Thursday, July 24, 2008

Deadline for Public Comments About New Regs Approaching

The deadline is Monday, July 28, 2008. If you care about special education law you should review the new regulation changes proposed by OSEP. If you have any questions or concerns about the new regs you should file a comment.

The federal Department of Education published the Notice of Proposed Rulemaking (or NPRM) on May 13, 2008. These will become federal regulations unless the DOE is persuaded by public comments to make changes (or in the highly unlikely event that the Congress were to get involved). 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. So these regs are a big deal.

The comments that I filed concerned proposed 34 CFR Section 300.512(a)(1). This section governs what lay advocates may do at a due process hearing. I asked for the specific reasons that OSEP is changing DOE's previous and long standing interpretation of the law. OSEP had since 1981 consistently 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, the proposed reg repeats the statute to the effect that a parent may be accompanied and advised by an advocate at hearing, but states that whether parents have the right to be represented by non-attorneys at due process hearings should be determined under state law. I also asked whether it was OSEP's view that a state Department of Education could permit lay advocates to represent parties at due process hearings by state regulation or procedural rule or whether, instead, the ability of an advocate to represent parties at due process hearings turns on state law concerning the unauthorized practice of law.

The new regs also relate to consent, monitoring and allocation. 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, e.g. mediation or due process hearings, to override the lack of consent. Proposed 34 CFR Sections 300.9 and 300.300.

The proposed regulations may be found at

You can submit comments on the proposed regulations at the Federal Rulemaking Portal
Follow the instructions under "How to use this Site" and look for docket ID No. ED-2008-OSERS-005. Although the website has to transfer the comments to DOE, there is still some time if you want to submit comments electronically. Comment on!