December 6, 2008

The Not Too Final Regulations

Final is defined as “not to be changed, ultimate, coming at the end”. You are not getting the new Barbie doll. That’s final! You are going to wear Grandma’s outfit she bought you. That’s final. So what happens? Put a little pressure here, a few tears there and presto, chango, there is sometimes a new Barbie doll under the tree and Grandma’s outfit somehow got destroyed in the laundry. Special education is no different, especially in these changing times. New final regulations for IDEA were published on December 1, 2008. There are lots of words but no gifts under the tree. But this time that is a good thing. There is one change regarding nonlawyer representation, but clearly a great deal of interest. Finally! We are entering the moment when nonlawyer representation will become a reality.

The reauthorized IDEA was passed by Congress in 2004. On August 14, 2006 the final regulations were published by the Office of Special Education and Rehabilitative Services, Department of Education. That summary said in part, “These regulations are needed to implement changes made to the Individuals with Disabilities Education Act, as amended by the Individuals with Disabilities Education Improvement Act of 2004 (Act or IDEA)”. Since 2006, efforts have occurred to get the fees of experts in due process hearings reimbursed for parents who win their hearings. Nobody, however, raises the triumph of the lawyer lobby in its continued effort to stall the much needed and long delayed right to have an option to lawyer representation in special education due process. For now, there is no such right. It is the timing of these regulations that is so interesting and so predictable- last minute regulations of an outgoing president before the new one is sworn in. If the Federal government wanted to emphasize legal representation in special education due process hearings as strictly a State decision, it would have done so in 1988 after the 3rd Circuit decision in Arons v. N.J. Department of Education. It is unclear why one of Bush’s departing gifts to the States is the head of nonlawyers on a plate.

The proposed IDEA regulations were originally published on May13, 2008.You can check my weekly blogs for May 16, 2008 and July 20, 2008 for more information and background. Significant attention was placed on giving States the exclusive right to determine whether or not lay advocates could represent parents in due process hearings. My instinct is that the role of nonlawyer representation is evolving in front of our eyes- though my eyes are a little more tired than most of you. Whatever OSERS thought they would change, did not materialize. Their reply to the public input, however, is a first time analysis, however flawed, of the importance of nonlawyer representation for parents. These government replies provide data for future changes on this issue that will ultimately lead to laws permitting and regulating nonlawyer practice. That is why it is important to know the current status from the standpoint of the Bush administration.

This administration played a pivotal role in special education from its first months in office. It did not support nonlawyer representation when my Delaware case was appealed to the U.S. Supreme Court. Though it recognized the crucial nature of having nonlawyers available for parents and the necessity to pay them, it refused to include that language in the final version of the 2004 IDEA reauthorization. Both parties in the Senate and Reconciliation Committee caved into the powerful trial lawyers association and the lawyer lobby generally. The final reauthorized IDEA gutted much of the specificity of the prior one in order to provide more flexibility to States in many areas. It appointed Supreme Court judges hostile to the costs of special education, denying the ability of a parent to recover expert witness fees when they prevailed in due process (See Arlington v. Murphy in 2005 Nonlawyer Lady portion of this website). . And when you examine the reason for addressing the nonlawyer issue now, before Bush leaves office, his administration says they are addressing issues raised in Arons. v. Office of DisciplinaryCounsel. You can’t blame me for taking a personal interest in a field I began and which, apparently, remains very much alive- just like me.

Because of the historic importance of this issue, I include here all of the comment and discussion as of December 1, 2008 concerning the nonlawyer issue. We will all need it for future reference.

Comment:
Several commenters supported the proposal stating that a parent’s right to be represented by non-attorneys at due process hearings is best decided by State law. Other commenters disagreed with our statement that the language of the Act is not clear about whether non-attorneys can represent parties in due process hearings. These commenters stated that the Act and its implementing regulations both provide that any party to a hearing shall be accorded the right to be accompanied and advised “by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities”. The commenters stated that because the term “counsel” is referenced separately and distinguished from “individuals with special knowledge or training” in both the Act and the regulations, the Department should conclude that such “individuals” may, in fact, be other than counsel (i.e., attorneys) and represent a parent in a due process hearing. One commenter noted that experienced advocates can be very helpful to parents who represent themselves in due process hearings. Another commenter stated that the proposal should not permit a State’s rules related to the unauthorized practice of law to prohibit a parent from being “accompanied and advised” by a lay advocate because this would be contrary to the actual text of the Act. Moreover, several commenters stated that the proposal violates the intent of the Act, which they describe as providing parents with the broadest opportunities for assistance in due process hearings. These commenters stated further that nothing in the language or intent of the Act permits the Department’s interpretation that States have the authority to decide whether parents can be represented by non-attorneys in due process hearings under the Act.

Discussion:
Section 615 of the Act is clear that parties to a due process hearing may be “accompanied and advised” by counsel and by individuals, such as non-attorney advocates, who have special knowledge or training regarding the problems of children with disabilities. Nothing in these regulations pr State law can limit this right. However, neither the Act nor the current regulations implementing Part B of the Act address the issue of whether individuals who are not attorneys, but have special knowledge or training regarding the problems of children with disabilities, may “represent” parties in due process hearings under the Act. Congress considered the question of non-attorney representation during the 2003-2004 IDEA reauthorization process. The version of H.R. 1350 passed by the House of representatives in 2003 included a provision giving a party the “right to be represented by counsel and by non-attorney advocates and to be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities”. The final version of the bill enacted in 2004, however, did not adopt this language. In other areas, though, the Act, as revised in 2004 now specifically addresses duties applicable to “either party, or the attorney representing a party”. Given that the Act is silent regarding the representational role of non-attorneys in IDEA due process hearings, the issue of whether nonattorneys may “represent” parties to a due process hearing is a matter that is left, by the statute, to each State to decide. As the commenter notes, even if a State law prohibits non-attorney representation in due process hearings, the Act still affords parties to due process hearings the right to be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities.

Changes in Regulation:
None

Comment:
Several commenters expressed dissatisfaction with the proposal because it would give too much deference to States, permit inconsistent rules across States, and would limit a party’s right under Federal law to be represented by a non-attorney in a due process hearing based on States’ interest in regulating the practice of law. Other commenters stated that federalism concerns should not override the national interest, reflected in the Act, in the equal opportunity of children with disabilities to appropriate education.

Discussion:
As noted elsewhere, the Act does not state that parties to a due process hearing have a right to representation in those hearings by non-attorney advocates. Given the Act’s silence in this regard, the Act does not prevent States from regulating whether non-attorneys may “represent” parties in due process hearings.

Changes:
None