What does a special education attorney do and when should you call one?
I receive many questions about what a special education attorney does and when a parent needs one. This is not an easy question as there are many answers, but I have tried to outline some of the answers and perhaps clarify some of the process below…
What does a special education attorney do for parents?
Good question! Ask an attorney almost any question and the likely answer you will receive is, “It depends.” And this question is no different! So what does it depend on? Well, your goals for your child, the school district in which you live, the evaluations that you have, the progress your child has or has not made… and the list goes on! So my comments here are not exclusive or all inclusive, but are meant to offer a general explanation of what I, as a parent side special education attorney, do and perhaps help parents identify if they should consult with an attorney and how to go about doing that.
OK, but what do they do?
The short answer is that when parents do not believe their child with special education needs is being provided an appropriate program by their school district, I will help them navigate the special education process to obtain their goals for their child and preserve their rights along the way.
While students with disabilities and their parents have rights under the Individuals with Disabilities Education Act, or IDEA (the federal law that governs special education), many parents do not even know what they are entitled to under the IDEA, or do not understand how the Statute has been interpreted through the case law. Just the use (or non-use) of certain words can drastically change the strengths or weaknesses of your case. Not using particular phraseology when making a request to the school, or how and when that request is delivered, can be the difference between triggering obligations of the school district, or not triggering those obligations.
In fact, over the years, many of my clients have actually been attorneys in other areas of the law who recognized that this is a complicated area and that they need my help. Special education can be an overwhelming process to parents. In addition to it being a very emotional process, specific procedures need to be followed to obtain certain goals and preserve parents’ rights. As a special education attorney, I help parents navigate the system to obtain those goals and preserve those rights.
Specifically, some services that many attorneys in this field offer are to help prepare for and attend IEP meetings, prepare for and attend Mediations, file for and represent parents in Due Process Hearings, and pursue Federal Litigation if necessary. Other services that I have been retained for are to conduct a records review of a child’s educational file and inform parents what they are entitled to or what next steps they should take as well as advise them of specific evaluators to use or service providers to seek out. In addition, I have been retained by parents who have recently received a diagnosis for their child and, while there is no dispute yet, I advise the parents behind the scenes so that should a dispute arise in the future, they know they have preserved their rights.
Not all attorneys provide all of these services, however (for strategic or other reasons), so if you are looking into an attorney, make sure they provide what you are looking for.
If I hire an attorney, does that mean I am suing my school?
Not necessarily! Many people are of the misconception that they need to be ready to actually head into litigation (or perhaps already have) before contacting an attorney. Unfortunately, waiting this long could be waiting too long and opportunities to resolve the issues amicably may have passed.
While some cases do end up in Due Process Hearings, or even Federal litigation, the vast majority can often be resolved at the IEP or Mediation level. Certainly, hiring an attorney can be perceived as an aggressive move and the school may respond in kind, but in my experience, schools that behave that way are often difficult to work with whether an attorney is involved or not, they have just made it more obvious to parent. On the other hand, when the attorneys get involved, both parties are properly advised of their rights and obligations and often resolution can come more easily.
When to consult with an attorney?
Many attorneys in this field will have an initial consult with parents at no cost, so a phone call can’t hurt if you have any concerns. And that should be the sign… do you have concerns? If you do not think your child is making the progress s/he should, or believe s/he is entitled to something they are not receiving, then you should probably call a special education attorney.
That being said, I have listed below some specific instances where you may want to, or should definitely, consult with an attorney. These lists are not all inclusive, but rather some of the more common issues I see in my practice. Unfortunately, more often than not, when Parents call me AFTER these situations have occurred, it is significantly more difficult for me to salvage the situation as sometimes rights have already been lost.
So, I highly recommend you consult with an attorney if:
- You, or your District, want to hold a Mediation
- You, or your District, believe your child requires an out of district placement
- Your child with special needs is continually suspended and/or up for expulsion (EVEN if you think the offence is unrelated to the disability)
- You want an Independent Educational Evaluation
- Any time the administrator or staff start throwing legal terms at you
- If you get papers to withdraw your child from the district
- There is a truancy issue
In addition, I recommend that you consult with an attorney immediately if any of the following occur:
- Your school district has brought (or has threatened to bring) a Due Process Hearing against you
- You are considering bringing Due Process against your district
(note: BEFORE you file or sign anything is when you should call the attorney’s office, not after!) - Your District has offered you a settlement agreement to sign
- You are considering placing your child privately
- You intend to seek reimbursement for ANY costs you are or may be incurring
- The District’s attorney shows up at your IEP (or any other) meeting
- Your advocate says you need an attorney
- Your child is graduating and you do not think they are ready (again, this call should be made BEFORE the graduation, not after!)
Why not an advocate? What’s the difference?
Advocates can be very beneficial to parents, but there are some downfalls as well. First, an advocate is usually much less costly than an attorney. Also, school districts usually do not see the presence of an advocate as adversarial as an attorney and, thus, will likely not bring in their own attorney in these cases. However, while there are many good advocates out there, advocates are not regulated, so anyone can call themselves an advocate… so do your homework and find out what kind of experience and training they have! Most importantly, advocates do not always know the ins and outs of special education law the way an attorney does so they may not properly preserve your rights. The best advocates I have worked with do know when the parent should bring in an attorney or at least when to consult with one.
Knowledge is power!
Ok, so this is not a question, but I feel the need to address it. Whether you like it or not, you have to become a quasi-expert in order to advocate for your child. This includes knowing when to seek out the proper professionals. But, while becoming an “expert” yourself, please remember that simply because you can access the statute and case law online does not mean you know how to represent your child. In addition, local parent groups and on-line resources can be wonderful support for parents of children with disabilities but part of educating yourself should include educating yourself in Media Literacy. You need to know where to go to get your “knowledge” and which resources are valid. This applies to looking for an attorney as well. When looking for an attorney, be sure it is someone who has experience in this area of the law, not just an attorney who dabbles in it or is willing to look into it for you as a favor. While this may appear cost and/or time effective, I cannot tell you how much time and money I have seen parents have to spend to clean up the mess of someone who did not know this area of the law.
Finally…
My goal for my clients (and for many attorneys I know in this field) is that my clients get to a point where they no longer need me. Calling an attorney can seem like a drastic move for most parents, but most of us are in this field because we want to help parents obtain appropriate educational programming for their children with special needs and we can be a great resource for parents!