Common Legal Mistakes Parents of Children with Special Education Needs Make, But Can Avoid: Part VIII

Published on April 30, 2009 by Jennifer Laviano

Part eight in the Series:  Unfortunately, prevailing in a legal dispute against your school district is very difficult, so if you can avoid some common traps, why not just avoid them? If you’ve already done one of these things, don’t give up hope, but do try to rectify the situation. If you haven’t done any of these things, DON’T, it could lose your case one day.

MISTAKE #8:  Bringing in Outside Professionals who Don’t “Get” the Process

If Parents are going to “roll the dice” and proceed with a Due Process Hearing, their chances of winning will be much greater if they have an expert on their side who can testify.  Finding an evaluator who is skilled at working with your child is one thing, but finding such an individual who will also be a good witness is another.

There are some very talented evaluators out there who are horrible witnesses.

From the perspective of a special education attorney, I have to consider not just an outside professional’s abilities within their discipline, but also how they might appear if they have to testify, or if their evaluation is subjected to cross-examination by a Board attorney.

If your expert does not have a good understanding the potential legal “pitfalls” in a special education case, they could do more harm than good.

As an example, I have seen many reports from outside experts who have written clearly in the evaluation report words to the effect of:  “I recommend these services in order for this child to maximize his potential and receive the best program possible.”

Uh oh.

You aren’t entitled to the “best program” possible from your school district under the IDEA.  This report has just invited a legal argument that will distract from the real issues at hand.  The irony is that almost every time I read something like that, if I ask the expert whether the services recommended are optimal or necessary, they almost always say that they are necessary, but they didn’t realize how their language would be interpreted legally.

Other common examples are outside professionals who work in the mental health field who are more accustomed to working with insurance companies and the medical establishment than the educational establishment.  So a child who has been diagnosed with a mental illness in a psychiatric hospital might have a discharge summary that recommends a therapeutic day school, but they list it under “Medical Recommendations.”   By characterizing the services as medical, this evaluator has given the school district an “out” to funding the placement.

Make sure that the outside evaluator who has assessed your child has at least a working knowledge of the school district’s obligations.

The legalities surrounding special education evaluations and services are very complex.  Ask around and make sure that, if you are going to go to the expense and trouble of bringing in an outside professional, you pick someone who is familiar with at least the basics of special education law.  A well written evaluation can often help you avoid a Hearing, but if you can’t, at least you won’t be going into it with a flawed report.

One Response to Common Legal Mistakes Parents of Children with Special Education Needs Make, But Can Avoid: Part VIII

  1. Rochelle Dolim
    August 25th, 2009 | 4:50 am

    We’ve been able to get the district to pay for two IEE’s with two of the state’s top autism professionals (one of whom neglected to disclose a conflict of interest) … both ruled against the distriact and made the same recommendations. It wasn’t what the district wanted to hear, so they didn’t follow the recommendations – SAID they’d been implemented, but substantiating documentation doesn’t back that up. In fact, they were audiotaped saying they had no intention of following the recommendations (in that instance it was the state compliance officers and one IEE)

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