Advocates Need to be Trained and Registered
A parent has the right to have representation at an A.R.D. meeting to guide them through the process.
Problems with Advocates:
ñ A non-attorney advocate in Texas requires no education or training.
ñ There are no laws written that limit the authority of advocates, that list the scope of their job or that deliver any consequences for poor judgment or mistakes.
ñ Non-attorney advocates enter into contracts (settlement agreements) on behalf of their clients and they are sometimes paid by the district.
In the 2015 legislative session, non-attorney advocates were given the right to request and defend a “Due Process Hearing”. While many advocates have outstanding skills and we need to hold districts accountable for providing appropriate services, we cannot, in good conscience, give advocates carte blanche to do whatever they wish to do. Without guidelines and consequences, non-attorney advocates have no framework from which to provide services and their representation can seriously denigrate the education of a child with disabilities. Additionally, there are no safeguards for parents under the current system. If the advocate is incompetent, the parents have no recourse other than perhaps filing a lawsuit.
Our Recommendations for Advocates--
An organization approved by The Texas Education Agency or similar organization should:
ñ Develop guidelines, including training, for all advocates in Texas
ñ Provide consequences for mistakes and misbehavior.
Just as attorneys have ethical responsibilities, so should those advocates who are impacting the education, as well as the lives, of our most vulnerable citizens. The easiest approach would be to provide a certification program for all non-attorney advocates allowing for a test for certification to “grandfather-in” advocates who have the knowledge and experience. Consequences can mirror attorney ethics—short and long suspensions of their certifications (which, I am sure, the schools will request to see), financial sanctions and permanent loss of certification for serious errors or criminal acts.
Non-attorney advocates should work under the auspices of a licensed attorney.
Students with disabilities are governed under the Individuals with Disabilities Education Improvement Act of 2004 (I.D.E.A.). I.D.E.A. is federal law which provides that each student with a disability be provided with an education that meets their unique educational needs. The I.D.E.A. provides for individual education plans with appropriate modifications and accommodations in the curriculum that permit each student to function successfully in the least restrictive environment.
Part of the I.D.E.A. addresses parental participation in the education process. Parents are encouraged to attend the individual education plan meetings (hereinafter “A.R.D. meeting or I.E.P. meeting” in every state except Texas). Parents are part of the planning and instruction process. However, parents are often at a loss of how to address the needs of their children with disabilities. In an attempt to meet those needs, parents often seek an advocate for assistance.
An advocate can be either an attorney or someone who is designated as an advocate by an agency or by that individual. There is no credentialing, licensing, training or education required to be an advocate. Therefore, the parents seeking an advocate may find someone who is qualified and aware of the law and the rights of parents or they may locate an advocate with a seventh grade education who means well.
Each school district must make sure that the student handbook and the special information handbook should instruct parents in clear language that parents/guardians have the right to bring an attorney or advocate to their children’s A.R.D. meetings. A sign should be posted on the office of all of the schools that parents of children with special needs have a right to hire an attorney or advocate to assist them in the special education process.
The Texas legislature, in the last session, gave advocates the right to represent students with disabilities and their families at due process hearings. Essentially, the legislature gave non-attorney advocates the right to practice law without a license and without consequences if the parent or child is harmed by the actions of the advocate. Since the last legislative session, many families have had the education of their children with disabilities negatively impacted by this issue in the law.
As a consequence, the following actions should be taken this legislative session in regard to advocates:
1. New advocates should be required to have a background check, a high school diploma, and sixty hours of training in the area of advocacy by an agency approved by the Texas Education Agency. They should be required to take ten hours of annual continuing education.
2. Advocates should be credentialed by the school they attend for advocacy training. A certification card card should be issued upon satisfactory completion of the course.
3. Advocates should face penalties and/or fines for acts that violate their code of conduct which should be established by an organization approved by the Texas Education Agency.
4. Current advocates shall register with the state within six months. At the time of registration, they will be issued a certification card that should be renewed every two years.
5. Current advocates should be required to have a high school diploma or G.E.D. or petition the organization approved by T.E.A., register to take the test within two years and then pass the test for certification within the two years. They must take ten hours annual continuing education in order to keep their certifications.
6. Advocates should not be permitted to file or pursue due process hearings on behalf of parents and their children with special needs. In the alternative, since the legislature has determined that advocates can file and prosecute due process hearings, then there should be consequences established for any misbehavior or serious mistakes.
This law should in no way prohibit a parent from bringing a friend or relative to the A.R.D. meeting. However, no one should be permitted to claim to be an advocate who is not qualified. If an individual does not have a certificate, then that person should not be able to charge a fee as an advocate or advertise that s/he is an advocate. Further, someone who is not certified should not be able to attend an A.R.D. meeting claiming to be an advocate.
Karen Dalglish Seal, Attorney
202 East Park Avenue
San Antonio, TX 78212
All information contained within this web site is provided for information purposes only and does not constitute legal advice. No attorney-client relationship exists from the use of this web site, and an attorney-client relationship may only be established by contracting directly with Karen Dalglish Seal, Attorney at Law. Intellectual property within this Website are copyrighted and may not be reproduced in any form without the express permission of Karen Dalglish Seal. Licensed by the Supreme Court of Texas. Not certified by the Texas Board of Legal Specialization.
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