Special Education Practices Small, but Growing
Lizzy McLellan, The Legal Intelligencer
While special education law is a niche with a small group of players, attorneys who practice in the area said the number of lawyers working in the field has grown in recent years, and they are poised to encounter a continuing flood of legal questions and more complicated cases.
Attorneys in special education law said a greater understanding of educational regulations, changes to those regulations and an increase in certain diagnoses have kept the practice active and demand strong.
According to the Council of Parent Attorneys and Advocates, Pennsylvania has more special education lawyers than most states but still has an unmet need. While some lawyers are looking to fill that need locally, a few have their sights on taking the practice to places where it is even more sparse.
Sonja Kerr, director of disability rights at the Public Interest Law Center of Philadelphia, said the identification rates for autism and dyslexia are high.
"I think those two disabilities and also children with emotional needs as well as children with traumatic brain injuries are really increasing the number of children that need to be served," Kerr said.
William J. Zee of Barley Snyder, who represents school systems, said he has noticed an increase in the number of students found eligible for special education, and an increase in the number of eligibility categories under federal regulations. He said he has also noticed an increase in parent advocacy and activity by school districts to specialize programs.
"Schools have definitely been more proactive," Zee said, particularly in the last decade. "I have definitely seen an increase in parent groups getting together and talking about issues and advocating for kids."
And the relationships between special education and other areas of the law, like juvenile justice and civil rights, have fueled growth in some special education practices, while adding to the need for specific knowledge.
"It's a really rich body of law that really lends itself to a niche specialization," said Leah Batchis of Batchis Nestle & Reimann.
Practicing in special education law requires understanding of subcategories, Batchis said, such as school psychology and occupational therapy. Litigation is also done by an administrative due process, she said, so finding an attorney with knowledge of that process in the education setting is helpful.
Batchis said she has not seen much change in the firms representing school districts. On the parents' side, she said, there have been some new faces.
Josh Kershenbaum of Frankel & Kershenbaum said his parent-side firm has grown over the past six years, and he has noticed a "new generation" of lawyers, including himself, who have been out of law school for three to 10 years and see special education law as an area ripe for entering.
Kershenbaum said about 90 percent of his firm's practice is special education law, but that spills into other areas of law as well, creating some of his firm's growth.
"We try to provide a very comprehensive approach for the families we work with," he said.
Frankel & Kershenbaum focused on expanding in two ways, he said: subject matter and demographic. The firm needed the ability to deal with juvenile justice issues, he said, since many children it was representing had juvenile violations. In terms of demographics, the firm needed a contingency fee practice, he said, since many clients come from underserved school districts and cannot afford to pay an hourly rate.
Kershenbaum said there is a common "misconception" that special education law is "easy." But he has actually found that most attorneys at other firms, once they are confronted with a special education case, prefer to refer it to a special-education law firm or group. That has helped business, he said.
"It's not something you can sort of leap into and just do," he said. "This is the kind of thing where lawyers do very well referring this out. You have to have experience working in the system for years to know how it works."
But the number of firms working on special education cases has grown, Kershenbaum said, particularly on the parents' side. Work for the school districts, he said, is limited to a small handful of firms.
One of those firms is Sweet, Stevens, Katz & Williams, which has offices in New Britain, Hershey and Pittston. Partner Jennifer Donaldson said 12 of the firm's attorneys practice in special education matters.
"[We] have a special education department that's very specialized," Donaldson said. "It's a large focus of our practice."
Zee also said he has noticed growth in special education practices. About 80 percent of his education practice is in special education, he said.
"A lot of these issues have always been there but people are having a greater understanding of what's required," Zee said. "Parents have become more attuned to what the regulations provide for."
Zee joined Barley Snyder this month. He came with the rest of the education group from Lancaster firm Hartman Underhill & Brubaker, which is winding down operations. Barley Snyder managing partner Jeffrey D. Lobach said the firm's new capacity for special education cases was not great, but he sees a growing need for the expertise.
Kerr said there are far more school attorneys than parent-side lawyers, despite growth in the parent bar.
"Every school and every intermediate unit in Pennsylvania has an attorney who handles special education," she said. "Parents don't always have that available to them."
Growing and Anticipated Need
Attorneys pointed to several reasons for increased activity in special education law, such as more diagnoses and increased parent awareness of regulations and requirements.
And a recent ruling from the U.S. Court of Appeals for the Third Circuit has created some new questions, and possibly complications. In its September decision in G.L. v. Ligonier Valley School District, the Third Circuit decided the statute of limitations for claims under the Individuals with Disabilities Education Act is two years. But it also ruled that claims can extend back in time as far as when the student's rights were violated.
"It's very unclear whether there will still be that two-year limitation," Batchis said. "It's really tricky ... overall it's good for parents and students."
Donaldson said the decision was years in the making, and the statute of limitations had been clarified gradually over the past decade. The ruling could lead to more cases or more complicated cases, she said.
"A lot of parent attorneys are seeing it as a way to go back much further in time," Donaldson said.
But despite indicators of an increased need for special education practices, they are hard to find outside major cities, Kershenbaum said.
According to Marcie Hipple, membership coordinator at the Council of Parent Attorneys and Advocates, the organization's top membership is in New York, California and Texas. There are also a fair amount in Pennsylvania, New Jersey, Connecticut and Illinois, she said.
"Outside of major metropolitan areas and big academic centers ... you're not going to find very many people doing this at all," Kershenbaum said. In rural areas, he said, "I don't have any idea how people ... who have kids with special needs, I don't know what they do."
Going forward, Kershenbaum said he would like for his firm to expand geographically as well.
"This is a very hands-on practice. It is like being a member of the family. It's very intimate, we really get to know these families," he said. "Being geographically very far from them can be challenging sometimes."
He is not alone in that goal.
Kerr will be leaving Philadelphia in January to join the Austin, Texas, office of the Cuddy Law Firm, a parent-side special education firm. Cuddy also has offices in Auburn, New York, and White Plains, New York. Founding member Andrew Cuddy said the firm is planning to open in Cleveland in January, and is exploring the possibility of adding a Philadelphia office.
Cuddy, who started his firm as a solo practitioner in 2000, said firms that focus on special education law don't need to expand geographically because the work is so plentiful in any individual jurisdiction. But his firm's goal is to fill the need throughout the country.
"I think what we're trying to do is something a little different," Cuddy said. "If you talk to parents they'll tell you they can't find lawyers to do this."
Lizzy McLellan can be contacted at Click to call 215-557-2493 215-557-2493 or firstname.lastname@example.org. Follow her on Twitter @LizzyMcLellTLI. •