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When and How to Retain a Special Education Attorney or Lawyer

Advice on using a special education lawyer when you have problems with your child's school. What to look for in choosing your lawyer, how to keep the costs down, and when to use an lawyer for the special education process.

Interview with David A. Sherman, special education attorney and author of Autism: Asserting Your Child's Right to a Special Education.

When should parents consider finding an attorney or lawyer for the special education process?

When parents find they are in disagreement with the program or services offered by the public school in an IEP, and cannot reach an acceptable compromise, a parent should consider consulting with a special education attorney. In my practice, I consult with parents of children with autism throughout the country. Many times, a parent can improve the educational program and services by taking a few simple steps.

For instance, I consulted with a single mother of a child with autism living in another state. She informed me that the school district offered her son a program and services that were clearly inappropriate. She was not financially well off and could not afford to spend substantial sums on attorneys' fees. I provided her with several letters that were tailored to her son's situation. I later added these letters to the Sample Letters section of my book.

I advised her to send one letter every couple of weeks. Although the letters were on her letterhead and she signed them, anyone reading these letters would know that they were clearly written by an attorney for her benefit.

A week after the school district received the third letter; the school district scheduled an IEP meeting. At that meeting, the school district offered a whole new program tailored to the child's needs. The parent was elated.

What qualities should parents look for in an special education lawyer?

A parent should try to locate an attorney who is well versed in special education law and has knowledge of autism.

If a parent cannot locate an experienced special education attorney in her geographical area, the parent might consider a young attorney just starting out or a retired attorney who would be willing to consult with a more experienced special education attorney by telephone. By attorney standards, the compensation received by special education attorneys is very low compared to other areas of the law. The parent should advise the prospective attorney of the provision that requires a school district to pay attorneys' fees if the child prevails.

How can an attorney or lawyer be helpful to parents and their child in the special education process?

Special education law is complex. A good attorney can advise a parent how to obtain a better program and services, how to effectively advocate for the child. A special education attorney will advise a parent as to how to assert their child's numerous and substantial rights. For instance, one of the most important things a parent can do is to have a private autism expert assess the child. This expert should then prepare a written report describing the unique needs of the child, how autism adversely affects the child's education, whether the existing program and services offered by the school district is appropriate, and what is the appropriate program and services that should provided in order for the child to receive an appropriate education. An expert will sometimes also assist in writing goals and objectives or, attend an IEP meeting to advocate for an appropriate program and services.

Why is a private expert so important? First, the school district teachers are usually considered experts in autism, the appropriate teaching methods, classroom environment, etc. Although a parent is considered an expert in the unique needs of their child, a parent is generally not an expert in autism teaching methods, classroom environment, etc.

If there is a dispute at an IEP meeting, and the school district refuses to provide a program or services that the parents believe is appropriate, what can the parent do? A parent's only remedy, if there is an impasse, is to file for due process. However, the school districts know that if a parent does not have a good expert, the odds are very, very slim that a parent would prevail at a due process hearing.

On the other hand, if the parents have a well-qualified expert, the school district is much more likely to try to reach a compromise.

A private assessment for a child with autism can be very expensive. Often times, the cost is $4000 to $5000, However, in almost all cases, I have been able to obtain an agreement from the public school to pay for the independent educational assessment. Why? Schools rarely have a qualified expert on staff that can appropriately assess the child.

Although obtaining an independent educational assessment may take several months, the result is generally a substantially improved program and services for the child.

Finally, sometimes a special education attorney can be helpful by advising the parent that the case is weak and it would not be a good investment to pursue the matter. Although this can be hard for parent to swallow, it is much worse to spend thousands of dollars and receive little or nothing in return.

What is the typical cost of attorneys' fees? How is payment arranged?

Attorneys have many different kinds of attorneys' fee arrangements. Generally, a specific fee amount is not set for entire case unless it is a very simple case. The amount of attorneys' fees depends on the complexity of the case and the strength of the case. Our firm generally charges a set fee for the initial consultation. It is not uncommon for the initial consultation to take place by telephone. At the initial consultation, the parent is advised as to what steps can be taken to improve the child's program and/or services.

If a due process request is likely, our firm often provides the client with a maximum attorneys' fee amount for each step of the process - initial consultation, follow up advice, filing of a due process complaint, resolution meeting, mediation, and the finally for the due process trial. (It is rare that a case actually goes to hearing.) Some firms charge strictly on an hourly basis.

What can parents do to keep the special education legal cost down?

There are many things a parent can do to improve the program and services that are offered by the school district with little cost. In a nutshell, a parent can keep the costs down by knowing their legal rights, having a good expert, and occasionally seeking advice from an attorney when an impasse is reached.

The first thing that a parent should do is to become well educated in their child's legal rights.

In short, to keep the costs down, a parent should:

1. Become self educated in special education law.
2. Become self educated in the possible appropriate teaching methodologies for their child.
3. If appropriate, have a private expert perform an independent educational evaluation to advise the school district and the parent as to what the appropriate program and services, teaching methodologies, qualifications of personnel, classroom environment etc. should be provided to the child. A free independent educational evaluation must be provided to the parent if the school district's assessment was inappropriate in some regard.
4. Plan ahead. Keep good records and have a special education calendar. Make a habit of writing letters and attaching a written notice of "Parent Concerns" to IEPs

As an attorney, what is your personal experience with the special education system?

Like most attorneys, I became involved in special education after my child started having serious problems in school. I was initially frustrated because I had trouble finding a written article that would give me a good overview of special education law. When my son's case settled, after hiring a special education attorney, I decided to come out of retirement and devote my law practice to helping children with disabilities - and children with autism in particular.

My first step was to publish a pamphlet, which later became the lead article in Then, after practicing for a number of years, I decided that there was a real need for an in depth book on special education devoted to children with autism. The purpose of my book, Autism: Asserting Your Child's Rights to a Special Education is to teach a parent how to improve their child's educational program. This can be done through letter writing, written requests for assessments, having a good private expert, learning the law and advocacy skills.


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