Law (UPL). If an advocate doesn’t have a license to practice law in your state, providing legal advice to you or assisting you with the preparation of a due process complaint or any other “legal action” (like appearing on your behalf at a hearing) is actually illegal.(2)
Thus, even if your advocate has done great work, it can be discarded by the school district and the advocate can be in real legal trouble for UPL. And, you have spent a lot of your hard-earned dollars for nothing. Lawyers do not have this limitation.
Price Vs. Value
People also hire advocates for the simple reason that they are less expensive than lawyers. The old saying, “you get what you pay for” applies here. Perhaps Warren Buffet said it the best: “Price is what you pay. Value is what you get.” While many advocates receive excellent training or have substantial experience from being in the field of education, lawyers often have knowledge that you or even the best advocate won’t have. Beyond special education laws, lawyers understand legal procedure and evidence rules, have knowledge of the hearing officers and judges, have courtroom experience, know how to conduct direct and cross-examination of witnesses, know how to obtain critical documents through discovery and the Family Educational Rights and Privacy Act (FERPA), are proficient at locating witnesses and, perhaps most importantly, know how to make “the record” for appeal (if the case goes beyond a due process hearing). In addition, unlike lawyers, advocates are not required to take mandatory continuing legal education so they are informed on the latest laws and cases in special education.
A great example of this value is demonstrated in special education lawyers’ ability to locate and use an expert witness at a due process hearing. Special education lawyers have a network of experts they can draw from, and most would agree that an expert witness is critical at the due process stage for two reasons: (1) many hearing officers will simply accept the school’s interpretation of your child’s documents if you don’t have an expert to provide your own version; and (2) in states where you don’t get to add documents to the record on appeal, if there is no expert witness at the due process hearing, there is no expert for appeal.
You also shouldn’t skimp on legal services when protecting the civil rights of your child with a disability. My colleague Amy Anderson wrote about this topic in a recent article in Forbes magazine “Nothing Is More Expensive Than A Cheap Lawyer.”
Remember, attorney’s fees in special education cases are recoverable while advocate’s fees are not.(3) In other words, if you succeed, you get your money back. A consultation with a good special education lawyer will inform you about the strength of your case and whether you should invest in a lawyer.
Thus, I strongly urge you to bring a lawyer into your child’s special education case the minute you sense the school is going to fight you on what you (or your child’s physicians) believe are the appropriate services necessary to educate your child.
Sources
1 See 20 U.S.C. §1414(d)(1)(B) and 34 CFR §300.321(a)(6).
2 You can find more details on this problem in an article I wrote on this topic, “Are Special Education Advocates Performing UPL (Unauthorized Practice of Law)?”
3 20 U.S.C. §1415(i)(3) [Individuals with Disabilities Education Act or IDEA], 29 U.S.C. §794a(b) [§504 of the Rehabilitation Act], and 42 U.S.C. §12133 [Americans with Disabilities Act].
My child has a iep that is not being used by teachers
Teachers does not know how to follow the iep. Their very naive, and lost on this area. But they have to learn how to it, that is not our problem, you have to demand your rigths
Hello!!! My name is MIRNA , and my question is I have a son he’s 16 yrs old he was in camp (jail) and he was going to school there and we held an IEP . So he’s out now and I been trying to enroll him in to high school for the past 2 weeks and they still have not place him in school . And I am worried or feel like we’re being discriminated because of our Hispanic look and since we say he was in camp .
My child has an IEP. On September 4th the IEP expired. The school attempted to write a new IEP without me to cover there butt because it had expired. I told them no I have the right to be at my child’s IEP meetings. Then they said it has to be “tomorrow morning”, this is at dismissal time, by the way. I said that doesn’t give me enough notice to bring anyone with me. Then they peppered me with question about who I was bringing with me and then made excuses as to why they let it expire. I think we need help.
My child is a special needs child and has been in the same school since kindergarten. She is now in 4th grade. From a high stand point of miscommunication the IEP team, not including me, and the school have decided that the school cannot provide for her needs and has placed her in another school in what is called a “cluster program”. I was told I have no control over this decision and she has to go where the needs of her IEP will be met. Mind you, this was done due to miscommunication. I am not in agreement with this school switch. And would very much like for her to stay where she is progressing just fine. I don’t know what I should do. Do I have any rights in this decision?
“However, that is where advocacy services must end. Anything more might be considered the Unauthorized Practice of Law (UPL). If an advocate doesn’t have a license to practice law in your state, providing legal advice to you or assisting you with the preparation of a due process complaint or any other “legal action” (like appearing on your behalf at a hearing) is actually illegal.”
That is absolutely incorrect.
Refer to http://idea.ed.gov/explore/view/p/%2Croot%2Cregs%2C300%2CE%2C300%252E512%2C
“(a) General. Any party to a hearing conducted pursuant to Sec. Sec. 300.507 through 300.513 or Sec. Sec. 300.530 through 300.534, or an appeal conducted pursuant to Sec. 300.514, has the right to–
(1) Be accompanied and advised by counsel AND by individuals with special knowledge or training with respect to the problems of children with disabilities, except that whether parties have the right to be represented by non-attorneys at due process hearings is determined under State law;”
In some states, such as California, non-attorneys ARE ALLOWED to represent clients in the due process hearing.
Perhaps one would do better to utilize an advocate instead of attorney Robert Thurston, since Mr. Thurston appears to actually not know the law as well as an advocate such as myself.
long story short….I have a 7 year old daughter who was diagnosed with brain cancer (tumor) which it spread to the bottom of her spine….shes has 2 rounds of chemo and a round of radiation by the time she was 3…..she started school at 4 yrs old and absolutely loves school…last year she had an aide that was great with her….and her teacher was very understanding and helpful…..she is now in the 2nd grade and she can not attend school for the fact of she is being bullied by students and in my opinion her teacher also….I went last week to check out another school in my town and a child with autisim grabbed my daughter around her throat…it ended with the lady trying to explain why I need to believe my daughter would be safe……can u help us…???? or do u know where I can go to get the help my daughter needs
I had an on going problem with my child school not following his 504 and in return failing a whole year and now not having credits to graduate. Filed a complaint with the civil rights act in Philly. When do I need to contact an attorney
504 is only for accommodations. What accommodations were they not following?
does anyone recommend a special education attorney?
I was wondering if anyone has had a situation close to mine and how was it handled. I have a 5 year old son Caleb who is high functioning autism, he has an IEP. Friday I get a voice mail at work on my cell by the assistant principal saying there was a situation and I needed to call, he not once mentioned if he was hurt or not , so I assumed the worst I spent 15 minutes calling the number back with no answer, I finally left work and got to the school, when I walked in the office there sat the assistant principal and I asked if he was hurt and he said no he was in the back office with the social service lady from the home office and the guidance counselor and he stated caleb was in class and a little girl beside him had some of her bottom showing and caleb being as observant as he is seen it and said “look at your butt” and proceeded to touch the top of her cheeks with his finger, and by no means do I condone this behavior and I know that it was wrong…but he has a hard time understanding things sometimes, and I asked to see him immediately and I told them I should have been the first person called before interrogating him in an office were he was basically cornered, when he gets cornered he shuts down and gets really upset. I was extremely mad with the situation and thought it should have been handled differently and the fact that his dad was not even called at all. He was suspended for 2 days and I was told they would call me Monday with a meeting conference before he returns to school. I am so lost as to how to handle this or whether I need a lawyer present when I go. Please Help
Unfortunately yes we had a similar situation when my son was 6. There was a new female student in his class. At recess they were playing tag and the little girl grabbed him by his belt loop. While chasing the little girl during the same game of tag he did the same thing. We found ourselves in the office with a three day suspension for inappropriate touching! The little girl you ask?? There was no mention that she too had done the same thing even though all the children reported the incident exactly the way my son did. At that point in time I started teaching him they hard but honest truth about boys and girls. No matter the situation teachers and most adults will always side with a female student. He is 14 years old now, the inappropriate touching suspension remains unsigned in his student file today. Since then he has attended multiple schools into different states. Unfortunately the lesson I taught him then remains true today. Another situation when he was 12 and little girl at school who reported that he had touched another girls breast while playing tag in our neighborhood three weeks earlier. Mind you three weeks earlier was during Thanksgiving break. I was told by my son immediately after the incident. I went to the little girl and her parents and she even said she turned around quickly as he was chasing her and it was not a big deal or intentional. That did not keep the other children from teasing them both and laughing as children do. My biggest question was how was this the schools problem? He received a referral which also remains unsigned and his student folder. So good luck. I’m sorry y’all are going through this at such a young age.