David Sherman's Interview by Children's Disabilities Info

http://www.childrensdisabilities.info/advocacy/special-education-attorney.html

When parents and school districts disagree on an IEP program and related services, and cannot work things out, that's when parents seek legal representation, said David A. Sherman, a San Francisco based special education attorney and author of "Autism: Asserting Your Child's Rights to a Special Education and www.aboutautismlaw.com.

Based on his experience, IEP teams often don't leave parents with much of a choice. "School districts will often say, 'This is our offer. Take it or leave it,' said Sherman .

According to Sherman, higher attorney's fees have been caused by added procedures in the new IDEA. "By virtue of the new law [2006 IDEA Part B regulations], there are more steps that have to be taken, which is more time consuming and thus, more costly," he said. California has compounded the problem by adding additional steps in the process and requiring much more time to be spent on a case, even before mediation, where many cases could be settled.

"It's difficult. The system is not working well," he said.

Sherman said that because it now costs more in attorneys' fees and more time to challenge a school district's inappropriate offer or placement or services, it is much more difficult for lower income parents to go to due process hearing and stand up to school districts. "Poor parents and even middle class parents are often unable to challenge an inappropriate program and services anymore. It now takes more money and more time to obtain an appropriate education and services," said Sherman.

Although things are tough for parents of special needs children, there are still some important rights that have been retained by parents. In order to challenge an inappropriate program or services that is recommended by a school district, in most cases, a parent needs to have a private assessment. When a parent and district disagree as to what is the appropriate program and/or services, the school district has to consider whether the parent is able to contest the school district's offer of placement and services by going to due process hearing. To have a fighting chance in a due process hearing, a parent almost always will need a private assessment by a professional, who is qualified in the child's disability, since the school district will have an assessment performed by a school expert.

A private assessment can be quite expensive – often costing $5000 or more. However, if the school district's assessment is inappropriate in some manner, the parent can require the school district to pay for the private assessment by requesting an "independent educational evaluation.” Having a private expert gives the parent the power to challenge the school's expert and assessment as to what is the appropriate placement and services.

As stated by no less than the US Supreme Court, in the recent Schaffer v. Weast (2005), a "parent has the right to a independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency." The Supreme Court found that the IDEA ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition." P. 11 (emphasis added.)