Attorneys for special education students are commonly asked, “what is the difference between an attorney and an advocate?” The confusion makes sense because the roles are very similar. Both are there to guide parents through the special education process, and advocate for the special education student. Typically both will review educational records including special education assessments and IEP’s; advise on how to work with the schools; inform parents of their child’s rights; and potentially make recommendations for services, placement, evaluations, and strategy. In fact it is extremely common for attorneys and advocates to work hand and hand with families of special education students. But the differences are important. Continue reading to learn more about the role of attorneys for special education students.
What are the differences between an attorney and an advocate?
The most obvious difference between an attorney for special education students and an advocate, is an attorney can give a parent legal advice.
The most obvious difference between an attorney for special education students and an advocate is an attorney can give a parent legal advice. Special education law is very complicated. There is a mix of federal and state statutes and codes, 30 years of case law, and complex policies that intertwine the whole system. Advocates typically have a broad understanding of how the law works, but not detailed enough to guide parents through the process. So advocates typically do not, nor should they, give parents legal advice.
Due Process Representation
The second area where attorneys for special education students are different from advocates is representation in due process. When there is a dispute about the special education program a parent has the option of filing a complaint for due process. In California, the complaint is filed with the California Department of Education (“CDE”). While parents have the option of representing their special education student themselves, it is generally not advisable given the complexity of special education. Further, attorneys who win at due process may have some or all of their fees reimbursed, while advocates would not be eligible for reimbursement.
The third difference between advocates and attorneys for special education students is cost. In general attorneys for special education, students are going to be more expensive than advocates. However, most attorneys work on contingency rather than requiring a retainer from a parent. Under the Individuals with Disabilities and Education Act (“IDEA”) attorneys who win at due process can be reimbursed for their services. Because of this, many attorneys use the fee-shifting provision in the IDEA to get paid. This can lessen the financial burden, and provide equal access to all parents of special education students.
So what does an advocate do?
Advocates for special education students play an important role and are better suited to help parents through the IEP process.
Advocates for special education students play an important role and are better suited to help parents through the IEP process. A good example of this is attending IEP meetings. Many attorneys will go to IEP meetings, but this is usually going to be far more expensive than bringing and advocate and also less effective. First, attorneys cannot be reimbursed for attending an IEP meetings so the cost will fall on the parents. Second, most attorneys cannot draft an IEP, make recommendations for goals and services, or effectively engage the IEP team. Our experience has been when an attorney shows up at an IEP the team tends to speak less. It seems obvious that an advocate will be seen as less adversarial than an attorney.
Advocates also have specialty skills that most attorneys do not have. Many are former teachers, parents of children with special needs, or work in related fields. This can be of immense help when it comes to drafting an IEP. An advocate who was a teacher can certainly draft a better IEP than an attorney.
In general, the easiest way to think about the difference is an advocate is there to guide the parent through the IEP process, helping draft the IEP, explain the process, and make recommendations to the parent. An attorney is there to force the district to do something the parent believes is necessary. If there are questions about whether to contact an attorney for special education students first or an advocate, either is perfectly appropriate. Both can guide a parent on whether or not they should call an advocate or an attorney. In fact, it is very common for our office to have a consultation with a parent then refer them out to multiple advocates.
If you are currently experiencing issues with your child special education program and you’d like to have a consultation please do not hesitate to reach out to our office.