Inclusion Zone Podcast, “When to Hire a Special Education Attorney”, recorded November 3, 2017
ANNOUNCER: Blog Talk Radio
[Laid-back Piano Music]
MARY: Hello and welcome to the Inclusion Zone Podcast. This is Mary Dolan from Inclusion Zone. We have a great show for you today. When you are a parent, you face many challenges, and school is a main focus of life for your family often. School is not only where education takes place, it’s the social hub, the community center. Lots of schools do a great job of educating young people, but there are many parents out there who have children with disabilities or suspected disabilities who are having a different experience with school systems. They don’t know what to do. Perhaps their child is lagging behind in math or reading scores, maybe the child is having behavioral issues, or maybe you have a child and you know what the disability is, and you aren’t sure if you’re getting all that the school system has to offer. Luckily there are laws like the Individuals with Disabilities Education Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act that are on the books to protect children with disabilities in schools. Laws are only, though, as good as how they are implemented, and while we all wanna think the best of our local public schools of all the teachers and administrators, sometimes parents need to get support from outside to make sure that schools are doing what they need to do. And that outside today is a special education attorney. Today we’re talking with Brian Gruber. He’s the principal attorney at a law firm, his own firm, the Brian K. Gruber Law Firm in Bethesda, Maryland. We’re going to be exploring with Brian how a family knows when it’s time to involve a special needs lawyer in their lives. So welcome, Brian.
BRIAN: Thank you, Mary.
MARY: Thank you. So Brian, you have been in the field of special education law for many years now. What is a special education lawyer?
BRIAN: So a special education lawyer is a lawyer who practices in the field of special education and there isn’t an individual designation, the way that they would would be, say, for a tax attorney or patent attorney, but all of us who practice law find a niche in which we operate. And the niche that I operate in is in the educational law realm, and particularly in the area of special education. This is my 23rd year, 23rd school year involved in special education, representing families of kids who either have disabilities or are suspected of having disabilities, or occasionally kids who are typically developing who just make some big, giant mistakes and find themselves facing significant discipline.
MARY: Mm-hmm. So okay, calling you for 23 years, lots of families have been doing that, and what are some of the reasons that a family picks up the phone to call you?
BRIAN: Families call, call myself and my colleagues within our practice for a variety of different situations. The most frequent or the most obvious, I shouldn’t say frequent, but the most obvious reason that families call us when they find themselves in a conflict with the school through, perhaps through the IEP process, they believe that or they have a difference of perspective than the school does in terms of how their child is functioning, what their child’s special education needs are, perhaps what their child’s disability is or even when there’s been a disagreement about whether the child needs special education at all. So that’s the obvious one, that’s what most people think about when they think about calling a lawyer is when there’s already an active conflict. A second reason that many families call, and it’s actually our preferred reason, is when they are beginning their journey of navigating through the special education process, perhaps in anticipation of a conflict or in anticipation of an outcome that they’re looking for. Special education is a very highly specialized field. The law is for the most part straightforward enough, the interpretation of the law heads into a lot of gray zones and it is a field that has an awful lot of jargon to it, and so the knowledge of the field, the knowledge of the underlying substance, the terminology and the ability to navigate the system towards an outcome is something that many families, will inspire many families to pick up the phone or contact us by email and get the ball rolling. And then I think the last is really when families just don’t know what it is that they don’t know. So perhaps a teacher or somebody from the school has let the parent know that they had some concerns and they’re thinking about recommending the child for evaluation for consideration for special education or the child is involved in some sort of disciplinary proceeding that’s sort of bleeding over into the areas involved in special education. When it hasn’t been part of your life, you don’t know what it is that you don’t know. And when all of the sudden it is thrust upon you, many families really start reaching out to grasp as much information, as many resources as they can, and so that’s another time when we hear from families.
MARY: Hm. So you identified a couple of specific instances when a family might need the services of a special education lawyer. You mentioned behavioral issues in a school, so there’ve been issues like suspension, change of school venue because of behavior issues, can you give some without releasing any information about people but can you give examples of how you’ve gotten involved with families?
BRIAN: Sure, and so I really wouldn’t wanna start with behavior as a first entry point because that really, I think, restricts the sort of global view of how disabilities present themselves in school. But every year I get the same phone call, it’s always different families but the fact pattern is often the same and they’ll tell me that their child is having difficulty learning to read and then we discover that the child is, say, 14 years old, and so we take a look back at the IEPs that have been in place, the evaluations, and we start to problem solve in terms of why it is that this child at such an advanced age is really hitting a plateau in terms of their reading and I feel like every spring I get a very comparable call because sometimes particularly when they get to the high school level, we really see the ability to apply skills to sort of fall off the ledge. Discipline is certainly an area of concern. IDEA, the Individuals with Disabilities Education Act which you referenced in your opening requires school districts to look at both the academic performance of students as well as the functional, or what we call the non-academic aspects. And the non-academic aspects of a child’s performance are oftentimes their behavior, their ability to self-regulate, their ability to socialize, their executive functioning, organization, their attention. And many times we hear concerns in this regard and there are scenarios where students are being consequenced for making some bad decisions and we go back and we peel that onion a little bit and discover, once we get into some other layers that say perhaps attention or impulsivity are a recurrent theme that are impacting a child’s learning and then perhaps we need to move forward in terms of identifying the student as a student with an educational disability that is going to require an IEP. So again, there are loads and loads of scenarios in over 23 school years and literally thousands of clients and thousands of families, there are innumerable different scenarios in which families wind up needing support, needing counsel, needing guidance, and needing intervention.
BRIAN: I’ll bring up another point that I think is important for listeners to understand, and this is not a ploy for myself or my colleagues or my profession, but an outside person, be it an attorney or educational specialist or somebody, oftentimes brings a certain objectivity to the table. So without giving away a whole lot of confidences and I’ll change the facts up a little bit, I was in an IEP meeting yesterday and I attend on average eight to 10 IEP meetings a week. But I was in an IEP meeting yesterday where the young child with significant disabilities and the classroom teacher was very excited to tell us the number of sight words that the student had acquired, and she, in all sincerity as her first year working with the student really felt like he was making great grades. But I had looked at the IEP that had been developed last spring, and unfortunately, the child was exactly at the same spot yesterday that he was last March when that IEP team had met. So it fell upon me as the objective person in the conversation to nicely burst that bubble and to bring everybody back to the same page as saying yeah, it’s really great that you’re seeing a receptiveness to learning and that you’re feeling like he’s making progress but the objective data based upon present levels in the IEP from last year and what you’re telling me eight months after the fact yesterday is pretty much the same and so let’s now have a conversation about whether this is progress or whether this is really just recapturing skills that were already learned. And that conversation, I think everyone anticipated was gonna be five minutes, we wound up going about an hour and a half or so and a really good collaborative conversation identifying some challenges to this child’s learning.
MARY: You know, something that you’re bringing up Brian, and something that you’re known for, is being collaborative. And that’s one of the hallmarks of your work. Can you talk about the kind of relationship that you foster working with schools, because immediately when you think about, oh I’m gonna lawyer up, it sounds like a battle. Maybe that might happen and maybe that won’t happen. So can you talk about the times when it doesn’t need to be a battle and there really are those moments of collaboration when you can bring the parties together?
BRIAN: That’s a great question, Mary, a great topic to talk about. I think there are a couple of major pillars that have to be addressed within the concept of collaboration. One is a recognition that there is not a single person in the history of public education who has decided to go into teaching, in particular special education, as a clear path to creating wealth. There are many, many teachers who live a very comfortable lifestyle, there are many for whom this is the right career choice and that their priorities in terms of work enjoyment versus tradeoff for dollars is the right choice for them but public education, if you’re a person of integrity, public education is not your path to creating wealth and so teachers go into education with the best of intentions. So that’s the first recognition that involves collaboration is understanding that everyone really should be in the conversation for the same purpose and if you recognize that and you own it, and you approach conversations with a degree of respect, you’re able to move conversations, you’re able to move conversations forward and you’re able to team build. The child, the meeting, should be about the child. And every attorney brings to the table their own particular style, their own particular way of doing things. Collaboration is not a skill that’s taught often enough in law school. We’re taught conflict resolution and we’re taught how to use the law and legal tools or legal process in order to solve problems, but persuasive advocacy, team building, collaboration are essential in terms of dealing with schools, refocusing the conversation and trying to get everybody onto the same page. The notion that bringing an attorney into a special education case means that you are becoming adversarial is a false notion unless you’ve picked an attorney whose reputation, style, personality are abrasive and adversarial in nature and then that’s something I can’t fix. But I often analogize the need for an attorney in special education on the parents’ side as when I refinanced my house a couple of years ago. I’d been a licensed attorney for a very long time, I’m licensed in several states, none of which require you to identify a specialization so I have a generic law license. But when I refinanced my house, I met with a real estate attorney because the documents were full of jargon. Some of them really mattered for me to understand what I was signing and some of them were very much pro forma. They mattered to the lawyer, but as a consumer, they probably didn’t have a whole lot of importance to me unless I was going to default on the mortgage or experience some sort of crisis, in which case then I needed to know what it was that I had just signed off on. So I needed a lawyer to kind of walk us through.
BRIAN: And walk us through the different terminology, the different jargon and to answer any questions that came up, and that’s very much the role that an experienced special education attorney often plays is helping parents to interpret what just happened or what is happening, digest it, understand their child’s legal rights, understand the ramifications of certain decisions that can be made. One example that I’ll give you has to do with evaluations. So before a school district can provide special education, or if there are questions around a reevaluation for special education, the school district is required to obtain the parent’s informed consent. And informed consent is a legal concept that says that they reasonably understood what it is that they’re giving permission for.
BRIAN: Making sure that the parents understand what testing is being requested for the child and what the ramifications are of that testing, understanding parents’ rights to pursue an independent educational assessment if they decide that they don’t like or disagree with the public results, they’re all oftentimes part of a conversation that I will have with parents either at an IEP meeting before or sometimes after to make sure that the consent that they give to the school district is informed consent. Very similar to when I signed 2,000 pages or so refinancing my house.
MARY: Hmm, okay. You know, all of this, this is a lot for a family to go through, to hear things about their kid, to worry about their educational outcomes, and then to include then somebody from the outside into something really personal like your kid’s education and you’re sharing confidential information. So that’s an important thing to have a good relationship I guess and have a good sense you mention, to get a good sense of who you’re bringing on board with you if that is an attorney who has a collaborative nature, you can kinda sniff that out or if they are the bull in the china shop, so that’s a good point, Brian.
BRIAN: So Mary, in my practice and I can’t speak for everybody, but in my practice, we will not take a case if we haven’t met with the client for a consultation. Part of what we do during a consultation is almost like that version of a first date, you want to make sure that you are compatible with the client. You certainly want to be able to answer whatever questions the family has, provide whatever guidance you have, make sure that they understand the lay of the land and what their individual scenario looks like and what the possible outcomes of that scenario may ultimately be. But you wanna make sure before you offer representation to a family that you are indeed a match for them, that they’re comfortable to be forthcoming because you’re absolutely right, we’re gonna be talking about intimate details of the thing that is most precious in their lives, their child. And sometimes it is sensitive information, sometimes I see reports that provide very highly sensitive information about family history and issues that each individual parent may have had or experienced or medical information related to the pregnancy, labor, and delivery experience, and so you’re absolutely right. What is never lost on me is the trust issue and the trust factor and you have to have that trust relationship with your attorney and the attorney has to be able to value that trust relationship and protect that trust relationship. It’s a very symbiotic relationship but it is akin to dating in that you gotta get that comfort level because you’re gonna be spending some time together and you’re gonna be spending some time together that rarely is all that enjoyable. IEP meetings and the IEP process and special education dispute resolution, we spend more time talking about what’s wrong with your child than what makes your child great, and every child has something about them that’s great and terrific that we as parents wanna brag about but if you’re my client, you’re gonna spend 10 or 12 hours over several weeks with me and we’re gonna be talking about intimate details about what is troubling your child and what may be causing your child some challenges and you’ve gotta be comfortable. We always have tissues in our conference room because the number of times that dads and sometimes moms are crying here is pretty frequent.
MARY: No doubt, no doubt. I’m a big blubberer myself and I love that analogy to first dates, I can go back in my memory to some lousy dates and so that’s kinda, you kinda gave me a little retro Friday night first dates kind of stuff.
BRIAN: Well there you go.
MARY: Alright, let’s talk more about relationships though because one of the relationships that families really try to work on is the relationship with the teachers, with the administrators, you know, you’re walking your kid up to school each day and you’re getting to know these folks, and then suddenly, bam, here comes an attorney who’s also gonna walk into the school with you and sit down at a meeting. How does it affect the relationship that you have with the school?
BRIAN: That really depends. Most of the time and again, I speak for myself and my colleagues, most of the time the relationship remains, if it’s been good it remains good, if it was strained, maybe we can make it a little bit better but oftentimes it stays status quo, and there are occasions where things become adversarial, not necessarily because there’s a lawyer involved, it’s because there’s a difference of opinion and different outcomes and it does become emotional. You know, it’s always emotional for the parent, oftentimes it is emotional for educators, I touched on it before. Most people who are in education are in education for the best possible reasons and many, many teachers take the work that they do with children to heart and feel personally invested in it and it can be uncomfortable to have somebody who you never met before come and sit in a meeting with you in front of your colleagues and perhaps question either what you’re doing with the child or the integrity or the approach and I can see where all of it could be very off-putting. I always try to be someone who builds bridges when I attend IEP meetings. I don’t find that in IEP meetings it is the forum to call anybody out, to embarrass them in front of their colleagues or to question their integrity. There’s opportunities to do that in other forums and I think it’s also important that whoever is representing parents has a good relationship with the attorney that’s representing schools so that you can have those conversations in terms of concerns that you have about quality or integrity or so forth with the other side. (Coughs) Excuse me. The other part to it and I spoke about this at length before is treating people respectfully and that should be an obvious,
MARY: Right, right.
BRIAN: That should go without saying, regrettably in the legal field it’s not something that we always take for granted. Treating people respectfully even if you have a difference of opinion. There are ways in which you can nicely state that you have a difference of opinion, so I gave the example of the situation I was in yesterday and if I had jumped into the conversation with his performance hasn’t changed in eight months, that wouldn’t get me anywhere. I’m interested in acknowledging the teacher’s enthusiasm and then pointing out the quandary I’m having in terms of reconciling the data and pointing to the data source diffuses it for the teacher. So in this case I made it about me and made it about my quest for knowing about the child instead of calling to question the teacher’s knowledge of the data and what had been written on the IEP that she’s implementing.
MARY: Yeah, you’ve got that velvet glove, right Brian? You bring that with you?
BRIAN: I wouldn’t call it a velvet glove, I would call it a gray beard and a lot of experience. It should be a warning sign, do not try this at home. It does take some practice in diplomacy but I think it’s an important skill to try to know about and I always encourage practitioners to be mindful of it. Special education is unlike a lot of other scenarios in which the, what courts have routinely said is that teachers’ opinions are entitled to deference, meaning that they’re entitled to respect and to the presumption that their opinions are accurate and credible, and I do strongly believe that that is something that if you kept in the forefront of the conversation enables that collaboration to advance.
MARY: Okay. Brian, there’s gonna be times when it’s not going to be as collaborative as you might wish, and you do want some outcomes as a parent. What are some of the things that a parent might be able to ask for if they’re having difficulties with the special education or hopefully to get a child into special education? What are, give some examples of how a family could reclaim some of the educational benefits for their students. Are there damages?
BRIAN: So we get that question a lot, a lot of parents come in and as laypeople, we hear these terms all the time, pain and suffering, damages, negligence, things of that nature. When we’re talking strictly about special education, there really is no such thing as money damages. There’s no scenario in which a court will award money to a child for the failure to provide reading instruction. That just doesn’t, that scenario doesn’t exist. Special education, the word that we use is remedies, what can we do to remedy or to make better the situation or the violation and it’s very linear, so if we’re talking about a kid who, lemme back it up a bit. If we’re talking about an evaluation that you don’t believe to be accurate, there’s a provision to have the school district fund a private evaluation and so it’s a one to one scenario. You believe that the psychological evaluation is improper or inaccurate, you follow the necessary procedures, the school district can agree to pay for a private psychological evaluation. We wouldn’t take poor psychological evaluation and then talk about tuition reimbursement in a private school because it’s not linear like that. It is linear if we say that the IEP and placement for the child are inappropriate, then it is the terminology that the courts have given us that it is equitable, it’s fair to reimburse the family for a private school education where the school system has failed in its obligation to provide a free, appropriate public education. If there has been a historical violation that students have not been receiving services that everybody agrees that they should’ve been receiving, or the school district should have know that they should be receiving, then there is a legal provision known as compensatory education which is defined as educational services above the child’s IEP to bring them to where they should have been had the school system done what they were supposed to do. So myself and a colleague here in the office won a fairly big case against the local school district this past spring where we were able to establish that this child needed, the IEP and placement were inappropriate and that he needed to be in a highly specialized and private school environment in order to receive the free, appropriate public education but we also established that the school system had failed to meet his need for one and a half years and we were awarded a year and a half of compensatory education that we had to then quantify in terms of how to make that up but it was a pretty substantial win for this young man and his family.
MARY: Absolutely, I mean that’s, and that’s real, I mean that’s not money in your pocket but that’s real money, I mean we’re talking about real outcomes in terms of the (garbled) of a person.
BRIAN: Well it’s tutoring, it’s mentoring, it’s career training and things that are really, truly meaningful for this young guy and so it was one of our feel good stories within this past year because again, we tried collaboration, we tried working, we couldn’t get anywhere, we ultimately had to litigate it and it was a highly successful outcome that we’re really very excited about.
MARY: Excellent. Gosh, well Brian, we are, many of us are thankful for what you do. In fact, I think everyone should be thankful for what you do. It’s a very specialized practice that you have and Brian Gruber, everyone, here in Bethesda, Maryland, serving families throughout the DC area, correct?
BRIAN: Throughout the area, we have cases all over the country.
MARY: Alright, thank you Brian.
BRIAN: Thank you, Mary.