Engaging in special education advocacy can be overwhelming to parents and new advocates because of the many acronyms and specialized terms that are used as well as the extensive regulatory framework that governs this area of practice.1  Nevertheless, good preparation and the use of fundamental negotiating skills is all that is needed for effective advocacy.

Later sections of this chapter address the substantive law of special education. The following sections focus on preliminary matters to which an attorney must attend in order to effectively advocate for students and parents.

• 1A list of common acronyms used in special education is available in Section 10.

Determining whether the student or the parent should be the client is one of the first decisions an attorney must make when engaging in special education representation.1  The parent or legal guardian is typically the client in a special education case because the parent is the educational rights holder until the student reaches the age of majority.2  After turning 18, the student becomes the educational rights holder unless the student has been found incompetent under state law.3  It is important to note that disability status alone does not affect the transfer of rights and that special education attorneys in particular should be aware of the ethical requirement to “as far as reasonably possible, maintain a normal client-lawyer relationship with the client” when representing an individual with diminished capacity.4  Once educational rights transfer to the student, the parent may continue attending IEP meetings and being involved in educational decisions to the extent desired by the student. As the educational rights holder, however, the student becomes the person whose consent is needed for evaluations and sought for decisions related to the IEP. The student also becomes the complainant for any complaint, due process proceeding, or court action filed related to special education rights. In situations where the student is the educational rights holder but the parent is paying for the legal services, the attorney should keep in mind the ethical duty to ensure being compensated by a third-party does not cause “interference with the lawyer’s independence or professional judgment or with the client-lawyer relationship.”5

• 1For purposes of both this chapter and special education generally, “parent” is broadly defined to include biological parents, adoptive parents, foster parents, legal guardians, surrogate parents, and other individuals legally responsible for the student’s welfare and education. See 34 C.F.R. § 300.30; La. Bulletin 1706 § 905 (definition of Parent). 
• 2See 34 C.F.R. § 300.520; La. Bulletin 1706 § 520.
• 3See 34 C.F.R. § 300.520; La. Bulletin 1706 § 520.
• 4La. R. Prof’l Conduct 1.14(a).
• 5La. R. Prof’l Conduct 4.2.

A client retainer agreement should make it clear whether the parent or the child is the client for purposes of the representation.1

Educational advocacy engaged in as collateral representation for a child client likely requires special language in the retainer agreement to address potential conflicts of interest that could arise from dual representation of the parent as the client in the educational matter. Court-appointed counsel in a delinquency proceeding is an expressed-interest representative of the youth, to whom the attorney owes all the ethical duties attendant to an attorney-client relationship. If the same attorney also represents the parent in a special education matter, then a conflict could arise if the goals of representation of the parent and the student come to be at odds. For example, a parent’s goal of having the child found eligible for special education or having the child placed in a certain type of self-contained classroom may conflict with the expressed interest of the child who wants to avoid being labeled as a student with a disability or to remain with friends in a regular education setting. Advocates facing this situation typically resolve the dilemma by including language in the client retainer agreement that identifies the potential for conflict and permits the attorney to withdraw if an irreconcilable conflict arises related to a goal of representation for the educational advocacy.2  In most instances, providing effective counsel and advice to the parent and student can resolve disagreements over the goals of representation without the need to withdraw.

Prior to engaging in educational advocacy, an attorney must consider the scope of representation that will be provided to the client. Educational advocacy can quickly expand to matters beyond the discrete issues first brought to an attorney’s attention, and many issues may persist over several school years without ever being fully resolved. With this in mind, an attorney should establish a scope of representation that provides sufficient flexibility to address issues as they arise while not committing the attorney to perpetual representation on any and all aspects of a student’s education. Accordingly, it may be advisable to draft the retainer agreement to limit the scope of representation to a particular length of time, to a specific issue or set of issues, or to a certain level of advocacy. For example, an attorney may choose to limit the initial retainer to advocacy at IEP meetings and other school-level informal advocacy during the current school year and require a separate retainer if the advocacy reaches an impasse and needs to progress to representation in one of the formal dispute resolution mechanisms available through the special education system.3

Attorneys engaging in special education advocacy involving formal dispute resolution through a due process hearing should also consider adding language specific to the award of attorneys’ fees to the retainer agreement. The IDEA grants courts the authority to award reasonable attorneys’ fees to a parent of a student with a disability if the parent is the prevailing party in a due process hearing.4  As a result, attorneys’ fees are also commonly included as one of the terms in settlement agreements negotiated to resolve a due process proceeding. Retainer agreement language establishing authority for the attorney to seek and collect attorneys’ fees directly from the opposing party can help avoid any misunderstandings or conflict with regard to these fees later on, particularly for attorneys who are otherwise providing pro bono representation.5

• 1See Section 3.2 on this distinction.
• 2Sample retainer agreement language is provided in Section 9.
• 3Id.
• 4 34 C.F.R. § 300.517; La. Bulletin 1706 § 517.
• 5Sample retainer agreement language is provided in Section 9.

Some clients seeking assistance with educational advocacy for a child with an identified or suspected disability may have only a vague notion of the ways in which the school system is failing the child and of the variety of potential solutions available. Consequently, conducting a thorough and client-centered interview is essential to developing a theory of the case and understanding the client’s often nuanced and layered goals regarding the student.1  The initial client interview should cover a detailed chronology of the student’s educational history, including the schools the student has attended; a timeline of special education and 504 eligibility and evaluations; a narrative of the services and supports that have been introduced or eliminated through the years; and a recounting of any other significant milestones in the student’s education. The attorney should also conduct thorough questioning regarding the student’s current educational program to determine the student’s placement, services, and modifications and whether they are being implemented faithfully. The attorney should focus on progress or lack thereof in both academic and functional areas of need, the nature and amount of related services and supports that a student receives or that the parent believes the student requires, and the amount of time spent in regular education and special education settings along with the accommodations provided in each setting. The attorney should also inquire about the educational setup for students who have not been identified as having a disability because interventions and other services may have already been put into place.

The interview should also thoroughly cover any disciplinary or behavioral issues that the student is experiencing or has experienced in the past, including the frequency and nature of any disciplinary actions taken against the student and the use of any Behavior Intervention Plans, Behavior Support Plans, or other supports implemented to address behavioral issues. Special attention should be given to disciplinary incidents within the past year that have resulted in suspensions, expulsion recommendations, or other types of removals. The interview should also delve into the student’s medical history to determine if there are any medical or mental health diagnoses that could be relevant to special education eligibility or could be affecting educational performance. Ideally, interview notes should document not only any diagnoses that have been made, but also current and past prescriptions and treatments, any history of hospitalization, and the names and contact information of any outside medical or mental health providers. Finally, the attorney should engage in as much discussion as is necessary to understand the outcomes the client believes would resolve the student’s educational problems. In addition to obtaining information, the attorney should also engage in discussion so that the client gains a better understanding of the child’s educational rights and the tentative steps for educational advocacy moving forward. 

If the attorney and client are ready to engage in representation, the initial interview is also the appropriate time to have the client sign the retainer agreement and the authorizations to release educational and medical records. If possible, parents should be asked in advance of the interview to bring all records and documents in their possession with them or to email them beforehand. If not, arrangements should be made to obtain all available documents as soon as possible after the interview because gathering records from the school can take considerable time.

Sometimes a parent brings the child with them to the interview. When this occurs, the attorney should consider asking to interview the student separately from the parent, particularly if the student is older, so that the parent’s presence does not influence the student’s recounting of the problems occurring at school or what the student expresses as desired outcomes for the advocacy. In such cases, both the parent and the student should clearly understand who is the client, the role of the attorney, and to whom the ethical duties of confidentiality and expressed-interest representation are owed. It often helps to explain to the parent that even though he or she is the client, being able to interview the student privately can result in a better understanding of the issues and a greater ability to obtain buy-in from the student on the proposed course of action, resulting in more effective advocacy.2

• 1A sample client intake interview form is provided in Section 9.
• 2For example, an attorney may be able to secure a particular placement or accommodation for a student at the parent’s request, but that will not necessarily lead to an improved educational outcome if the student is resistant to the change. In fact, changing the student’s educational program in a manner that the student does not want could lead to worse educational or behavioral outcomes even if the change is otherwise appropriate.

In educational advocacy, an attorney generally communicates with and sends requests directly to school officials on behalf of a client unless the LEA is represented by counsel with regard to the matter that is the subject of the communication. Some LEAs are quicker than others to bring in general or retained counsel on a particular matter. To avoid concerns regarding communicating with represented parties, the attorney representing a parent or student should consider including language in the initial outreach to school officials asking to be informed if the LEA is represented by counsel with whom the attorney should be communicating regarding the matter.1  The expectations and practices regarding when to begin communicating with an LEA’s counsel should become more clear once an attorney gains experience advocating in a particular school system or charter organization.

• 1See La. R. Prof’l Conduct 4.2.

One of the first steps of educational advocacy is to obtain an authorization to release confidential information and to submit a request for all of a student’s educational records.1  The request should be as comprehensive as possible. The records available and the language used for the request may differ slightly, however, depending on whether the student is already in special education and whether or not the request is focused on records relating a specific disciplinary incident.2  The comprehensive records request should be sent via email in order to create a record of when and to whom it was sent. Schools and charter organizations may list a particular person or email address on their website as the contact for records requests. If this information is not available, advocates and parents should send requests to the principal or special education coordinator for the school in addition to the child’s teacher. In some cases, it may be appropriate to send the request to the special education coordinator or director for the LEA in addition to the appropriate school-level official.

If the student has a medical diagnosis, sees a mental health provider, or has a history of hospitalization, it is advisable to also obtain a HIPAA-compliant release to obtain medical records. The Louisiana Department of Health (“LDH”) provides an Authorization to Release or Obtain Health Information that is HIPAA-compliant and available in a fillable pdf format.3  Some providers have their own releases that they prefer be used for records requests.4  Many providers accept records requests via email or through an online records request portal.5  Otherwise, the request letter and accompanying release can be mailed or faxed to the provider.6

• 1A sample authorization to release records is provided in Section 9.
• 2Templates for letters requesting educational records for a special education student, for a student not-receiving special education services and for a specific disciplinary incident are provided in Section 9.
• 3La. Dep’t of Health, Authorization to Release or Obtain Health Information (Oct. 29, 2015).
• 4 See, e.g., LCMC Health, Authorization to Disclose or Release Protected Health Information (July 2019); Ochsner, Authorization for Release of Confidential Information (Aug. 18, 2020).
• 5For information on requesting medical records from New Orleans Children’s Hospital or other LCMC Health facilities, see Request Your Medical Records, LCMC Health, For information on requesting medical records from Ochsner Health facilities or providers, see Request Medical Records and Documents, Ochsner Health.
• 6A template letter for requesting medical records is provided in Section 9.