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U.S. Department of Education: Promoting Educational Excellence for all Americans

Hearing Rights (Sec. 300.512)

Comment: Several commenters supported proposed Sec. 300.512 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 in the preamble to the NPRM 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 proposed Sec. 300.512 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 proposed Sec. 300.512 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(h)(1) 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 or 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'' (63 Cong. Rec. H3458 and H3495 (daily ed. Apr. 30, 2003)). 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'' (see section 615(b)(7)(A) and (B) of the Act). Given that the Act is silent regarding the representational role of non-attorneys in IDEA due process hearings, the issue of whether non-attorneys 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: None.

Comment: Several commenters expressed dissatisfaction with proposed Sec. 300.512 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 in this preamble, 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.

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 non-attorney advocates assuming a representational role in due process hearings.

Changes: None.

Comment: Many commenters asserted that the proposed changes to Sec. 300.512 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 regulatory 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 than 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 that 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 advisors with special knowledge of 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, in Sec. 300.512, 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.

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 Sec. 300.507 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 access to information about free or low-cost assistance. For these reasons, we decline to make the requested changes to these regulations.

Changes: None.

Comment: One commenter opposed the proposed changes to Sec. 300.512 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 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 previously in this preamble, in preparing for and participating in due process hearings. The proposed changes to Sec. 300.512 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, under Sec. 300.321(a)(6), the IEP Team may include, at the discretion of the parent or public agency, individuals who have 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.

Comment: Several commenters expressed concern that proposed Sec. 300.512 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 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 stated that proposed Sec. 300.512 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 matter of State law, but that the Department should not make the changes proposed to Sec. 300.512 in the NPRM.

Discussion: We disagree with commenters that confusion will result from the changes reflected in proposed Sec. 300.512. 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. Nothing in proposed Sec. 300.512 requires States to adopt changes to State law to address this issue.

Even though a relatively small number of States may prohibit non- attorneys 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 in the NPRM, the Department no longer interprets section 615 of the Act and implementing regulations in this manner. Nothing in amended Sec. 300.512 should increase disputes, or raise an issue that is not already an issue under State law.

Changes: None.

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 lay 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 Sec. 300.512 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 non-attorney 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 Sec. 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 proposed Sec. 300.512 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 of Congress in legislation. These commenters noted that proposed Sec. 300.512 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 proposed Sec. 300.512 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 that were in effect on July 20, 1983.

Changes: None.

Comment: One commenter asked who proposed the changes to Sec. 300.512, 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 to Sec. 300.512 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: One commenter expressed concern that the proposed changes in Sec. 300.512 would increase the number of lawsuits against school districts by requiring the use of a lawyer and court action.

Discussion: We disagree with this comment because Sec. 300.512 does not require the use of lawyers and does not concern court actions.

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 stated that this issue should be reviewed in Congressional oversight hearings. Many 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 commenters that additional research is needed to better understand the current state of State law on this issue before amending Sec. 300.512. That said, we agree that additional information about the 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 Congress believed 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.