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Press Release
April 17, 2013
Contact: Daniel Collins
General Counsel & Press Secretary
Lucio Bill to Assist Parents of Special Education Students in Due Process Hearings Passes Senate

AUSTIN — Today, Senator Eddie Lucio, Jr. (D-Brownsville) announces Senate passage of a bill intended to assist parents of special education students in federal due process hearings. Senate Bill 709, which would specifically allow experienced advocates to assist parents in resolving disputes in special education due process hearings, passed out of the Senate Tuesday.

"The intent of this bill is to put parents on more equal footing with school districts in special education due process hearings," Senator Lucio said. "We want to encourage resolution at the earliest possible stage and fairly resolve disputes between parents of children with special education needs and school districts regarding the provisions of a free appropriate public education."

The federal Individuals with Disabilities Education Act (IDEA) provides the right to a due process hearing to resolve disputes between parents of a child receiving special education and that child's educators. According to disability rights advocates, parents rarely prevail in these due process hearings, however, at least in part because they often cannot afford to have an attorney represent them and must therefore represent themselves. This could place parents at a disadvantage because school districts are usually represented by experienced legal counsel. Further, experienced attorneys for parents may not be available in rural communities or border communities.

Due process hearings would be improved if parents were permitted representation by non-attorney advocates who bring additional knowledge and expertise to a hearing that a parent would not otherwise have.

Currently, there is confusion regarding the extent who which non-attorney advocates can assist parents during due process hearings. Federal rules state that parents have may be "accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities," but leaves the question of whether a parent can be accompanied by a non-attorney up to state law.

The Texas Attorney General published an opinion in 2012 which stated that because the legislature had not enacted a provision specifically authorizing a non-attorney to represent another in a special education due process hearing, the state's general prohibition against the unauthorized practice of law prohibited lay representation. This opinion set forth, however, that should the legislature expressly allow a non-attorney to act on behalf of another in a special education due process hearing, the Texas Education Agency could adopt conforming rules qualifying such lay advocates.

Accordingly, Senate Bill 709 by Senator Lucio adds language to the Education Code to allow a parent in a due process hearing to be represented either by an attorney or "an individual with special knowledge or training with respect to problems of children with disabilities." As passed out of the Senate, the bill requires the Texas Education Agency make rules regarding qualifications for such advocates. Specifically, advocates must have demonstrated knowledge of due process rules, hearings, and procedure; and demonstrated knowledge of special education laws, both state and federal.

Now passed by the Senate, Senate Bill 709 moves to the House of Representatives.