Last Resort: Parents Reluctantly Seek Special Education Attorneys and the Significant Consequences
The Individuals with Disabilities Education Act (“IDEA”) provides for reimbursement of attorney’s fees to parents of students with disabilities when a Special Education Due Process Hearing Officer has determined the student was denied their right to a Free Appropriate Public Education (“FAPE”). Unfortunately, many parents of special education students may not be aware of this or that there are special education attorneys that may be able to pursue matters on their behalf at no cost to families. As a result, there can be significant consequences.
Statistically, parents of students with disabilities who pursue due process pursuant to the IDEA without legal representation have significantly less favorable outcomes than parents that do have legal representation. This is not at all surprising. Special education due process hearings are complex and require highly specific legal knowledge of special education procedures and laws. A lack of such specific knowledge can be detrimental in obtaining successful outcomes in due process hearings. Special education attorneys can provide advice on effectively dealing with school districts to ensure better outcomes at hearings. Moreover, parents’ emotional investment can negatively impact their abilities to communicate effectively with school district personnel. It is also very important that due process complaints include specific necessary information and a special education attorney can insure due process complaints are sufficient.
Sometimes, parents obtain services from a special education advocate to guide them through due process hearings. This is not recommended for several reasons. Special education advocates are not lawyers and, therefore, do not have the specific legal knowledge regarding the IDEA and other relevant laws necessary to pursue special education due process hearings. Moreover, special education advocates are not familiar with the special education due process hearing procedures and guidelines, which can vary depending on the specific hearing officer assigned to the matter.
In addition, it is very important to understand the recent case law regarding the statue of limitations in the IDEA in pursing special education due process and the significant consequences it can have on parents’ rights to seek remedies for the denial of a FAPE. More specifically, recent case law has provided that parents of special education students must file for due process within two years of when they knew or should have known their child was not receiving a FAPE. This means that if parents wait to file a claim, they may lose the option to do so. Thus, it is extremely important for parents to consult with a special education attorney as soon as possible if there are any indications their child may not be receiving an appropriate educational program.
Thus, if parents believe that their child is not receiving an appropriate educational program and/or has not received one in the past, it is very important for them to review their options with a special education attorney.
-  Cope-Kasten C. (2013). Bidding (fair)well to due process: The need for a fairer final stage in special education dispute resolution. Journal of Law & Education, 42, 501-540; Zirkel, Perry A. (2014). Are the Outcomes of Hearing (and Review) Officer Decisions Different for Pro Se and Represented Parents? Journal of the National Association of Administrative Law Judiciary, 34(2), 263.