Friday, December 5, 2008

Select Changes in Federal Regs Become Final

The federal Office of Special Education Programs has adopted final IDEA regulations that were proposed in May of this year. 73 Fed. Register No. 231 at page 73005 (OSEP 12/1/2008). Does it strike anybody else as odd that these new regs were made final just before the old administration leaves town?

Most of the buzz has been about the changes permitting parents the final word on removing children from special education. My concern, however, was with the changes to the due process hearing system making lay advocates ability to represent parties a matter of state law. I felt that it was not clear whether OSEP was saying that the matter could be regulated by the state departments of education or whether the issue was to be determined by reference to state law concerning the unauthorized practice of law. Here is OSEP's response to my comment:

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...
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. Changes: None.
73 Fed. Register No. 231 at p. 73017-73018 (OSEP 12/1/08)

There now - that's clear. Any questions? {Does one have to go to a special school of bureaucracy to learn how to use so many words without saying anything?} The only change made to this proposed regulation was to clarify that whether both sides could be represented by a nonattorney advocate is a matter of state law. The proposed regulation referred only to parents.

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