An attorney’s advice on special education disputes

When families are in a dispute about their child’s special education, it can be tricky to know how to handle things. There are big emotions involved, and the law around IEPs, or Individualized Education Programs, can be confusing. 

But in some cases, it might help to work with a special education attorney. 

In this episode of In It, Gretchen Vierstra and Rachel Bozek welcome special education attorney Robert Tudisco. Rob was diagnosed with ADHD as an adult. He is an expert in special education law and disability advocacy. 

Listen to learn why families may hire a special education attorney — and what steps to think about before engaging a lawyer.

Related resources:

• 6 options for resolving an IEP dispute

• 5 options for resolving a 504 plan dispute

• Can the school give my child with an IEP “unofficial” suspensions?

Episode transcript

Gretchen: From the Understood Podcast Network, this is "In It," a podcast about the ins and outs…

Rachel: The ups and downs…

Gretchen: Of supporting kids who learn and think differently. I'm Gretchen Vierstra, a former classroom teacher and an editor here at Understood.

Rachel: And I'm Rachel Bozek, a writer and editor with a family that's definitely in it. Today, we're talking about how to handle disputes with your child's school over IEPs or 504 plans.

Gretchen: Of course, we always hope we can work it out, whether it's with your kid's teacher, a case manager, school counselor, or school administrators. But sometimes you can't.

Rachel: That's where someone like Robert Tudisco comes in. Rob is a special education attorney. He's senior counsel with Barger & Gaines, an education law firm, and he learned as an adult that he has ADHD.

Gretchen: He's also an author, motivational speaker, and nonprofit management consultant, and has written for Understood.

Rachel: We are very grateful to have him here today to help us make sense of our legal options when it comes to getting our kids the supports and services they need.

Gretchen: All right. So, welcome to "In It," Rob.

Robert: Thank you for having me.

Gretchen: We're so eager to get your advice for parents when it comes to IEPs and dispute resolution. But first, I'm hoping you can share a bit about what led you to working in special education law.

Robert: Well, most people think it was because they have a child with a disability. That's not the case. I am the child with the disability. But out of law school, I was a prosecutor, and, for many years, I was a criminal defense attorney. When I was diagnosed with ADHD in 1999 — I think it is — that was a huge turning point in my life, in my career. And I really got very, very immersed in the disability community.

And I also saw a lot of patterns developing in my clients, based upon the information I had about ADHD and other disorders. And so, what happens is, as a defense attorney, you get the call too late. Somebody did something terrible. If I was helping parents get services for a child when they were younger, maybe I wouldn't be getting some of those alarming calls later on. So, I really started to focus my practice on special education, getting services for kids. And I do a lot of work in the area of school discipline.

Gretchen: How old were you when you were diagnosed?

Robert: 34.

Gretchen: OK, wow.

Rachel: So, when a family contacts you about an IEP dispute, what are some of the types of issues that they're raising? Like what are you hearing from people as kind of like the things they're running into?

Robert: I would say for the most part, a lot of parents will come in because they are fighting over either the classification or the services. In many cases, the placement of the student in the area of discipline. Sometimes kids come in without an IEP, but they should have one. Or they have a 504 plan that really requires a change to an IEP, which has a lot more support and services. So, those are the, typically the common issues.

Rachel:I have a question about all of that. Are you finding that, when you're hearing from parents and then working with them to kind of make sure that their kids are getting what they need, is it more of a, like a real dispute with the school or the district, or is it more that like, they don't know what to ask for and sometimes they just need clarity on that?

Robert: It's funny that you say that because I speak at a lot of parent groups and at seminars around the country to kind of educate parents about going into this process. And what I find typically is there's a cycle. The parents go in and assume that the school knows what they're doing, what the school knows about my child's disability, and what the best things are. And there is a level of, I guess, loss of patience that parents have, seeing their children constantly struggling and seeing their child's frustrations and getting angry.

And often there is a psychology that goes on between, or the dynamic, between the parents and the school district that can really break down. Parents get angry. The schools don't respond well to that anger and frustration. Typically there is just a general dispute that's not going anywhere. And when they come in, I would say a good 75% of my job is diplomacy.

The concern that I have is that regardless of what is said in those meetings, that child has to go to school on Monday, and very often they're on the front lines of, you know, retribution or, you know, whatever's going on. So, that's really important to kind of keep that perspective, because in the end, this is not about winning the fight with the school district. This is about getting your children what they need. However you can.

Rachel: Totally. One thing you mentioned, I just want to see if you can explain what this is for any of our audience who may be wondering, you mentioned specialized placement. Can you clarify what that is?

Robert:Sure. When you live in a school district, the school district that you reside in has the ultimate responsibility. And there is a, a concept in the law under section 504 and the Individuals with Disabilities Education Act to provide what they have a child find obligation, which means it's their responsibility to seek out and to evaluate the needs of the children that live within their parameters and identify their disabilities and address them appropriately, OK?

It's an affirmative obligation for children from K to 12, OK? Those children are entitled to what we refer to as a FAPE, which is a Free Appropriate Public Education. If you believe that your local education agency, that's how it's defined in the law, which is your school district, can't provide your child with a FAPE, you have the ability to request more services and support from the school.

You also have the ability to ask the school to place your child if they can't provide for their specialized needs outside of the district, to either a state-approved program, or if you don't believe the district is providing what they need and you find a private placement, you have the ability to place your children in a private school provided you give the local public school district ten days written notice that you are placing your child.

And if you can prove a) that the school didn't provide them with a free, appropriate public education and that the private placement is appropriate for their needs, you can get the public school district to pay for the private placement.

Gretchen: Thank you for explaining all of that. It's really clear. I'm understanding more now.

Robert: OK.

Gretchen: When you do have an attorney, though, that sometimes can bring like an antagonistic maybe feeling to the discussion sometimes, right? Just the school district may feel that way. And I also imagine that hiring a lawyer can be expensive for families. So, are there strategies that families can take before they go to getting an attorney?

Robert: There are a number of them. First of all, I think that one of the reasons I do all of the seminars for parents is in the hopes that if they learn to kind of think like I do, maybe they won't have to hire someone like me. Nobody likes attorneys. Anyone. OK? That's number one.

Number two, you are correct that if an attorney is coming to the meeting or an attorney is getting involved, the school district gets their attorney involved. However, there's another side to that. And that is I've gone into meetings or discussions with my clients and gotten a really good result. And we come out of the meeting and the clients are angry, and the reason they're angry is because they were asking for the same thing I was two months ago, six months ago, a year ago, and nobody was listening.

But now when they came in with an attorney, everything's a little different, OK? So that happens sometimes. Other times there can be a little bit more of an adversarial posture when you sit at the table. I legitimately try to go in to these meetings in the spirit of cooperation. To say, "Why can't we resolve this at this table? Nobody wants to go to a hearing. It's going to cost my client money. It's going to cost your client money. And this is about a kid."

Gretchen: I like what you said earlier. Just that you're hoping that by giving families this information, that perhaps they can take the steps that you would have taken, right? And, like, get this resolved before they even have to bring in somebody. But at the same time, like you said, sometimes having an attorney there, like, moves the needle, right? All of a sudden the district is like, "Oh, wait a minute, we will be able to do this."

Robert:Right. There's a third option as well. There are a number of non-attorney advocates that work with parents. I've worked with a lot of them in the past. And in our firm, we have an excellent advocate. And a lot of times I will tell my clients or potential clients that if they don't have the resources to retain me, we have an advocate with a much lower fee schedule, that they can hire.

And the benefit of that is my office is somewhat getting involved. There is someone with a lot more savvy than just, you know, bringing your neighbor into the meeting with you.

Gretchen: Right.

Robert: And many times the bringing an advocate to the table will not trigger the school's bringing in their attorney, if it's not an attorney. That is a third viable option and it's worked very well for us. So, it really depends on what's going on and what the climate is.

Gretchen:Let's get back to when families work with you. So, let's say there's a family that has, you know, an issue with their IEP that they're working through with the school and they're not getting anywhere. So they hire you. What's typically the first step?

Robert: The first step is to get me as much information as possible. Evaluations, IEPs, email correspondence, is very important. What did the school know? What are you asking for? Where are you? How did you leave off? All of that gives me a picture. I will typically try to reach out to the attorney for the district as my first step to see if "Can we set up a meeting? I was retained. How can we try to resolve this?".

If that is not possible, at that point, I have to meet with my clients and decide what the next step is. And typically I find that in some districts, they really will not take the situation seriously unless a hearing request or due process complaint is filed. And then, you know if there is a potential for resolution while the due process complaint is pending, that's great, but if not, we have to be prepared to move forward.

Sometimes — and this is really important — one of the most important things the school is required to provide the parents with evaluations of their children. If the parents disagree with the evaluations done by the district, they can ask for an independent educational evaluation at school expense. In many cases, the independent evaluators are people on a panel that the school typically goes to. And I don't know if we always get the most unbiased opinion from them.

I know that resources are difficult to come by, but to the extent that parents can afford to get a private evaluation, it is extremely important because many times a hearing will come down to a battle of the experts, and you don't want to be in a position where the school brings in that person who did the testing, and you've got nobody with just disputing it.

It's really important to have your own doctor, evaluator, the person who took the assessment to come in and say, "Not only does this child need this, but here's why." That's very important. Another thing that parents need to know — you asked before about legal fees — under the IDEA, if you are successful after a hearing, you can recover your legal fees. You can also recover the private evaluation costs if it's audited by the hearing officer. The only thing you specifically can't recover is expert witness fees. So, if the doctor you know is going to charge you to come to the hearing to testify, you can't recover for that.

Rachel: Yeah.

Gretchen: Wow. That's good to know, though, that you can recover some of these costs. But that's only if you win, right?

Robert: That is correct.

Gretchen: OK. So, if a family doesn't win they can appeal.

Robert: Yes.

Gretchen: Or they can just, do they sometimes, they just walk away?

Robert: Sometimes they walk away. What can happen is, you know, when we take on a case, if I don't think a parent has a really solid claim there, I try to be as upfront with them about that as possible. And the process is that if you don't agree with school district, then you have to go to an impartial hearing.

If you lose at an impartial hearing, you have the right to appeal to, what's known as a state review officer, OK? They are specially appointed by the Department of Education to review the decisions of hearing officers underneath them.

If you lose at the SRO level, then you have the right to go to court, either federal court or depending on the regulations in your state court to, in New York it's called an article 78 proceeding. What happens is you are asking the court to force a public official or school district to do something that they're not doing or not to do something that they are doing, because whatever decision they're making is arbitrary and capricious.

Now, before you get to that, you have to show that you exhausted all of the administrative remedies along the way. You went to a hearing, you appealed to the SRO, now you can go to court to push the issue. And that's essentially how it works.

Rachel:So, about how long can this process take from start to finish? So, should families expect to think about all of this in terms of days or weeks or months? Or is it like really for whatever the next school year is like, how should they kind of frame it?

Robert:Under the law, once you file a hearing request, there is a mandatory what's called a resolution period, where the school district is supposed to try and meet — and it's not required to be a mediation, but they're required to at least meet. The parties can wave it if they don't think it's going to get them anywhere. Sometimes a hearing officer will require them "I want you to at least try." I've had situations where we walk into a room, "OK, you don't want what we're offering you, and we're not offering you anything else. But we can say we had this meeting."

You know, so that 30 days and then a hearing officer can schedule a hearing. It depends on the size of the school district and the surrounding areas. For instance, in suburban areas, I can get to hearings much quicker. In larger urban school districts, like, the city of New York is the largest school district in the country, they are for a long time with a horrendous backlog of cases. They have added more hearing officers and put a system into place to expedite the process.

In some types of cases, if it involves school discipline, you are able to request an expedited hearing from the hearing officer, and that will happen much faster. Because we have a kid that needs to get back to school or is in a placement that's not right or something else is going on.

Gretchen:So, I'm actually a former classroom teacher. And listening to all of this, I think about like, well, you know, schools, we want to do the best for kids, right? At least that's what I would hope. And so, why do you think it is that in a lot of these cases that schools are fighting the parents? Are parents just being unrealistic? Or is it coming down to money issues? Like what do you think?

Robert: There's a couple of reasons. I think that my experience has been, with some minor outliers, that teachers become teachers because they want to help students. And I will tell you, when I speak in Florida or DC or Wisconsin that I'm often approached by teachers who come up to me. I do a lot of work, explaining to parents what ADHD is and how it might be impacting their children. And teachers will come up to me and say, "Thank you so much for explaining that. I'm sure it's helpful to parents, but we don't get any specific training on how to deal with these issues, and we want to help these kids."

And it is in many cases, the situation where a teacher will tell a parent "The school's not doing enough for your child."

Gretchen: Yeah.

Robert:"Don't give up the fight. Don't quote me, because politically, I don't want to get in trouble." But you know, there is a very, very, you know, specific situation because teachers see what's going on in the classroom.

Gretchen: Yeah.

Robert: And I will tell you that probably one of the saddest things about the whole process is when you go into an IEP meeting, the person who has the most power is the director of special education, OK? They are an administrator that maintains the budget for special education. And they have to stretch the special education budget across the, you know, gamut of children in the school district that need it. And so, they have to be the bean counter or the accountant and say, "Well, this is going to cost money. We can't do this, we can't do that."

But I understand that. But when I'm in that hearing, I'm not concerned about the rest of the children in district. I'm concerned about my client.

Gretchen: Right.

Robert: And the law, you know, says that the parents that retain, they have the right stand up for and provide a voice for their child. So, that's where some of the tension happens.

The other thing that I think is important to understand in terms of the psychology at the table, and when I do these seminars and workshops for parents, it's very important what I said about the director of special education, you have to win that person over. That person is the "yes" or "no" person at the table. You can do it by charming them. You can do it by pressing them. And you really have to read that situation to kind of determine how you're going to approach the situation.

And I will also say, in cases where the climate is already murky because the parents have like fought with the school and everybody's polarized, there's something else that's going on here in terms of the psychology, and that is — and I'm not trying to be funny, but I think it is kind of humorous — is that outside of the criminal justice system, a middle school, high school is the closest thing to a jail that you'll ever come into contact with.

They have total control over the children that attend that school. They tell them where to go, when to go, constantly counting heads. The kids get their time in the yard every day. It's just like a jail. And that authoritarian kind of "We are in control and these are the rules, and you play by the rules that we set."

Sometimes, not all the time, sometimes that bleeds into the dynamic between the administration and the parent. And just as in a case where the teacher knows what the child needs, but the administration is uncomfortable with it, there are times when you argue to get that service and the administration agrees, there may be a teacher who doesn't agree.

"I've been teaching for 30 years, and no one's going to tell me to get somebody extended time. I don't believe in that." It happens. It's not all the time. But you have to understand what's going on.

And what I try to do is tell the parents when you're going into this situation. You have to anticipate what reasons the school can have to say no if it's money. Let's think of as many things as we can that don't involve an outlay of money, or a very minimal outlay of money to try to disarm the word no, if we can. You have to have that mindset going into the table. It's that simple.

Gretchen: OK. Thank you. That was all very helpful.

Rachel: Yeah. I actually want to know, because you mentioned that you do seminars as well, are there any tips or strategies that you share your seminars that you could share with our listeners?

Robert: There's a lot of things that I talk about. One of them is that, you know, a lot of times parents will say to me, "You know, and the school knows about this, because I told them about this."

"Well, did you tell them about it in a phone call? Did you tell them about it in an email? Was there a letter?" Because sometimes people don't remember things that were said. And sometimes, if it's not in their interest to remember things that was said a year ago, two years ago, that may impact their position negatively, they don't.

Reduce everything to writing. Even if you disagree, open up your computer or take a note out and say "Thank you for taking the time to speak with me, but I disagree when you said X and I thought Y and here's my reasoning." So, now you have a record of it.

The same thing with if your child's not getting services at school and a teacher has the forethought to say "Maybe he's got an attention problem. Maybe he's got an eye, a seeing problem. I'm going to put him to the front of the classroom so he can see the board better." Take the time to write a note to that teacher saying, "Thank you for recognizing that my son was having difficulty paying attention and changing his seating. I think it's very helpful."

Because two years down the line, when they say "We never had any idea that there was an issue," you can pull out a note saying...

Rachel: Yeah.

Robert: That's one thing that's really important. Reduce everything to writing. The other thing I think that is the most important and often overlooked, sadly, is this is a process about kids, OK? The most important thing that parents can take away from any of the trainings I do is "Talk to your children," OK? Understand how their disability is impacting them on a daily basis. What makes them angry about school? What makes them frustrated? What makes them not feel good about themselves? Open them up to that conversation.

And that's crucial because a diagnosis of ADHD doesn't guarantee services. You have to show how it impacts their education, OK? Or dyslexia, or anything. And having that conversation accomplishes a number of things. It gives you the ability to articulate that in the meeting, but also so much of the grief and frustration that your children go through is because they feel like they have no control and they're overwhelmed.

And so many of these disabilities impact their sense of self-esteem. When you have that conversation and let them know they're not only participating in this process, they should be driving this process, it's incredibly empowering to them, and that's really important. I try to always speak to the children I represent in addition to just speaking to their parents. Very, very important.

Gretchen: All right. One last question for families who are listening to this and, you know, they've got an issue that they're dealing with and they're thinking of reaching out to a lawyer and they might be scared, or they might think it's too serious or too expensive. What advice do you have for them?

Robert: I think that you should, at the very least speak to an attorney or an advocate. For one, when my child was young, he did not have an IEP, but he had some sensory issues and needed the 504 plan was fine for him. But I did not feel comfortable advocating, even though this is what I do for a living, because it's my kid and I'm emotional. And speaking to an advocate or speaking to an attorney really is helpful as a sounding board. In terms of "This is where we are, what are your thoughts?".

And what I typically try and do is if a parent ultimately can't afford to retain me, I will tell them how I would approach the case. And I also offer them kind of like an out, like a game plan on going forward because. When you get angry and you are doing this and you're caught up in the fight with the school, without a solid gameplan, you are setting yourself up for failure and you're setting your child up for failure more importantly.

And so, I think speaking to an attorney or an advocate, to really get an idea of how they can help you, if they can help you, if you can't afford an attorney, how an advocate might be a less costly alternative, or that you may be able to recover the cost of an attorney. You know, if you are successful in the case.

And so, I think it's very important to reach out. One thing that I always try to tell them is "I'm not a sorcerer. I got a law degree. I didn't get a magic wand when I graduated law school. I can't promise you that all your, you know, problems are going to go away." But I am notorious for saying this to parents. "This is a minefield to navigate on a good day. And what I can promise you is I can make the difference between navigating a minefield with me holding your hand and a map in front of us, versus being chased through it blindfolded."

There's a huge difference there. It doesn't mean it's not going to be eventful. It doesn't mean there's not going to be some bumps along the way. But you need to know the lay of the land, and you need to have the type of counsel, whether it's an advocate or an attorney with you, that's crucial.

Gretchen: Thank you so much. All of this has been so helpful.

Rachel: Really, really awesome.

Robert: Thank you.

Rachel: In addition to the advice you just heard, Rob also shared some excellent online resources with us and we've got links to those in our show notes.

Gretchen:You've been listening to "In It" from the Understood Podcast Network.

Rachel:This show is for you, so we want to make sure you're getting what you need. Email us at init@understood.org to share your thoughts. We love hearing from you.

Gretchen:If you want to learn more about the topics we covered today, check out our show notes. We include more resources as well as links to anything we mentioned in the episode.

Rachel: Understood.org is a resource dedicated to helping people who learn and think differently discover their potential, and thrive. Learn more at Understood.org/mission.

Gretchen:"In It" is produced by Julie Subrin with help from Cody Nelson. Ilana Millner is our production director, Justin D, Wright mixes the show. Mike Errico wrote our theme music.

Rachel: For the Understood Podcast Network, Laura Key is our editorial director, Scott Cocchiere is our creative director, and Seth Melnick is our executive producer. Thanks for listening.

Gretchen: And thanks for always being "in it" with us.