Part 8: Access to Justice for Special Education and Disability Issues

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I have written about a number of procedures that are ways to enforce your child’s rights. Although the statutes give you many rights and ways to enforce them, parents often have an access-to-justice problem. Many families may have a valid legal issue under IDEA or Section 504, but they cannot afford to litigate it. 

What are your options? First, use the resources that are available to resolve the problem at a lower level, such as Peak Parent Center, reading materials, or a “road-map” consultation with an attorney or advocate. 

In my initial one-hour consultation, I help parents understand a very brief overview of their options. It may also be worthwhile to pay for a serious analysis of your case and the possible claims. You don’t want an attorney involved if you can work things out in a friendly way—for one thing, nothing raises the school administrator’s blood pressure like seeing that your attorney is involved. But sometimes you need an attorney involved, because the school is not listening, or you don’t have enough expertise. 

Second, get independent, up-to-date evaluations of your child. You are in a much stronger position if you bring your own experts to an IEP meeting.

Third, you can ask for mediation. In mediation, you can represent yourself or hire an advocate or attorney.

Fourth, consider filing certain complaints on your own, such as the OCR or state level complaint. This approach is definitely not ideal, because there is a good chance that you will get the law wrong, ask for things that are outside the jurisdiction of the complaint, or get sidetracked into a mass of irrelevant detail. But if you really cannot afford legal help, it may be better than nothing.

Fifth, invest in your child’s future by hiring an attorney. You may be able to get some discounted help. At Telios Law, for instance, we are experimenting with some new models. 

One model is to offer “unbundled” services, where we handle a portion of a matter. For instance, we sometimes are hired for a “road-map” paid consultation about the legal issues involved, so that parents know what their rights are and when they might need to take certain actions. It gives them confidence and clarity in dealing with the school. Or we can charge to help draft and file a complaint, but then let the parents file the complaint and respond to the investigation.

One of our concerns is that school districts will not change if they never have to face due process hearings (the entire state of Colorado has only about 3 due process hearings a year). Due process complaints rarely go past the mediation stage, partly because they can take hundreds of hours of attorney time and can easily cost $50,000-60,000. This is fine if parents get a good result in mediation, but sometimes school districts make unreasonable offers because they feel confident parents won’t move forward. If schools are going to take special education seriously, they must be faced with genuine due process challenges.

Telios Law is trying a new approach, the Flat Fee/Pro Bono Due Process Model. For some of our cases, we charge a flat fee for filing the complaint and for mediation, but will take forward the due process hearing pro bono (free, except for costs) if the school district does not offer a reasonable settlement. The family still pays costs such as expert fees, but we take a chance on winning the due process hearing and then try to collect our attorney fees to the extent the court will grant them. We consider this a community service, because if we lose the hearing, we don’t collect anything, but even if we win, it is hard to collect all of the fees. The point is to hold school districts accountable and gives families access to justice. We screen cases in our initial consultation to see if they are eligible for that model.

If you are interested in a $150 flat fee initial consultation, or to discuss whether your case might qualify for our Flat Fee/Pro Bono Due Process Model, you can contact us.

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