December 6, 2008

The Not Too Final Regulations

Comment:
One commenter requested that the final regulations clarify whether it is sufficient for an SEA to provide by regulation or procedural rule that a lay advocate may represent parties at due process hearings or whether the ability of a lay advocate to represent a party at a due process hearing instead is controlled by State law regarding the unauthorized practice of law. Another commenter requested that we add a provision to the regulations to clarify that nothing in the Act authorizes parents to be represented by non-attorneys if State law is silent on the issue.

Discussion:
Whether an SEA may have a State regulation or procedural rule permitting non-attorney advocates to represent parties at due process hearings or whether that issue is controlled by State attorney practice laws is determined by State law. If State law is silent on the question of whether non-attorney advocates can represent parties in due process hearings, there is no prohibition under the Act or its implementing regulations on nonattorney advocates assuming a representational role in due process hearings. (Italics added)

Changes:
None

Comment:
Many commenters asserted the proposed rules would negatively affect future cases as parents unable to afford attorneys’ fees, or unable to find an attorney knowledgeable about special education law, will be faced with the choice of either representing themselves or foregoing a due process hearing. Other commenters suggested that the proposed change has the potential to disrupt the State system of administrative due process hearings when lay advocates are not available to assist parents. One commenter noted that lay advocates are necessary to help represent parents because school officials are more knowledgeable about the law then parents, and there are more school lawyers than there are lawyers willing to represent parents in due process hearings. Some commenters noted that publicly funded programs providing legal representation to persons with disabilities are not funded at the level that meets the need for free or low-cost assistance. Another commenter noted non-attorney advocates provide a necessary and valuable service to children with disabilities, and that limiting the role of non-attorney advocates will adversely affect the rights of children with disabilities in due process hearings. Other commenters argued that lay advocates serve an important function and are an excellent resource for families.

Discussion:
We agree with the commenters that non-attorney advocates can perform a valuable service to parties in due process hearings. As just one example, non-attorney advisers with special knowledge or training in the problems of children with disabilities who speak languages other than English can play an important role in accompanying and advising parents who do not speak English at due process hearings. However, because the Act is silent about the representational role of non-attorneys in due process hearings, States are not prohibited by the Act from regulating on that issue. Therefore, we make clear that whether non-attorneys can “represent” parties in due process hearings is a matter that is controlled by State law. There currently are States that prohibit non-attorney representation in due process hearings, and parties to due process hearings in those States need to understand that they may not be “represented” in a due process hearing by a non-attorney, although they may be “accompanied and advised” by a non-attorney in the due process hearing if that individual has special knowledge or training respecting the problems of children with disabilities. (Italics added).

Changes:
None

Comment:
A few commenters recommended that States be required to provide parents with a list of available and affordable attorneys if State law does not allow for non-attorney representation in due process hearings. The commenters also recommended that the Department identify strategies to ensure that parents have access to free or reduced-fee representation by knowledgeable attorneys when legal counsel is necessary, such as appealing due process decisions in court.

Discussion:
Current law requires public agencies to inform a parent of any free or low-cost legal and other relevant services in the area if the parent requests the information or if the parent or public agency files a due process complaint. We expect States to work to ensure that parents for whom legal counsel under Part B of the Act is necessary have easy access to information about free or low-cost legal or other relevant services available in their area.
Each State is in the best position to determine effective strategies to ensure that parents have easy access to information about free or low-cost assistance. For these reasons, we decline to make the requested changes.

Changes:
None

Comment:
One commenter opposed the proposed changes and expressed concern that these changes will limit parents’ representation during the IEP process. Another commenter stated that parents are intended to be “equal partners” in the educational decision-making process for their child under the Act, and therefore, should be able to utilize non-attorney assistance whenever necessary. Some commenters stated that effective advocacy is necessary to ensure that children have access to the services and programs necessary to develop an appropriate IEP.

Discussion:
We agree with the commenters that parents should be equal partners in the educational decision-making process for their child and that parents should be able to utilize assistance from non-attorney advocates whenever necessary, such as in securing an appropriate IEP for their child and, as noted, in preparing for and participating in due process hearings. The proposed changes only address whether a party can be represented by a non-attorney in a due process hearing, specifying that this matter is determined by State law. Whether parents may be “represented” by non-attorney advocates at other stages of the process is not addressed by the Act and also depends on State law. That said, the IEP Team may include, at the discretion of the parent or public agency, individuals who have special knowledge or special expertise regarding the child, including non-attorney advocates. While these individuals are members of the IEP Team, their role is not to “represent” or speak for the parents.

Changes:
None

Discussion:
Several commenters expressed concern that the proposals could lead to confusion because not all States have a clear position as to whether lay advocates can represent parents at due process hearings. Some of these commenters noted that 10 States currently bar lay advocates, 12 States permit lay advocates to represent parents in due process hearings, and that the positions of the remaining States are unclear. Given this disparity across the States, these commenters expressed concern that leaving the decision to States could lead to more confusion and litigation, not less. A few commenters questioned whether States would be required to amend their laws to specify whether lay advocates can represent parties in due process hearings. One commenter states that the proposal raises an issue to the national level that is only a problem in a few jurisdictions, and would lead to increased, and tangential disputes. Another commenter stated that appropriate representation should remain a mater of State law, but that the Department should not make the proposed changes.

Discussion:
We disagree with commenters that confusion will result from the changes reflected in the proposal. To the contrary, we expect that the effect of this amended provision will be to reduce confusion and the potential for litigation because parties will know to look to State law to determine whether non-attorneys can represent parties in due process hearings. States will know they are free to continue to permit or prohibit such representation. In the absence of State law on this point, there is nothing in the Act or these regulations that would prohibit non-attorneys with special knowledge or training respecting the problems of children with disabilities from representing parties in due process hearings. The proposal has nothing to require States to adopt changes to State law to address this issue.
Even though a relatively small number of States may prohibit nonattorneys from representing parties in IDEA due process hearings, it is still important for the Department to address this issue in its regulations. In the absence of that clarification, parties may not consider this issue at the time they are making decisions about how to proceed in a due process hearing, or may mistakenly rely on the April 8, 1981 letter from Theodore Sky, Acting General Counsel of the Department of Education, to the Honorable Frank B. Brouillet, in which the Department interpreted section 615 of the Act and implementing regulations to mean that attorneys and lay advocates may perform the same functions at due process hearings. As noted, the Department no longer interprets section 615 of the Act and implementing regulations in this manner. Nothing in amended 300.512 should increase disputes, or raise an issue that is not already an issue under State law.

Changes:
None