By ANNEMARIE FRANCZYK

Special-education law is young, popular and unpredictable.

It's young, primarily based on the Individuals with Disability Education Act and the Rehabilitation Act, federal legislation dating to the 1970s.

It's popular, growing with the public's greater awareness of disabilities and less stigma attached to the conditions. There also is a growing list of acknowledged disabilities, food allergies among them.

And it can be unpredictable. As practitioners work with the law and challenge the loopholes and gaps, they're finding little commonality among the cases.

"There are statutory changes every five years, regulatory changes along the way and judicial decision-making. There's a lot of room for disagreement of what applies for any particular kid," says Jeff Marcus, a Williamsville attorney who concentrates in special-education law.

Consider the following scenarios in local cases:

• Susan Starkey's parents, after careful research, wanted their autistic daughter placed in the Orchard Park school system. After grade school, Susan's academic path took her through programs in Elma and East Aurora.

• Parents of a boy with disruptive behavior disorder and a string of school suspensions believed he was being unfairly targeted by the suburban school district.

• A Pioneer Central School student who became obviously disabled did not have a required psychological evaluation performed by the district to determine the extent of the disability.

• Brothers Dorian and Deon Harrison, both with autism, were supposed to be picked up and dropped off at their Buffalo home, but the school bus company stopped the service, citing company policy.

Getting a child into a special-education program begins with an evaluation that's followed by classification into one or more of 13 categories. Next is the creation of an individual education program that details placement, accommodations and educational goals for the child. Re-evaluations are held annually to determine any changes in the program; the student himself is re-evaluated every three years.

Missteps, misinterpretations and misunderstandings along the way can prompt parents through an attorney to request an impartial due process hearing. A hearing is a sort of mini-trial, judged by a state hearing officer, where the burden is placed on the school district to not only prove its case but also pay for the proceedings. The law encourages resolution of the problem prior to a hearing.

Ultimately, the school and the parent have the same goal: the most beneficial way to serve the child, says Ryan Everhart, a special-education attorney and partner at Hodgson Russ LLP. The firm represents about 80 New York state school districts.

Districts with the fewest problems are those with a consensus-building team of a special-education director, superintendent and special-education legal representation, experts say.

Still, problems can arise regardless of how accommodating or prepared the school district.

Michael Lucow is director of special education at Pioneer Central in Yorkshire. He says much of his time and that of his associate director is spent on exacting compliance requirements associated with Pioneer's special-education students, who make up 16 percent of the student population. And then, some details can be missed.

"There's no way we can comply with everything," Lucow says. "So if a lawyer or a parent is angry enough and out to get us enough, they can."

Everhart says a complaint directly to the state Department of Education can prompt an audit or loss of federal and state funding. Parents also can pursue civil litigation or a group of parents could initiate a class-action lawsuit for systemic violations of the law. There have been two class-action suits in the region.

In Western New York, problems generally involve placement, programming and services; in New York City, issues almost exclusively involve tuition reimbursement, Marcus says. The IDEA law requires parents to be paid for tuition spent at private schools if the public schools failed to provide needed services for which they have received government funding. The U.S. Supreme Court recently heard two reimbursement cases.

Here's how the local scenarios were resolved:

• The Starkeys didn't seek legal advice. They believed the team assigned to their daughter Susan's education had her best interests in mind when they said the BOCES middle school in Elma and the high school in East Aurora would better meet her needs.

But they were disappointed.

"It was just the distance," Sheila Starkey says. "We thought we were moving to Orchard Park and she would have friends in the neighborhood. And they had her outsourced."

• The parents of the boy with the disruptive behavior ordered a neuro-psychological evaluation of their son and hired a lawyer. Complicating the situation was that the parents - described by Harpreet Saran-Rokicki, an educational advocate with People Inc., as "caring but aggressive" - didn't have a good working relationship with the district.

Recognizing this and further believing there was little evidence to seek a hearing, the lawyer worked behind the scenes with Saran-Rokicki as the front person to give the school district a chance to step up programming for the student. At one time headed for an alternative setting, the boy has excelled under the new support system, Saran-Rokicki says.

• Lucow was new to the job at Pioneer when he recognized some vulnerability in the program: A blind student did not receive a mandatory psychological evaluation.

"The evaluation was to determine whether the child was disabled when it was clear the child was disabled by virtue of going blind and having an ophthalmologist's report," Lucow says. "That bit us before I could fix it."

• The Harrison brothers' door-to-door bus service was stipulated in their individual education plans. When the IEP is violated, the parents have a right to legal action. Jacqueline Harrison and her husband, Dorian Sr., hired Marcus' office to have the bus service reinstated. The issue was resolved in mediation.

"The minute we got a lawyer involved, things got resolved quicker," Harrison says. "We're very thankful, but it's a shame it has to be that way."

Annemarie Franczyk is an assistant professor at Buffalo State College and a frequent contributor to The Buffalo Law Journal.