BILL ANALYSIS

C.S.S.B. 709

By: Lucio

Public Education

Committee Report (Substituted)

BACKGROUND AND PURPOSE

The federal Individuals with Disabilities Education Act provides for a special education due process hearing to resolve disputes between the parents of a disabled child and that child's educators. According to disability rights advocates, parents often cannot afford to have an attorney represent them and therefore must represent themselves, placing them at a disadvantage relative to the school districts, which almost always have legal counsel to represent them at such hearings. The advocates assert that due process hearings would be improved and more balanced if parents were permitted representation by qualified non-attorney lay advocates who would bring additional knowledge and expertise to a hearing that a parent would not otherwise have.

Interested parties note, however, that there is some confusion regarding the extent to which lay advocates can assist parents during due process hearings. The parties note that federal rules state that parents may be accompanied and advised by individuals with special knowledge or training with respect to the problems of children with disabilities but leave the question of whether a parent can be represented by a non-attorney up to state law. The parties also note that a recent Texas attorney general opinion stated that because the legislature had not enacted a provision specifically authorizing a non-attorney to represent a person in a special education due process hearing, the state's general prohibition against the unauthorized practice of law prohibited lay representation. This opinion, however, provided that if the legislature expressly allowed a non-attorney to act on behalf of a person in a special education due process hearing, the Texas Education Agency could adopt rules regarding the qualification of such lay advocates.

C.S.S.B. 709 seeks to encourage the timely and fair resolution of disputes between parents of children with disabilities and school districts by providing for non-attorney representation at special education due process hearings.

RULEMAKING AUTHORITY

It is the committee's opinion that rulemaking authority is expressly granted to the commissioner of education in SECTION 1 of this bill.

ANALYSIS

C.S.S.B. 709 amends the Education Code to authorize a person in an impartial special education due process hearing brought under federal law to be represented either by an attorney who is licensed in Texas or by an individual who is not an attorney licensed in Texas but who has special knowledge or training with respect to problems of children with disabilities and who satisfies qualifications prescribed by commissioner of education rule. The bill requires the commissioner to adopt by rule additional qualifications required of a representative who is not an attorney licensed in Texas for purposes of providing representation in a special education due process hearing and requires the rules to prohibit an individual from being such a representative opposing a school district if the individual has prior employment experience with the district and to include requirements that the representative have knowledge of special education due process rules, hearings, and procedure and federal and state special education laws. The bill requires a special education due process hearing officer to determine whether an individual satisfies those qualifications and establishes that the Texas Education Agency is not required to license or in any way other than by commissioner rule regulate representatives in a special education impartial due process hearing who are not attorneys licensed in Texas. The bill's provisions apply to representation at an impartial special education due process hearing that begins on or after the bill's effective date.

EFFECTIVE DATE

On passage, or, if the bill does not receive the necessary vote, September 1, 2013.

COMPARISON OF ORIGINAL AND SUBSTITUTE

While C.S.S.B. 709 may differ from the engrossed in minor or nonsubstantive ways, the following comparison is organized and highlighted in a manner that indicates the substantial differences between the engrossed and committee substitute versions of the bill.