best match Michael’s needs. Two weeks lat- er, Michael started at the alternative school as a day student, where he remains. The program is a good match and Michael’s be- haviors in the foster home have stabilized. He’s happier and more settled than he has ever been in his life. At all points in the processes outlined above there is an opportunity for the par- ties to take advantage of mediation ser- vices offered by the Department of Edu- cation.22
Therefore, if you think you have an issue that is amenable to settlement through the mediation process, you will want to consider this as it will potentially save you a lot of time and energy and also may lead to resolution of your issues. Par- ticipating in mediation does not foreclose other remedies—that is, filing for due pro- cess or filing an administrative complaint.23 As the attorney for the child in child wel-
fare cases, you may have the opportunity to address educational issues that are im- pacting your client’s well-being at school, and perhaps also jeopardizing a foster care placement. Ensure that your client has a surrogate parent who is looking out for his educational needs. If a child is not yet re- ceiving special education services, but you think he might be eligible, have DCF re-
quest that the school undertake a special education evaluation of your client and then stay involved by attending IEP meet- ings, if the child is found eligible for servic- es. Under the rules, a parent, the LEA, the Department of Education, or other state agency may request an initial evaluation.24 At case plan review meetings, carefully re- view the education section of a child’s case plan and ask questions about special ed- ucation services, if warranted. You should also request a current copy of the child’s IEP to have in your file. As happened in our case, sometimes advocacy at meetings is not enough and then filing an administra- tive complaint, utilizing Department of Ed- ucation mediation services, or ultimately, filing for a due process hearing are all op- tions you may wish to consider. Appeals of due process hearings must be filed within ninety days from the notice of the final de- cision in the federal court or a state court of competent jurisdiction.25 ____________________ Maryann Zavez, Esq., is a professor and
staff attorney at the South Royalton Legal Clinic at Vermont Law School. The Clinic handles many different types of civil cases, including child welfare cases.
____________________ 1
2 3
Pub. L. 108-446; 20 U.S.C. Sec. 1400 et seq. 34 C.F.R. Sec. 300 et seq.
Vermont Department of Education’s website. 4
5 6 7 8 9
10 11
SBEM Rule 2362. Id.
SBEM Rules 2363.1; 2368.8. SBEM Rule 2360.3(a)(25). See 34 C.F.R. § 300.519(h). SBEM Rule 2360.3(25)(iv).
found at Department of Education website. 12
See information in surrogate parent brochure SBEM Rule 2362.1(e).
13 SBEM Rule 2360.2; 34 C.F.R. Sec. 300.101. 14
LRE is defined as education with a child’s non-disabled chronological age peers to the maximum extent appropriate in the school he or she would attend if he or she did not have a dis-
ability. See SBEM Rule 2364.1. 15
SBEM Rule 2364.2.
16 17 18 19
See SBEM Rules 2363.7(c); 2363.8. State Board Rule 2365.1.5. SBEM rule 2365.1.6.1.
See SBEM Rule 2365.1.5(f). Under this Rule, the investigator has the option of doing a docu- ment review, meeting, hearing, onsite investiga-
tion, or any combination of these options. 20
21 22 23 24 25
SBEM Rules 2365.1.6.1; 2365.1.6.2. SBEM Rules 2365.1.6.7-2365.1.6.9. SBEM Rule 2365.1.4. SBEM Rule 2365.1.4. SBEM Rule 2362.2.1.
See SBEM Rule 2365.1.8
These rules can be accessed online at the SBEM Rule 2362.1.
www.vtbar.org
THE VERMONT BAR JOURNAL • SUMMER 2012
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The Children’s Corner
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