December 6, 2008

The Not Too Final Regulations

Comment:
One commenter noted that non-attorney lay advocates have long represented underprivileged persons in a variety of administrative hearings, including those concerning veterans’ benefits, welfare benefits, and social security benefits.

Discussion:
The programs cited by the commenter are Federal programs under which administrative hearings are conducted before the Federal agency. Due process hearings under IDEA, however, are conducted before a local or State hearing officer, as determined under State law. Absent specific statutory authority to require States to permit non-attorney representation, we do not believe we should impose such a requirement on States.

Changes:
None

Comment:
A number of commenters stated that in some States school districts are represented by law advocates and expressed concern that a rule applying only to parents would be both inconsistent and unfair. Some commenters stated that State regulations of the practice of law should affect equally parents and school districts. One commenter reported that lay advocates commonly represent a school district, but are not subject to license-based sanctions or censure or held to the legal profession’s standards of candor and fair dealing. Others noted that school districts are often “represented” at hearings by agency representatives, including special education directors or other administrators, rather than attorneys.

Discussion:
We agree with the commenters that a further change is needed to specify that State law controls whether non-attorneys can represent any party in a due process hearing under the Act. We are persuaded by commenters who pointed out that public agencies also retain non-attorney advocates, and agree that the Act’s silence on the matter of nonattorney representation in a due process hearing means that State law applies to all parties to a due process hearing.

Changes:
We have revised the exception clause in 300.512(a)(1) to specify that whether parties have the right to be represented by non-attorneys at due process hearings is determined under state law.

Comment:
Several commenters stated that the proposal violates section 607 of the Act, which prohibits the adoption of any regulation that procedurally or substantively lessens the protections provided to children with disabilities in the regulations in effect on July 20, 1983 unless the regulation reflects the clear and unequivocal intent on Congress in legislation. These commenters noted that the proposal was not in effect in 1983 and that no legislative change has been made to 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.”

Discussion:
We disagree that the change reflected in the proposal violates the provisions of section 607 of the Act. As the regulations that were in effect on July 20, 1983 did not address whether non-attorneys could “represent” parties to due process hearings, the regulations in effect at that time did not embody a right to representation by non-attorneys. Section 607 of the Act does not prevent the Department from addressing rights that were not in the regulations in effect on July 20, 1983.

Changes:
None

Comment:
One commenter asked who proposed the changes, on what data the changes were based, and whether the Protection and Advocacy system was involved in proposing the changes to this section.

Discussion:
The Department proposed the changes because we came to accept, after the Delaware Supreme Court’s decision in In re Arons, 756 A. 2d 867 (Del. 2000). Cert. denied sub nom, Arons v. Office of Disciplinary Counsel, 532, U.S. 1065 (2001), that the interpretation of the regulations in the 1981 letter from the Acting General Counsel of the Department was not persuasive, and that, because the Act does not specifically address non-attorney representation in due process hearings, State law controls whether non-attorneys can represent parties to due process hearings. The Protection and Advocacy system was not involved in proposing the change.

Changes:
None

Comment:
A number of commenters stated that the issue of whether to allow parents to be represented by non-lawyers in IDEA due process hearings should be left to Congress to resolve. Many of these commenters stated that given the pending reauthorization of the Act, regulating on this topic is premature. Some commenters argued that there is a need for review and consideration of available research data, or that research should first be conducted on the special education administrative due process systems of States and districts, before a change is made. Others called for research on the availability of legal representation for parents in due process hearings before a change in the department’s policy is made.

Discussion:
We disagree with commenters that this matter should be left to Congress to resolve or that it is premature to address this issue given the pending reauthorization of the Act. Participants in due process hearings should understand that, under the current state of the law, the Act does not prohibit States from determining whether parties to due process hearings can be represented in those hearings by non-attorneys. We also disagree with commentors that additional research is needed to better understand the current state of State law on this issue before amending 300.512. That said, we agree that additional information about availability of legal representation for parties might be useful in helping Congress decide whether a change in the statute is advisable.

Changes:
None

Comment:
A number of commenters remarked that Congressional inaction on the issue of lay advocate representation of parties in due process hearings after the Arons decision indicates that Congress did not mean to reverse the Department’s longstanding policy that the Act permits non-attorney representation.

Discussion:
We do not agree that Congressional acquiescence in the Department’s prior interpretation can be inferred in this case. The commenters’ assessment of the reasons that Congress decided to take no action in this regard is speculative. Congress was aware, at the time of the 2004 reauthorization, that non-attorneys were not permitted to represent parties in due process hearings in at least one State, Delaware. Therefore, we cannot assume that Congressional inaction meant that Congress viewed the department’s prior interpretation as controlling. Lack of congressional action could also mean that the Arons case was correctly decided, and that State law should control the representational role of non-attorneys in IDEA due process hearings.

Changes:
None

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The magnitude of what is said, admitted and not said in these final regulations is a powerful indictment of the present system of the nation’s system of due process. To make policy and conclusions without any data shows the genuine state of anarchy in the day to day decision-making processes for our children with special needs.