In a recent case in New York, a pro se parent (“Parent”) argued that her child’s school district is legally obligated to reheat her diabetic child’s homemade lunch meal. Parent sued under 504, the Americans with Disabilities Act (“ADA”), the Individuals with Disabilities in Education Act (“IDEA”), and other “statutes” and “regulations” that purportedly form a basis upon which to seek relief (see p. 2 and footnote 1, 2). Parent seemed to try to test the limits of a school district’s obligations under 504 and ADA. Ultimately, the court determined that the school district’s refusal to reheat homemade lunches did not violate 504 or the ADA.

The facts of the case are somewhat confusing. For reasons of brevity, let’s review the pertinent,
undisputed facts of the case and focus on why the court held that the school’s failure to reheat J.M.’s homemade lunches did not violate 504 or ADA.

In 2007, J.M. was diagnosed with Type 1 Diabetes Mellitus when he was 11 years old. On the advice of J.M.’s nutritionist, Parent made homemade lunches for J.M. to take to school. “This was to enable the parent and J.M.’s doctors to monitor his diet–specifically his caloric/carbohydrate intake–at least until J.M. became more accustomed to his ‘new situation.’” (see p. 6). Apparently, there were menu choices available to students with diabetes (see p. 6-7), but J.M. did not like the lunches provided at the school (see p. 31).

When Parent asked whether J.M. could heat his homemade lunch in a microwave, a school staff member agreed to warm up J.M.’s food using the microwave in the teacher’s lounge (see p. 7). For reasons that aren’t clear, however, J.M.’s food was not microwaved on a regular basis; as a result, J.M. did not always eat his lunches. It is not clear whether J.M. was afraid or too self-conscious to ask a staff member to microwave his lunches. It is not even clear if J.M. did not always eat his lunches solely because it was not heated up.

In any event, Parent became concerned about J.M.’s health and access to a microwave. Parent expressed concerns to a number of people, including school personnel and J.M.’s pediatrician, regarding J.M.’s glucose levels and not eating his lunches.

J.M.’s pediatrician signed a Glucose form and a request for a 504 accommodation, which contained very general statements and the importance that staff supervise J.M. to ensure that he “ingests adequate amount[s] of food to prevent hypoglycemia.” Significantly, when J.M.’s pediatrician signed a request form for 504 accommodations, it did not contain an “order or [a] request to heat J.M.’s lunch” (see p.9).

The school superintendent was concerned about “potential liability” associated with microwaving
the lunch meals (see p.10). The superintendent discussed alternative options with the parent, such as “training [the] student to make appropriate menu choices” (see p. 10). When Parent insisted that the school reheat J.M.’s homemade lunches, school personnel repeatedly denied the request (see p. 10).

Parent subsequently filed a petition for a due process hearing, ultimately seeking that the school provide J.M. a microwave so that he can heat up his homemade lunches (see p. 12). The hearing officer appeared sympathetic to the parent, but found against the parent (see p.13). Parent appealed to the State Review Officer and the matter was dismissed for lack of Subject Matter Jurisdiction to review Section 504 claims (see p. 14). Parent then filed a complaint in federal court seeking injunctive relief and damages.

The federal court determined that “Although diabetics must monitor their food intake, there is no medical necessity for them to consume hot food” (see p. 7). The court also determined that since J.M. was diagnosed with diabetes 5 years prior to the federal litigation, and since Parent argued that reheating homemade lunches would only be needed “until such time that [J.M.] was able to adjust to the dietary demands of his newly diagnosed condition,” the request for an injunctive relief was moot (see p. 22).

Parent also argued that the school’s failure to accommodate J.M. to reheat his homemade food and supervise J.M. food intake was discrimination under 504 and ADA. The court disagreed (see p. 27-30). In fact, the court held that the “request to heat up J.M.’s homemade food represents the archetype of a preferential, as opposed to a necessary, accommodation” (see p.30). As for supervising J.M.’s food intake, this, too “represents a preferential, as opposed to a necessary, accommodation” (see p. 32).

The court was unable to evidence of any discrimination (see p. 35). Since school staff had been monitoring J.M.’s glucose levels during lunch for years by this point (see p. 33-35), and since there was no evidence or proof that reheating lunches were medically necessary, summary judgment to the defendants was appropriate.

This case is rather remarkable because it seems to me that if the school had simply provided a microwave in the cafeteria so that students could heat up their own homemade lunches, the school district (and the taxpayers) could have saved an enormous amount of money. Alternatively, Parent could have purchased the microwave and donated it to the school cafeteria. Microwaves can be purchased for less than $100 these days. This litigation probably cost the taxpayers tens of thousands of dollars. Was it worth it? On the other hand, the school district and its attorneys may have been concerned with slippery slope — today, a microwave; tomorrow, a blender. That’s certainly what they might have been thinking. And there are certainly dangers associated with the use of kitchen appliances, especially among young children.

© 2012, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Diabetes, Microwaves, and 504 originally appeared on Matthew Stoloff's Blog on January 30, 2012.

There is one additional piece of information about attorney’s fees that parents should be aware of: even if a federal court orders that the parent reimburse attorney’s fees and costs to the school district, the fee award may be overturned on appeal.

As a general rule, in order to overturn the fee award, the parents must persuade the appellate court that the school district was not a “prevailing party.”

By way of example: In a recent case, a federal court in the District of Columbia awarded the school district attorney’s fees and costs in the amount of $1027.50 for the time spent in litigating a due process complaint initiated by the parent. On appeal in 2011, the appellate court determined that the school district was not a “prevailing party” and therefore reversed the lower court’s decision to award fees and costs. The case is District of Columbia v. Ijeabuonwu.

Likewise, in a decision also issued in 2011, the United States Circuit Court of Appeals for the Ninth Circuit overturned a lower court’s fee award of approximately $140,000 in attorney’s fees and costs against the parents. The case is R.P. v. Prescott Unified School District.

Now, it goes without saying that appealing a fee award can be challenging. No lawyer can guarantee that parents will win on appeal. It also goes without saying that appealing a fee award can be expensive. The fees associated with litigating the matter in an appellate court can cost as much (and perhaps more than) the actual fee award.

It is therefore critical to weigh your options of prevailing in the appellate court. Even if the parents lack funds, it may be worth the effort to reach out to special education attorneys to see if they are willing to take your case on a pro bono basis. Alternatively, some pro bono legal organizations may be interested in your case. Some of us love a real challenge.

© 2011 – 2012, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Reversing a Fee Award originally appeared on Matthew Stoloff's Blog on August 15, 2011.

This is a very important issue because if the parent prevails, she not only gets some or all of the remedies that she sought on behalf of her special needs child, but she also gets reimbursed for some or all of the legal expenses paid out of pocket.

Now, I want to talk about what could happen if the parent files a frivolous lawsuit.

Although it is not common, it is possible that if a parent files a complaint for a due process hearing against a school district, the school district can sue the parent for attorney’s fees and costs. Fortunately, however, the circumstances upon which the parent may be liable for attorney’s fees and costs are limited.

Perhaps the clearest circumstance in which the parent may be liable for attorney’s fees and costs is when the parent files a frivolous lawsuit. Simply stated, a frivolous lawsuit is a lawsuit that has no merit. Thus, in a situation where a parent files a frivolous lawsuit and loses the case, a court may order the parent to reimburse the school district for attorney’s fees and costs.

Even if a parent files a legitimate complaint, another scenario in which a parent could be liable for attorney’s fees and costs is when a parent continues to litigate the case long after the issues have been settled.

By way of example, there was a recent federal case where a school district filed a federal lawsuit seeking an award of attorney’s fees and costs. In that case, the attorney had continued to litigate the issues even after the school district had agreed to offer all of the relief that the parents sought. The district court determined that the school district was the prevailing party and awarded the school district $10,000. In 2010, the Fifth Circuit upheld the $10,000 award. See El Paso Independent School District v. Berry.

Although it is not common for school districts to seek attorney’s fees and costs from parents in special education matters, parents must nonetheless ensure that their complaints are legitimate and continue to be legitimate throughout the course of the litigation to avoid liability. It is critical to keep in mind all of the pieces of the puzzle and how these pieces fit together.

It is always a good idea to speak with an attorney to ensure that your case has merit. In special education matters, it is advisable to speak with an attorney who is knowledgeable about special education laws and regulations.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Attorney’s Fees and Frivolous Lawsuits originally appeared on Matthew Stoloff's Blog on August 8, 2011.

I’ll give you a hint: look at the title of this blog article.

Most parents who have experience attending IEP meetings understand that appropriate goals and objectives must be developed and incorporated into the child’s Individualized Educational Plan (“IEP”).  Many parents also understand the importance of preparing for IEP meetings well in advance to ensure that the appropriate IEP goals and objectives are developed.

But children with disabilities are not the only ones who need appropriate goals and objectives. Parents must also have specific goals and objectives of their own as well. To the extent to which parents must deal with members of the IEP team and help develop goals and objectives and ensure that appropriate services and accommodations are provided to their child, parents have very specific goals and objectives of their own.

Yet, when there are obvious disagreements among parents and school personnel regarding services, accommodations, goals and objectives, some parents may lose their sense of objectivity. Emotions overtake reason; and when this happens, parents immediately file a State complaint or a petition for a due process complaint to “punish” the IEP team for one reason or another.

Whenever there are disagreements with school personnel regarding special education matters, the parent’s goal should not be to “punish” the IEP team. Rather, the parent should try to ensure that her child (1) receives all of the services and accommodations that she needs to do well in school and (2) has appropriate IEP goals and objectives. Focusing on “punishing” the IEP team means only one thing: the child’s education is secondary to everything else.

If there is one human quality that parents must protect and defend, it is this: credibility. A parent’s credibility can be adversely affected when the parent makes a bad move or commits a tactical error. When this happens, the parent’s child can suffer the consequences. This is one of the worst things that can ever happen in special education matters.

It bears repeating: Parents have goals and objectives of their own when it comes to their child’s education. Thus, if you have had disagreements with the IEP team and you are contemplating filing a State complaint or a petition for a due process complaint, ask yourself this: what is your goal and/or objective? What is it that you hope to achieve? Will filing a complaint benefit your child? For parents who are already in an emotional state, these are not easy questions.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Protect Your Credibility originally appeared on Matthew Stoloff's Blog on August 1, 2011.

The stay put provision of the Individuals with Disabilities in Education Act (“IDEA”) says that a child shall remain in the “then-current educational placement.” What does this mean? Well, the best way to explain this is to look at two scenarios in which the stay put provision can apply:

Example #1: A child is receiving special education and related services in a public school. The school district now determines that the child is “no longer disabled” or at least no longer needs special education and related services. When the school district proposes to declassify the child and cease providing the child special education services, the parents can invoke the stay put provision of the IDEA to ensure that the child continues to receive services pending the outcome of the litigation.

Example #2: A child has been attending an out-of-district placement at public expense. Certain IEP members from the public school district determines that the child should be transferred back in-district. When the child’s parents do not believe that the child’s placement should change, the parents can invoke the stay put provision of the IDEA to ensure that the child continues to attend the out-of-district placement pending the outcome of the litigation.

The stay put provision, therefore, is an extraordinary important safety procedural protection. Its power cannot be overemphasized. Stay put effectively “freezes” the child’s current services and/or placement pending litigation. Until a settlement is reached or a judge issues an opinion, the public school district cannot change the child’s program, services, or placement.

Parents need to keep in mind that under the IDEA they need to invoke stay put within 15 days of the proposed change. In other words, when the school district proposes changes in services or placement, and the parents do not agree with those changes, the parents have 15 days to invoke stay put. If the parents fail to invoke stay put within the 15 day timeline, the school district’s proposed changes will take effect under operation of law.

There are, of course, legal complications associated with stay put. Such complications often arise when dealing with students who exhibit serious behavioral and/or emotional issues.

Clock with Roman Numerals

The take-away message: Stay put is a procedural safeguard that parents must exercise within 15 days of the school district’s proposed changes. Parents should consider invoking stay put within the 15 day timeline if they do not agree with the school district’s proposed changes to the IEP.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Stay Put in Special Education Litigation originally appeared on Matthew Stoloff's Blog on July 18, 2011.

This is an unfortunate reality that I see from time to time in my practice. It is distressing to hear and meet parents who tried but failed to do the best for their special needs child by attempting to address the issues without retaining a lawyer. It is particularly painful to read a court opinion that says that the parent had failed to be cooperative and the court rules in favor of the school district on all issues.

Parents who are on an emotional roller coaster and cannot think like a lawyer are not in any condition to litigate special education issues on their own. Thinking like a lawyer means at least four things: (1) understanding the law, (2) knowing what course of action to take, (3) knowing when to take certain steps, and (4) understanding how to compromise.

In my experience, parents know the law quite well. But when it comes to understanding what course of action to take and when it is time to take Step 1, Step 2, and Step 3, emotional parents get lost in a fog. This is due to impatience and lack of experience. Emotional parents who lack experience and objectivity sometimes absolutely refuse to compromise, which can make their case much more difficult. Sometimes, parents will reach out to their friends or people who are inexperienced in special education matters for advice. Sometimes, the advice given is sound; sometimes not. Sometimes, when friends or advocates give sound advice, the emotional parents ignore it.

Parents who are involved in special education matters need to understand that litigation should almost always be an action of last resort. However, if and when there comes a point that litigation is absolutely necessary, be sure that all of your cards are in order before you take that step.

Litigating a special education matter is not an easy matter. It is a highly stressful situation, even for lawyers who are litigators by profession.

I understand that some parents cannot afford a lawyer. Lawyers can be expensive, but not all lawyers charge the same hourly rate. There is nothing wrong with shopping around and finding a lawyer that you are most comfortable with at a price you can afford. There may also be not-for-profit organizations that will help you find a lawyer who will work on your case pro bono. Even if you aren’t financially eligible to qualify for pro bono services, keep in mind that it may be possible to get reimbursement for attorney’s fees and costs if your case is litigated.

If you want to improve your chances of getting the appropriate services, accommodations, and modifications that your child needs to succeed in school, consider reaching out to a special education lawyer to discuss your case.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Thinking Like A Special Education Lawyer originally appeared on Matthew Stoloff's Blog on July 4, 2011.

Many parents with special needs children do not know that it is possible to get reimbursement for attorney’s fees and costs in connection with special education matters. When a special education issue is litigated, and the parents obtain some of the relief that they had sought, a court may declare the parents “prevailing party” and order that the school district pay attorney’s fees and costs to the parents.

For example, suppose that a parent requested an Independent Educational Evaluation (“IEE”) at district expense, but the school district refused to pay for the independent evaluation. If the parent retains a special education attorney, litigates the issue, and subsequently gets the independent evaluation at district expense, a federal or state court may declare the parent the “prevailing party” and award attorney’s fees and costs in connection for having litigated the matter.

This above example is exactly what happened in one of my cases, which was recently decided in a New Jersey federal court. In DI v. Phillipsburg Board of Education, the parent requested certain evaluations and independent evaluations. In response, the school district filed a petition for a due process hearing to challenge the request for the independent evaluations. Ultimately, the parent and school district reached a settlement whereby the school district would conduct or pay for three evaluations. Next, the parent sued the school district in federal court for attorney’s fees and costs in connection with the due process proceedings. A federal court in New Jersey determined that the parent was the prevailing party and ordered that the school district pay attorney’s fees and costs for both the due process proceeding and the fee application.

“Attorney’s fees” are simply the attorney’s total amount of hours expended on the case multiplied by the attorney’s hourly rate. For example, if an attorney charges $200 an hour and spends 50 hours on your case, that is a total of $10,000.00.

“Costs” are expenses that arise in connection with the litigation, such as the cost of xeroxing papers, the cost of faxing papers, the costs of mailing documents via certified mail, etc.

When considering whether to retain a special education attorney to help your special needs child, ask your attorney whether your case is one that may need to be litigated. Also ask whether it might be possible to get reimbursement of attorney’s fees and costs. These are very important questions. Keep in mind, however, that in some instances, it may not be possible to determine whether the case has to be litigated or even if all attorney’s fees and costs can be recouped. Also keep in mind that no attorney can guarantee reimbursement of attorney’s fees and costs. There are many variables at play — talk to your attorney to discuss some of these variables.

© 2011 – 2012, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Attorney’s Fees and Costs in Special Education Cases originally appeared on Matthew Stoloff's Blog on June 27, 2011.

Accessible technology is an important topic since many K-12 schools, colleges, and universities are transitioning towards “e-books” (electronic book readers), and some of these e-books are not accessible to students who are visually impaired or mobility impaired. Likewise, schools that deploy web applications on their websites may not be accessible to visually impaired students. As schools transition to e-books and other emerging technologies, it is important that school personnel provide equal educational opportunities to students with disabilities.

The “Dear Colleague” letter to the K-12 schools is similar to the “Dear Colleague” letter sent to colleges and universities. Both letters reference a “Dear Colleague” letter that was previously sent in June 29, 2010, which explained the importance of providing equal educational opportunities to students with disabilities:

The [Dear Colleague Letter of June 29, 2010] explains that under the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973, educational institutions cannot require the use of electronic book readers in a classroom setting if the readers are not fully accessible to individuals with disabilities, including individuals who are blind or have low vision, unless those individuals are provided accommodations or modifications that permit them to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner. (Emphasis added.)

The FAQ explains that the “Dear Colleague” letters on accessible technology and e-books do not impose any additional requirements on K-12 schools, colleges, and universities. Rather, these letters are clear reminders that K-12 schools, colleges, and universities must comply with federal anti-discrimination laws, including the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1974.

These “Dear Colleague” letters stress that school personnel need to be familiar with federal anti-discrimination laws and know when to develop individualized accommodations and modifications for students with disabilities. If you know of a student who is not being provided equal educational opportunities due to inaccessible technology, you may wish to consult an attorney to evaluate your options.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Technology Accessibility in Schools originally appeared on Matthew Stoloff's Blog on June 10, 2011.

Parents want their special needs children to receive all of the accommodations, modifications, and services that they are entitled to. So, when the IEP team proposes substantial changes to the child’s IEP that the parents do not agree with, and the IEP team refuses to compromise with the parents, the inevitable question pops up: “How long will it take to litigate this?”

Because every case is unique and because there are several factors that affect how long litigation will last, no lawyer can predict how long any given case will last.

Below are just a few factors that can affect how quickly a special education case may be resolved:

1. Whether the IEP team is willing to compromise. If the IEP team is not willing to compromise, that may protract litigation.

2. Whether the school district’s attorney knows the law and can weigh the costs and benefits of litigation. If the school district’s attorney does not know the law and is willing to litigate the issue even though the costs outweigh the benefits, that may protract the litigation.

3. Whether independent experts are needed to evaluate the child before determining what accommodations, modifications or services are needed. If an independent evaluation is necessary but has not yet been obtained, that may protract the litigation.

4. Whether the state is able to comply with the statutory timelines. If the courts are backlogged, that may mean that it will take a bit longer before a judge will hear your case and issue a ruling.

5. Whether witnesses will be able to testify at the hearing. Sometimes, certain witnesses are away on vacation or otherwise unable to attend a hearing on a particular day for personal reasons.

Special education attorneys are attorneys who are intimately familiar with state and federal special education laws, as well as state and federal anti-discrimination laws. Special education attorneys who represent parents want to resolve the case as quickly as possible for the benefit of the parents’ child. Sometimes, however, it is not possible to resolve the case quickly because there are factors that special education attorneys cannot control.

In the end, how long your special education case takes is dependent on several factors that your attorney may not have control over. If there is no opposition from school personnel or the IEP team, maybe it will take less than a month to resolve the case. On the other hand, if there is opposition, maybe it will take three months. Maybe six months. Maybe a year. Patience is a virtue — and in the end, it will hopefully be worth the wait.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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How Long Does Special Education Litigation Take? originally appeared on Matthew Stoloff's Blog on June 1, 2011.

In a previous post, I explained how to prepare for your first in-person meeting with a special education attorney. This post provides tips for writing an email to an attorney for the first time.

Organization is the key to communication. When writing an email, do not write all the facts and your thoughts in a single paragraph. Writing everything in a single paragraph makes it very difficult to read and understand. Please break down your email in multiple paragraphs.

State the facts concisely. Remember the basic Ws and H: who, what, when, and where. If applicable explain why and how. Ideally, each paragraph should contain at least two of these essential pieces of information.

Brevity is essential. If you want to convince an attorney to work on your case, you must understand that the attorney’s time limited. Do not ramble. Do not get emotional. Do not curse. Stick with the facts and express yourself as clearly as your can.

Describe your goal. Towards the end of your email, please explain what it is that you hope to achieve by retaining an attorney. If you are seeking a specific remedy to resolve the issue, say so. If, on the other hand, you are not certain what you want, that’s ok — but please indicate that you are not sure.

Below are two emails that I wrote. Which one of these emails gives clearer information?

Version #1:

My daughter has an IEP and is receiving only basic services. I spoke with the IEP team and they said that she doesn’t need to be reevaluated even though her grades aren’t where they should be. Despite my insistence that they do another evaluation, they refused to do it. They were so rude. The director of special services wouldn’t even listen to what I had to say and he left the room before the meeting was over. I just don’t understand how he could do that. This is my daughter we’re talking about here. She needs these services–both in school and at home! She is regressing in all areas, and needs to be placed in a mainstream class. I want to retain counsel to help me.

Version #2:

My daughter is 10 years old and has PDD-NOS and speech related disabilities. Since 2006, my daughter has had an IEP. For the past three years, from grade 3 to grade 5, she has been in a self-contained classroom at Cookie Monster School in Atlantis. She receives OT 2x a week, PT 2x a week, and speech therapy 4x a week. She also has an augmentative communications device to help her communicate.

My daughter was last evaluated in 2007. The IEP team does not think she needs to be reevaluated. The IEP team also thinks that my daughter will not be able to survive in a mainstreamed class. However, I feel that my daughter has not made progress in the last three years and I think that she needs to be reevaluated. I also think that we need to increase OT services from 2x a week to 4x a week, and I would like to see if we can get an independent OT evaluation.

By the way, the school doesn’t allow my daughter to take the assistive technology device home. I’m wondering if it might be possible for the school to purchase another AT device for her to use at home so that she can continue to communicate effectively with her family and friends.

I don’t know how the IEP team feels about me, but I try to be respectful towards them. However, I am in disagreement with the IEP and would like to retain counsel to help my daughter get the services she needs to do well in school.

As you can see, the differences between Version #1 and Version #2 is like day and night. Yes, it takes more time to write Version #2, but it is much more meaningful and the impact is much stronger. You are more likely to receive a much better response.

Before you send out your first email to an attorney for the first time, read and re-read your email. Make sure that the email contains the basic information broken down in multiple paragraphs. And don’t forget to explain why you want to hire a lawyer and what you hope the lawyer can do for you.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Writing Your First Email to a Lawyer originally appeared on Matthew Stoloff's Blog on May 23, 2011.

The answer to the question, “What are my rights?” cannot be given until the parent has provided sufficient background about the child (age, grade, disability), the child’s current placement (general education, resource, self-contained), the level of services currently being provided to the child (speech therapy, occupational therapy, physical therapy, etc.).

In addition, a special education attorney needs to know if there is an IEP currently in place; how long the child has been classified; and when the child was last evaluated. It does not even end there. Sometimes, attorneys need to know if the child’s placement or services has ever been litigated.

Without knowing the basics, the question “What are my rights” cannot be answered. It is like sealing a leak without the necessary tools. When a client gives a detailed background about what has happened (the tools), it is much easier for a lawyer to explain what rights the client has.

A parent of a classified child has many rights: They have a right to request an IEP meeting. They have a right to request an independent evaluation. They have a right to file a petition for a due process hearing. They have a right to request reimbursement for attorney’s fees and costs if they are a prevailing party. These are but a handful of rights (there are plenty more). That is why it is important to answer each and every question the attorney asks you, so that the attorney can figure out what your rights are right now.

So, when you call or email an attorney for the first time about a legal issue, you can reasonably expect to answer many questions before your lawyer will give you the answer that you’re looking for.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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What Are My Rights? originally appeared on Matthew Stoloff's Blog on March 29, 2011.

Several months ago, Massachusetts attorney Robert Crabtree blogged about the mistakes that parents make in special education matters. Connecticut attorney Jennifer Laviano also has a great blog post about the 10 questions parents should ask themselves at the beginning of the new school year.

I’ll chime in on the top 10 things that parents should keep in mind when they retain a special education attorney:

Do not lie. This is a big no-no. Attorneys almost always find out when their clients lie. It is best to be truthful and straightforward. You will just make it more difficult if you lie to your attorney. It will cost you more money and aggravation. In rare cases, attorneys will cease representing you. Just don’t lie.

Try not to get frustrated answering questions. Attorneys ask a lot of questions. Clients sometimes get frustrated answering questions. It’s understandable. But remember, attorneys ask questions to get as much information as possible. We don’t mean to frustrate you. In any event, it’s good practice to hear these questions if you must file for a special education due process hearing.

Do not contact school personnel regarding issues of litigation. The reason you hired a special education attorney is so that your child can get the services he or she needs. Unless the attorney specifically instructs you to speak with school personnel regarding a particular issue that is being litigated, please direct all correspondences to your attorney. The main reason is simple: to avoid confusion and time-consuming mistakes. Therefore, if you have retained an attorney and have a question about something, ask your attorney.

Do not make any assumptions. Parents retain special education attorneys for their advice and expertise. If you’re not sure about something, ask. If you’re confused about something, ask. Don’t make assumptions. There’s no need to lose sleep over something. A good attorney wants you to understand what’s going on and what the next step will be.

Do not send originals, only copies. When an attorney asks you to send a copy of a document, do not give the original unless specifically requested. We mean that. Just make a copy and keep the original in your file.

Keep all papers. Don’t throw anything out. Every letter, every report, every correspondence, should be placed in a file. Every piece of paper is crucial evidence. In special education cases, nothing is immaterial: No matter how old a report might be, no matter how irrelevant a letter may appear, keep it in a place where you can find it and be sure to furnish a copy to your attorney.