by Maryann Zavez, Esq.
THE CHILDREN’S CORNER Special Needs Children in the Foster Care System
This brief article will address some spe- cial education issues that arise for children in the Department for Children and Fami- lies (DCF) foster care system. The federal statute governing special education cas- es is the Individuals with Disabilities Edu- cation Improvement Act of 2004 or IDEA 2004.1
ed under IDEA2
The federal regulations promulgat- are incorporated into state
law as rules under the Department of Ed- ucation’s State Board of Education Man- ual of Rules and Practices (“SBEM”).3
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 refer- ence.
A high percentage of children in foster
care are also involved in the special edu- cation system, or should be. Under IDEA, children may be found eligible for spe- cial education services based on a num- ber of enumerated disabilities4
—for exam-
ple an “Emotional Disturbance” or “Spe- cific Learning Disability”—and the disabil-
ity must cause an “adverse impact” on the child’s learning.5
The child must also
Once a child is found eligible for ser- vices, 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 modifi- cations necessary for the child to progress in the general education curriculum.”7 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 educa- tional needs. To prevent any lapse in ad- vocacy, IDEA requires that an educational “surrogate parent” be appointed for chil- dren in foster care and this person is then
be found to be in need of special educa- tion services in order to benefit from his or her educational program, and such ser- vices must be above and beyond what the school generally provides in terms of in- struction and supplementary aids and ser- vices.6
treated as the “parent” under the law.8 The
federal regulations clarify that for “wards of the state,” the state education agency (SEA) must make “reasonable efforts to en- sure the assignment of a surrogate parent not more than 30 days after a public agen- cy determines that the child needs a surro- gate parent.”9
A foster parent may be ap-
pointed an educational surrogate parent by the Vermont Educational Surrogate Parent Program under the state rules.10
A guard-
ian ad litem may also serve as the surro- gate parent.11
A surrogate parent stands in
the shoes of a biological parent and is criti- cal 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 pro- gram 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
www.vtbar.org
THE VERMONT BAR JOURNAL • SUMMER 2012
41
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48