July 29, 2008

OSERS' Summer Surprise

Imagine for a minute that you were a thief who had an eye toward robbing the house of a family you suspected of having treasure hidden someplace inside. You’d had your eye on this house since 2004 but hadn’t found just the right time to invade it. The family had children, so that the house was not on its regular schedule during the summer months. You confer with your fellow thieves and plot to rob it during the month of July. Whatever is there will be yours to take without fear of anybody knowing until it is too late.

Whoever has been involved with any form of politics, and special education is nothing but politics, knows that the most devastating regulations are proposed at the end of the school year, with the public responses due during summer vacation. And that is exactly what the Office of Special Education and Rehabilitative Services (OSERS) did when it published proposed IDEA regulations in May with a final submission date for public comment of July 28, 2008. One of those proposals, the one they thought nobody would notice, let states decide whether or not parents could use nonattorneys in special education due process. Thanks to The Advocacy Institute (www.advocacyinstitute.org) and its Director, Candace Cortiella, as well as the group, Our Children Left Behind (www.OCLB.blogspot.com) interested organizations and individuals were notified about these harmful proposals, including the one concerning nonlawyers. The response to OSERS has been wonderful and unexpected. Responses are nearly unanimous in demanding the proposed rule about nonlawyers be withdrawn until there is further study on the issue. This most certainly is OSER’s summer surprise. Somebody in the house was home after school ended and sounded the alarm. We’ll see if the thieves were caught.

I’ve read all of the responses that are posted on www.regulations.gov. The themes are:

1. There is no data to support any rule proposal about limiting the use of nonlawyers.
2. There are very few attorneys who specialize in special education law. The attorneys who do are largely unaffordable.
3. Depriving parents of representation of their choice deprives them of their procedural safeguards.
4. What is the motivation behind the proposal, in that it clearly deprives parents of an essential service?

It will be interesting to see how OSERS responds to the requests that this proposal be withdrawn and reviewed prior to the next reauthorization. Of particular interest to me is how this input contrasts with the complete national silence on the House version of IDEA prior to 2004 that permitted nonlawyer practice in special education with the essential addition that they could be paid for their work. Currently, if a nonlawyer works privately or without the supervision of a lawyer, and takes money for that work, it can be construed as the unauthorized practice of law. When I first began to develop the field of nonlawyer practice in special education it was as a mother fighting for her child. Nobody knew that I was an educator. It was only after the first threat of UPL in the early 80s that my education credentials rescued me, because it was OK to accept money as a licensed educator for services provided to parents. New Jersey, however, prohibited me from receiving payment for any aspect of trial work. Several people I trained over the years had no college degrees, no licenses, and yet were extremely talented at what they did and provided excellent services to families of disabled children. As a result, I became the credentialing agent, signing diplomas to verify that they had successfully completed my training programs. With that diploma they were able to receive payment as a special education consultant. This is an example of the complexity of nonlawyer representation. It is not only the training and the appropriate behavior of the advocate that is of concern. It is also the method of payment, the hourly rate, the ethics of representation, as well as the need for periodic monitoring and oversight, continuous training, and support and advice from colleagues.

Lawyers have a role to play, but there are so few of them. Their services are expensive and most no longer put the kind of time and effort needed to prepare and win cases. They view nonlawyers as competition and have exerted every possible means to limit that competition. I have never met an attorney who knew the field as well as those I trained. I have met advocates trained by attorneys who had pockets of expertise but were often unable to see and determine the issues of a case. These are matters that must be discussed by those who do the work and bring to the field a broad range of experience and insight.

My hope for the future of the nonlawyer movement is that it can be taken out of the hands of lawyers and put into the hands of educators and parents who know what it is to actually work with children and families and schools. Some of us have become unwitting adversaries of one another for a variety of reasons, none of which should be allowed to stand. There is room for everybody at the nonlawyer table, but it cannot be governed or controlled by lawyers. I hope that somebody is keeping a list of all OSERS names and emails who have posted comments to the proposed rule. We should continue the dialogue that is this OSERS summer surprise and get ready for the next IDEA reauthorization. It is only through federal statute that we can protect the right of parents to select the representation of their choice. The thieves of parental rights remain at the gate. They will try again and again to rob the house. The security system we need is the absolute right, in every state, to utilize nonlawyers in special education disputes.