When Is It Time to Contact a Special Education Lawyer?

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].

Originally published in the Special Education Guide Blog.

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