WHAT IS AN ADVOCATE?
Advocate is from the Latin:
ad - another & vox – voice.
Special Education Advocates advocate for and give an effective voice to a child’s interests, and need for happiness, education, inclusion and development of functional living skills.
• It is a call to another’s aide or to provide another a voice. Parents advocate for those who do not have a voice, their children. If we advocate for another’s child, it is as a special education advocate or educational consultant.
• Advocacy is not to hand hold or enhance an opportunity. It is to actively verbally promote the cause of happiness, education, inclusion and functional living - and assure that a child has this provided through FAPE - Free and appropriate education under IDEA.
(FAPE could be - For All Provide Education)
• Advocates support and speak in favor of something. They act or intercede on behalf of a child campaigning for social or political change.
• Advocates have experience with many forms of conflict resolution – not just one type.
• Advocates are crusaders, detectives and cheerleaders who campaign vigorously for or against something. They are devoted to the profession of advocacy and have an ardent enthusiasm and dedication to the development FAPE.
Educational Advocacy is not pleading or advocating another’s case in a legal forum – that is what lawyers do. Advocacy by Educational Consultants and Educational Advocates occurs in a different forum, than lawyers. Educational Advocates promote the development of an appropriate educational and community support service plan that identifies and addresses the child’s educational needs so as to create community and educational inclusion, functional skills and adequate measurable progress in the educational and community environments.
There are clear lines of delineation between Advocates advocating in the educational and community service environment, advocating in an administrative capacity, and improving the efficiency of the LEA to comply with regulations vs. Lawyers advocating in the legal or judiciary environments.
There are openly accepted and paid non-lawyer advocates in unemployment, welfare, EOC, social security, immigration and the parole systems. Advocates assist the administrative aspect of the responsible agency to administer the law. They do not deal with the judicatory aspects.
There is a significant ethical issue and inherent conflict of interest in holding both roles. Lawyers represent their client’s rights to have FAPE implemented and enforced. Advocates assist in the development and monitoring of an individualized, Free And Appropriate, Education.
Lawyers for parents advocate under their practice act / legal authority. They are not educational consultants or educational advocates, educators or clinicians. Their job is not to develop an appropriate IEP it is to defend the position that one is or is not appropriate based on expert input and that it should appropriately address a student’s individual needs. They should send advocates, educators and clinicians back to the table to create an appropriate one if one does not exist.
Advocates must not participate in UPL (unauthorized practice of law) and Lawyers must not participate in the UPM (unauthorized practice of medicine). The report of UPM is happening with increasing frequency every year over the past 15 years at the IEP meetings.
It should be noted that nurses or doctors encourage the use of lay and professional patient advocates for their clients in a hospital. They do not consider them a threat, like some educators consider educational advocates. Rather, it allows the Nurse or Doctor to more efficiently do their job. It is not uncommon for a Nurse or Physician adhering to “best practices” to request a client bring in a patient advocate.
Nurses and Doctors cannot be patient advocates and the treating clinician at the same time. That is not to say that Nurses and Physicians don’t advocate for their clients. Nurses and Doctors, as professionals, know better than to ever say, “trust me”. They give their clients informed consent, provide education and ask them to participate actively in the development of their individualized medical treatment plans. Patient advocates promote a patient focused environment. Just as Special Educational Advocates promote a Child Focused and Individualized Educational Plan development. Lay and professional patient advocates do participate in the communication and development of the patient’s treatment plan and it’s implementation. This analogy is similar to that of educational lawyers, educators and educational advocates to malpractice lawyers, nurses and doctors and lay and professional patient advocates. Roles are clearly defined and the collaboration creates better outcomes. It is a win win. The result is better understanding and compliance to individualized plans and better communication is fostered.
It should be noted that Lawyers do not come to physician offices with their clients to tell the Dr. or Nurse what to do. They do not assist in the development of the medical treatment plans. The lawyers are there in enforce standards and practices and deal with malpractice cases when things go wrong. The same should happen in the profession of Education.
Use of patient advocates creates a cooperative environment where questions are raised, answers are researched, plans are implemented, education provided, responsibility is taken, assessment and credit taken, praise given, anxiety relieved and where cooperation is the norm with a patient focused attitude.
This is what should happen in the educational environment instead of the school district, their lawyers or parents characterizing each other as criticizing, blaming, venting, angry, highly frustrated and / or seeking revenge and where IEP team members use name calling and stereotype characterization.
THE ROLE OF THE EDUCATION ADVOCATE
The role of the professional Special Education Advocate is to:
➢ increase communication between school district (SD) personnel and the parent
➢ develop a School District relationship where the parent’s concerns are heard and acted on
➢ facilitate the IEP process so that the parent feels like and participated as an equal part of the
➢ diffuse sadness, anger and frustration when parents mourn over:
• the loss of ability to fix their child’s issues.
• the loss of potential as the parent sees their child’s inability to achieve to the same
degree and in the same manner as other neuro typical peers
• seeing the active and passive rejection of their children by peers
• the use of low expectations by educational professionals
• their child’s loss of self esteem
• not knowing what the answer is.
➢ facilitate the acquisition of FAPE
➢ facilitate identification of educationally based needs through the school district or through
appropriate clinical referrals
➢ prevent the blaming of the child or the parent for the child's failures
(Lazy, lacks discipline, not trying hard enough, will eventually just get "it", doesn’t pay
attention, is a brat, is spoiled)
➢ develop a team approach where parents and teachers are supported with information,
training and research based programming available to address the child’s disability and
how it effects their ability to be educated
➢ development of an individualized educational plan, with an awareness of the continuum of
services and placements available, so as to promote FAPE and improve student's
➢ development of positive behavioral interventions that appropriately deal with disability
associated disruptive behaviors and behaviors that interfere with a child accessing their
➢ assist in managing the time spent resolving differences through effective communication
➢ protect parent rights by preserving them throughout the IEP process, so they can exercise them later
➢ provide clients with appropriate attorney and clinical evaluation referrals.
IEP Process vs Due Process and IDEA Compliance
The due process system has limited ability to improved IDEA compliance. Parent access is often limited to due process due to associated costs. Only 3% of school district have disputes that result in litigation, 51% have not been involved in SE litigation or due process in the past 5 years and 94% of school districts nationally have had no due process. Thus the education advocate’s focus needs to be on the IEP process and getting FAPE for a child.
Safeguarding special education rights for children at the parent level involves 6 processes. Education advocates are involved in 5/6 of the following:
1) access to procedural safeguards information
2) IEP process and development
3) complaints to the state department of education
5) due process
6) appeal of due process decision with civil actions in court at state or federal level
National data on due process occurrence:
· Only 3% of school districts had multiple disputes that that resulted in litigation.
· 51% of school districts said they had not been involved in special education litigation or
due process in the past five years.
· The 8 lowest hearing incidence states combined averaged fewer than 3 hearings per year
· 56% of ALL adjudicated hearings were in 2 states (NY & NJ).
· The next 24% of all adjudicated hearings were in the next 6 highest states combined ·
20% of adjudicated hearings were in the remaining 42 highest states combined
(2012 American Association of School Administrators AASA - National Survey on IDEA
Due Process System)
· only 5/10,000 IDEA qualified students ever request a due process hearing.
(GAO Report 03-897-2003)
· 94% of school districts have NO due process hearings.
(U.S. Department of Education www.ideadata.org/ TABLES32ND/AR 1-1.htm)
· TASH, found in 2011, that 36% of families, with children with disabilities, earn less than
$25,000 a year and over 66% earn less than $50,000 a year. They cannot pay for lawyers
or expert fees - which are non-recoverable. (Mar 29, 2011, tash.org)
· The U.S. Congress reported that only 0.3% of special education spending is spent on
mediation, due process, or other court cases. (150 Congressional Record s.5351 5/12/04)
Senator Kennedy, in 2004, stated, “Most parents don’t have access to any attorney, or must rely on low-cost legal aid. And data from surveys shows that even this help is in short supply…Those parents who have the courage to go it alone face schools that are well represented. State data shows that in 2003 schools were much more likely to bring an attorney to a hearing than parents were.” 150 Cong. Rec. S5351 (daily ed. May 12, 2004)
© 2008 Marie Lewis