Tag Archives: attorney

The Approaching End of a Heartbreaking Era

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When the Education of All Handicapped Children’s Act (EAHCA) was enacted as PL94-142 in 1975, it was in the face of enormous opposition from school district administrators and their attorneys who were actively refusing to enroll children with disabilities in our nation’s public schools. Many have remained employed in public education, stewing in their own bile over their legal “loss” while begrudgingly enrolling students with special needs.

The EAHCA was reauthorized as the Individuals with Disabilities Education Act (IDEA) in 1990, which has, itself, been reauthorized twice since then, the last reauthorization being in 2004. Clearly, Congress has no intention of returning to a time when discriminating against those with disabilities was perfectly acceptable.

I don’t know how many of you have experienced an employment situation in which people have been required to do something that they opposed, but it’s been my experience that some people in this position are more likely to sabotage any attempts to do things differently to “prove” it was a bad idea than to willingly go with the program. Some people are just sore losers.

In short, you’re not likely to get buy-in from people who had to be Court-ordered or required by regulation to do the ethical and responsible thing. It says something, anyway, about a person’s character when he/she forgoes ethical solutions for whatever reasons and, therefore, requires enforceable regulations that dictate what his/her behavior should be. Some peoples’ characters create a situation in which the behaviors normally associated with common sense and ethics become subject to regulation.

This is not specific to special education or the legal practices that surround it. This is human nature. Somewhere out there in the world is the person who justified warning labels on suppositories that advise they are not meant for oral consumption. Some people’s functional skills in various aspects of life, for whatever reasons, are seriously limited.

People tend not to make improvements when forced to, particularly when they perceive the improvements as a threat to their familiar, comfortable, self-serving routines. This, too, is human nature.

The problem in special education is that, following the passage of the EAHCA, too many people with chips on their shoulders were left over the decades in positions of authority in public education, passing their “insight” onto the people they were responsible for training and stacking the deck against the success of special education. In other words, ever since the passage of the EAHCA in 1975, there have been career public education administrators undermining the effectiveness of special education in order to win an argument rather than educate children, the latter of which being what we actually pay them six-figure salaries at public expense to do.

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Preventing SpEd Jargon from Impeding Agreements

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Source: Bob Cotter via Flickr

All too often in special education, those of us who have been working at it professionally for more than a few years have increased our vocabularies to include terms of art, acronyms, and legally significant phrases that mean a whole lot to us, but not a whole lot to professionals new to the field and parents. I find that a lot of my job as a lay advocate is translating SpEd-Speak into plain language.

It was actually during a case I’ve been working with a family that moved to the U.S. from Thailand that brought this point home for me. I found that by simplifying my language for the benefit of the translator, who knew nothing of special education, I made it lot easier for everyone else in the room to follow the logic of what I was saying. The meeting was also attended by the school district’s lawyer, who was actually pretty awesome once she realized what was going on. It was one of the most amicable and constructive IEP meetings in which I’ve participated in a while.

What I found worked best was to use simple language to communicate with most of the IEP team members, then sum up my point to counsel for the district in language she would appreciate in light of the regulations and the applicable science, if needed. In the end, what we figured out was that our 9th grade client qualified for special education as having autistic-like behaviors pursuant to 5 CCR Sec. 3030(g) and that his speech-language impairments for which he had originally been found eligible were features of his autistic-like tendencies as well as bilingualism coming from an Eastern tonal language to English.

I already knew from experience that throwing a bunch of jargon at people during a meeting where you’re trying to make things happen is not particularly constructive if any of them are unfamiliar with the lingo. Having non-English speaking clients only made the point more vivid. But, then I ran across an article in an old issue of Entrepreneur magazine that drove the point home even more, and, combined with my prior knowledge, inspired this blog post and corresponding podcast.

Click to Tweet: Throwing jargon around in IEP meetings is not constructive if the other people are unfamiliar with the lingo. #kps4parents

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The Parents’ “How-To”: Picking a Special Ed Lawyer

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On March 8, 2010, I wrote an article about a con man representing himself as Michael E. Robinson, Sr. Mr. Robinson represented himself to be, at times, a special education lay advocate, while at other times, claimed he was a special education attorney. Mr. Robinson also claims to have been a lobbyist, medical doctor, retired NASCAR driver, and an epileptic who has been given a wolf as a service animal.

Mr. Robinson is still actively engaging in his cons, according to the last information that KPS4Parents received from its sources. So parents need to continue to beware. He hasn’t been caught and prosecuted, yet, though he has been reported to the authorities. I thought about this article recently after reading an article in the Washington Post about a guy named Howard Deiner in Arlington, Virginia.

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Parents in Crisis Can Be Vulnerable to Predators

There has been a tremendous movement among a group of special education lay advocates across the United States and beyond to get to the bottom of a very troubling situation involving an individual who claims to be a highly successful and renowned special education advocate but whose claims cannot be substantiated and, in fact, appears to have defrauded a number of parents of children with special needs, particularly targeting high-profile autism-related seclusion and restraint cases. This individual, who goes by the name of Michael E. Robinson, Sr., is suspected of being located in Redding, California, based on the physical location where the phone numbers he gives out are installed.

Robinson was previously located in Hawaii, so it seems. He claims to be located in Washington, DC, Arizona, Hawaii, and California. He has claimed to be a lobbyist (not registered); a special education lay advocate and/or attorney (he’s claimed both) with years of experience with due process cases and litigation going all the way to federal court (no record of him involved in any special education due process or court cases could be found); a medical doctor (there is an autism specialist also named Michael Robinson whose work Michael E. Robinson, Sr. has attempted to claim as his own); and, of all things, a NASCAR racer.

He’s also claimed that he has epilepsy and was given a wolf as a service animal because wolves can allegedly detect the onset of a seizure before it happens, thereby making them superior service animals – forget the fact that it’s not legal to have a wolf as a service animal. And on and on. His behavior seems indicative of a narcissistic personality disorder and an absolute disregard for the consequences of what he is doing.

It’s easy now that so many people have come out of the woodwork to share their Michael E. Robinson, Sr. stories and much of his story has now been pieced together to look at the big picture and reach the conclusion that Robinson is up to no good. He’s solicited money from several parents, apparently. He’s also requested copies of legal documents in individual student’s cases from parents to allegedly use for his “lobbying” efforts, only to turn around and copy and paste from these documents to attempt to misrepresent the work of other advocates and attorneys as his own to his next set of victims.

His M.O. is apparently to collect enough information from past cases to be able to initially convince parents in newly developing cases – usually horrific situations in which the parents are in dire need of technical assistance – that he is experienced and can help them. He commiserates with them over the injustices they have suffered and tells them not to worry because he’s going to take care of things for them. Then he takes whatever money they’ve given him and copies of their records and is never heard from by them again. He seems to particularly seek out single mothers who are emotionally vulnerable as they fight to protect their children with disabilities from harm and have little to no support from their children’s fathers.

As a special education lay advocate for over 18 years and a paralegal in special education-related litigation for the last 5 years, I have to say that the prospect of someone using special education lay advocacy as a vehicle for running a con is particularly disturbing. While it’s expected that different advocates have different styles and ways of going about things, this is well beyond anything like that.

What is so damaging is that the child who was in such dire need that his/her case caught Robinson’s eye continues to go unserved. Robinson’s advocacy, such as it is, fails to achieve appropriate outcomes, based on the reports coming in from families who claim to have been taken advantage of by him.

This hurts children with special needs overall by undermining the credibility of lay advocates everywhere. Every time I go into a school district in which I’ve never advocated before, I find myself having to prove that I’m not some crazy person or someone with an axe to grind. The expectation maintained by many school districts is that all advocates are adversarial jerks and a righteous pain in the keister. It usually takes months of working with an IEP team in a district to which I am new before people finally figure out that I’m just trying to solve problems and facilitate a rebuilding of trust between the school district and the student’s family and that I’m only going to pursue accountability if the school district personnel keep failing to perform their mandated duties.

But, when I have to follow behind someone calling him- or herself an advocate who has behaved disreputably, demonstrated a clear lack of knowledge regarding what constitutes an appropriate IEP, and antagonized the situation to such an extent that a power struggle has ensued between him/her and the school district, I am put at a tremendous disadvantage. The time I have to invest in proving that I’m not going to do the same thing is time that could have otherwise been invested in properly educating my client.

I want to make clear, though, that very few advocates are so lacking in knowledge and so adversarial that they do more harm than good. Mr. Robinson is the exception, not the rule. Nonetheless, parents need to be diligent about making sure that whoever represents them is on the up and up. When I meet with parents for the first time, they will often tell me that they Googled me beforehand. I’m totally okay with that; there’s a pretty good chance that I Googled them, too. Advocates have to protect themselves from shiesters, as well.

To read more about the evidence compiled against Michael E. Robinson, Sr., see:

Being Humbled By a Bad Decision

The importance of humility on the part of all the adults involved  in special education matters is huge, but is also one of those things that often gets sacrificed along the way.  Egos, competing personal agendas, petty politicking, fear, anxiety, impulsivity, apathy … all of these emotional components undermine a person’s ability to remain humble.  And, it doesn’t matter if you’re a parent, an educator, or the designated representative of either the student or the education agency.  Everyone in the process should be humbled by the magnitude of what they are trying to do.

Unfortunately, it seems to be human nature that humility only comes after we’ve managed to humiliate ourselves.  Even a relatively minor error that’s easy to fix can make you stop and check yourself.  But, sometimes a huge, glaring error isn’t enough for some people to be humbled and only compels them to do even more damage by denying they did anything wrong and insisting that the erroneous way of doing things be continued, as though they can somehow force a bad decision to be right through adamant denial.

I had to fire a parent recently.  I haven’t had to do that in many years.  I hate it.  But, the parent was doing more harm than the school was by engaging in hostile behaviors and throwing tantrums when she didn’t get what she wanted.  And what she wanted wasn’t something she was legally entitled to.  She wanted me to try and use the school district’s errors as leverage to get it to agree to things that it wasn’t legally obligated to do, as though having dirt on the district regarding special education violations was a free ticket to ride.

That’s not what we do around here.  To make matters worse, when I explained what we actually do here, she either ignored me and returned to the issue she wanted me to pursue or got upset.  Despite my explanations that I’m in back-to-back meetings, preparing for due process, and doing work on the cases of the 30 other children I’m actively representing right now and didn’t have time to take every one of her phone calls in person, she continued to stalker-dial and text me throughout each day for a week-and-a-half, refusing to talk to my assistant as I’d requested, and started texting hostile messages to me towards the end.  Bear in mind that when we take on a case, the client hires the whole agency, not just me, so insisting that I was the only person she could talk to was actually in contradiction to the Service Agreement she’d signed.

In the end, she and I both were humbled in our own ways by this experience.  She’s now represented by an attorney, which is just as well because her case is so far gone that due process is pretty much the only way out.  The District was completely unwilling to engage in good faith negotiations with me as a lay advocate.  I don’t know that this would have necessarily been the case had the parent not acted like such a belligerent jerk before she hired us and left nothing but scorched earth behind her wherever in the District she had gone, but it is what it is, now.

That the District couldn’t rise above the situation and conduct itself appropriately in the service of its constituent student regardless of the parent’s behavior is still the more egregious failure in this whole mess.  While the parent has a moral obligation to her child, the District has a statutory obligation to her child, to her, and to the taxpaying public that it is failing to meet.

Being terminated as a client was an attention-getting consequence.  She de-escalated quickly and even after what we went through, is respectful and appreciative of the work we did for her while we were representing her.  But, we have to stand by that consequence in order for it to mean anything.

Were we to take her back as a client after having let her go, it would be like a battered wife taking her husband back after he’d mistreated her; the only message we’d be sending is that terminating the working relationship isn’t really a true consequence and that her behavior would be ultimately forgiven and condoned, thereby resetting the cycle of abuse to repeat itself.  She’d have no incentive to change and her child is the one who is ultimately suffering from all of this the most.  He’s still stuck in his present inappropriate educational program so long as his mother is caught up in a vicious cycle, successfully using his case as an excuse to engage others in an adversarial manner.

In letting her go, we gave her constructive feedback to help her have a more collaborative working relationship with whomever might represent her and her child next.  We made it clear that she still had a case but that we couldn’t continue to work for her under the conditions she imposed.

We took issue with the situation more so than with her personally, though we made it clear that her conduct was what had created such an untenable situation.  Hopefully she will be able to work with her attorney in an effective manner now that she realizes that biting the hand that feeds her is a really bad idea.

The humility that I got out of this situation came from several directions.  I was reminded that as diligent as we are with our intake procedures, nothing is ever 100% effective at screening for all possible problems and I had become overly reliant on our intake procedures to filter out and identify all possible red flags.  I trusted that I knew what was going on when I actually didn’t have all the facts.

That led to a related error, which was taking everything this parent said initially at face value without asking enough questions.  It is common in the field of special education advocacy for lay advocates to immediately believe everything a parent tells us about all the horrible things that are happening at their children’s schools because we know for a fact that some pretty horrible things really do go on.? But, parents’ stories of what has happened are skewed based on how much they really understand about the process and their perceptions of the motivations of others.

Advocates are easily accused of being “bleeding hearts” who are so sympathetic to parents of children with special needs that they get sucked into the drama as first class co-dependent enablers who then make the case for the child based on the parents’ perceptions rather than the facts and how the law must be applied to the facts.? I meet advocates all the time who will tell me, “Well, I’m not so much into the legal or regulatory side of things.  I’m just there to help the parents make their case for what is right.”

I learned a long time ago that “what is right” is not necessarily what the regulations provide for and that I have to work within the regulations in order to achieve as appropriate an outcome as possible for each child I serve. Morality is not enforceable and most of us enter this field out of fully justified moral outrage over the crap that goes on, so it’s hard to set the desire for retribution aside and limit ourselves to just what the regulations call for.

So, when I felt myself becoming more and more emotionally uncomfortable and pressured to respond right away to the latest outrage by the parent we ended up firing, I knew something was wrong.  I realized that she was creating most of the drama in her case and that she was attempting to engage me in a co-dependent relationship where she would stir up a catastrophe from which I could rescue her over and over again.

I’ve been down this path before in my personal life, many years ago.  It’s taken a lot of self-discovery and healing for me as a person to overcome my childhood programming to comply with the demands and expectations of others at the expense of myself, but I am proud to say that my willingness to participate in that kind of dynamic is well behind me.  I don’t generally attract people like that into my life anymore, which is another reason why this case caught me off guard.

I found myself on the verge of humiliating myself.  I was creating correspondence on behalf of this parent to address her complaints and was laboring over finding the right words to assert her demands diplomatically but firmly, asserting the District’s duty, while ignoring the fact that she had just thrown a tantrum in a school district office before calling me to “kick their asses!”  The further I got into the letter, the more uncomfortable I felt.  While what the District had done was wrong, how this parent had responded was wrong as well and I was only encouraging her to keep acting that way by backing her up every time they pissed her off.

Every letter I wrote asserting the District’s duty, detailing how it had failed to meet it, and requesting remedy only served to confirm how right she had been in her assessment of the District’s failure to perform and, in her own mind, how justified she had been to drive down to the District offices and give “those people” a piece of her mind.  I was validating her.  So, she kept finding more things to get pissed off about, provoking District personnel into conducting themselves inappropriately through her own manipulative behaviors (not that they weren’t accountable for their own conduct, but still she was sucking them into her drama and engaging them in a power struggle rather than trying to actually solve the problems that were compromising her child’s education).

She took a situation that had made her feel powerless and, with my help, was turning it around into a situation where she was the dominant force.  All of a sudden, rather than me representing the parent, I was getting dragged along for the ride on an out-of-control roller coaster of hysteria and anger.  Rather than negotiating the resolution of a dispute, I was letting myself get dragged into a never-ending series of disputes that were more about creating dramatic situations in which this parent could convince herself that she was justified in being outraged and play the indignant victim than about actually solving any problems.

Essentially, I got played by a hysteric and I have to own my contribution to the situation.  She couldn’t have gotten as far as she did without my complicit participation.  Thankfully I pulled us out after only a few weeks, but I could have gotten so drawn in that I’d ended up going out on a limb making assertions based on the parent’s representations without any facts to back me up if I’d let the situation continue.  That’s the direction she was trying to steer things towards and that’s a really dangerous place for any advocate to be.? When you get so emotionally involved that you’re not even fact-checking anymore, you’ve gone much, much too far.

But, it’s not just parents and advocates who get dealt doses of humility from time to time.  I had a case not too long ago in which an elementary school principal started insisting that certain parents we represented had to comply with the District’s strict campus visitation policy after I gave notice of representation and informed her that her placement of our client on “30 day probation” (whatever that was) for behavior was not consistent with the behavior plan in his IEP and she was putting the District at risk of a procedural complaint.  (See our past article, “Finding Solutions, Not Asserting Authority“.)

I had to write her another letter just a day or two later about her selective enforcement of the District’s campus visitation policy.  I dressed her down pretty severely.  She wasn’t taking the situation seriously and acted like she could do whatever she wanted with zero accountability. Granted, she was relatively inexperienced as a principal, but, frankly, that’s no excuse.

A week or so later, I was having coffee after hours with the director of special education of this principal’s district and the involved child’s mother.  It was a fence-mending session that proved invaluable to rebuilding trust between the family and the District after all that had happened.  The director of special education said that the latter piece of correspondence I’d written, which I’d copied to the school board, had been impactful.? The special ed director’s exact words were, “She was humbled,” by what I’d written (“she” being the principal).  That case is now closed and the student is receiving appropriate programming.  He’s doing much, much better now in his new placement.

The lesson in all of this is that your gut is going to tell you when you’re starting to head down the wrong path and it’s only a matter of you paying attention to that sinking feeling and making the conscious decision to course-correct and do the right thing.  Otherwise, you’ll find yourself at a destination you had no desire to arrive at and a very long and uncomfortable path to travel to get back to the place where you want to be.

The obligations of meeting the educational needs of a child with special needs are grave and serious.  If you aren’t taking them seriously – if you aren’t humbled by the magnitude of what it is you have to do and the incredible honor that has been bestowed upon you by the trust of others in you to do what has to be done – then you are a liability.? As the saying goes, “If you aren’t part of the solution, you’re part of the problem.” Nothing is more true in special education.

Click here to download the podcast version of this article.

Your Clients’ “Best Interests” – Why Students’ & LEAs’ Interests Can’t Possibly Conflict

Today’s article is targeted to attorneys who represent Local Education Agencies (“LEAs”). It’s particularly targeted to those attorneys who behave as though what is in their clients’ best interests are somehow at odds with the best interests of the special education students their clients are being paid to educate and that special education is an “us versus them” proposition.

First I want to acknowledge that life is hard for everyone. We’re all facing our own challenges.  Life is unique for every single person who walks this Earth and the way it is hard for one person is different from the way it hard for another.  We all owe each other compassion and understanding.

But, no one – and I mean No One – gets into Heaven by depriving children with disabilities the services they desperately need.  I don’t care what your baggage is.  Even if you go to church every Sunday and beg forgiveness, if you turn around and walk into an IEP meeting or due process hearing the next day doing everything you can to screw over a handicapped child and his family, you’re going to burn, burn, burn in Hell.  Forgiveness can only be given when your prayers for it are legitimate and your repentance is true.  The Almighty knows when you’re being insincere, even if the average hearing officer doesn’t.

It’s not exactly a secret that almost every single law firm that represents public schools does so for profit.  And, they get paid win or lose when cases go to hearing.  School districts are not represented by law firms on contingency.  They are represented under expensive annual contracts with additional hourly rates for time put in above and beyond what the annual contract includes. As much as school districts may desire to avoid litigation, the harsh reality is that their law firms make more money when cases go bad and litigation rears its ugly head. For that reason, many attorneys who represent LEAs have reputations as “billing machines,” stirring the pot and causing problems so they can bill for additional time to get their clients back out of hot water.  And, most special education directors are so clueless regarding their legal obligations that they don’t even realize they’re being taken for a ride.

KPS4Parents represented two brothers with autism a few years ago, both of whom had been placed at the same non-public school (“NPS”) by their LEA.  The NPS was a joke.  It was on the verge of being shut down by the California Department of Education (“CDE”) for not having proper special education teaching staff and otherwise being a hokey outfit.  Both the boys, although three years apart in age and nothing alike in terms of how each of them manifested their autism, were receiving the same curriculum.  Neither of their IEPs were actually being followed.  They were being warehoused all day, as were all the other students at the school.

KPS4Parents was hired by the parents and I was assigned as the advocate on both their cases.  In the course of working with the District to straighten things out, I requested on the parents’ behalf additional assessments, copies of their records, and amendments to their IEPs based on what little data we had to work off of at the time.  The District had proposed some new assessments prior to my requests and those assessments were pending at the time that my requests for additional assessments were made.

Long story short, the District blew the 60-day timeline for completing the assessments it had initially proposed, it blew the 15-day timeline for providing assessment plans for the assessments I’d requested on their behalf, and it failed to provide their student records within 5 days, as required by California law. The latter issue is legally interesting, and relevant to today’s article, because it was the District’s lawyer who caused the provision of the records to take over a month.

While the assessments being delayed were potentially more substantively harmful than the delay in providing the student records as requested, the timeline delays with respect to the assessments were caused by people within the District not having their act together.  No one was trying to do harm or screw around.  That isn’t to say that the violations didn’t result in substantive harm – they did.  But, the substantive harm from the assessment timeline violations were the fault of the District, not it’s attorney.

The records were delayed by the District’s attorney who wrote letters arguing that the authorizations signed by the parents giving KPS4Parents permission to request records on their behalf were suddenly invalid.  The standard KPS4Parents authorization can only be terminated in writing and has no expiration date.  It saves us the trouble of having to re-do them from one school year to the next when cases span across more than one school year.  Neither parent had submitted a written withdrawal of authorization and both parents were livid when they got the letter from the District’s lawyer indicating that the District was not going to give me their sons’ records as requested.

This went back and forth for over a month before I finally got the records.  By that time, the other timeline violations had also occurred. It had become apparent that the attorney representing the District had the special education director wrapped around her little finger and was manipulating the relationship for her own financial gain.

I filed compliance complaints alleging failures to abide by the three different timelines on behalf of both boys.  I offered to enter into a local resolution with the District if it would promise to create policies and procedures that would prevent timeline violations from occurring again in the future.  The CDE investigator informed me that the District, through their attorney, declined my offer of local resolution and had chosen, instead, to let the investigations proceed. In the end, CDE sustained six – count ’em, SIX – violations of the law against the District and ordered it to clean up its act.

Shortly thereafter, I sent a Public Records Act (“PRA”) request to the district’s governing board asking for copies of the attorney’s bill for the time she put in on the boys’ cases.  I wanted to know how much the taxpaying public had paid for this woman to get the District cited for six violations of the law.  Not counting her annual contract fee of $50,000, the District paid her about $600 to get it cited six times over – that’s about $100 per violation.  That may not seem like a lot of money in the grand scheme of things, but it was taxpayer dollars that were spent on this.  And this was just for these two boys.

And, what did that money buy the District?  A big, fat black eye.

The attorney was sacked before the end of the school year.  The special education director was asked to leave shortly thereafter, once it had become apparent that she had either gone along with the attorney’s misdeeds or was too clueless to realize that she had been played.  Frankly, the two of them had been up to no good for years. I think this situation was just the straw that finally broke the camel’s back.

My point in retelling this story is to illustrate what self-serving representation causes. It causes harm. Not just black eyes to school districts, but substantive harm to children with special needs.

The only legitimate outcome that appropriate representation should pursue is the assurance that the LEA being represented is abiding by the law and meeting its obligations.  There is no “us versus them” when LEAs are doing what they are supposed to be doing.  What is in the best interest of the LEA is its fulfillment of its mandated duties.

LEAs exist for only one reason – to educate children.  This includes children with special needs.  And, LEAs are not expected to reinvent the wheel.  Congress created the IDEA to give them a framework by which the education of children with special needs can be provided.  It is the obligation of attorneys representing LEAs to help the LEAs comply with these regulations and achieve appropriate student outcomes, not try to figure out ways for LEAs to weasel out of their obligations or otherwise exploit bad situations for the attorneys’ financial gain (much less at taxpayer expense).

If you are looking at a dispute from the perspective that your clients’ best interests are somehow something other than their students’ best interests, something with your way of thinking is terribly, terribly wrong.  What is in your clients’ best interest is to render a FAPE.  That’s what the law requires them to do.  The delivery of appropriate educations to their students is the reason why your clients exist and the only reason they have taxpayer dollars with which to pay you.

Properly representing your LEA clients should involve you making sure that their students eligible for special education and 504 Plans are getting the FAPEs to which they are entitled.  That’s legitimately protecting your client from getting into trouble. You shouldn’t be doing anything other than that.

Click here to download the podcast version of this article.