Summer 2012-#3. THE CHILDREN'S CORNER.

• Author: by Maryann Zavez, Esq.

Vermont Bar Journal

2012.

Summer 2012-#3.

THE CHILDREN'S CORNER

THE VERMONT BAR JOURNALVolume 38, No. 2Summer 2012THE CHILDREN'S CORNERSpecial Needs Children in the Foster Care Systemby Maryann Zavez, Esq.This brief article will address some special education issues that arise for children in the Department for Children and Families (DCF) foster care system. The federal statute governing special education cases is the Individuals with Disabilities Education Improvement Act of 2004 or IDEA 2004.(fn1) The federal regulations promulgated under IDEA(fn2) are incorporated into state law as rules under the Department of Education's State Board of Education Manual of Rules and Practices ("SBEM").(fn3) The SBEM Rules contain parallel citations to the relevant federal regulations. In this article I will cite primarily to the applicable SBEM Rule(s) for consistency and ease of reference.

A high percentage of children in foster care are also involved in the special education system, or should be. Under IDEA, children may be found eligible for special education services based on a number of enumerated disabilities(fn4) for example an "Emotional Disturbance" or "Specific Learning Disability"-and the disability must cause an "adverse impact" on I the child's learning.(fn5) The child must also be found to be in need of special education services in order to benefit from his or her educational program, and such services must be above and beyond what the school generally provides in terms of instruction and supplementary aids and services.(fn6) Once a child is found eligible for services, after a specified evaluation process, a written Individual Education Program (IEP) is developed for the child describing the special education program and services that will be provided. The IEP must also set forth any "accommodations and/or modifications necessary for the child to progress in the general education curriculum."(fn7)

Because IDEA is a parents' rights law in many respects, when a child is in foster care and is in state custody, there may be not be anyone looking out for the child's educational needs. To prevent any lapse in advocacy, IDEA requires that an educational "surrogate parent" be appointed for children in foster care and this person is then treated as the "parent" under the law.(fn8) The federal regulations clarify that for "wards of the state," the state education agency (SEA) must make "reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after a public agency determines that the child needs a surrogate parent."(fn9) A foster parent may be appointed an educational surrogate parent by the Vermont Educational Surrogate Parent Program under the state rules.(fn10) A guardian ad litem may also serve as the surrogate parent.(fn11) A surrogate parent stands in the shoes of a biological parent and is critical not only to ensuring the child receives the education and related services to which he or she is entitled under the law, but also to making sure the child's educational program is in sync with the child's foster care placement and other services a foster child might be receiving. The following vignette shows how interrelated special education, foster care placement, and other aspects of a child's DCF case plan really are.

"Michael" had been receiving special education services for years when I first met...