education services for years when I first met him and started representing him in a post- termination of parental rights child welfare case. His qualifying disability at that time was “learning impaired,” which is defined by the SBEM Rules as “a delay in learning of sufficient magnitude to cause a child’s performance to fall at or below -1.5 stan- dard deviations from the mean of a test of intellectual ability, existing concurrent- ly with deficits in adaptive behavior.”12


Up


until the sixth grade, he had been educat- ed in the regular classroom with addition- al services and programming. However, in the sixth grade he struggled and began to exhibit attention issues and behavioral is- sues so he was placed in a class for chil- dren with similar learning impediments. Michael’s foster mother was his surrogate parent from the time the foster care place- ment commenced. Michael flourished in the special classroom placement and the positive effects spilled over into his foster home so that a very stable home environ- ment was created.


Then, in the seventh grade, the fos-


ter parents were told that the school dis- trict had terminated its junior high self- contained classes and that the children in the self-contained classroom would be placed in the mainstream classroom set- ting with some accommodations. The law requires that a child receive a Free Appro- priate Public Education, or FAPE,13 “least restrictive environment.”14


in the This often


means that many special needs children are educated in the mainstream classroom en- vironment, the least restrictive placement on a continuum of placements outlined in the statute.15


The law also focuses, how-


ever, on the appropriateness of the place- ment and the program and in order for a placement to be found appropriate, a child must be making progress on his IEP goals and in the general curriculum (if the child is participating in general curriculum courses and thus this is an appropriate inquiry in a particular case).16


After a few months in the mainstream setting, Michael began to fail in his courses and he was removed from most of his main- stream classes. His behaviors escalated and the home placement became negatively impacted by Michael’s difficulties at school. Clearly something needed to be done, not only to ensure Michael was learning in school but also, in tandem, to preserve his foster home placement.


So what could be done? With a back-


ground in special education prior to law school, and some limited work in this area of law since that time, I decided to become more involved in the special education pro- cess. The first thing I did was to visit my cli- ent in school and observe him in his classes. In meeting with my client, who was four- teen years old at the time, he made clear


42


to me that he didn’t like school, didn’t have many friends, and always felt that he didn’t fit in because he couldn’t keep up with the school work. He was eager to look into al- ternative schools and one in particular that his therapist had discussed with him was very appealing to him. I also started attending IEP meetings


that were being scheduled at the request of the foster mother/surrogate parent and in so doing it didn’t take long to question the appropriateness


of the mainstream


setting. In this case, before I even got in- volved, the entire DCF “team,” including his DCF case worker, therapist, and Health Care and Rehabilitation Services (HCRS) case manager, was in agreement that al- ternative placements needed to be consid- ered. Up through the end of the seventh grade year, however, the school district re- fused to budge from its position that Mi- chael’s educational needs were being met in the mainstream setting with various ac- commodations. Because we had reached an impasse with the school, I started talk- ing with the surrogate parent about what our next steps might be. There are essentially two routes to fol- low if you want to contest a placement or other special education decision made by the LEA (local education agency). The first is to consider filing a written administrative complaint with the Commissioner of the Vermont Department of Education.17


This


route is open to any “person or organiza- tion alleging that a LEA or public agency has violated a requirement of Part B of the IDEA or implementing federal or state spe- cial education regulation[s] (sic).” Because there are no standing issues in following this route, it is an attractive option; how- ever it may not yield the result you’re look- ing for. I’ll discuss this in more depth below. The other route is filing a due process complaint. Under the SBEM Rules, only a “parent or agency” has standing to file for due process—the child himself does not have standing under this rule.18


So, in Mi-


chael’s case the foster mother/surrogate parent, needed to initiate filing the due process complaint. To resolve the standing issue, and because my client’s wishes were aligned with the surrogate parent’s goals, I was prepared to represent the surrogate parent on behalf of the child with the un- derstanding (in writing) that if a conflict arose I would need to withdraw from the representation.


In my case, I chose to start by filing an administrative complaint at the end of May and avoid the standing issue altogether at the outset. The complaint detailed what had been going on over the course of Mi- chael’s seventh grade school year and the lack of progress in academics, as well as Michael’s escalating behaviors. Although no one on the DCF team signed onto the


THE VERMONT BAR JOURNAL • SUMMER 2012


complaint for various reasons, the com- plaint made clear that they joined in the fil- ing of the complaint and I quoted the ther- apist in the body of the complaint. I also at- tached various documents including prog- ress reports, examples of school work, and a letter from Michael’s psychiatrist to the school district from March of that year out- lining her concerns regarding his deterio- rating mental and emotional health. After the filing of a complaint, a Depart- ment of Education investigator is assigned to investigate the alleged violations.19


In


Michael’s case, the process took approxi- mately two months and the decision was received in the first week of August. Al- though we did not prevail on the place- ment issue, the investigator did find that Michael had not been receiving the servic- es called for on his IEP and that he was en- titled to compensatory services to remedy this failure. The administrative complaint route was only partially successful as this route is very oriented to looking at tech- nical violations of the rules, as opposed to substantive issues, such as whether a child is making adequate progress in his or her placement.


By the time the Commissioner issued his decision, a new school year was on the horizon. Michael had attended a summer camp program at the alternative school we had been looking at as a school-year op- tion and loved it, but he was also express- ing a willingness to give the eighth grade year back in the mainstream junior high a chance. He was slated to have some new teachers and pre-vocational training class- es that he was excited about. I therefore held off on filing a due process complaint. Shortly into the new school year, however, the patterns that had established them- selves in the seventh grade year emerged again. This time, however, when Michael was unhappy at school, he not only ran out of the classroom, he started leaving the building, posing concerns for the safety of himself and the other students. By November, Michael, his surrogate


parent, and the rest of the DCF team were ready to move forward and requested that I file a due process complaint.20


Fil-


ing a complaint triggers a very fast-moving pre-hearing and then administrative hear- ing process so you need to be prepared in terms of making time on your calendar for deadlines that will come up quickly.21


Even


though I had previously prepared the com- plaint and was ready to file it, we decided to try and arrange one more IEP meeting with the LEA prior to filing the complaint, given the new safety issues. At this meet- ing the LEA finally agreed to look into al- ternative placements and a plan was put in place for Michael, his foster parents, and the school’s special education coordinator to visit the school we all agreed seemed to


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The Children’s Corner


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