New Proposed Federal Rregulations: Consent, Lay Advocates

The federal Department of Education has published another Notice of Proposed Rulemaking (or NPRM). These will become federal regulations unless the DOE is persuaded by public comments to make changes. This may sound esoteric, but it is very important in the realm of special education law. Federal regulations have the force and effect of law unless overturned by a court of competent jurisdiction. Moreover, under general principles of administrative law, the commentary surrounding the reasoning for the regs is also entitled to some deference.

The new regs relate to consent and lay representation of parties at due process hearings. There are also changes regarding monitoring and allocation, but I'm only going to discuss the two major topics. The consent regulations are being changed to permit parents whose child is already receiving special education and related services to revoke the consent. In this situation, the school district would no longer be able to invoke the procedural safeguards, eg. mediation or due process hearings, to override the lack of consent. Proposed 34 CFR Sections 300.9 and 300.300.

The lay representation reg also represents a change in the DOE's interpretation of the law. OSEP had previously taken the position that lay advocates may represent parents in due process hearings, including asking questions of witnesses, cross-examination, filing briefs, etc. The Department has now backed off that position. Instead, it repeats the statute to the effect that a parent may be accompanied and advised by an advocate at hearing, but that whether parents have the right to be represented by non-attorneys at due process hearings should be determined under state law. Proposed 34 CFR Section 300.512(a)(1).

The proposed regulations may be found at http://www.ed.gov/legislation/FedRegister/proprule/2007-2/050907a.html

You can, and really should, submit comments on the proposed regulations at http://www.ed.gov/legislation/FedRegister/proprule/2007-2/050907a.html

In the docket ID column on that website select ED-2007-OSERS-131. It is important that all concerned submit comments to the Department concerning the proposed changes. The comment period ends on July 28, 2008. Any comments must be received by that date.