Special Education & Student Discipline FAQ

Working With a Special Education Attorney

What does a special education attorney do?

A special education attorney represents students and their families when a school is not meeting a child's needs. In my Sacramento practice, that includes requesting and reviewing special education assessments, securing and improving IEPs and Section 504 plans, attending IEP and 504 team meetings with families, challenging plans that are not being implemented, and, when necessary, taking a case to a due process hearing. I also defend students in discipline matters, including suspension and expulsion — and especially the discipline of students with disabilities, who have added legal protections.

Do you offer a free consultation?

Yes. I offer every family a free 45-minute initial consultation. We will talk through your child's situation, and I will give you my honest assessment of your options — whether or not you decide to hire me. It helps to have your child's most recent IEP or 504 plan, any assessment reports, and any letters or notices from the school on hand, but none of that is required to talk.

How much does a special education lawyer cost in Sacramento?

I bill hourly at a rate that is negotiable, and in some cases I will agree to a flat fee instead. I offer flexible payment plans because I believe every student should have access to a good attorney, regardless of the family's finances. Because I am a solo practice, I do not take clients on an ongoing retainer basis — you pay for the work your case actually needs. We will discuss fees openly at your free consultation before you commit to anything.

Can I recover attorney's fees if we win?

Sometimes. The IDEA (Individuals with Disabilities Education Act) allows a court to order a school district to pay the reasonable attorney's fees of parents who prevail in a due process case, and settlements sometimes include payment of fees as well. Fee recovery is never guaranteed — it depends on the outcome and the specifics of your case — but it is one reason families should not assume they cannot afford a lawyer. I will give you a realistic picture at your consultation.

What areas do you serve?

My practice is based in Sacramento, and most of my clients come from Sacramento, Placer, Yolo, El Dorado, and San Joaquin counties. I regularly work with families in districts including Sacramento City Unified, Elk Grove Unified, San Juan Unified, Twin Rivers Unified, Natomas Unified, Folsom Cordova Unified, Roseville, Rocklin, Davis Joint Unified, Washington Unified, and Woodland Joint Unified, as well as charter schools, which owe students the same special education obligations. Because much of this work — records review, due process filings with the state Office of Administrative Hearings, and many IEP meetings — can be handled remotely, I can represent families anywhere in California.

Do you represent preschoolers or college students?

My practice focuses on students in transitional kindergarten through 12th grade. I generally do not handle early-childhood (infant/preschool) or higher-education matters, but I make exceptions on a case-by-case basis — if your situation falls outside K-12, reach out and I will tell you honestly whether I can help or refer you to someone who can.

Do I need an attorney, or is a special education advocate enough?

It depends on where your dispute stands. Non-attorney advocates can be a real help at routine IEP meetings. But when the disagreement is legal — the district refuses to assess, denies eligibility, won't implement the IEP, or your child is facing expulsion — an attorney can analyze your claims, negotiate with the district's lawyers, file a due process complaint, and represent your child at hearing. Only prevailing parents represented by an attorney can recover attorney's fees under the IDEA. Many families start with my free consultation simply to find out which kind of help their situation calls for.

When should I contact a special education attorney?

Earlier than most families think. Call me if the school has refused to assess your child, found your child ineligible when you disagree, proposed an IEP or 504 plan that seems inadequate, failed to deliver the services in the plan, or begun disciplining your child in a way that feels connected to their disability. Deadlines in this area are short — a due process claim generally must be filed within two years, state compliance complaints within one year, and expulsion appeals within 30 days — so an early conversation protects your options even if you never need to file anything.

IEPs, 504 Plans & Your Child's Rights

What is an IEP?

An IEP (Individualized Education Program) is a legally binding written plan for a student who qualifies for special education under the IDEA in one of thirteen disability categories — including autism, specific learning disability (such as dyslexia), ADHD-related "other health impairment," speech or language impairment, and emotional disturbance. The IEP sets out your child's present levels of performance, measurable annual goals, specialized instruction, related services (like speech therapy, occupational therapy, or counseling), accommodations, and placement. The school district is legally required to deliver what the IEP says.

What is a Section 504 plan, and how is it different from an IEP?

A Section 504 plan comes from Section 504 of the Rehabilitation Act of 1973, a federal civil-rights law. It covers any student with a physical or mental impairment that substantially limits a major life activity — a broader group than IDEA eligibility — and typically provides accommodations, such as extended time, preferential seating, or health-plan supports, rather than specialized instruction. An IEP provides specially designed instruction and services with measurable goals; a 504 plan levels the playing field in general education. Both are legally enforceable, and choosing the right one matters — some districts steer families toward a 504 plan when the student actually needs an IEP.

How do I request a special education assessment in California?

Put the request in writing. Send a letter or email to your school principal or the district's special education department stating that you request a special education assessment of your child under the IDEA and California law, and briefly describe your concerns. In California, the district then generally has 15 calendar days to give you a proposed assessment plan. Once you sign and return that plan, the district generally has 60 calendar days to complete the assessments and hold an IEP meeting to discuss eligibility. If you make the request verbally, school staff are required to help you put it in writing — but starting in writing yourself creates a clear record and starts the clock.

What if the school refuses to assess my child or says my child doesn't qualify?

The district must give you "prior written notice" explaining any refusal — get it in writing. From there you have options: request an independent educational evaluation, file a compliance complaint with the California Department of Education, or file for due process to challenge the decision. Be wary of common delay tactics, such as being told the school must first exhaust "response to intervention" or that your child's grades are too good to qualify — neither excuses the district's obligation to assess a child suspected of having a disability. This is one of the most common situations that brings Sacramento families to my office.

What is an independent educational evaluation (IEE)?

An IEE is an assessment by a qualified evaluator who does not work for the school district. If you disagree with the district's assessment of your child, you have the right to request an IEE at public expense — meaning the district pays. The district must then either fund the IEE or, without unnecessary delay, file for due process to defend its own assessment. An IEE from a strong independent evaluator is often the turning point in getting a child properly identified and served.

What is FAPE?

FAPE stands for "free appropriate public education" — the core guarantee of federal special education law. Every eligible child is entitled to an education, at no cost to the family, that is reasonably calculated to enable the child to make progress appropriate in light of the child's circumstances, as the U.S. Supreme Court held in Endrew F. v. Douglas County. When families and districts fight about assessments, services, placement, or implementation, the legal question underneath is almost always whether the district denied the student a FAPE.

What can I do if the school isn't following my child's IEP or 504 plan?

Document everything and put your concerns in writing. If missed services or ignored accommodations continue, you can request an IEP or 504 meeting to address implementation, file a compliance complaint with the California Department of Education (for IEP violations, generally within one year), file a complaint with the U.S. Department of Education's Office for Civil Rights (for 504 violations), or file for due process. When a district's failure to implement denies your child a FAPE, remedies can include compensatory education — make-up services to put your child back where they should have been. Implementation failures are among the most frequent cases I handle.

Can an attorney attend my child's IEP or 504 meeting with me?

Yes. Parents may bring anyone with knowledge or special expertise about their child to an IEP meeting, including an attorney. I regularly join Sacramento-area families at IEP and 504 meetings — sometimes visibly, to negotiate directly with the district team, and sometimes behind the scenes, preparing the parents, reviewing draft documents, and writing follow-up correspondence. As a courtesy (and to keep the meeting productive), we typically notify the district in advance that counsel will attend; the district may then bring its own lawyer.

What is a due process hearing?

Due process is the formal legal proceeding for special education disputes. In California, complaints are filed with the Office of Administrative Hearings (OAH), and claims generally must be brought within two years of when you knew or should have known of the problem. Filing triggers a resolution session and the option of mediation, and the great majority of cases settle at one of those stages — often with meaningful services, placements, or compensatory education for the student. If the case does not settle, an administrative law judge hears testimony and evidence and issues a binding written decision. I represent students at every stage, from drafting the complaint through hearing — see my due process representation page for how a case unfolds.

What is compensatory education?

Compensatory education is the remedy for services a student should have received but didn't. When a district fails to assess, delays eligibility, or doesn't deliver what an IEP promises, a judge can order — or a settlement can provide — make-up services such as tutoring, therapy hours, or funding for outside programs designed to put the student back in the position they would have been in had the district met its obligations. It is one of the most important tools for repairing the harm of a denied FAPE.

Suspension, Expulsion & Student Discipline

My child was suspended. What are their rights in California?

California law limits when and how long schools can suspend. A student may generally be suspended only for conduct listed in Education Code section 48900, for no more than five consecutive school days per incident, and for no more than 20 school days in a school year. Before most suspensions, the student is entitled to an informal conference to hear the charges and tell their side. California has also sharply restricted suspensions for low-level "willful defiance" behavior. If the suspension seems inflated, retaliatory, or connected to your child's disability, it is worth a phone call — suspensions build the record districts later use to justify expulsion.

What happens at an expulsion hearing?

An expulsion can only be ordered by the district's governing board after a formal hearing, generally held within 30 school days of the alleged conduct. Your child has the right to written notice of the charges, to see the evidence, to be represented, to present witnesses and question the district's witnesses, and to appeal an expulsion to the county board of education within 30 days. Districts often offer families a "stipulated expulsion" agreement before the hearing — do not sign one without legal advice, because you may be waiving your child's right to a hearing and appeal. I defend students at expulsion hearings throughout the Sacramento region.

Can a school suspend or expel a student with a disability?

Only within strict federal limits. A student with an IEP or 504 plan can be suspended short-term, but once removals exceed 10 school days in a year — or amount to a pattern — the school has changed the child's placement and must hold a manifestation determination review before going further. If the behavior was a manifestation of the child's disability, the expulsion generally cannot proceed and the student must be returned to placement, with limited exceptions for weapons, drugs, or serious bodily injury, which allow up to a 45-school-day interim alternative setting. Even a lawfully removed student with an IEP must keep receiving educational services after the 10th day.

What is a manifestation determination review (MDR)?

An MDR is a meeting the school must hold within 10 school days of deciding to remove a student with a disability beyond the 10-day limit. The team — which includes the parents — answers two questions: was the conduct caused by, or directly and substantially related to, the child's disability, and was it the direct result of the school's failure to implement the IEP? If the answer to either is yes, the discipline generally stops, the student returns to placement, and the school must address the behavior with assessment and a behavior plan. MDRs are frequently done badly, and parents can challenge a wrong outcome through an expedited due process hearing. Bringing an attorney to an MDR can change its result.

My child doesn't have an IEP or 504 plan. Do the disability protections still apply to discipline?

They can. If the school had a "basis of knowledge" that your child might have a disability before the conduct — for example, you had requested an assessment, expressed concerns in writing to a teacher or administrator, or staff had raised concerns themselves — your child may be entitled to the same discipline protections as a student with an IEP, including a manifestation determination. This comes up constantly in expulsion cases involving students who were struggling but never assessed. If your child is facing serious discipline and you ever raised concerns about a disability, tell your attorney immediately.

Talk to a Sacramento Special Education Attorney

Every situation above starts the same way: a conversation. I offer a free 45-minute consultation to every family, whether your child is in Sacramento, the surrounding counties, or anywhere in California. Schedule a free consultation or call (916) 407-4246.

This FAQ is attorney advertising and provides general information about California and federal special education and student discipline law. It is not legal advice, and reading it does not create an attorney-client relationship. Every case is different; deadlines and outcomes depend on specific facts. For advice about your child's situation, please contact Jason M. Miller, Attorney at Law.