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Children with ADHD and Special Education and IEPs

This is the fourth and last post in a series of posts on Children with ADHD and Special Education and IEPs. I have attempted to outline and summarize some of the most important  issues that parents face in public schools when their child is diagnosed with ADHD or ADD.  I am sure I have not answered every question about how to address every educational challenge for a child with ADHD.  I will leave it to you to follow up with me or other professionals who can provide assistance, advice, information, and advocacy for your child.

This last post on ADHD will address some of the strategies the school system can employ for a child with ADHD. These strategies are not exhaustive. In other words, there are many proven strategies to address the educational needs of children with ADHD that I have not cited below.  It is likely no one intervention, strategy, or aid may be adequate for your child. It is usually a combination of strategies, interventions, and aids that prove to be helpful in addressing your child’s educational needs. Of course, every child is different.  Some children may  respond to well-tested intervention for children with ADHD while other do not. And there are sometimes issues  of using medications to improve your child’s behavior, concentration, and ability to organize among other things.  Medical decisions should be made by competent and experienced physicians in the field of ADHD. If your child is administered medication(s) for his or her ADHD, then you should become aware of the side effects of the medication(s). You should inform the IEP team or Section 504 team what medication(s) are prescribed by your physician and the side effects of the medication(s).  This is critical information. Without such information, your child’s teachers will not be able to fully understand the reasons for your child’s behaviors, and learning and testing abilities and performance.  But for now, here are some commonly used  strategies for behaviors issues for your child with ADHD.

 Strategies for Behavior Management for ADHD

Suggestions for accommodating child with ADHD:

  • Closer teacher supervision
    • more frequent positive reinforcement to stay on task
  • Shorter assignments
    • preferential seating
    • assigning study buddy
  • teacher initiated reminders about work and materials to be brought to and from school
  • supplying specially marked folders to store work
  • feedback in form of a point accrual system or token programs for academic performance
  • positive social reinforcement
  • Response cost behavior modification programs
  • paying attention, completing class work, cooperating with classmates, raising one’s hand before speaking, neatness of work.
  • Academic Contingency  Management  and  Cognitive-Behavioral

Contingency management and academic interventions are more effective than cognitive-behavioral interventions for improving classroom behavior. Cognitive-behavioral interventions are effective for enhancing academic performance.

When task related attention or disruptive behavior is targeted, contingency management (token reinforcement or cost response) and academic interventions (peer tutor) are preferred over cognitive-behavior modification strategies(problem solving training).

Myths and Realities of ADHD

 About 20% of children with ADHD do not respond positively to Ritalin. Great variation in children’s response to stimulant medication such Ritalin.

Token reinforcement and response cost are most widely studied classroom-based treatments for children with ADHD. Individual children vary in their response to these strategies.

  1. Positive reinforcement alone is not sufficient for acquiring and maintaining appropriate behavior
  2. Myth that ADHD is a disorder of self-regulation. Interventions should focus on training students with ADHD to regulate own behavior. Research on cognitive behavioral interventions has not supported use of these interventions for students with ADHD.
  3. ADHD must limit educational performance and the need for special education services must be demonstrated.


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Children with ADHD, Special Education and IEP

I have spent the last two posts addressing specific issues of identifying and determining eligibility for children ADHD.  In this post, I will address the evaluation process for determining eligibility for children with ADHD.  As you may remember, Section 504 does not require your child meet the more strident eligibility requirements of the IDEA.   In brief, Section 504 eligibility is based on whether your child has a physical and/or mental impairment that substantially limits one or more major life activities.  The U.S. Department of Education, Office for Civil Rights has recently issued a memorandum on the process for identifying and determining eligibility for a child suspected of having ADHD under Section 504. In other words, it is generally easier for the child to be determined eligible under Section 504 for reasonable accommodations than under the IDEA.  This Act requires ADHD have an adverse affect on the child’s education performance and a showing the child will benefit from special education and related services.

Some school systems will perform a comprehensive psychoeducational evaluation of your child to determine his or her eligibility under Section 504.  Many will not. These school systems will simply accept a letter or report from a physician stating that your child is diagnosed with ADHD/ADD and that he or she needs accommodations at school to target his educational needs. This may sound like the more simple and easy process to secure Section 504 eligibility for your child. It is. But it has it short falls.   The biggest problem is when you merely provide the school system with a physician’s letter or report, it may not really address what are your child’s needs for reasonable accommodations. Most physicians are not well versed in special education. They do not fully understand what school systems are required to do for children with ADAD.  They do not fully understand behavior management techniques, for example, or what are behavior intervention plans.  They do not fully understand what educational methodologies and teaching strategies are appropriate for children with ADHD.  Without specific diagnostic and testing  information from a clinical psychologist or school psychologist, the school system may fail to provide what are appropriate accommodations for your child with ADHD. I have received many phone calls from distraught parents who complain the school system is not providing reasonable accommodations for their child with ADHD or that the accommodations are not addressing their child’s educational, academic and behavioral needs under the Section 504 plan.  These are just a few of the most glaring problems of not providing the school system with an independent  comprehensive  evaluation of your child or not requesting the school system to extensively assess your child to determine his need for special education under Section 504 or the IDEA.

Let me jump to what is the role of a clinical psychologist or school psychologist in assessing and testing your child for ADHD. Aside from intelligence tests, achievement tests, behavior tests and checklists, and adaptive behavior tests and checklist that should be parts of the battery of tests that administered to any child that is evaluated by the school system,  there is more to the assessment process for children suspected of having ADHD or ADD.   Let me outline how school systems might assess your child with ADHD.

  1. Psychologist’s Role in Assessment of ADD

 Use of Tests

 Intellectual functioning

1. Intellectual functioning

2. Academic achievement

3 Perceptual skills – visual motor ability, memory

4. Tests to measure self-esteem, depression, anxiety, family stress

5. Tests to measure executive functioning

Type of Tests for ADD

 Gordon Diagnostic System

  • Tests of Variables of Attention (T.O.V.A.)
  • Conners Continuous Performance Test

Psychologists  collect  information  from teachers   completing  behavior  rating   scales observation of child at school and at home.

Most rating scales used to assess ADD provide standardized scores related to attention span, self-control, learning ability, hyperactivity, aggression, social behavior, anxiety:

  • Connors Teacher Rating Scale (CTRS)
  • Connors Parent Rating Scale (CPRS)
  • ADD-H: Comprehensive Teacher Rating Scale
  • ADHD Rating Scale
  • Child Rating Scale
  • Child Behavior checklist
  • Home Situations Questionnaires
  • School Situations Questionnaires
  • Attention Deficit Disorder Evaluation Scale
  • Academic Performance Rating Scale (ARPS)

School’s Role in assessment should be school-based behavior rating scales, teacher interviews, review of a students cumulative records, analysis of test scores, and direct observation of the student in the class.

  1. Clinical Assessment
  • Continuous Performance Test (CPT)    measures the child’s ability to sustain attention and inhibit impulsive responding.
  • Matching Familiar Figures Test (MFFT) – standardized test of children’s cognitive processing  ADD children tend to exhibit a “fast-inaccurate tempo” by a high number of errors and shorter response latencies.
  • Delay Test (GDS) – test of child’s ability to delay responding under appropriate circumstances.

These suggestions for assessment of your child with ADHD are not exclusive. In other words, psychologists and school examiners may use other assessments and tests which are valid and reliable for the purpose of determining your child’s eligibility for ADHD. What I am suggesting is that you speak and meet with a clinical psychological or school examiner before your child is assessed to determine the scope of testing and what instruments may be used to determine your child’s eligibility under Section 504 or the IDEA.  Be prepared. Ask questions.  In this way, it is more likely the special education program and services developed for your child with ADHD will be successful and productive.

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Children with ADHD: Special Education and IEPs – Part Two

This is the second part of series of posts on Children with ADHD: Special Education and IEPs. In the first post on this subject, I laid the groundwork why it is so important to properly locate, identify and evaluate a child with ADHD/ADD.  As I said, the majority of children that I represented have a diagnosis of ADHD or ADD.  So what is ADHD?  According to the DSM-V,  ADHD is defined as follows:

  • A persistent pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning or development:
    • For children, six or more of the symptoms (Table) have persisted for at least 6 months to a degree that is inconsistent with developmental level, and that negatively impacts directly on social and academic/occupational activities. Please note: the symptoms are not solely a manifestation of oppositional behaviour, defiance, hostility or failure to understand tasks or instructions1
    • For older adolescents and adults (age 17 and older), five or more symptoms are required (Table)
    • Several inattentive or hyperactive-impulsive symptoms present prior to age 12 years
  • Several inattentive or hyperactive-impulsive symptoms present in two or more settings (e.g. at home, school or work; with friends or relatives; in other activities)
  • Clear evidence that the symptoms interfere with, or reduce the quality of, social, academic or occupational functioning1
  • Symptoms do not occur exclusively during the course of schizophrenia or another psychotic disorder, and are not better explained by another mental disorder (e.g. mood disorder, anxiety disorder, dissociative disorder, personality disorder, substance intoxication or withdrawal).
Symptoms of inattention Symptoms of hyperactivity and impulsivity
Often fails to give close attention to detail or makes mistakes Often fidgets with or taps hands and feet, or squirms in seat
Often has difficulty sustaining attention in tasks or activities Often leaves seat in situations when remaining seated is expected
Often does not seem to listen when spoken to directly Often runs and climbs in situations where it is inappropriate (in adolescents or adults, may be limited to feeling restless)
Often does not follow through on instructions and fails to finish schoolwork or workplace duties Often unable to play or engage in leisure activities quietly
Often has difficulty organising tasks and activities Is often ‘on the go’, acting as if ‘driven by a motor’
Often avoids, dislikes or is reluctant to engage in tasks that require sustained mental effort Often talks excessively
Often loses things necessary for tasks or activities Often blurts out answers before a question has been completed
Is easily distracted by extraneous stimuli Often has difficulty waiting their turn
Is often forgetful in daily activities Often interrupts or intrudes on others

What is important to note is that you child may exhibit some of these symptoms but not others.  In other words, there are degrees of ADHD, which may be categorized as mild, moderate or severe if you will.  The greater number of symptoms with a marked severity, for example, should be considered the IEP team in developing an IEP. Again, some children with ADHD have such mild symptoms that they may only require a Section 504 accommodations plan.  One of the problems with a Section 504 accommodations plan is that it does not require the specificity of an IEP. I wish I could count the number of times throughout the years that I received calls from parents who complain their child’s Section 504 accommodation plan is not working or that is not being implemented. This is not to say that a child with ADHD who has an IEP is guaranteed that it will work well for the child and that it is properly implemented. To the contrary, I have found many parents complain their child’s IEP is inadequate and does not address his educational needs. It is for this reason that a comprehensive evaluation – whether it is medical, psychological or psychoeducational or a combination of them – should list or mention all of the symptoms of the child’s ADHD. The IEP team should  carefully consider and evaluate how each of these symptoms adversely affects the child’s educational performance.  The IEP  team should develop goals and objectives to address each symptom that adversely affects the child’s educational performance.

There is so much more to discuss when developing an IEP for a child with ADHD. I will wait until the next post to provide guidance on how to best develop an IEP for a child with ADHD/ADD.

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Children with ADHD: Special Education & IEP Issues

In my experience, the largest percentage of children that I represent are diagnosed with ADHD or ADD.  Most children may be diagnosed only with ADHD,  but some children have a dual diagnosis of autism and ADHD, Tourette’s Syndrome and ADHD, Bi-Polar Disorder and ADHD, and so forth.  This is called a co-morbid disorder. In other words, there are some mental disorders that are common with other disorders such as ADHD and Oppositional Defiant Disorder (ODD) or Conduct Disorder.  Did you know that approximately 20%-40% of all children with ADHD also have a specific learning disability? Many studies on this issue reveal that children with ADHD also have some type of specific learning disability as well. Why is this important?  When a child who is suspected of ADHD or ADD, the school system should consider assessing the child for a specific learning disability depending on other signs or symptoms.  Of course, not every child that is diagnosed with ADHD also has a specific learning disability. But you should at least be on notice there is a high percentage of children with ADHD that also have a specific learning disability. And some of the symptoms of ADHD may overlap with some of the symptoms of a specific learning disability. For instance, a child with ADHD may have fine motor control deficits.  A child with a specific learning disability may have dysgraphia or other deficits in handwriting.

Suffice it to say that every child with ADHD has common issues with other children with ADHD; but each child with ADHD also has strengths and weaknesses that are unique to that child. No all children with ADHD exhibit overt hyperactivity.  Of course, children diagnosed with ADD typically do not exhibit heightened hyperactivity or any hyperactivity at all.   ADHD is not monolithic, which means you cannot assume children with ADHD all have the same symptoms and educational deficits. They do not.  Some children have milder symptoms of this disorder while others have more severe symptoms. For those children with mild symptoms of ADHD, they may not qualify for special education and related services at all. They may not have a disability that adversely affects their educational performance and are in need of special educational related services. If so, these children will not have an IEP but rather they may qualify for an accommodations or Section 504 Plan.  To qualify for a Section 504 Plan, a child with ADHD has to show that he has a disability that significantly limits one or more major life activities.  In July 2016, the Office of Civil Rights, Department of Education, issued a very important memorandum on school system’s responsibilities to locate, identify, evaluate and provide a free appropriate public education for children with ADHD. See  This is a very helpful and important memorandum on ADHD.  You can find a good summary of this memorandum at

You can find numerous resources and links on special education and ADHD. See  The more you read and learn about your child’s  ADHD and his rights under special education laws, the better prepared you will be to deal with his special education needs. Again, it is important to note that all of the suggestions you may read about for children with ADHD may or may not apply to your child.  You should be careful to use only those suggestions that will help your child.  One way to be sure that you know what special education and related services may need is to secure a competent and extensive psychoeducational evaluation.  Such an evaluation is a building block to create an appropriate educational program for your child. There are so many other areas to cover for a child with ADHD and I will address some of them in my posts for the upcoming months.


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Is it Time to Revise, Amend, and Change Your Child’s IEP?

Requirements for Review of Child’s IEP. 

In the last post, I outlined what IEP and other issues you should consider as school begins for the 2017-2018 school year.  Now that school has been in session for about a month, what IEP issues should you be considering at this time?  A month is an incremental bench mark to determine how the school year is progressing. A month is probably not enough time to determine if your child is making adequate educational progress under this IEP. Usually a nine-week period – when parents should receive their child’s report card and progress toward IEP goals and objectives – is a better bench mark for making this determination. What parents should be looking for after four or so weeks of school is more about implementation of the IEP. In other words, is the school system implementation the special education and related services that you and the IEP tram agreed upon last school year?  Will it be time this semester to convene an IEP meeting with the school system to revise, change, or amend the IEP?  Maybe it may be time soon for you and the IEP team to meet to convene an annual IEP meeting. This will depend upon when your child was determined eligible for special education and an IEP was developed for your child.   If it is time to develop a new IEP because it is the annual review date, the school system will automatically notify you in writing of this meeting. This is because the IDEA requires  the school system to review, revise, change, or amend an IEP for your child at least one time a year. If you merely want to revise, change, or amend the IEP, then you must notify the school system to schedule an IEP meeting before the next annual review.

Why is Periodic Review of your Child’s IEP Important

After about a month after the school year begins, I may receive calls from parents that want to schedule an IEP meeting for certain reasons. For example, the child was experiencing educational problems toward the end of last school year.  These problems were not resolved at that time. Now the parents want to revise, review, and amend the IEP to address those problems.  Sometimes parents realize after a month or so after the new school year begins that the IEP is not working.  In other words, parents notice the child is not receiving the services and instruction set out in the IEP.  Sometimes the child begins to exhibit behavioral or learning problems that were not noticed at the end of the last school year.  There certainly could be many other reasons why parents want to schedule an IEP meeting after the school year begins.  Parents should not hesitate to schedule an IEP meeting earlier in the school year when they notice problems with their child.  If you wait until the spring or much later in the school year to address your concerns, then it is likely whatever educational  problems you noticed are now much worse.  Special education is part science and part art.  This means there are scientific or peer review researched services and/or instruction that can be implemented or developed that will benefit your child.  But in many cases – especially with behavior problems – it takes time to develop the right combination of positive behavior supports, services, and strategies – to make a noticeable difference in your child’s behavior.

How to Ensure Your Child is Making Educational Progress 

Perhaps the best advise I can give to parents who want to review their child’s educational progress toward goals and objectives is ask for documentation.  You should ask the school system periodically, or at least at every IEP meeting, for documentation that your child is making educational progress. You should ask for data sheets, narratives, or any other teacher generated report that shows how your child is progressing on his IEP meeting.  If there is no or little documentation, then you can assume the child’s teachers have not properly implemented the IEP.  If there is no or little documentation, you cannot determine if your child has objectively made educational progress. At IEP meetings, it is typical for teachers to say your child is making “good” progress at school. What does this mean? Unless there is objective evidence – such as data sheets, standardized or criterion referenced  tests,  or other scientific researched based method of determining your child’s progress – then you should not readily accept the standard response your child is making “good” progress at school.

Resources for IEP Meetings

There are plenty of resources on the Internet to review and secure information about IEPs. One of my favorites is  If you have any specific questions about your child’s IEP and whether you should request an IEP meeting, please contact me for advise and suggestions.


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School Begins – Special Education Evaluations

It is hard to believe but school is beginning for the 2017-18 school year. By August 7th, all school districts should be back in session.  You have had the summer to think about your child and whether  news issues need to be addressed. You should be thinking about whether your child needs a special education evaluation or additional evaluations.  I will illustrative this question with an example of a family I recently  interviewed.

The parent arrived at my office with her ten year old son.  She had concerns whether  school system was doing its job.  She wondered why her child was placed at the GNET Center.  She wondered why her child had behavior problems.  She had made an appointment for her child to receive a comprehensive special education evaluation at the Marcus Center.  After reviewing the school system’s evaluation, I confirmed that the Marcus Center would probably perform a much better special evaluation than the school system.  The child had been evaluated by the school system and found to be eligible under the category of intellectually disabled and speech and language impairment.  The evaluator, however, did not perform a speech and language evaluation on the child. The child was not referred to a speech and language evaluation therapist for an evaluation.  Further, the child was not referred to an occupational therapist for an evaluation. It was obvious to me that the child needed such an evaluation. Moreover, the child had difficult walking because his feet were at 45 degree angles due to surgery.  Again, it was obvious to me that the child needed a physical therapy evaluation. Nonetheless, the school system did not perform a physical therapy, occupational therapy, or speech and language evaluation. Why?  I also thought the child would benefit from an assistive technology evaluation to determine what assistive technology and devices might be useful.

This is just an example of how school system do not perform proper and comprehensive evaluations for children with disabilities. Sometimes the school system simply does not refer a child for a special education evaluation at all.  This is likely a child find issue.  The school system has legal responsibility to locate, identify, evaluate a child who is suspected of having a disability. 34 C.F.R. 300.111.(c). For a child that is already determined eligible for special education and related services under the IDEA, the school system has a continuing duty to evaluate. The school system’s duty to evaluate a child does not stop at eligibility. this duty continues as long as the child attends school in the district. The school system must evaluate a child in all areas of related to the child’s suspected disability, including health, vision, hearing, emotional status, general intelligence, academic performance, communication, and motor abilities. 34 C.F.R. 300.304(c)(4).

As a parent, I would determine now if your child needs a special education evaluation because he is suspected of having a disability. If your child is already receiving special education and has an IEP, I would consider whether he needs additional evaluations in any areas where he has a need for special education and related services such as occupational, physical, and speech and language therapies.

If you have any questions about this topic, let me know.


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Relief Under IDEA: Reimbursement of Expenses

In the last post, I outlined the two primary remedies for violation of the IDEA; Compensatory Education and Reimbursement.  The IDEA provides that a court shall grant such relief as the court determines is appropriate in a due process hearing or appeal. 20 U.S.C. 1415(i)(2)(C).  The  IDEA provision permits lower courts and administrative hearing officers or judges to award reimbursement of expenses.  The United States Supreme Court in Burlington School Committee v. Department of Education held that to grant reimbursement of expenses when parents unilaterally remove their child from public school to a private placement, the court must find the school district failed to offer the child a free appropriate public education or placement and that services and placement obtained by the parents was appropriate.

Procedural Requirements for Reimbursement

However, before parents can request for reimbursement of expenses for their child placed in private school., they must show: at the most recent IEP meeting the parents attended prior to removal of the child from public school, the parents informed the IEP team that they were rejecting the placement proposed by the school district to provide a free appropriate public education to their child. This means the parents must state their concerns to the IEP team about the inappropriateness of their child’s proposed placement and they expressed their intent to enroll the child in a private school at public expense. The failure of the parents to comply with the is requirement can result in the denial of reimbursement or the reduction of the amount of reimbursement. 20 U.S.C. 1412(10)(C)(iii). In the alternative, the parents shall ten (10) days prior to the removal of the child from public school provide written notice to the school district of their concerns to the IEP team about the inappropriateness of their child’s proposed placement and they expressed their intent to enroll the child in a private school at public expense.  The failure of the parents to comply with the is requirement can result in the denial of reimbursement or the reduction of the amount of reimbursement. 20 U.S.C. 1412(10)(C)(iii).  If, however, prior to the parents’ removal of the child from public school, the school district informs the parents of its intent to evaluate the child, and the parents refuse to make the child available for such evaluation, the court may also deny or reduce the amount of reimbursement of expenses.

There are a few exceptions to these rules.  If the parents fail to provide notice at an IEP or by written notice of their intent to enroll their child in a private placement at public expense, the court may not deny or reduce reimbursement of expenses provided that: the school prevented the parents from providing such notice; the parent had not received notice of their rights under the IDEA; or the parents compliance with the requirements for unilateral withdrawal of their child would likely result in serious emotional harm to the child.

What If the Parents Cannot Afford Private Placement? 

The obvious question is what if parents cannot afford to withdraw their child with a disability from public school and then place the child in private school?  What can be done? Most parents do not have the funds or resources to unilaterally remove their child from public school and place the child in private school because the public school is not providing an appropriate placement and/or services.  In Georgia, when certain procedural requirements are met,  parent may remove their child with a disability from public school and ask the State Department of Education for SB 10 funds to pay for or supplement payment for private placement. The use of SB 10 funds – for some parents – has eased to some extent the financial burden on parents to be able to place their child in a private placement. Some parents have used SB 10 funds to enroll their child in a religious school. Other parents have enrolled their child in one of the many private schools that started up as a result of SB 10 funds. One important note, however. If a parent utilizes SB 10 funds to enroll their child with disability in a private placement, they waive their right to special education procedural safeguards and substantive rights. This means the private placement or school is not required to provide special education and related services to the child.  Of course, some private schools specialize in providing special education and related services to children with disabilities enrolled in their school.  But if the parent accepts SB 10 in enrolling their child in a private placement, the parent may not utilize any of the procedural and substantive rights afforded parents of children with disabilities under the IDEA.

For those parents that have no choice and must continue to enroll their child in public school even though the school district is not providing an appropriate placement and/or services to the child, there is a remedy. The parents may request reimbursement of expenses for out-of-pocket expenses incurred for the child. For example, if the child is required to receive speech  and language therapy for two hours a week and the school is not providing these services, the parent may hire an independent speech and language therapist to provide such services.  The parents can request reimbursement of expenses for those services by either filing a due process complaint, filing a State complaint, requesting mediation, or otherwise informally resolving this dispute with the school district.  The parent may also seek compensatory education for the denial of a free appropriate public education for their child, but you will have to wait for the next post for information on this IDEA remedy.

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What are some remedies for violation of the IDEA?

Parents are often faced with addressing a school system’s violation of their rights under the IDEA. What should parents do?  There are informal and formal ways for parents to address violation of their rights.  And there are many different types of remedies for violation of your rights.    Parents can also speak to the special education director or other school official to seek redress for violation of their rights. I do not recommend that you try to speak to the school board of education. Why?  School board members are not responsible for your child’s special education programming and instruction. School board members have no direct authority to address your concerns.

A more formal process for addressing your possible violation of your rights is to file a state complaint or file a due process complaint. I would strongly advise you to seek the advice of a special education attorney before you file a state complaint or due process complaint. I have spoken to many parents over the years who did not know what they really were doing after filing for a due process. Special education litigation is complex.  Special education litigation should not taken lightly.  I generally recommend for parents to pursue a due process hearing if there are no other reasonable alternatives. Another reason is when there is an urgent issue that must be considered by the school system for your child as soon as possible.

Settlement of Disputes

Suppose you file for due process and the school system agrees to settle your case. . . . what should you ask for?  In general, you can propose almost any type of settlement to the school system.  The type of settlement you achieve is not limited to what the law provides. For example, in one mediated settlement, the parents wanted to speak to the school board members about their concerns.  The school system agreed.  If this case had been litigated, a judge would not enter an order requiring the school board to hear the parents’ concerns.  One caveat, however, is the revision or amendment of an IEP cannot occur in mediation. The mediation agreement will provide for the parents and IEP team to meet to change or amend the child’s IEP.

You can also seek other unusual or different type of remedies in a special education dispute at a resolution session.  A resolution session is a type of settlement forum. All of the typical confidentiality rules for settlement apply in a resolution session.  You should be prepared in most special education settlements to agree to a confidentiality clause.  This clause prohibits you from discussing the terms and conditions of settlement in public and to third parties outside your immediate family.

Due Process Hearings

If a judge rules in your favor after a due process hearing the type of remedies available are still varied but somewhat more limited.  Generally, judges may award compensatory education, reimbursement of expenses, or order a school system to pay for a private placement.  I often hear from parents that they want to school system to pay for their child’s private school placement. Although this remedy may be preferred by some parents, the legal barriers are often difficult to overcome. A parent must prove the school system failed to provide his or her child did not receive a free appropriate public education. Second, a parent must further prove the proposed or selected private placement for the child is appropriate. Third, a parent must show that he or she complied with the procedural requirements for requesting  private placement.

I will provide a more extensive discussion of the legal requirements for requesting private school placement in another post.  A parent may also request reimbursement of expenses for  special education instruction and services that should have been provided to the child. Compensatory education is special education instruction and services the child should have received because the school system failed to provide FAPE.  Courts have discretion in awarding compensatory education.

The gist of this advice is to secure the representation of a special education lawyer before you decide on any type of special education litigation. It will likely result in you securing a better settlement or better decision in due process. It may also result in securing the type of remedy or remedies that you really want. I fully understand that many parents cannot afford hiring an attorney for special education litigation and due process.  But there is no reason why most parents cannot at least request a special education attorney review their case to determine if it has sufficient merit to prevail at due process.



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Annual IEP Meeting: What To Do Next?

In the last post, I discussed the affect of the Endrew F. decision and why you should use this decision at the next annual IEP  meeting.  In sum, the Endrew F. decision held that a child with a disability that is not fully integrated in regular classes  should not be bound by the de minimus or trivial benefit standard. In other words, an IEP developed by the school system should demonstrate the child is making more than de minimus or trivial progress on his IEP goals and objectives. The new standard – which will be further developed by the lower courts – requires that a school system must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.  The focus is on the unique needs of the child and his individualized circumstances.

As IEP season is closing and the end of the school year is near, parents should request at the annual IEP meeting that the school system develop an annual IEP for their child so that he will make progress appropriate in light of the child’s circumstances. This means writing annual IEP goals and objectives that are more challenging instead of lowering expectations for the child. How often how you seen a school system write the same or very similar IEP goals and objectives for a child each year?  This shows the school system has set low expectations for the child’s educational progress. Instead, the school system should be developing annual IEP goals and objectives for the child that show he is making educational progress.  For example, parents should continue to challenge educators to develop behavioral goals and objectives and/or a behavior intervention plan that shows real and concrete progress toward reducing or eliminating his difficult behaviors.  If the child is physically aggressive toward adults and peers, then the annual IEP goal and objective on this area should show the child will act appropriately toward adults and peers.  A reduction in physically aggression is implicit in this goal. An IEP goal that reduces physical aggression toward adults and peers from five times to one time per week, for instance, may meet the new standard.   Unless a child’s behavior improves, it is very unlikely he will make educational progress and be placed in the least restrictive environment. A child’s physical aggression is perhaps the most significant reason why the child is placed in self-contained classes. Parents should expect the school system to reduce their child’s physical aggression toward adults and peers so that he can benefit educationally and be placed in less restrictive classes such as resource classes once or twice a day instead of most or the entire school day.

There are many more examples of how parents can advocate for better annual IEP goals and objectives for their child using the Endrew F. new standard. Instead of “behavior,” you can insert the word “academic,” “fine motor control,” “social skills,” “communication skills,” and “vocational skills” among many others to set higher standards for your child’s progress each school year.  The days of lower expectations for a child with a disability that is not fully integrated in regular classes is over. The Supreme Court in Endrew F.   focused on the unique needs of the each child to determine his progress.  As parents, you will know what are the unique needs of your child and set higher expectations for your child’s progress on his IEP goals and objectives at the annual IEP meeting. For more information about the Endrew F. decision and how you can use this decision at the next annual IEP meeting, see  and





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Annual IEP Meetings and Endrew F.: What Happens Next?

I posted last month about the U.S. Supreme Court’s decision in Endrew F. v. Douglas County School District RE-1.  Since the Supreme Court issued this decision, I have read many commentaries, analyses, blogs, posts, and other thoughts about the meaning of this decision for parents of children with disabilities with IEPs.  I would say most of the comments were positive. In other words, many attorneys who practice in the area of special education believe the Supreme Court’s decision in Endrew F.  believe it will be favorable for parents.  For me, I have tried to be a student of the law for many years and try not to rush to rendering an opinion on such an important case such as Endrew F. until the “jury is out. What do I mean?  In my many years of practicing law, I try to wait for lower courts to interpret a Supreme Court decision or new statute and then wait for appeals to follow before jumping to rendering an concrete opinion.  I have learned that it may take sometimes years before lower courts and appellate courts interpret a Supreme Court decision or new statute before you can determine which way the legal wind will blow.   As an example, it took many years before lower courts and appellate courts interpreted the meaning of the Supreme Court’s decision in Rowley. And it also took many years before lower courts and appellate courts had an opportunity to review and issues decisions on the Individuals with Disabilities Education Improvement Act of 2004. In fact, the courts are still churning out new decisions on the IDEA of 2004.

I would take my analysis one step further. In which state you live may also determine whether the Supreme Court’s decision in Endrew F. will be interpreted favorably for parents of children with disabilities. You can bet families in California, for instance, will likely receive better and more favorable decisions interpreting Endrew F. than families in Georgia.  You have probably heard from time to time how liberal courts are in California and the Ninth Circuit Court of Appeals. I bet you never heard anyone say the administrative law judges, federal district courts, and the Eleventh Circuit Court of Appeals are very liberal. So it is more predictable that administrative law judges and federal district courts in Georgia will be more cautious and moderate about their interpretation of the Endrew F. decision. This is not say that some judges in Georgia will construe and interpret the Endrew F. decision more liberally. We can certainly advocate for a liberal interpretation of this decision. But I would be cautious in predicting precedent setting special education decisions of Endrew F. by most judges in Georgia who tend to be judicially conservative.

So what do parents do in the meantime? Most annual IEP meetings usually occur in March, April, May and even June of each school year.  You can definitely advocate that the standard for reviewing IEP goals and objective is no longer just a de miniums or a trivial benefit standard. The Court in Endrew F. expects that a child with a disability will make more than trivial progress during the school year.  How much more is yet to be determined. The Supreme Court in Endrew F. declined to “establish any one test for determining the adequacy of educational benefits upon all children are covered by the Act.” Again, what test is adopted by the courts will depend, in part, in which state or jurisdiction you live in. You can safely argue that when a school system develops an IEP with the same goals and objectives from year to year indicating that he has failed to make meaningful progress toward such goals and objectives will no longer pass muster.  In other words, you should not accept adoption of the same goals and objectives for your child each year for several years. This will not pass the Endrew F. test.  You should advocate for an IEP that is reasonably calculated to enable your child to male progress appropriate in light of the child’s circumstances. You may be able to advocate that your child’s potential for making progress should be considered by the IEP team. Higher aspirational goals, depending upon your child’s unique circumstances and abilities, should be on your list at an annual IEP meeting. The Supreme Court, however, in Endrew F. cautioned that a court should consider whether the IEP is reasonable, and not whether the court regards it as ideal.

For a child in regular education classes, the Court in Endrew F.  expects the IEP should be reasonably calculated to enable the child to achieve passing grades and advance to grade to grade.  This is basically the same standard adopted by the Court in Rowley in 1983. The IEP team should expect more of a child with a disability fully integrated in regular education classes. On the other hand, Rowley did not address or provide concrete guidance with respect to a child that is not fully interpreted in regular education classes and will not be able to achieve on a grade level. For these children, the Court in Endrew F.  clearly stated the standard should be markedly more demanding than just de minimus or trivial benefits. What that standard may be is yet to be determined by a court in Georgia. You can reach for the sky or just reach further than you ever have for your child at your annual IEP meeting.  No doubt, Endrew F. sets no specific limitation on what the IEP team must do for a child that is not fully integrated in regular education classes.

If you have comments or questions about the Endrew F. decision, please feel free to  contact me.

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