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Lay Advocates: Activities Allowed Under UPRS; Compensation; Performance of Services When Represented Party Not Present; Representation of Education Authorityís Rehabilitation Act Hearing.

The Committee recently reviewed your request for an advisory Unauthorized Practice of Law Opinion involving a problem with lay advocates appearing before administrative law judges in connection with IDEA and Rehabilitation Act disputes with school boards. The Individualís With Disabilities Education Act (IDEA) is controlled by federal law and can be found at 20 U.S.C. §1415. The Virginia Act is found at Va. Code §22.1-214(B). The particular case which triggered your inquiry also came under the Rehabilitation Act of 1972, which is located at 20 U.S.C. §794 (referred to as §504 of the Rehabilitation Act).

Under both the IDEA and Rehabilitation Act the states and localities must comply with federal law and regulations requiring due process hearings for parents having disputes with local school boards. 34 C.F.R. §300.58 permits the aggrieved parents in IDEA hearings to be represented by counsel or a lay advocate, provided the lay advocate is a person having special knowledge or training concerning the problems of children with disabilities. No certification or training program is administered to test or evaluate the competency or knowledge of a lay advocate. Regulations promulgated under the Rehabilitation Act do no explicitly mention lay advocates as the IDEA regulations do. See 34 C.F.R. §104.36 (requiring localities to establish procedural safeguards, including a right to hearing). In addition, Section 615 of the Rehabilitation Act leaves it to the states and localities to devise the appropriate procedural safeguards for adversary hearings, of which the right to be represented by counsel is a necessary component.

Our inquiry with the Department of Education in Washington, D.C. reveals that under federal law, it is permissible for a lay advocate to represent a parent in either IDEA or Rehabilitation Act cases, however, the federal regulations do not prohibit states from requiring representation by counsel only. Under the Virginia IDEA statutes, specifically §22.1-214(C), a party may be “represented by legal counsel or other representative before such hearing officer without being in violation of the provisions of §54.1-3904 [prohibition against unauthorized practice of law].??? Virginia Department of Education regulations permit a party to be “accompanied and advised??? by an advocate “without [a] violation of the provisions of §54.1-3904 of the Code of Virginia as amended.???

In the hypothetical situation you describe, the parent did not attend the due process hearing, but the lay advocate orally argued motions and objections, cross-examined witnesses, examined witnesses, presented documentary evidence and submitted written legal arguments. The attorney for the local school board objected to the advocate representing a party who was not present, giving strict interpretation to the “company and advise??? language in the DOE regulation. You overruled the objection, giving liberal construction to the state statute and regulation. At the conclusion of the IDEA case, the Rehabilitation Act case was heard. After the hearing, the attorney for the local school board objected to the lay advocate representing the parent in the Rehabilitation Act case as being the unauthorized practice of law. No ruling was made as the case was dismissed on other grounds. The basis of school board “counsel??? argument was that unlike IDEA, there is no specific authorization that permits non-lawyer representation in Rehabilitation Act cases.