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Back to School – IEP Review

Have you ever wondered whether your child’s IEP will meet your child’s educational needs? Now you can have your IEP, evaluations, and student records reviewed and analyzed by experienced educational advocates, under the supervision of an educational attorney. These reviews will look at issues of compliance (with educational requirements) and the effectiveness of proposed IEP present levels, goals, objectives, services & accommodations.

Special Education Law and Advocacy (SELA) is now offering an IEP & student document review service for back to school! This is a format written analysis of an existing or proposed IEP. In analyzing the IEP, we will either review the IEP alone, or in conjunction appropriate student records and evaluations, depending upon the need. This written and/or verbal analysis will consider all important IEP components.

In addition to analyzing the IEP, the review will provide specific recommendations relative to:

  • Additional evaluations, which might be needed in order to draft a better IEP.
  • Ways to make the IEP more measurable.
  • Additional goals or objectives, which might be appropriate.
  • Suggestions relative to the level of services, accommodations, supports to staff, etc.
  • Recommendations relative to placement.

Your IEP review can be as easy as 1-2-3! Complete the online Client Intake Form, scan or fax your IEP, student records, & evaluations to the office, then call 813-348-6314 to make your payment. The process will begin and within 10 days, you will receive a written analysis of your records. You may choose the scope and depth of your analysis.

IEP Review Packages

Level 1 – 2 Billable hours/$250.00 package ($50.00 savings), includes:

  • Two-hour in-person consultation during which the IEP is reviewed in its entirety;
  • Brief review of all documents of relevance to the IEP, i.e., Positive Behavior Intervention plan, school psychological, intervention data, etc.;
  • Recommendations for improving goals and progress monitoring of those goals;
  • Information on disability-specific symptom presentation and educational research of relevance;
  • Recommendations for next steps.

Level 2 – 4 billable hours/$500.00 package ($100.00 savings), includes:

  • One-hour in-person initial consultation/case overview;
  • Comprehensive review of IEP;
  • Brief review of all documents relevant to the IEP;
  • Analysis of current goals with recommended amendments;
  • Development of new goals, where appropriate;
  • Recommendations for next steps;
  • Written report/IEP meeting roadmap that follows IEP format, detailing recommended changes.

Level 3:

  • One-hour in-person initial consultation/case overview;
  • Comprehensive analysis of IEP, page-by-page;
  • Comprehensive review of all documents relevant to the IEP;
  • Analysis of current goals with recommended amendments;
  • Development of new goals, where appropriate;
  • Parent education in advocacy next-steps;
  • Written information on disability-specific symptom presentation and appropriate interventions, supports, and accommodations;
  • Written report/IEP meeting roadmap that follows IEP format, detailing recommended changes.

Educational Advocacy

Educational Advocacy forms the core of the Special Education Law and Advocacy practice. We use our extensive knowledge of special education law, our understanding of the educational needs of children with disabilities, and out experience in working with school districts from around the states, to effectively advocate for children.

Our advocacy includes the following:

Strategic Planning

Effective educational advocacy requires a well thought out strategic plan. Through our consultation process, we help parents determine the specific needs of their child, Where parents have assembled a support team (advocate, therapists, or educational experts), we integrate with that team to facilitate a united effort. Where necessary we help locate educational experts to strengthen and guide our efforts.

Communicating and Negotiating with School District Personnel

We have worked with over 32 different Florida counties and we have worked hard to establish our reputation as being strong, effective advocates, while maintaining collaborative relationships with school district personnel. In by far the largest percentage of our cases, we are successful in obtaining our advocacy objectives, without resort to litigation. Even where it is necessary for us to bring Due Process actions against district, we strive to do it in a professional manner, preserving as well as possible the district/parent relationship.

Individual Education Plan Meetings

Our attorneys and advocates join their parent/clients at the IEP table, where such representation is sought. We are particularly sensitive to the need for the IEP process to remain focused upon the educational need of the child. For this reason, we do not try to discuss “the law” during educational planning and we do not threaten litigation at the IEP table. We do use our knowledge of special education law and, more importantly, our acquired knowledge of the educational needs of children with disabilities to strongly advocate for the child’s specific needs. Our experience from participating in many IEPs allows us to be an effective voice for the child.

Manifestation Determinations and Other School Hearings

We often find that our services are necessary to defend and protect children with disabilities against harsh, punitive, disciplinary actions by school districts. At the same time we prefer to help parents proactively get out ahead of such issues. At the first sign of behavioral issues, we work to get appropriate evaluations and behavioral services for the child.


Sometimes efforts to reach consensus at the IEP table fail. When that happens it may be necessary to consider mediation. Effective mediation is the art of helping both sides of the educational dispute find some common ground of reconciliation and compromise. This process requires knowledgeable assessment of the relative strengths and weakness of each side’s positions. It requires firm, steadfast advocacy, combined with the ability to “think outside the box” and find solutions. Finally, once solutions are found, it is essential that the mediation agreement is carefully crafted so that the school district will be held accountable for its commitments.

The attorneys and Advocates of Special Education Law and Education are skilled at helping parents shape and present their positions in mediation. We have an excellent record of successful mediations.


Children with disabilities have the right to challenge inadequate educational programs through an administrative hearing and, if necessary, through the federal court trial and appellate system.

The attorneys of SELA are skilled litigators. Although we firmly believe that in the largest majority of cases it is possible to obtain appropriate educational services, without the necessity of litigation, we understand that our willingness and ability to pursue appropriate remedies through due process and the courts is an essential element of effective advocacy.

State Complaints

Where a school district violates the procedural due process rights of a child with disabilities. It is possible to file a complaint with the state Department of Education (DOE). This process requires the DOE to investigate the allegations and making a findings as to whether the school district has violated the child’s rights. Where a finding of violation is made, the DOE will order a corrective action on the part of the school district.

OCR Complaints

Where the school district takes (or fails to take) an action which discriminates against a child due to the child’s disability, we will file an Office of Civil Rights (OCR) complaint with the U.S. Department of Education. Again this may lead to an investigation and ordered corrective language. Where the school district’s behavior is violative of a child’s civil rights, it may also be possible to file a civil rights action in federal court.

Due Process

When issues relative to a child’s free and appropriate public education arise, it may be necessary to request an administrative hearing. This called a due process hearing and here in Florida these hearing are conducted by the state Division of Administrative Hearings. The hearing officers are Administrative Law Judges. The hearings themselves are often held in school district conference rooms, courtrooms, and other government meeting rooms.

Federal or State Court Litigation

If the due process hearing fails to resolve the issues, either the parents or the school district may take the issues to court. While most often this means federal district court, it is also possible to file in the state courts. In principle this means that the parties may have to retry the same issues, which were litigated in the due process proceedings. Federal court litigation general involves fairly complex motions, briefs, discovery and hearings.


In a practical sense filing in federal or state court is an appeal from an unsatisfactory due process decision. The record from the due process hearing is made part of the court action and the decision of the administrative law judge is given great deference. If the parties make it through the gauntlet of motions for judgment on the record (requests for the court to determine the case on the due process record), there will be a new trial.

Decisions from the federal District Court may be appealed to the Circuit Court of Appeals. In Florida this would be the 11th Circuit Court of Appeals. At this stage of the litigation process, the parties duel with opposing legal briefs. There is no evidentiary hearing. At the most, the parties my be given a very short appearance before the appeals judges to state and defend their case.


IDEA (Individuals with Disabilities Education Act)

20 U.S.C. § 1400 et seq.; 34 C.F.R. § 300.

The IDEA is the principal law relied upon by advocates to obtain appropriate education for children with disabilities. In simple terms IDEA requires public school districts to seek out and identify children with disabilities and provide them with an appropriate education in an educational environment, which is as close to the regular education environment as possible. This law requires that schools develop an annual educational plan (IEP) through an multidisciplinary team, which includes the parents. Educational advocates function primarily in the complex processes involved in the development and implementation of these educational plans.

A. History – Until 1975, when the Education of all Handicapped Children Act (EHCA) or Public Law 94-14 was passed, children with disabilities had no federally protected right to an appropriate public school education. Up to that time, many severely disabled children were excluded from public school or were provided only minimal education in segregated, often dismal programs.

The original EHCA was followed by successive amendments in 1983 and 1986. Then in 1990 the law was revamped and renamed the Individuals with Disabilities Education Act (IDEA). The IDEA has been reauthorized and amended in 1992, 1997 and most recently in November 2004.

Because the IDEA and other related educational laws are continually changing and evolving, it is very important that advocates make every effort to update their knowledge of the statutes and their interpretation by the courts.

B. Legal Concepts – IDEA: It is often easiest for advocates to develop their understanding of special education law through a study of the basic legal principles, which have evolved from the statutes and the case law. Once the advocate has a grasp of these principles, it becomes easier to apply the law to the complexities of the educational process. Some of the basic principles are briefly discussed below.

1. Special Education: While most people understand that a child with an IEP (Individual Education Plan) is receiving “special education,” there is a lot of confusion about what we mean by this term. Essentially, special education is considered “specially designed instruction,” which is provided to a student with disabilities in order to assist the student successfully access education. 20 U.S.C. §1401 – Definitions (25). 34 C.F.R. § 300.26 (3)

Special Education usually involves the adaptation or modification of content and/or the variation in the rate or method of delivery of instruction. Special education can also involve the teaching of skills, designed to assist the student in compensating for or overcoming this effects of the student’s particular disability.

2. IDEA Eligibility: Before a student can receive special education services, it is necessary that the student be found legally eligible for such services. In a global sense, IDEA eligibility requires that the student be a “child with a disability” and by reason thereof “needs” special education and related services. 20 U.S.C. § 1401 (3)

Each category of disability has its own legal criteria for determining the disability and eligibility. The simple existence of a disability will not in and of itself make the child eligible for IDEA services. The law also requires that the established disability have an adverse affect on the child’s educational performance. (See Practice Note)

Disability categories: The statutes and rules related to each disability category under IDEA are discussed under the heading for that disability (See the tab “Disabilities” in the left-hand column). It is important that the advocate have a good understanding of the various legally recognized disability categories. These are identified in C.F.R. 300.7 (See list below). The specific eligibility criteria of each category can be somewhat complex and are usually grounded in psychological, communicational, or physical assessments. The advocate should at least be able to locate the precise legal criteria for each disability category and should be capable of understanding the assessment procedures used to determine eligibility. A few of these primary categories are:

  • Mental Handicap
  • Specific Learning Disabilities
  • Autism
  • Other Health Impairment
  • Emotional Disturbance
  • Speech/Language

3. Free and Appropriate Public Education. 20 U.S.C. § 1401 (8);
The obligation of school districts to educate children with disabilities is summarized in the requirement for schools to provide a “free and appropriate public education.” This is a power packed phrase and is the core principle governing every issue related to the education of those with disabilities.

The requirement of a “free” education means that the school may not require any payment for the provision of education. If assistive technology, special books, transportation, etc. are required in order for the child to receive an appropriate education, then they need to be provided without charge.

The definition of the word “appropriate” as it related to the education of those with disabilities could fill volumes. Almost every due process administrative hearing or court case will turn around whether or not the school district has offered an “appropriate” education. The IEP is the vehicle or plan for delivering this “appropriate” education and appropriateness will be decided through the subjective finding as to whether the IEP is “reasonably calculated to confer educational benefit.”

4. Least Restrictive Environment: The principle of education in the least restrictive environment harkens back to the origins of special education law. Prior to 1975 many children with disabilities were not offered any public education. Those who were provided some education were generally segregated into separate institutions, schools or classes. In this sense the § 504 and IDEA are truly anti-discrimination laws.

In simple terms these laws require that children be educated in an environment as close to the regular education environment as possible. These laws raised a rebuttable presumption that disabled children should be educated with their non-disabled peers. Only when all reasonable efforts, including accommodations, modifications, and supports, have been unsuccessful in providing an appropriate education in the regular placement, may the school begin to restrict the students educational environment.

In determining whether a student is capable of receiving an appropriate education in a regular education or other inclusion class it is not necessary that the student be successful in the same way as the typically developing peers. It is only necessary that the student be able to make educational progress according to the student’s own abilities and nature. It has been held that social benefit may be sufficient grounds for approving mainstream education for a child with a disability (See also IEP-Placement)

“To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactory.” 20 U.S.C. § 1412 A (5); 34 C.F.R. § 300.130; 34 C.F.R. 300.550 through 556.

5. Stay Put: Congress recognized that at some point in a child’s education a dispute might arise between the student’s parents and the school district as to the appropriate educational plan for the child. In an effort to maintain a certain equilibrium between the parties during the resolution of the dispute, the law has established the principle of “stay put.” This means in simple terms that the student shall remain in the current educational placement “during the pendency” of due process administrative hearing or Court trial. The child can be moved to another placement during the pendency of the resolution only by mutual agreement of the parties.

“… during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child, …” 20 U.S.C. § 1415 (j)

Download Full Article

Section 504 – Rehabilitation Action of 1972

20 U.S.C. § 1405; 29 U.S.C. § 794:

This law is an anti-discrimination, civil rights law, which forbids discrimination on the basis of a disability. In effect, the law is intended to provide children with disabilities access to educational services and it makes it illegal to deny educational opportunity to a child due to the fact that the child may have a disability. This law has also been used to seek financial remedies (damages) in circumstances where school personnel have deliberately inflicted emotional or physical harm upon disabled students.

Under this statute, disability is defined as any physical or mental condition, which substantially limits a major life activity. A major life activity includes education, learning, reading, writing, working, caring for oneself and performing manual tasks. It can include such normal activities as walking, seeing, hearing, speaking, or even breathing normally. See 34 C.F.R. § 104.3

Under this law the school is supposed to provide evaluations for children suspected of a disability. Other procedural safeguards are very unclear, including the right to reevaluations, and independent evaluations.

Implementation of § 504 – The 504 Plan

The application of § 504 requires schools to provide reasonable accommodations and modifications in the student’s courses. Like IDEA, § 504 requires schools to provide a free and appropriate public education (FAPE) for children with disabilities who qualify. Typically schools plan for the provision of § 504 accommodations or modifications through the development of a § 504 Plan.

The availability of a § 504 Plan is important when a child suffers from a disability, which does not qualify the child for a more comprehensive IEP. The requirements for § 504 are much looser than those for IDEA. A § 504 Plan is particularly appropriate where the accommodation required is relatively simple and not overly intertwined with the child’s education. For example – where the child requires the administration of medicine at school. Such a plan might be appropriate where the student only needs some basic accommodations and there is some confidence that the teachers will respect and implement the plan.

Accommodations: The exact accommodation a student needs depends upon the child and the specific disabilities involved.

Accommodations v. Modifications: Accommodations are adjustments to curriculum materials, presentation, or student requirements, which do not fundamentally change the essential curriculum or basic course requirements. If the adjustments to the curriculum materials, presentation or student requirements substantially change the curriculum or course requirements, these adjustments are called modifications and they may prevent the student from obtaining regular credit for the coursework.

Family Educational Rights and Privacy Act

The Family Educational Rights and Privacy Act is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.

FERPA gives parents certain rights with respect to their children’s education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are “eligible students.”

Parents or eligible students have the right to inspect and review the student’s education records maintained by the school. Schools are not required to provide copies of records unless, for reasons such as great distance, it is impossible for parents or eligible students to review the records. Schools may charge a fee for copies.

Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading. If the school decides not to amend the record, the parent or eligible student then has the right to a formal hearing. After the hearing, if the school still decides not to amend the record, the parent or eligible student has the right to place a statement with the record setting forth his or her view about the contested information.

Generally, schools must have written permission from the parent or eligible student in order to release any information from a student’s education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions:

  • School officials with legitimate educational interest;
  • Other schools to which a student is transferring;
  • Specified officials for audit or evaluation purposes;
  • Appropriate parties in connection with financial aid to a student;
  • Organizations conducting certain studies for or on behalf of the school;
  • Accrediting organizations;
  • To comply with a judicial order or lawfully issued subpoena;
  • Appropriate officials in cases of health and safety emergencies;
  • State and local authorities, within a juvenile justice system, pursuant to specific State law.

Schools may disclose, without consent, “directory” information such as a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.

Recent Due Process Cases

C.J. v. Marion County School Board

Download Case PDF

B.E. v. Marion County School Board

Download Case PDF

L.H. v. Manatee County

Download Case PDF

ESE Subjects

Articles and material are added as we do the research or prepare the materials. This means that we do not try to redesign this page with every new subject is added. You will have to look for your subjects by scrolling down the page. Where there is only one or two documents, those documents will be posted next to the subject line. Where the subject line is underlined this means that the subject line is, in fact, a link to another page, where several documents will be found.

You can help. If in reviewing a subject on this page you have other documents which pertain to the subject matter, that we do not have on our page – send us the document and we will consider it for inclusion on this page. If you have another subject, that we have not covered yet, please send us your subject idea and documents.


IEP Eligibility and Good Grades

One of the thorniest issues for advocates is the question as to whether children with passing, or even excellent grades (gifted) can at the same time have an educational disability. I have dealt with this issue many times over the years and have come to understand that the problem arises from how school’s tend to define the word “education.” Almost unanimously schools define education as synonymous with academic.

The problem arises for language in the law which requires for IDEA eligibility not only a disability, but also that the child “by reason thereof requires specially designed instruction.” Schools have interpreted this to mean that not only does the child have to have a disability, but that the disability must have a negative impact on the child’s education, e.g. academics.

Parents, however, and thankfully the courts have defined “education” in a much broader way. The courts have been fairly consistent in defining education as including not only academics, but also social skills, emotional well-being, and appropriate behavior. If a child has difficulty making reasonable progress in any of those domains, then the child’s disability is considered to have the required negative impact on the child’s education.

Rather than write a long essay here, I feel that it would be most useful to post some material that I have collected over time. If the advocate reads these materials, he/she will have a relatively firm understanding of the issues and the good arguments for obtaining IEPs for children with disabilities and good academic records.

Letter to Bureau Chief: FDOE Bureau of Education for Exceptional Students:

This is a letter sent to Monica Verra-Tirado, Bureau Chief, on the issue of whether children with good grades could also be students with disabilities and be eligible for special education services. Along with the letter, a two page document laying out the state of the law on this issues. Below are copies of the cases and OSEP opinions on the issues.

A letter to a school board attorney:

This is an actual (redacted) letter to a school board attorney, discussing the eligibility issue relative to a child with passing grades, but a severe emotional disability. In reviewing this letter you will have insight in how an attorney/advocate might approach this issue with a school district. Although this letter was signed by me, it was actually researched and drafted by Claudia Roberts, a senior advocate with my office Special Education Law and Advocacy.

Manatee County Due Process & Fed District Court Case

I am placing this document next because it is the most relevant Florida Case on the subject. This case involved a young man with ADHD. While he made good grades, he was frequently in trouble for his impulsivity, hyperactivity, and lack of focus and attention to task. The hearing officer made it clear that the fact that the child had a Section 504 plan did not prevent the child from having an IEP. He noted that they were two different laws. He went on to find that the child was eligible for an IEP.

Maine Fed. Dist. Ct.Case – Aspergers

This case involves a child with Aspergers. The federal district court in Maine found that the child was eligible for an IEP despite the fact that he makes good grades.

A collection of other relevant documents:

Florida Discriminates against Children with severe
and complex medical disabilities:


Response to Intervention (RtI)

RtI (Response to Intervention): This is a new way suggested by Congress to help schools make eligibility determinations. In actual fact, Congress suggested this process for Specific Learning Disability eligibility, as an alternative to the discrepancy rule. The Florida Department of Education (FDOE) has decided to apply this process to all disabilities.

In simple terms, where there is a suspicion of a disability, RtI requires schools to create a plan to use general education interventions to see if these interventions are sufficient to resolve the educational problems the student may be having. The idea is to first make sure that the student’s problems are not the result of a lack of teaching or the failure to apply general education interventions.

There are a lot of problems about the way this procedure is being implemented. Too often the interventions are not applied with fidelity or the progress monitoring is not being done properly. While the FDOE states that RtI is not to be used to “delay or deny” eligibility, the reality on the ground is that RtI is frequently being used to delay and deny eligibility.

It is essential that parents and advocates understand the RtI process and that together we learn how to advocate in order for this process to function for the benefit of students with disabilities. We will try to present information here that will help parents and advocates understand RtI.

RtI – Technical Assistance Papers: (FDOE)

RtI – OSEP Memorandum

RtI – Article by Laura Darrow

Curriculum-Based Measurement in RtI  – Article by Laura Darrow

Transition – Article

Web Resources for Evidence-Based Instruction


Bullying and Harassment

OCR findings in a bullying complaint

OSERS Dear Colleague Letter re; Bullying and Harassment

COPAA’s Amicus Brief in a 9th Circuit case dealing with Bullying

Advocating for Children with Attention Deficit Hyperactivity Disorder

This web based discussion is based upon a presentation made for educational professionals. The web presentation is broken into topics and is somewhat abridged. The entire 18 page conference notes are available by clicking on the icon above.


In my experience, children with AD/HD are one of the more difficult groups of disabled children for which to advocate. This is probably because of several important factors. First, many individuals, including experienced teachers and educational professionals fail to recognize AD/HD as a true disability. The fundamental observable traits of children with AD/HD are difficulty in focusing their attention, problems in remaining still, and impulsivity. Most of us recognize that many, if not almost all, children struggle with these problems to some degree. These behaviors are considered a natural part of childhood and with most children they are fairly easily controlled and managed. As children mature, they are expected to outgrow these behaviors. Because of this it may be difficult for many people to recognize that for some children these behaviors are not volitional and they are beyond the child’s natural ability to bring in to conformity with societal expectations. Too often it is not understood that these children’s severe struggles with attention, restlessness and impulsivity are truly a neurological, biologically based disability.

To many it seems that certain children are just not trying. While other children learn to channel and more or less control their restless, youthful enthusiasm and passion for movement and action, some children seem to rebel against efforts to teach them to sit still and to concentrate. These children are always fidgeting, moving, looking for action and excitement. They are the ones out of line, jumping ahead, acting without thinking, getting into mischief and talking without cease. Other times these children may not be so impulsive or active, but never seem to pay attention. They are the daydreamers; the doodlers; the ones who never seem to finish a project; the ones who never have their materials or their homework. These are the disorganized ones, the ones with terrible handwriting.

Anyone who has worked with these children knows how frustrating they can be. It is easy to view their behavior as intentional and as a matter of choice. It is easy to see these children as lazy, rebellious, unmotivated, troublemakers, careless, and defiant. If only they tried a little harder, made a bigger effort, they could do as well as other students. If only they would learn to follow the class rules. They just need to settle down and get serious about their responsibilities. Sadly, as probably well-meaning educators struggle to bring some order and discipline to these children, by reacting to their disability as though it is a discipline issue, these children become frustrated, confused and then, very often angry. From that point on, these children are usually considered behavior problems. Efforts to speak of their disability are often rejected as “making excuses” for their bad behavior.

I have begun my introduction to my presentation of AD/HD with this discussion of the common misperceptions relative to AD/HD, because no amount of legal action or intervention is going to help these children as long as educators continue to view them as first as behavior problems. If we can first recognized that AD/HD is a very serious educational disability, however, there are some proven accommodations and therapies, which will allow these children to participate fully and successfully in our educational programs.


The truth is, AD/HD is an identifiable neurobiological disability, affecting approximately between three and five percent of the school population. This disorder has been thoroughly researched and the data substantiating the disorder is convincing. The exact cause of the disorder, however, is not known. The disability began to appear in medical literature as early as 1902. The most recent causation research has concentrated on environmental/nutritional factors as well as the genetic connection. There is fairly reliable data suggesting that AD/HD is often found to run in families. Today, the disorder is listed in the classification system of the Diagnostic and Statistical Manual, 4th Edition as Attention-Deficit/Hyperactivity Disorder (AD/HD).

AD/HD may present in a student as one of three types. One form of AD/HD is known as AD/HD-I, or inattentive type. These children have difficulty maintaining their attention, attending to details, and completing assignments. They may seem not to be listening, to be disorganized and forgetful. They will often avoid tasks requiring sustained mental effort, or may appear to rush through it carelessly. Teachers and parents will often describe them as irresponsible, careless, unmotivated and scatter-brained.

Students with AD/HD-HI, or hyperactivity/impulsive type, are more likely to be recognized as having a problem. These are children who appear to be wired at full speed. They are in constant motion, feet, hands and mouths. These are the students who shout out the answers, right or wrong, before the question has been finished. They continually interrupt and have major difficulty taking their turns. Very often other students will present symptoms represented by both of these disability types (AD/HD-C, combined type).

Identification of students with AD/HD is further complicated because this order can and often does co-exist with other disorders. It is my experience that many students who presented with only AD/HD at first, may develop other disorders if their AD/HD is not identified and accommodated. One such disorder is Depression. A child with AD/HD has difficulty conforming his behavior to the expectation of his parents, teachers and peers he or she can begin to feel that rejected and incapable of pleasing others. These experiences will give the child’s self-esteem a cruel beating and eventually about 25% of students with AD/HD will develop depression. They may tend to withdraw from others and become irritable or moody. This depression can be very severe and can have extremely negative effects on a child’s mental and even physical health.

At some point a child with AD/HD can become so discouraged and so convinced of his/her on worthlessness that he/she begins to become angry. One psychologist, an expert in AD/HD, has called this “slow simmer.” He describes this process as the result of growing frustration and feelings of not being valued or understood. I call it “self-fulfilling prophesy.” As teachers, parents and others in authority react to these children as though their failures are intentional, the children begin to demonstrate the expected behavior becoming rebellious, defiant, and incorrigible. They tend to argue, quickly lose their temper, be resentful, and spiteful. They may openly defy rules and refuse to take responsibility for their actions, quickly blaming others. This behavior can become serious and chronic enough that some psychologist would diagnose them with Oppositional Defiant Disorder or Conduct Disorder.

Children with AD/HD can also suffer from Anxiety Disorders, causing students to experience excessive stress and even panic attacks. Some children with AD/HD can also have Tourette’s Syndrome, a troublesome disorder that may cause a child to have annoying tics, make involuntary noises, or blurt out offensive language. About fifty percent of children with AD/HD will also have a learning disability. These potential learning disabilities include dyslexia and various visual or auditory processing problems.


A. History of Educational Accommodation of AD/HD

AD/HD has been one of the last disabilities to be afforded recognition and the protection of the law. For a long time educational professionals refused to recognize that AD/HD was a disability, which needed to be classified and accommodated. In a way, AD/HD is the poor stepchild of other disabilities. Schools were familiar with classifying educational disabilities, which are more easily identifiable. If a child was having educational problems, he might be given a psycho-educational battery of assessments. Naturally if these test showed that the child had a developmental delay or cognitive (I.Q.) deficit the child would be eligible for exceptional student education (hereinafter ESE) services under the rubric of mental retardation. Children with AD/HD usually have no intellectual deficiencies. They are often, in fact, very intelligent.

If the child proved to have a normal intelligence, then schools look to see if there is a significant disparity between the child’s cognitive level and his/her achievement levels. Children who show such disparity and who evidence a processing problem, will generally be classified as having a learning disability. As stated above, about 50% of students with AD/HD would be found qualified for ESE students under these tests for learning disabilities. While this path of qualification would bring a portion of AD/HD students into special education, it often failed to identify the fact that these students had unique needs, beyond those of their learning disabilities. The other 50%, in the past, were simply not considered disabled and very often no help was offered to them.

There was, however, one other way a child with AD/HD might receive services. As explained above, neglected or mistreated AD/HD very often will result in extreme frustration, depression, oppositional defiant disorder, or conduct disorder. Children with severe AD/HD who are not properly identified and accommodated are at extremely high risk for developing behavior problems. When that happens, schools would often examine the child’s behavior record and emotional issues and find that the child qualifies for services as emotionally handicapped. There was, however, no guarantee that the underlying AD/HD will be accommodated in these classes, other than by the fact that the classes are often smaller than regular classes.

Part of the difficulty in obtaining appropriate services and accommodations for children with AD/HD came from the fact that the rules, regulations, and statutes failed to specifically provide for AD/HD as an entitled disability. Still AD/HD is a disability and as the scientific evidence has grown relative to the impact of the disability on a child’s education, parents and advocates have gained strength in requiring school districts to meet the needs of these children. Some relief was first found in Section 504 of the Rehabilitation Act of 1973 (hereinafter Section 504).

B. Section 504 of the Rehabilitation Act of 1973

Eventually plight of children with AD/HD began to reach the Congress. In 1990 the Congress requested that the Department of Education research the issue and seek public comment on how students with AD/HD were being educated in the country. The national reaction was overwhelming. The DOE’s Notice of Inquiry resulted in more than 2000 written responses. Numerous advocacy organizations, including CHADD , lobbied the DOE. Finally, on September 16, 1991 the DOE issued a “Policy Clarification Memorandum.” This memorandum opined that children with AD/HD, which significantly impairs their education or learning, may be eligible for special education and related services. It acknowledged these children could be eligible under Section 504 or the IDEA.

Initially the looser eligibility requirements of Section 504 made it appear to be an easier statute under which children with AD/HD could seek accommodations. Essentially Section 504 is a civil rights statute providing that schools may not discriminate against children with disabilities. In order to be eligible under Section 504, it was only necessary to demonstrate that the child had an identified physical or mental condition, which substantially limits the child’s education. Very often schools would agree to provide some basic accommodations to students under Section 504, when the student could not meet the eligibility requirements of the IDEA and were still able to establish the existence of an educational disability.

Section 504 requires that schools provide disabled children with the accommodations necessary for them to access their education. Generally these accommodations are provided for on what is known as a 504 Plan. Invariably the accommodations are applied in the student’s regular education class, in keeping with a Section 504 requirement that disabled student be educated in classes as close to the normal educational setting as possible.

Beyond the educational accommodations, which may be provided to a child in a 504 Plan, Section 504 provides other important protections to children with disabilities. Being an anti-discrimination statute, Section 504, requires equal treatment of students, forbidding exclusion or other discrimination on the basis of a student’s disability. This statute provides for equal participation in and access to athletics, clubs, and other extra-curricular school activities.

In addition, Section 504 provides protection against inappropriate discipline measures. As discussed above, children with AD/HD, may also suffer from behavioral difficulties. This makes it extremely important to bring children with AD/HD under the protections of Section 504. It is an utter misrepresentation of the truth, however, for school districts to complain that either Section 504 or the I.D.E.A. prevent the schools from effectively disciplining or correcting improper behavior in disabled children. As will be seen in the fuller discussion below, these laws do not prevent most classroom discipline up to and including suspension. Only when the discipline goes beyond a certain point (e.g. 10 days suspension in relatively short time), do these statutes begin to require that the district take certain protective steps. These requirements involve an inquiry into whether the behavior is a manifestation of the disability. If it is found not to be a manifestation of the disability, the school may go forward with its normal discipline measure. If it is a manifestation, then the school will be expected to attempt to determine the cause of the behavior (e.g. perform a functional behavior assessment) and develop a plan to help the child regulate his behavior (e.g. institute a functional behavior assessment).

C. The Individuals with Disabilities Education Act

Very shortly after the Rehabilitation Act of 1973 was passed, Congress passed the Education for all Handicapped Children Act of 1975. This act, which today, with its amendments, is known as the Individuals with Disabilities Education Act (hereinafter IDEA), provided a legislative framework for the education of children with disabilities. In its essence the IDEA requires school districts to provide a “Free and Appropriate Public Education (hereinafter FAPE) to students with disabilities.

As discussed earlier, children with AD/HD were often excluded from the protections of the IDEA. In 1991 the U.S. Department of Education issued a Memorandum which verified that children with AD/HD could qualify for services under the IDEA. It was not until the 1999 publication of the regulations for the 1997 amendments to IDEA, that AD/HD was specifically named as a qualified disability under IDEA.

Other health impairment means having a limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that (i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; (ii) Adversely affects a child’s educational performance.

Since a student with AD/HD may now be eligible under Section 504 or IDEA, it is important to understand the differences between protections and services under the two statutes. I usually demonstrate the relation between the two statutes by drawing two circles, the smaller IDEA circle within a larger Section 504 circle. This demonstrates that children who qualify for IDEA are also qualified under Section 504, while the opposite is not true. While Section 504 eligibility requires only a demonstration that the AD/HD substantially affects learning, IDEA requires that the AD/HD be severe enough to require special education services. For these reasons it is generally easier to obtain a 504 plan. Where only some basic accommodations are needed and the teachers are willing to implement the plan, a 504 plan may be sufficient.

There are a number of advantages to an IDEA placement, where a student needs more structured help. Schools have not tended to develop much structure or form for serving children with 504 plans. Very often little training is given either for the development of the plans or their implementation. Too often they are created haphazardly and are ignored by teaching personnel. When problems develop must school districts have not created a functional grievance or hearing procedures.

Under IDEA, however, school districts have developed delivery models, with trained teachers and resource personnel. Schools can afford to provide more services under IDEA, because they receive federal and state funds for their special education programs. Under IDEA the student has an Individual Education Plan (hereinafter IEP) rather than a 504 plan. While both IEPs and 504 plans may list accommodations, only the IEP is structured around goals and objectives. These goals and objectives provide a valuable format for determining progress and may serve to focus the efforts of personnel to accommodate and help the child.

From an advocate’s point of view, the procedural safeguards of the IDEA are much broader and provide more protection. While there are no rules regulating the form and content of a 504 plan, the structure of IEPs are detailed in federal rules. The parents are a mandated part of the IEP team, which allows them to participate in the drafting of the IEP. Probably one of the most important traits of an IEP is that the IEP team is expected to provide for positive behavior strategies and the student is provided with discipline safeguards.


A. Eligibility Requirements

Parents who obtain a diagnosis of AD/HD are often surprised and frustrated when the schools do not automatically provide their child with a 504 plan or an IEP. In fact, there are some specific eligibility requirements, beyond the simple diagnosis or identification. The requirements for Section 504 and IDEA are different.

1.Section 504

Section 504 requires some testing and evaluation before eligibility can be established, but there are few regulations governing the testing procedures. There are no established rules relative to frequency of testing, outside evaluations or parental consent. As will be seen below, schools will often use a combination of teacher checklists, grades and behavior to make their Section 504 determinations.


In order for a child to be eligible under the “Other Health Impaired (hereinafter OHI)” category of the IDEA, the child must meet some very specific criteria. First, a school psychologist must either diagnose the child or the school must accept a diagnosis by another qualified professional. Even such an evaluation does not mean automatic qualification. The law requires that the school’s multidisciplinary team make the eligibility determination. This team will evaluate whether the AD/HD is sufficiently chronic or acute. The chronic test is rarely an issue because by its nature AD/HD is chronic or long lasting. While a child might suffer some temporary inability to focus attention or hyperactivity due to temporary medical or environmental causes, these would not be true AD/HD. The acuteness of the AD/HD is, however, an important issue in eligibility. The condition of AD/HD must have a substantial impact upon the child.

The AD/HD must also impact negatively upon the child’s educational performance. This does not necessarily mean that the child must be failing. In fact the new 1999 regulations provide that failure is not required as a prerequisite to eligibility. Evidence that the student is performing substantially below his abilities as a result of AD/HD is sufficient. AD/HD that substantially impacts on the child’s behavior or social abilities would also be sufficient. In addition, there must be evidence that the student requires special education services in order to overcome the effect of the AD/HD.

Both schools and parents have often misunderstood this final requirement. It is not necessary that the student require placement in a special education class in order to qualify under OHI. Under the statute special education services are defined as “specially designed instruction.” In many instances this specially designed instruction may be provided within regular education classes. The services necessary are included in the accommodations and goals and objectives of the IEP. Sometimes it may be necessary that the student receive coaching from a special education resource teacher or enroll in a study skills class. A positive behavior support plan is considered “specially designed instruction.”

B. Evaluation

1. Getting the Evaluation

Typically, a school evaluation for AD/HD will be undertaken only after someone notices that the child is having academic or behavioral difficulty and makes a formal request for assessment. The child’s teacher, other educational professionals, or the child’s parents may make the request for evaluation. Generally when such a concern is raised, the school will call together a “child study team” or other such multidisciplinary team to investigate whether an evaluation is necessary. This team in most cases will request additional information, such as anecdotal data and information on remedial efforts, which have already been made. In the event that the collected data indicates the probability of some disability, then educational assessment may be recommended. From that point a request for evaluation is made.

In my experience, this process of obtaining an appropriate evaluation is the first place that difficulties arise. Very often teachers are trained to recognize the symptoms of learning disabilities and are encouraged to refer students with these symptoms for evaluation. Children with AD/HD, however, are too often considered by teachers to be discipline problems and their academic problems are generally attributed to their behavior and not a potential disability.

Even when a teacher suspects that the child with AD/HD may have a disability and requests evaluation of the child, almost inevitably the child will be administered only an pyscho-educational evaluation designed to diagnose learning disabilities. Unfortunately, these evaluations will often not identify AD/HD. If these evaluations find that the child does not have a learning disability, then very often the school’s efforts to identify a disability will end. It is rare, in my experience, for the school to continue its investigation as to why the child is failing academically. Children with AD/HD very often simply fall through the cracks of the school’s evaluative system.

One can probably look to the history of AD/HD as a recognized disability for the reason that AD/HD is the poor stepchild of educational disabilities. As described more fully above, AD/HD for many years was not a recognized disability. Then as educators began to attempt to accommodate AD/HD it was often treated as a disability under Section 504. School districts that I deal with put Section 504 students under the supervision of their “equal opportunity” office, rather than their special education departments. Since requests for evaluations go to the special education department, these departments tend to test only for those disabilities under their responsibility. I have not yet seen a school district that includes evaluation for AD/HD as a pro-active part of their child find responsibilities.

Because of the above difficulties in obtaining a school evaluation for AD/HD, many parents are will advised to seek a private evaluation for AD/HD. In the event that parents do obtain a private or independent evaluation which diagnoses AD/HD, that evaluation may be presented to the school. The school is then obligated to consider such private evaluation in determining whether the child requires services or accommodations under IDEA or Section 504. At the same time the school has the right to do its own evaluation. While the school is not obligated to accept the conclusions of the private evaluation, such evaluation will most certainly put the school on notice of the likelihood of a disability.

2. Doing the Evaluation

Although the symptoms of AD/HD, distractibility and hyperactivity would seem to be relatively easy to identify, the actual assessment for AD/HD requires much more sophistication. As has been discussed earlier, AD/HD can occur in conjunction with other disabilities (learning disorders, depression, behavior disorders). Furthermore some of this disabilities can exhibit AD/HD-like symptoms. It is necessary, therefore, to eliminate other potential causes of the symptoms.

Another trait that makes AD/HD difficult to diagnose with accuracy is that its presentation is often highly situational and variable. It is not unusual for parents or teachers to insist that a child is not AD/HD because the child can play computer games for hours without attentional difficulties. The problem is that the symptoms of AD/HD do not present themselves across all settings. Studies have shown that AD/HD is greatly effected by the amount of direct stimulation being received by the subject. In the case of the computer game, the object of the child’s attention, the game, is highly stimulating. It is in fact usually more stimulating than all the other factors in the child’s environment. Just try to get the child to pay attention to something else while the computer game is being played. Other factors effecting the presentation of AD/HD symptoms are structured vs. unstructured situations, tasks with or without feedback, group activities vs. singular or one-on-one activities. These factors make it important for assessments for AD/HD to be made across all environments the child may be involved in.

In evaluating a child for AD/HD the evaluator should measure the child’s impulsivity; age of onset, chronicity of symptoms, severity of symptoms, pervasiveness of symptoms; and intentionally. While a diagnosis of AD/HD may be may on the basis of an assessment of the child, combined with an interview and checklists with the parents, an educationally relevant evaluation needs to include interviews and checklist completed by the teachers as well. While there are several different clinical batteries for evaluating AD/HD, most psychological professionals use a combination of psychological tests, distractibility measures, checklists, and evaluate for comorbid diagnoses.


Effective advocacy requires detailed knowledge of the various disabilities, which may impact upon school children. This section looks at some of the major disabilities and will provide links to organizations, which are important sources of information and support relative to various disabilities.

Disability Categories

The statutes and rules related to each disability category under IDEA are discussed under the heading for that disability (See the tab “Disabilities” in the left-hand column). It is important that the advocate have a good understanding of the various legally recognized disability categories. These are identified in C.F.R. 300.7 (See list below). The specific eligibility criteria of each category can be somewhat complex and are usually grounded in psychological, communicational, or physical assessments. The advocate should at least be able to locate the precise legal criteria for each disability category and should be capable of understanding the assessment procedures used to determine eligibility. A few of these primary categories are:

Mental Handicap

Developmental Delay/Mental Handicaps (Mental Retardation)

Some children are considered disabled due to developmental delays or mental handicaps. In the language of the regulations this disability refers to “significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, which adversely affects a child’s educational performance. 34 C.F.R. § 300.7 (c) (6). Due to intellectual deficiencies these students have difficulty learning and retaining skills and knowledge.

Most schools classify these students’s according to their I.Q.s (the I.Q ranges may vary), labeling them as:

Educable Mentally Handicapped

(60 to 69) These children are often physically and otherwise indistinguishable from their typically developing peers. At another time they might have been labeled “slow,” due to their greater need for concrete, repetitive, segmented, and sequential learning.

Trainable Mentally Handicapped

(35/40 to 59) Students in the trainable range are more severely impacted by their intellectual deficits. While they can clearly learn and are capable of developing basic reading, math, writing, and other academic skills, the process is generally much more difficult for them. Learning requires great effort and time. Memory deficits often complicate the learning process. These children often have co-morbid language, speech, gross and fine motor and physical disabilities. Many children with Downs Syndrome fall within this classification.

Severe or Profoundly Handicapped

(Up to 35/40) Children within the severe or profound range of disability have generally experienced severe genetic disorders and their low intellectual capacities are most often accompanied by significant physical handicaps. It is generally very difficult for these children to learn the most basic living skills. Very often these children have severe speech impairments or are non-verbal.

Specific Learning Disability (SLD)

Some students with normal or even superior intellectual capacities still have significant difficulties learning. These students have difficulty processing information being presented in the teaching process and they are considered to have a specific learning disability.

In general terms a student’s eligibility for services under the specific learning disability is determined by psycho-educational evaluations of the student’s intellectual level and achievement. When these evaluations show at least a 1 to 1.5 standard deviation (depending upon age) between the student’s I.Q. and achievement (in at least one domain of achievement- reading, listening, speaking, thinking, writing, spelling, mathematical calculations), then the student may be considered to have a specific learning disability. A true specific learning disorder must be caused by a processing deficit, rather than some other cause such as illness, visual or hearing impairments, or language deficits.

Specific learning disability is probably the category whose eligibility relies most upon objective evaluations. The criteria for eligibility are covered in detail in statute and regulations. 20 U.S.C. § 1401 (26); 34 C.F.R. § 300.7 (c) (10); 34 C.F.R. § 540 through § 543.


Autism was added as a separate disability in the 1997 amendments to IDEA. Autism is legally defined as “a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a child’s education performance. Other characteristics often associated with autism are engagement in repetititive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.” 34 C.F.R. § 300.7 (c)(1)(i);

Autism is a term often used to define a wide spectrum of disorders beyond the attributes of “classic” autism. Because many students may present the various autistic traits to varying degrees, it is possible that some students fitting within the autism spectrum (PDD-NOS) may not meet the precise criteria for the educational criteria of autism. In such cases the OHI category (See below) for disability eligibility may be used to qualify the student for services.

Other Health Impaired

Not all disabilities fit so easily into a category. Congress has provided a catch all category, covering a number of disabilities and problems, including but not limited to ADD/ADHD, diabetes, epilepsy, acute or chronic health problems. In specific terms, the “other health impaired” category includes health or psychological disorders which are characterized by:

“Limited strength, vitality or alertness, including heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment – that adversely affects a child’s educational performance.” 34 C.F.R. § 300.7 (c)(9)(i-ii)

For years schools insisted upon attempting to serve children in the “other health impaired” category with 504 plans. Now it is clear that a child in this category may have the right to an IEP under IDEA, if the disabling disorder as a significant impact on the student’s education.

Too often schools will argue that a child in the OHI category does not qualify for an IEP, where the student makes passing grades. They make this argument because they incorrectly equate “education,” with “academic” performance. Very often children in the OHI category are very intelligent and may demonstrate at least “passing” academic success. At the same time a child with an OHI disorder may have significant social, emotional or behavioral issues. Failure to make adequate progress in these areas will qualify a student for services, even if the child is passing from grade to grade.

See also Practice Note: The child must by reason of his disability require special education.

Emotional Disorder

Children with recognized emotional disorders are qualified for special education services. An student with an emotion disorder should have one or more of the following conditions (34 C.F.R. § 300.7 (c)(4)):

  • Inability to build interpersonal relationships (peers and teachers)
  • Inappropriate types of behavior or feelings under normal circumstances
  • Pervasive mood of unhappiness/depression
  • Tendency to develop physical symptoms, fears, associated with school

In addition, the conditions must be chronic in that they:

  • Exist over a long period,
  • To a marked degree, and
  • Adversely affects educational performance

The law insists that the inappropriate behavior manifested by the student now be what the laws describes as social maladjustment or simple bad behavior alone. Sometimes schools will resist the classification of a child as emotionally disordered on the grounds that the student is simply acting out or misbehaving and that there is no true emotional disorder involved. For this reason it is important to firmly establish the psychological basis of the disorder.

Speech and Language

A “speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a child’s educational performance.” 34 C.F.R. § 300.7 (c)(11).


Understanding Behavior

I have posted three very valuable video clips by a behavior analyst, Mike Woods. These video clips take you through three phases of behavior:

  1. Tension;
  2. Escalation;
  3. Physical Acting Out.

You can find these clips below.

Restraint and Seclusion

One of the most pressing behavioral issues today is the issue of the schools’ use of restraint and seclusion when responding to behavioral problems. Some relevant video clips demonstrating the problem are found under Restraint (1) and some articles concerning the problem are found under Restraint (2).

The first phase is “Tension.” If we can recognize this phase we can often prevent the more serious behaviors from occurring.

The Second Phase is “Escalation.” This is where the child is beginning to demonstrate clear signs of mounting frustration, anger, fear, or anxiety.

The Third Phase is “Physically Acting Out.” This is where the child’s emotions reach a point where the child acts out Physically.

Advocacy Skills

The Roles and Ethics of an Advocate

Being an advocate for children with disabilities can be one of the most daunting and yet fulfilling responsibilities a person can have. In developing our advocacy abilities it is worth taking the time to reflect upon who and advocate really is and what an advocate does. In this section we take a look at the philosophy and ethics of advocacy. We review the different ways a person might advocate for disabled children, advocacy roles, and the minimum competencies every advocate should have. Finally, we hope to develop a section, which will explore the business of advocacy, for professional advocates.

The Philosophy and Ethics of Advocacy: This article explores the advocacy
philosophy which should ground every advocate. We are more than the sum of
our knowledge or even our advocacy skills. Read this article to obtain a sense
of who we are and what makes us effective advocates.

  1. What is an Advocate?
  2. How do we Advocate?

See a brief article: The Effective Advocate – Click Here

The Diverse World of Advocates: This article looks briefly at the various
types of educational advocates working for the best interests of children with
disabilities. The categories are based on how a particular advocate practices.
Every advocate is an essential player in the work of obtaining appropriate
education and the order of listing the categories is not intended to give any
particular priority or importance to any category of advocate.

  1. The Parent Advocate
  2. The Volunteer Advocate
  3. The Professional Advocate
  4. The Paralegal Advocate
  5. The Attorney Advocate

The Advocate Competencies: This article reviews the basic competencies that
an advocate needs in order to effectively advocate for children with
disabilities. Being an advocate is a vocation of continual learning and growing.
As advocates learn and grow, they often become important resources, not only
to children with disabilities, but to school districts who are struggling to teach
our children.

  1. Knowledge of Law
  2. Knowledge of Education and the psychology of learning
  3. Knowledge of Special Educational Plannings and Procedures
  4. Knowledge of Disabilities and Educational Services

Advocacy Roles or Responsibilities: This short article reviews some of the
ways that the advocate might serve parents and children with disabilities. It is
worth keeping these roles in mind as one studies and prepares for advocacy.
The depth of responsibilities that may fall on an advocate’s shoulders must
push each of us to continue striving to expand our knowledge and skills.

Ethical Considerations: Every advocate must respect some important ethical
considerations. As much any attorney or educational professional, the advocate
should consider his or her role as one requiring the ultimate sensitivity to a
high ethical standard.


This section highlights the various tools available to an advocate.

Communications and Letter Writing

The advocate’s ability to communicate clearly and effectively is one of the most important skill sets which an advocate brings to educational planning. It is a sad truth that too often educational communications and planning are shrouded in vague, educational jargon. Districts often speak in educational clichés designed to “talk past” the parents, rather than clearly inform. On the other hand, parent communicates tend to be highly emotional; to mix past offenses, with present concerns; and often fail to clearly express exactly what the parent is seeking. It is vital that the advocate be capable of helping the parent organize their present issues and separate out the emotions and past offenses which tend to cloud communications. The advocate’s clear, direct, concise communications can push the school district toward clearer, more useful communications.

The Problem with School/Parent Communications

Poor communication is one of the most remarkable aspects of the large majority of cases that come into my office. Usually, both sides are at fault. Too often, school district personnel see communication with parents as an annoying, useless obligation; they have not bought into the concept of collaborative educational planning.

This causes them to communicate with parents from a superior position. Instead of engaging in true communicative dialogue, educators too often “talk past” parents. They speak and write in clichéd educational jargon, which instead of communicating or striving for comprehension, clouds meaning and angers. School communications with parents tend to be reactive and unresponsive to the parents’ concerns and issues.

Parents on the other hand have difficulty expressing themselves to the school district. There are a number of causes for this problem. Parents often know that there is an educational problem, but have difficulty expressing what is wrong. It is a frequent school district complaint that they do not know exactly what the parent is concerned about or wants. Granted, many times the school personnel will hide behind a complaint that the parent has not made his or her issues or desires clear. Either way, it can be an excuse for inaction or unresponsiveness on the part of the school district.

As parents become frustrated with their inability to address their child’s educational needs, they often become very angry. The strength of their growing emotions too often causes them to lose focus. This causes them to fixate upon the district’s faults and failings, rather than upon the priority of seeking positive educational change.

On some level I feel that too often schools intentionally ignore the parents’ escalating anger and even provoke it from behind a wall of their educational procedures and jargon. Unfocused angry parents are more easily outmaneuvered and manipulated. Their angry demands are easier to characterize as irrational or exaggerated. Their efforts to seek remedies through state complaint or administrative hearing are more easily turned aside.

The advocate’s role is vital and powerful in taking control of communications and turning them to the advantage of the child with disabilities. The ability to communicate clearly and effectively is one of the most important skill sets which an advocate brings to educational planning. A capable advocate can aide the parent to organize their issues and separate out the emotions and past offenses which tend to cloud communications. The advocate’s clear, direct, concise communications can push the school district toward clearer, more useful communications. Skillful communications can create an educational record, which obligates school districts to respond directly and clearly to a child’s educational needs. This section provides some basic communication tips. We will also work at adding sample letters to help advocates develop their own communication skills.

Effective Letter Writing

Effective letter writing is an art an advocate must practice and perfect continually. Some pointers for advocate communications are provided below:

1. Educational Record: School personnel often prefer to operate in the realm of the spoken word. They can temporize, mislead, deny, refuse, and, through a flow of educational jargon, avoid dealing with educational issues. They understand that as long as their words and for that matter, the words of the parent, remain in the verbal domain, there is no real accountability.

This is why the axiom, that “if it is not in writing, it didn’t happen,” is so important to the world of educational advocacy. Written communications move the educational dialogue into the student’s educational records. With the parent’s position carefully articulated, it will be harder for the district to misrepresent or mischaracterize the parent’s position. The advocate will find that the district will respond much differently when the advocate puts his communications in writing. The responses will be more careful and considered.

While the district’s response may, at first, still be vague and full of educational clichés, the process will have started toward moving the parties to real dialogue on the record. As the advocate develops the art of letter writing, the advocate will learn to write letters, which require more informative and responsive replies.

2. Objectives: As in any undertaking, the advocate should have very clear, precise objectives in his letter writing (or other communication). Before beginning any letter, it is important to consider your precise objectives and to determine to remain focused on these objectives alone. Any material that cannot be justified in relation to a important objective, does not belong in the letter. See strategic planning.

3. Consider tone: Among your objectives you should have a clear sense of what tone or attitude you want to transmit. You may want to introduce yourself and underscore a positive attitude of collaboration. You may have reached a point requiring a firm insistence. Even if you have reached a total impasse and you have no hope of resolving issues, sarcasm, anger, and threats have no power to help you meet your objectives. While I might mention the parent’s frustration, doubts and issues of trust, I generally attempt to separate myself from those emotions in my own communications. Any focus upon perceived slights, “he said – she said” accounts, or other emotional arguments are generally counter-productive.

4. Be Concise: Long rambling letters may contain all the essential information, but they too often lose their impact due to the length and the lack of organization. Many professionals will judge the advocate by the quality (or lack thereof) of the advocate’s communications. They will often ignore or at least give slight attention to letters, which are not clear. Most letters can be reduced in length by half if you develop a tough standard for your own work. Remember your letters will often be reviewed and evaluated as to whether their demands or statements effectively place any responsibility on the school district. Remember that your letters become part of the student’s educational record.

5. Be Organized: An effective letter will be organized in its presentation. Consider the simple formula of (a) an introduction; (b) statement of concerns; (c) statement of requests; (d) conclusion. Use the introduction to be positive. Remember the value of positive behavior reinforcement. Thank the district for some positive actions (“catch them being good”). This can be short and professional. If you are responding to a particular letter or communication, state exactly what is being responded to, with the date. I try to make my statement of concerns short and precise, using educational terms and concepts. The statement of requests should generally be made in the “conditional” tense and politely. It is just as easy to say, “We would appreciate a meeting of Johnny’s IEP team to consider the …,” as to say “We demand an IEP meeting.” Your conclusion should invite continued communication, especially stating your willingness to dialogue on the issues raised in the letter. It is often helpful to state the immediate action you would like the recipient to undertake. Example: “Please let me know as soon as you have been able to determine several suitable dates and times for the IEP meeting.”

Practice Note:

  • As in any type of writing project, it is wise to do an outline prior to beginning writing.
  • It is very useful to use bullets or numbers when listing concerns/issues or requests.
  • Generally when I number these items, the recipient will respond using the same format. This makes it much easier to be sure each item is being responded to.

Types of Letters

We have drafted some sample letters, which demonstrate some of the principles discussed in this section. These letters can be used as models in the advocate’s own letter writing.

Introducing your Advocacy: Eventually, advocates will become known to the school districts, within which they work. They will develop a reputation, as an advocate. At such time no particular introduction will be necessary. Until then, it may be helpful to introduce yourself in terms, which accent your positive role in the educational process. It will also be important to provide the school district with an authorization from the parents, which will allow them to communicate with you and provide you with any educational records you might need.

Clarifying Issues: Very often the first communication an advocate might have with a school district will be a letter presenting the parent’s issues and concerns. This should be done in a way and with a tone, which is collaborative and informative.

Requesting Information and Records: One of the first things an advocate will want to do is to obtain a copy of the student’s educational records. (See Student Records for more information) The key to an effective records request is to be sure to be very inclusive in your request. If the advocate only requests student records, he will probably only receive the cum (cumulative) file. If the advocate wishes to obtain all student related documents it would be wise to enumerate all the different types of documents requested.

Legally schools may request a reasonable payment to cover the cost of copying files. The convention is generally about 15 cent per page. Most school districts I deal with will send the documents without demanding payment, if the request is polite and reasonable.

If receiving these records is urgent, it would be wise to politely advise the school district when making the request. In my experience, making an unexplained time limit command is counter-productive. Instead, I will follow the records request in about a week with a written query asking if I could have an estimate of when the records will be ready. I might ask if the school would prefer that I have the parent pick them up and when. The school will be aware that an educational record is being created, without the advocate making any threats.

Practice Note: If there is any concern that any documents might “disappear” from the file, it is sometimes wise for the advocate or parent to do a document review before the request of document copies is made. The advocate and parent can review all the documents in the file, noting documents of particular interest or sensitivity.

Requesting an IEP or other Meeting: If an IEP or other meeting is required, the request should always be made in writing. Again, the request should be clear, precise and polite. If the need for the meeting is urgent, this should be explained. Suggestions of possible dates and times, which are convenient to the advocate and parent, has the appropriate collaborative tone, while putting mild pressure on the district to set the meeting. Again, the request is an educational record and starts the clock running. Schools understand this.

Request for Evaluations: All requests for evaluations should be in writing. It is also important to clearly indicate the rationale or purpose for the evaluation request.

Identification/Eligibility: Remember that the school has a “child find” obligation to
investigate any suspected disabilities. The “suspicion” of disability may be raised by the parent, a private provider, the parent’s advocate, as well as school personnel. When the school does evaluate the child, the school has an obligation to evaluate all areas of suspected disabilities. For these reasons it is important for the advocate to indicate, which disabilities are suspected.

IEP Development: It is valid to request evaluation for the purposes of establishing
appropriate “present levels of performance” and measurable goals and objectives. If this is then reason for the evaluation request, it is wise to state the areas, where baseline information is wanted. Evaluations may also be valuable for determining the child’s strengths and weakness and for identifying effective methodologies, interventions, and accommodations.

Independent Education Evaluations (IEE): Where the school district has already evaluated the child and the parent has doubts or concerns about the accuracy or appropriateness of the district’s evaluations, the advocate may request an independent evaluation. The law does not require that the parent explain their doubts or issues relative to the evaluation. The district, however, may refuse to provide the independent evaluations, if they deem that their own evaluations are “appropriate.”

In my experience, most districts will not refuse an IEE if they feel that the advocate is being reasonable and professional in the request. As a courtesy therefore I will
generally give some brief explanation of the reasoning behind the IEE request. It is
generally not to difficult to politely point out deficits in the district’s evaluation. It is
not necessary to attack the district evaluation, merely point out unanswered questions, concerns relative to the instruments used, the disability’s interference in the assessment’s validity, and the need for more precise recommendations.

Memorializing Verbal Discussions: Advocates love to say, “would you put that in writing?,” when a school official makes an unreasonable or inappropriate statement. School officials almost never comply. The solution is relatively easy. Simply write a letter to the individual, indicating that the letter is intended to memorialize the conversation, meeting, etc. Then state the individuals precise words as you remember them. Politely ask the person to make any corrections necessary.

Very likely there will be a response denying the statement, possibly putting a different slant on the conversation. This is okay. Two things have happened. The individual is now responding – in writing. Although the individual may not stand by her words, the chances are that the individual is backing off her previously firm position.

Requesting an Informed Notice of Refusal: It is one tactic favored by many school districts, to treat parental requests as tentative requests. Their own refusals to these requests are viewed as merely “convincing discussion.” In order to keep the educational record accurate it is important to insist that there be a clear record of matters requested by the parent and those matters refused by the school district. The best way to do this is to request an Informed Notice of Refusal, whenever the school district has refused to agree to a parental request.

Complaint Letters: Sometimes it is necessary for an advocate to help parents write complaint letters to the state Department of Education (State Complaint). It is very important that these letters be very clear and concise and that they be focused upon issues which fall within the spectrum of cases that the state is empowered to deal with.

Student Records and Evaluations

A student’s educational records are the essential foundation to an advocate’s work. The records provide the history of the child’s education, the district’s positions and attitudes, psychological and educational data, and the student’s present program. They provide the perspective and the informational base, vital to effective educational planning and advocacy.

Advocacy “Nuts and Bolts”

This notes are from a two part workshop first presented at the Council of Parent Attorneys and Advocates 2006 Conference by Mark S. Kamleiter, Esq. and Gabrielle Andrews (Paralegal). The first part provides information on obtaining and using student records and educational evaluations. The second part discusses the effective use of student records and evaluations. Below we present the basic outlines of the workshop documents and links to related sample documents. The full documents from these workshops may be obtained by clicking on the document icons.

Part I – Student Records and Evaluations

A. Collecting Student Records

  • Right to inspect and copy student records
  • Sample records request letter – Click Here

B. Organizing Student Records

  • Types of Records
  • Physical Organization of Records
  • Topical Organization
  • Chronological Organization
  • Folders/Notebooks

C. Reviewing Records

  • Records Checklist – A sample records checklist to be used
    in reviewing record information and placing the most essential
    information in one place.

D. Understanding Educational Records

E. Obtaining Additional Educational Records

F. Protection of Records and Record Confidentiality

G. Correcting Educational Records

H. Enforcement of FERPA (Family Educational Records Protection Act)

Evaluations, Tests, and Measurements

Legal Requirements: Listing of relevant statutory references

A, General Evaluation Information

B. Evaluations, Tests, Measurements

  1. Time frame, conditions, Accommodations, valid for purpose
  2. Independent Educational Evaluations (IEE)
  3. Private Evaluations:
  4. Revaluation

Community Resources

An advocate’s ability to connect with and access community resources can effectively expand the pool of knowledge and skills being focused on the child’s educational issues. Good advocates strive to know what community resources can be called upon to add their expertise to the advocacy effort.

Professional Resources

In the same way an advocate makes use of community resources, an advocate should also be familiar with the diverse professional recourses that exist in the community. An advocate can only help a child with disabilities to the extent the advocate understands the child’s disability and educational needs. Knowing the most skilled doctors, psychologists, psychiatrists, and therapists in the community, helps an advocate to direct parents to independent advice and help.

Advocacy Community

The effectiveness of advocates and attorneys in special education is limited by the practical limitations of their practice. They can only work on a few cases at a time. Sometimes schools will accommodate an effective advocate, while maintaining an inappropriate systemic program for other students. If the advocate is interested in systemic change, it is essential that the advocate collaborate with the broader community of advocates. By sharing and training together, advocates can exponentially expand their effectiveness.

Advocate School District Relationships

An advocate’s priority focus is upon the educational needs and interest of the child. To the extent that the advocate, parents and the school district can find a way to agree upon the needs and appropriate services, they are collaborators. While an advocate is certainly firmly independent from the school district, it is a mistake for an advocate to cast his or herself as the irreconcilable antagonist or enemy of the school district.

Special Topics

This section provides a place to index articles on “special topics in advocacy.”

As articles are written by members of Special Education Law and Advocacy they will be produced here. In the same way articles written by others will be published here as permission for such publication is obtained. The articles will be listed below in alphabetical order.

Paraprofessional Support – How to Obtain

Unlicensed Practice of Law

The unauthorized practice of law is engaging in the practice of law by persons or entities not authorized to practice law pursuant to state law or using the designations “lawyer,” “attorney at law,” counselor at law,” “law,” “law office,” “J.D.,” “Esq.,” or other equivalent words by any person or entity not authorized to practice, the use of which is reasonably likely to induce others to believe that the person or entity is authorized to engage in the practice of law in the state.

Laws vary by state. Listed below are examples of how a state might define “providing legal advice or services to another”:

  • Preparing any document in any medium intended to affect or secure legal rights for a specific person or entity;
  • Preparing or expressing legal opinions;
  • Representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process such as arbitrations and mediations;
  • Preparing any document through any medium for filing in any court, administrative agency or tribunal for a specific person or entity; or
  • Negotiating legal rights or responsibilities for a specific person or entity.

Inclusion and LRE

This page contains the research done by Tammy Mullon, one of SELA’s educational advocates and a first rate legal researcher. Tammy put this research together to support one of our litigation cases. Her work was too good to leave in a case file, so we are publishing her work here. In this document Tammy lists some of the prime resources and research to review when desiring to understand the legal status of inclusion and least restrictive Environment.


Lou Brown, University of Wisconsin

Julie Causton, PhD and Kate MacLeod, M.S.Ed co-founded Inclusive Schooling:

Cheryl M. Jorgensen, PhD


What are the Courts Saying About Special Education? Melinda Jacobs, Esq.
VI. LRE (PAGE 13 & 14)

Children with disabilities are first and foremost children, worthy of equal respect, opportunities, treatment, status and place.

Text of Court Cases

  • Daniel R. v. State Board of Ed.
  • Mills V. Board of Education
  • OBERTI v Board of Ed
  • PARC Consent
  • Rowley



  • KaD v Solana Beach Fee Order (2104)
  • 9th Cir Decision KaD v. Solana Beach (2012)
  • District Court Decision – KaD v Sonal (2010)
  • OSEPLtr – TransitionLRE
  • OSEPLtr-PreschoolLRE (2012)
  • Inclusion_Works_MCIE (2010)
  • In re Student (AK SEA DP 08-16, 009)
  • Inclusive Education & Implications for Policy (2009)
  • Waukee SD v. D&EL. for IL (Dis Ct IA, 2008)
  • Inclusive Education: What Makes It a Good…(2007)
  • RO, v. Bd.of Ed.of Borough of Clement (3rd Cir 1993)


Practical applications and Methods for using the Endrew F. USSC Decision in IEP negotiations and litigation:


Advocacy Institute – Indiana Department of Education:


Questions and Answers on Least Restrictive Environment (LRE) Requirements of the IDEA – November 23, 1994

ED & HHS Release Policy Statement on Inclusion in Early Childhood Programs

Letter to Trigg – LRE / 11-30-07

DOE – LRE Dear Colleague Letters


LRE TAP 2016 – Link

LRE TAP 2000 – Link


Inclusion: Answers to Frequently Asked Questions from the NEA

Inclusion, Least Restrictive Environment (LRE), Mainstreaming



New guidance package is a win for children
Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools


Free Appropriate Public Education – The Law and Children with Disabilities
H. Rutherford Turnbull III, Matthew J. Stowe, Nancy E. Huerta – Seventh Edition
Chapter 7 – LRE – Page 205

Special Education Legal Development and Cases 2016 – Pete Wright
Legal Research: How to use google scholar to find cases – Page 105

Creating Inclusive Schools For All – Collaborative Special Education Advocacy
Julie Causton talk about Creating Inclusive Schools For All.

The Best Inclusive Education Links: 100 Links to the Best Inclusion Related Articles, Videos and Media on the Web

The Educator’s Handbook for Inclusive School Practices – Julie Causton


Does self-contained Special Education Deliver on its Promises? A Critical Inuiry into Research and Practice – by Julie Causton

The Best Inclusive Education Links: 100 Links to the Best Inclusion related Articles, Videos and Media on the Web

A Summary of the Evidence on Inclusive Education

Achieving Inclusion: What Every Parent Should Know When Advocating

Benefits of Inclusive Education


Supplementary Aids and Services

FAQ: One-on-one assistants and LRE for students with disabilities

PA – Special Education FAPE and One-to-One Support Obligations for Students with Disabilities

Checklist of Sample Supplemental Supports, Aids, and Services

Inclusion Works – How to Modify Assignments

Access Points[Compatibility%20Mode].pdf

How to Prepare Students in Self-Contained Classrooms for Inclusion in General Education

Webinar Link

Assistive Technology Laws

Assessable Instruction Materials
OSEP Dear Colleague Letter on Updated NIMAS Guidelines

Communication Mandates
DOE and DOJ Colleague letter


Educational Placement from Least Restrictive to Most Restrictive

Placement Issues


Florida ‘gutted’ child restraint bill of most important protections, mother of restrained child says


Palm Beach Post Staff Writer
Updated: 11:59 a.m. Sunday, Oct. 10, 2010
Posted: 11:48 a.m. Sunday, Oct. 10, 2010

Port Orange Republican Dorothy Hukill’s legislation restricting seclusion and restraint of Florida schoolchildren earned the state representative national notice.

“Florida was going to be the model for other states to follow,” said Lori Mcllwain, a spokeswoman for the 10,000-member American Autism Association.

By the time it got to the governor’s desk, though, Hukill’s bill was stripped of its toughest provision: Instead of banning prone restraint, the bill was altered to bar restraint that can restrict a child’s breathing.

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Bitten, gouged: Educators say tool prevents injuries to them, kids

Palm Beach Post Staff Writers
Updated: 11:17 a.m. Monday, Oct. 11, 2010
Posted: 8:58 a.m. Sunday, Oct. 10, 2010

Gail Rappaport’s students have torn her cornea, bitten her and injured her back.

The veteran Palm Beach County teacher, who has worked with students with emotional and behavioral disabilities for 30 years, saw one student rip handfuls of his hair out from the roots. Another tried to gouge his eyes with a pen.

Pinning an out-of-control child face down on his stomach, she said, is a tool like any other: effective when used properly. “Nobody wants to do it, but the alternative is a child severely injuring himself or herself or severely injuring another student.”

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How to Advocate for your Child’s IEP

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Florida Discriminates Against Children with Severe and Complex Medical Disabilities

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RtI (Response to Intervention) – Technical Assistance Papers: (FDOE)

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RtI – OSEP Memorandum

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RtI – Article by Laura Darrow

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Curriculum-Based Measurement in RtI
Article by Laura Darrow

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Web Resources for Evidence – Based Instruction

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OCR Bullying Resolution

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OSERS Dear Colleague Letter

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COPAA’s Amicus Brief in a 9th Circuit Case Dealing with Bullying

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Letter to Bureau Chief: FDOE Bureau of Education for Exceptional Students

This is a letter sent to Monica Verra-Tirado, Bureau Chief, on the issue of whether children with good grades could also be students with disabilities and be eligible for special education services. Along with the letter, a two page document laying out the state of the law on this issues. Below are copies of the cases and OSEP opinions on the issues.

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Manatee County Due Process & Fed District Court Case

I am placing this document next because it is the most relevant Florida Case on the subject. This case involved a young man with ADHD. While he made good grades, he was frequently in trouble for his impulsivity, hyperactivity, and lack of focus and attention to task. The hearing officer made it clear that the fact that the child had a Section 504 plan did not prevent the child from having an IEP. He noted that they were two different laws. He went on to find that the child was eligible for an IEP.

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Maine Fed. Dist. Ct.Case – Aspergers

This case involves a child with Aspergers. The federal district court in Maine found that the child was eligible for an IEP despite the fact that he makes good grades.

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A collection of other relevant documents:

Letter to Anonymous

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Letter to Clark

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Letter to Pawlish

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