Presentation on theme: "Accessing Services for Families in Need Navigating DCF Voluntary Services and Representing youth with disabilities Presented by: Center for Children’s."— Presentation transcript:
Accessing Services for Families in Need Navigating DCF Voluntary Services and Representing youth with disabilities Presented by: Center for Children’s Advocacy Connecticut Legal Services March 4, 2009
Voluntary Services What is the voluntary services program? “Voluntary services” are mental and behavioral health treatment for any child or youth who could benefit “from any of the programs offered or administered by, or under contract with, or otherwise available to, the DCF.” CGS §17a-11(a) (emphasis added). DCF is the sole source of mental health treatment for children whose families are poor or who are otherwise not covered by private insurance. Parents do not have to relinquish custody or guardianship under this program. CGS 17a-129. Voluntary services is not an entitlement: the DCF Commissioner has discretion to determine which children or youth, in her opinion, could benefit from the services offered by the department. 17a-11(a).
What DCF Services can a Family Access through Voluntary Services? The family or child should have access to the gamut of DCF funded behavioral health services, including: mobile crisis care coordination extended day treatment home based services respite services family advocacy child guidance clinics residential treatment group home placement other individualized services CGS 17a-11(a) The DCF Voluntary Services policy manual is found at §37-1 through 37-9.
Legislative History of Voluntary Services Solving the Problem of Parental Guardianship of the former DCF Non-committed treatment program Preserving family integrity from unwarranted state intrusion under the Connecticut and United States Constitutions. “I think the issue is that children, regardless of the timeframes, and parents should not have to give up their rights simply because the child needs out of home care and has a mental health problem. So I think that’s the issue.” Linda Rossi, Commissioner, Department of Children and Families. An Act Concerning the Mental Health of Children: Hearing on HB 6006 Before the Select Comm. on Children, 1997 (Conn. 1997). Public Act 97-242.
“ There shall be no requirement for the DCF to seek custody of any child or youth with mental illness, emotional disturbance, a behavioral disorder or developmental or physical disability if such child is voluntarily placed with the department by a parent or guardian of the child for the purpose of accessing an out-of-home placement or intensive outpatient service, including, but not limited to, residential treatment programs, therapeutic foster care programs and extended day treatment programs, except as permitted pursuant to sections 17a-101g and 46b-129. Commitment to or protective supervision or protection by the department shall not be a condition for receipt of services or benefits delivered or funded by the department.” The “hidden” language of 17a-129.
Connecticut Statutes governing Voluntary Services The Department of Children & Families (hereinafter DCF) has a statutory duty to develop and implement a comprehensive state-wide program of behavioral health services for children with behavioral disorders and mental illness. Conn. Gen. Stat. §17a-3(a) provides, in pertinent part: The department shall plan, create, develop, operate or arrange for, administer and evaluate a comprehensive and integrated state-wide program of services, including preventive services, for children and youths whose behavior does not conform to the law or to acceptable community standards, or who are mentally ill, including deaf and hearing impaired children and youths who are mentally ill, emotionally disturbed, substance abusers, delinquent, abused, neglected or uncared for, including all children and youths who are or may be committed to it by any court, and all children and youths voluntarily admitted to, or remaining voluntarily under the supervision of, the commissioner for services of any kind. Services shall not be denied to any such child or youth solely because of other complicating or multiple disabilities. The department shall work in cooperation with other child-serving agencies and organizations to provide or arrange for preventive programs….The program shall provide services and placements that are clinically indicated and appropriate to the needs of the child or youth.
Statutory Provisions, con’t.d 17a-11(a) commissioner may admit child or youth who, in the commissioner’s opinion, could benefit from any of the services offered or administered by, or under contract with, or otherwise available to, the department. The application shall be in writing by the parent or guardian of a child under 14. Application shall be made in writing by “such person himself or herself if he or she is a child 14 years of age or older or a youth. (b) deemed to be within the care of the commissioner until such admission is terminated Commissioner shall terminate the admission within 10 days of a written request for termination for a parent or from the child unless prior to the termination the commissioner has sought an obtained an OTC. 17a-11(b) Commissioner may terminate after giving reasonable notice in writing to the parent or to the child. 17a-11(b) Any child or youth admitted voluntarily may be placed in, or transferred to, any resource, facility or institution with the department or available to the commissioner except the training school; BUT commissioner shall give written notice of its intent to make a transfer within at least 10 days prior to the actual transfer, unless notice is waived, or unless an emergency commitment is made pursuant to 17a-502. 17a-11(b).
Statutory Provisions, cont’d. Probate Court jurisdiciton (c) Not more than 120 days after admitting a child, the department shall petition the probate court for the district in which a parent or the youth resides for a determination as to whether continuation in care is in the child’s best interest, and, if so, whether there is an appropriate case service or permanency plan. For children who are not in an out of home placement, DCF must provide a case service plan; For those in out of home placement, in either a licensed foster home or other facility must have a permanency plan. Probate court must schedule a hearing within 30 days of receipt of the application, unless continued for cause shown. Probate court must give five days notice of hearing to DCF and parent or child Court has continuing jurisdiction in proceedings.
Statutory Provisions, cont’d. no requirement that VS be temporary (d) (1) ten months after admitting a child and annually thereafter if the child remains in the custody of the commissioner and remains placed in a foster home or a facility, the commissioner shall file a motion for review of a permanency plan; hearing within 30 days with notice given. (d)(2) At the permanency plan hearing, the court shall approve a permanency plan that is in the best interests of the child and takes into consideration the child’s need for permanency. “Health and safety of the child shall be of paramount concern” in formulating the plan. Court must consider (A) the appropriateness of the department’s plan for service; (B) the treatment and support services that have been offered and provided to the child to strengthen and reunite the family; (C) if return home is not likely, the efforts that have been made or should be made to evaluate and plan for other modes of care; (D) any further efforts which have been or will be made to promote the best interests of the child.
Statutory provisions, cont’d. (d)(3) Permanency plan may include the goal of (A) placement with the parent, (B) transfer of guardianship, (C) long-term foster care with a relative licensed as a foster parent or certified as a relative caregiver; or (D) termination of parental rights and adoption or “such other planned permanent living arrangement ordered by the court provided the commissioner has documented a compelling reason why it would not be in the best interest of the child for the plan to be A- D. “Such other planned permanent living arrangement” may include, but not be limited to, placement in an independent living program or long-term foster care with an identified foster parent. (4) At the permanency plan hearing the court shall review the status of the child and the progress being made in implementing the permanency plan, establish a timeline, and determine whether the commissioner has made “reasonable efforts to achieve the permanency plan.” At the conclusion of the hearing, the court may: (A) direct that the services being provided, or the placement of the child or youth and reunification efforts, be continued if the court, after hearing, determines that continuation of the child in services or placement is in the child’s best interests, or (B) direct that the child services or placement be modified to reflect the child’s best interest.
Summary of what’s included in the Voluntary Services “Case Plan” DCF’s assessment of the case The treatment and support services that have been offered and provided to the child, youth or family to treat the emotional or behavioral disorder and to strengthen and reunite the family; The efforts that have been made or should be made to evaluate and plan for other modes of care if return home is not likely for the child or youth; Any further efforts which have been or will be made to promote the best interests of the child or youth; … RCSA Section 17a-11-13
Statutory provisions, cont’d. (e) requires adoption of regulations “describing the documentation required for voluntary admission” And “for informal administrative case review, upon request, of any denial of an application for voluntary admission. (f) “Any person aggrieved by a decision of the commissioner denying voluntary services may appeal such decision through an administrative hearing held pursuant to chapter 54. (g) those already “under the care supervision of the DCF” who is over 18 but not yet 21 may be permitted to remain voluntarily, provided the commissioner, in her discretion, determines that such person would benefit from further care and support. Person is entitled to a “written plan for care and treatment, and review of such plan, in accordance with section 17a-15.
VS regulations: how do they compare with the statutory mandate? Regulations effective September 26, 2001. 17a-11(e). The Commissioner shall adopt regulations … describing the documentation required for voluntary admission and for informal administrative case review, upon request, of any denial of an application for voluntary admission. But, regulations do much more: they put admission criteria and admission restrictions which significantly curtail access to voluntary services. 17a-11-4. Scope of regulations: services for children or youth requiring community based services OR TEMPORARY RESIDENTIAL OR OTHER OUT OF HOME PLACEMENT who might otherwise be committed as neglected, uncared for, or dependent under 46b-129. Designed to “encourage the preservation and enhancement of family relationships and the continuing rights and responsibilities of parents” whose financial resources prevent them from providing the required care and treatment for the child.
The “Nuts” and Bolts of the Application process: look who has to apply! A parent or guardian of a child under the age of fourteen, or the child 14 years or older, shall initiate a request for services by calling the DCF hotline at 800-842- 2288. Reg. CSA 17a-11-11(a). Within 60 days of requesting the application, the parent must submit the application to the DCF office closest to the parent’s location; application must be accompanied by written reports from service providers and current psychiatric or psychological evaluation that addresses child’s treatment needs Reg. CSA 17a-11-11(b). Parent or child 14 or over must complete a financial form; 17a-11-11(c); Parent or a child age 14 or older shall sign all releases required by the department. 17a-11-11(d); Problems for children and youth who are homeless with no mailing address;
The application process, cont’d. The application will be reviewed and a decision made within fourteen (14) days; 17a-11-11(e); Written notice to parent, the child if 14 or over, or the child’s attorney of decision; written notice of right to a voluntary services hearing if disagreement with department’s decision. 17a-11-11(e); Commissioner or designee may waive the admission requirements or restrictions “in the case of unusual circumstances”. Burden of proof to show unusual circumstances on the parent or the child 14 years or older. 17a-11- 11(f); Parent or child 14 years or older shall be notified within ten (10) days of the right to a voluntary services hearing if eligibility denied. 17a-11-11(g)
Regulations governing admissions to voluntary services. Admission criteria. RCSA 17a-11-7. DSM IV diagnosis; okay to have a developmental disorder or mental retardation, but primary need for services must be to treat the emotional, behavioral or substance use disorder; 17a-11- 7(a)(1); Treatment needs can’t be met through services available to parent or guardian. 17a-11-7(a)(2); Child’s disorder can be treated with available services at the time of application. 17a-11-7(a)(3); Child hasn’t reached the age of 18 at time of referral. 17a-11- 7(a)(4).
Admission criteria for out-of-home placements: who decides parental fitness? Out-of-home placement is the least restrictive alternative. 17a-11- 7(b)(1); Appropriate approved treatment program is available. 17a-11- 7(b)(2); There is a “reasonably healthy parent-child relationship, and there is reason to believe that the parent or guardian will continue to maintain a relationship with the child or youth while he is participating in the VS program and will continue to be an active participant in all aspects of the planning and treatment process. 17a-11-7(b)(3). There is a reasonable expectation that child will return home to the parent or guardian when the case service plan is completed. 17a-11-7(b)(4).
The Admission Restrictions: Closing the door on care and treatment. 17a-11-8. Admission Restrictions. (a) failure to provide sufficient data to establish eligibility; (b) The child is the subject of a pending abuse/neglect/uncared for petition; (c) the parent of an otherwise eligible child has an active protective services case; (d) The child is the subject of a pending delinquency petition; hs been adjudicated delinquent and is awaiting disposition, on probation, committed to the department, or on parole; or is currently involved with the adult criminal justice system due to arrest, conviction, probation or parole; (e) Out of home placement was made prior to the request for VS; was made in a program or facility not approved or licensed by the department; was arranged without the prior approval of the department; or is in or would be in a program or facility that does not meet the treatment needs of the child or youth as determined by the department. (f) There is reasonable cause to believe that the child, or the parents of the child, will not cooperate with the case service plan.
VS and the IEP: education vs. “treatment” 17a-11-9. Individualized Education program. Program shall not provide or arrange for the provision of any services which are a component of an IEP. BUT COMPARE: The Individuals with Disabilities Education Act, 20 USC 1412(a)(12)(A) requires the state to “ensure that an interagency agreement or other mechanism for interagency coordination is in effect … to ensure that all services … needed to ensure a FAPE are provided…” Part B of IDEA “does not limit the responsibility of agencies other than educational agencies for providing or paying some or all of the costs of FAPE to children with disabilities in the State”. 34 CFR 300.149(c).
Why it matters: FAPE v. costs of VS A residential program for to assure provision of FAPE is provided at no cost to parents; Parents remain financially liable to reimburse the state for the costs associated with VS. Note: VS prevents loss of parental authority to make educational decisions
Accessing Services From Multiple Agencies: a long uphill climb DDS memorandum of agreement with DCF; DMHAS; MOA with DCF Consider motion to implead necessary parties if case is in juvenile court already if child has other entitlements going unfulfilled; Practice Book § 9-18 “The decision whether to grant a motion for the addition of a party to pending legal proceedings rests generally in the sound discretion of the trial court.” Washington Trust Co. v. Smith, 241 Conn. 734, 747, 699 A.2d 73 (1997), cited in In re Devon B., 264 Conn. 572, 825 A.2d 127 (2003).Washington Trust Co. v. Smith, 241 Conn. 734, 747, 699 A.2d 73 (1997) Educational right to FAPE under state and federal laws; right to compensatory education if services not provided; Lester H. v. Gilhool, 916 F.2d 865 (3d Cir. 1990). Due process hearing seeking residential educational placement;
Other legal challenges by CLS Unsuccessful attempt in federal court to raise state and federal law claims against DCF and LEA; Peter J. v. Dunbar; the issue of aggrievement and the uncared for plea. In re Shawn S., 262 Conn. 155, 810 A.2d 799, Conn. (2002). challenge to uncared for commitment of two autistic children; held: parent not aggrieved by order of commitment because she consented to placement in exchange for residential placement from DCF. Judge to mother: “you did nothing wrong”.
What Should the Voluntary Services “Case Plan” Consist Of? A copy of the child or youth's Individualized Education Program (IEP), if applicable, if residential placement is being sought or contemplated. If a child or youth admitted to the voluntary services program has a diagnosis of mental retardation as defined by section 1-1g of the Connecticut General Statutes, the case service plan shall be developed by the department in conjunction with the Department of Mental Retardation or other responsible state agencies. A case service plan shall be signed by the department, the parent or guardian of a child under the age of fourteen, or child or youth age fourteen or more.
What Should Parents do if their Child is Denied Voluntary Services? Request a DCF Administrative hearing Request must be in writing; Scope of the hearing is limited: “The issue at the voluntary services hearing shall be whether the department properly applied the admissions criteria set forth in section 17a-11-7, the admission restrictions set forth in section 17a- 11-8 or the provisions for termination of services ….” RCSA §17a-11- 17(c). Within 14 days of denial of services Hearing will be held within 30 days RCSA §17a-11-21 outlines the manner in which the hearing is held, including the right to appeal an adverse decision. Procedures for hearings can be found at: www.ct.gov/dcf/cwp/view.asp?a=2639&Q=327822
Voluntary Services Case Example Darlene Martin v. Susan I. Hamilton, Commissioner, Department of Children & Families, in her Official Capacity Docket No. HBB-CV-08-4016668-S Superior Court, Judicial District at New Britain, Tax and Administrative Appeals Session
Case Summary: factual background Severely autistic and ID child; DCF first aware of child’s severe autism in Jan. 2002. DCF investigated five reports of neglect between 2002 and 2004; none was substantiated; April 7, 2006 investigation of sister outside without supervision; Application for VS received May 10, 2006 by DCF Willimantic. On June 12, 2006, the voluntary services intake was closed because case “was opened by Investigations for CPS issues”. Application denied without written notice of denial or of right to appeal; Neglect petition filed October 6, 2006; Mother pleads nolo contendere to neglect on advice of counsel; Protective supervision ordered; 2007 VS application denied; no written notice of denial or right to appeal; Inadequate services offered; child committed after hearing on October 30, 2007. Reasonable efforts hearing held in December; holding for the state.
Administrative hearing and appeal VS hearing request filed May 2, 2007; Hearing delayed while educational evaluations pending; Oct. 15 DCF files motion to dismiss hearing on grounds of pending juvenile court matter; Hearing held October 17, 2007; DCF moves for directed verdict; granted, then vacated; DCF hearing officer doesn’t permit testimony; Hearing dismissed by DCF hearing officer in written decision dated January 10, 2008; Appeal filed Feb. 27, 2008.
The hearing officer’s grounds for dismissal admission to the Voluntary services program is within the discretion of the Commissioner pursuant to Conn. Gen. Stat §17a-11, and the Commissioner exercises her discretion through the application of the regulations and DCF Policy; because court proceedings were pending in Superior Court for Juvenile Matters, and Reg. §17a-11-18(e) provides: “[a] request for a Voluntary Services Hearing shall be stayed, denied or dismissed by the administrative hearings unit if court proceedings are pending in any court which may address the issue of services to be provided to the child or youth.” because Ms. Martin did not meet eligibility requirements of Reg. Conn. State Agen. §17a-11-8 which provides that if the child is the subject of a pending petition alleging that he is neglected, abused or uncared for, he shall not be eligible for voluntary services; and also because DCF Policy 37-3 outlines the requirements for eligibility and clearly states that “[c]ases shall not be accepted under the Voluntary Services Program if the child/youth or the parent/guardian is the subject of a pending petition alleging neglect, abused or uncared for [and/or] requires child protective services”.
UAPA Appeal Conn. Gen. Stat. §4-183 governs appeals; Appeals heard in tax and administrative appeals division, Superior Court, New Britain; 45 day Statute of limitations to file appeal; Commission on Human Rights and Opportunities v. Windsor Hall Rest Home et al, 232 Conn. 181, 187, 653 A.2d 181, 185 (1995). BUT, WARNING: ORAL DECISION ON THE RECORD TRIGGERS THE RUNNING OF THE STATUTE! Nizzardo v. State Traffic Commission, 259 Conn. 131,147-148, 788 A.2d 1158, (2002). UAPA permits an agency on its own to reconsider a final decision within a forty day time period. Conn. Gen. Stat.§ 4-181a(a)(2). See City of Norwalk v. Connecticut Siting Council, 2004 WL 2361540, 37 Conn. L. Rptr. 862, (Cohn, J.).
Legal issues DCF’s regulations frustrate and circumvent the legislative objective of providing services to children without commitment. Under DCF regulations, any child subject to a neglect or uncared for petition in juvenile court is not eligible for voluntary services. Reg. Conn. State Agen. §17a- 11-8 and 17a-11-11.
Legal Issues DCF is in violation of Conn. Gen. Stat. §17a-129 and Conn. Gen. Stat. §17a-11 by restricting eligibility for the Voluntary Services program and leaving commitment as the sole vehicle for obtaining the residential placement needed by otherwise eligible children.
Legal Issues DCF’s illegal restriction of eligibility for voluntary services and the resulting unnecessary commitment of a child violates parents (and child’s) right under to the 14th Amendment to the United States Constitution and the Connecticut State Constitution to be free from unwarranted state interference in the family relationship.
Legal claims DCF denied plaintiff due process of law to protect her fundamental liberty interest in family integrity through the application of RCSA §17a-11-18(e), which impermissibly denied plaintiff’s right to a hearing to contest the DCF’s denial of eligibility in violation of Conn. Gen. Stat. §17a-6. RCSA §17a-11-18(e) violates the due process clause of the 14th Amendment and Article First, Section 8, of the Connecticut Constitution because its denial of an evidentiary hearing to plaintiff is fundamentally unfair.
Legal claims, cont’d. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 909 (1976) (citations omitted). The interest that will be affected by the official act is among the fundamental liberties afforded protection by the United States constitution and is entitled to heightened scrutiny. The risk of erroneous deprivation is substantial and extending the right to a hearing to all parents would serve the state’s interest that children receive necessary mental health treatment and remain safe.
Legal claims in Martin appeal DCF violated the due process clause of the Fourteenth Amendment when it failed to provide plaintiff with notice of her right to appeal the DCF’s May 2006 decision to deny her eligibility for voluntary services. The reasonable efforts hearing held in December 2007 was insufficient to protect plaintiff’s right to pre- deprivation due process. Plaintiff was entitled to a pre-deprivation hearing to assure the health and safety of her son pursuant to Conn. Gen. Stat. §17a-11(f) and the due process clause of the 14th Amendment.
More legal claims RCSA §17a-11-18(e), and the admission and restriction criteria of RCSA §17a-11-7 and §17a-11-8, violate plaintiff’s due process rights because they create an impermissible irrebuttable presumption that parents who have matters pending in other courts are not fit to maintain custody of their children in order to access mental health services. RCSA §17a-11-18(e) and the admission criteria and restrictions of RCSA §17a-11-7 and §17a-11-8 violate Conn. Gen. Stat. §17a- 129 and the due process clause of the Fourteenth Amendment because they are arbitrary and capricious on their face and as applied to plaintiff in this case Strict scrutiny and equal protection for children with disabilities: substantive due process claims.
Judge Vacchelli’s decision Finds for mother. Agency didn’t follow its own regulations re notice of denial and appeal. “This resulted in prejudice to the substantial rights of the plaintiff. She and her son lost a chance to apply for help in obtaining services without paying the heavy price of loss of guardianship and commitment. Gen. Stat. 17a- 129 was designed to offer that chance.” 17a-11017(c) gives HO express authority to review denial of application, including application of restrictions due to pending neglect proceedings; 17a-11-18(e) is directory, not mandatory; HO’s decision “erroneously expressed an inflexibility which resulted in substantial prejudice to the mother and her son. Doesn’t reach constitutional claims;
What’s next? Need to challenge other regulatory provisions; Martin appeal limited on its facts to the denial of a hearing; thus doesn’t address other eligibility criteria and restrictions.
Accessing Services for Disabled Youth in the Child Welfare System Legal entitlements to services Identifying Transition/Aging Out Needs Legal strategies to enforce client’s rights to services and transition planning
CGS 17a-3 DCF must provide “clinically indicated and appropriate community based placements.”
Legal Entitlements to Services for Youth With Disabilities Connecticut Statutory Law Federal Law WR Settlement Juan F Consent Decree and Orders
CGS 17a-15 Youth’s Right to a Treatment Plan Written plan Must address treatment, placement and visitation Diagnosis of child’s problems The child's or youth's health and safety shall be the paramount concern in formulating the plan.
CGS 17a-16 Right To Treatment Each child or youth placed or treated under the direction of the Commissioner of Children and Families in any public or private facility shall receive humane and dignified treatment at all times, with full respect for his personal dignity and right to privacy, consistent with his treatment plan as determined by the commissioner.
Out of State Placement Each child or youth shall have a right to a hearing … before he is involuntarily transferred by the Commissioner of Children and Families to any facility outside the state of Connecticut Conn. Gen. Stat. 17a-16
Youth’s Right to a Complete Physical and Follow-Up Care After the child is placed in DCF custody, DCF policy provides that the child must undergo a Multi-Disciplinary Evaluation (MDE) within 30 days of placement (DCF Policy § 44-1). The evaluation will be performed by a community-based assessment team. The MDE is intended as a comprehensive physical that will assess the child’s medical, emotional and developmental status and offer recommendations for appropriate treatment. The MDE will assess dental needs and indicate whether a child is in need of immediate dental care.
DCF Must Document All of Youth’s Health and Mental Health Needs The youth’s MDE will contain a list of all diagnoses and recommendations. DCF will also identify the youth’s diagnoses and treatment recommendations in the youth’s Treatment Plan (Conn. Gen. Stat. § 17a-15; DCF Policy § 44-4-1).
ASFA: Administrative Case Reviews Each child must have a “case plan designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents’ home, consistent with the best interest and special needs of the child... “ 42 U.S.C. § 675(5)(A).
Section 504 of the Rehabilitation Act Youth entitled to clinically indicated and appropriate community based placements.
Americans with Disabilities Act Protects youth from unnecessary institutionalization and segregation from non-disabled peers The ADA prohibits discrimination against individuals on the basis of disability in their programs, services, and activities. 42 U.S.C. § 12102(2)(A).
Americans with Disabilities Act The implementing regulations of the Department of Justice provide that public entities shall administer their services to individuals with disabilities in the “most integrated setting appropriate” to their needs [28 C.F.R. § 35.130(d)], which means “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A, p. 543 (2004).
Americans With Disabilities Act The U.S. Supreme Court has held that it is discriminatory for a state to institutionalize an individual with a disability when that individual can receive appropriate services in a less restrictive environment in the community. Olmstead v. L.C., 527 U.S. 581, 119 S.Ct. 2176 (1999)
Americans With Disabilities Act Under Olmstead, unnecessary institutionalization violates Title II of the Americans With Disabilities Act when a) the State’s treatment professionals have determined that community placement is appropriate; b) the affected person does not oppose such treatment; and c) the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others who are receiving State-supported disability services. 527 U.S. at 603-05.
Legal Strategies to Enforce Youth’s Right to Services Administrative Hearings Court Hearings Access to WR Services Mandating compliance with Juan F Stipulations and Orders
Administrative Hearing for violations of treatment rights. CGS 17a-15 Must be requested in writing Must be provided within 30 days Decision must be issued in writing within 15 days
Using the Juvenile Court to Access Services CGS 46b-121 Request most promote welfare and best interests of child Order can direct DCF, parent or any other custodian of child
Using the Juvenile Court to Access Services CGS 17a-16 provides youth with a right to injunctive relief Permanency Plan should address all necessary services
Additional Services and Safeguards for Disabled Youth WR Settlement Juan F Consent decree and accompanying stipulations and orders
W.R. Case basics W.R. v. Dunbar: class action filed in 2002 by CLS vs. DCF; Case sought to improve services DCF provided to mentally ill children/youth for children not residing with their families; Brought by 3 named plaintiffs &/or their parents for class of @2,000 children.
W.R. Class membership All mentally ill youth (age 0-21); In DCF’s care; Whose mental health needs can’t be met in traditional foster homes/institutions; Who are in need of community based placements (CBPs); and who have experienced/or are at risk of experiencing multiple failed placements.
W.R. Settlement: Susan K. Plaintiff Susan K.: Committed to DCF by age 10 By age 18, had experienced 46 placements On probation for threatening roommate then incarcerated when her DCF/DMHAS placement fell apart; Court notified DCF it would release her once placement found.
W.R. Settlement: Susan K. While DCF & DMHAS argued over who should provide a placement, Susan languished in prison for months until CLS obtained temporary injunction; Since Susan had turned 22 during the suit, the settlement included 3 years of community based services (life coach, job coach, vocational, college support.
W.R. Settlement: Joseph R. Joe was a Voluntary Services recipient with significant mental health needs; Despite no parental fault, DCF moved to commit--petition successfully opposed; Probate Court ordered 24/7 community placement but DCF failed to provide; Joe subsequently experienced multiple failed placements & incarceration.
W.R. Settlement: Joseph R. Joe is now receiving support while in a part-time college program Includes tutorial, transportation to campus, additional staffing to check in on Joe and significant mental health support.
W.R. Settlement: Federal claims Main allegations: DCF violated Americans with Disabilities Act; DCF violated sec. 504 of the Rehabilitation Act of 1973 Violations due to failing to provide class members with a continuum of placements and instead relying on overly restrictive institutional placements.
W.R. Settlement: state claims DCF violated Article 1 of the Connecticut Constitution; DFC violation C.G.S. sec. 17a-3 by failing to provide clinically indicated and appropriate programs; DCF violated C.G.S. sec. 17a-16 by exposing children to inhumane treatment.
W.R. Settlement: legal summary Under federal & state law: DCF required to provide a continuum of placements; A disproportionate number of mentally ill children were not offered CBPs, unlike their non-mentally ill peers; Once these children aged-out of DCF care, no ability to live in the community.
W.R. Settlement Agreement Case settled in August,2007; Settlement runs until 6/30/10; Consultant/Monitor: Robert McKeagney (formerly of CWLA); Settlement comprised of @$10 million in new funding for services for mentally ill children and completion of 42 new group homes.
W.R. Settlement Summary 3 main components: Improve Emergency Mobile Psychiatric Services; Provide Individual Community Based Options (ICBO); Provide specific services for individual class members.
W.R. Settlement Summary EMPS: Settlement required expansion/improvement of EMPS statewide DCF agreed to overhaul entire system; re-bidding contracts and combining service areas; Implementation of one call in center state-wide: 211; Increased hours and in-person responses; Increased ED presence ; Improved Quality Assurance.
W.R. Settlement Summary Individual Community Based Options ICBO available to all class members; ICBO money is to supplement regular DCF services and flex funds; ICBO meant for “out of the box” solutions to move/maintain highly-involved children in the community.
W.R. Settlement Summary For ICBO consideration: Ask the DCF social worker and then follow up with the Behavioral Health Program Director in your region; When you experience an unsatisfactory response: e-mail email@example.com firstname.lastname@example.org
WR Settlement What services did DCF agree to provide? EMPS ICBOS Consultant and Implementation Support
Juan F Consent Decree: New Stipulation, Sept. 25, 2009 Regarding Unmet Needs of Certain Youth in Care Outcome Measure #3: Treatment Plans Outcome Measure #15: Unmet Needs
Juan F Stipulations and Orders A. Target Cohorts: Eight Categories of Children “Stuck Kids” includes (but not limited to): Age 12 and under in any non-family congregate care setting (except SAFE Home for less than 60 days) Emergency room or temporary facility (including STAR and SAFE homes for more than 60 days) Discharge delay for more than 30 days in any non- family congregate care setting (except in-patient psychiatric hospital) Discharge delay for more than 7 days in inpatient psychiatric hospital
Juan F Stipulation Youth in cohorts entitled to service needs reviews at DCF: special attention and planning
Juan F Complete Case File Review (DCF internal) to determine if central office staff needed to initially determine needs of the child approved by SW and SWS and PD submitted to federal court monitor for review
Juan F Case Conference for each child (including attorney for child) to be completed within 45 days of the case file review for all youth in the target cohorts unless has been documented that needs are fully addressed (signed off by the Court Monitor) Attorneys will be notified and invited to come Chaired by the Program Directors Identify unmet needs and include action steps Some regions combining ACR and Adolescent planning conferences In the event unmet needs identified, will be shared with attorneys for child and parent and guardian
Juan F Stipulation 90 Day Follow up Reviews a. From the initial review b. If initial needs met, Monitor’s office needs to sign off or not c. Every 90 days thereafter if necessary d. Attorneys invited
Juan F Stipulation Lawyer enforcement strategies: Ensure that treatment plan reflects compliance with stipulations and court orders. Ask for plan in writing: CGS 17a-28; RCSA 17a-15 Contact Area Director and alert to lack of service reviews Contact Court Monitor’s Office regarding failure to comply with procedures
Juan F Stipulation If Attorney goes to Juvenile Court Careful to frame as “unmet treatment plan need” pursuant to C.G.S § § 17 a- 16, 17a-15 and 46b-121, and not as a violation of the Stipulation or Order.
Needs of Disabled Youth Who are Reaching Age 18 Eligibility for DMHAS Transition Planning Legal Strategies to ensure clients’ needs are appropriate met
DCF/ DMHAS Transition Who transitions to DMHAS? Who decides? How do you make sure transitioning youth’s needs are met?
DCF/DMHAS transition What youth may DCF seek to transition to DMHAS services?
DCF/DMHAS transition Who pays for the housing and services for the transitioning youth?
DCF/DMHAS transition When does transition planning begin? Referral process DMHAS decision-making Notice of DMHAS decision
DCF/DMHAS transition How Does Transition Planning Take Place Meeting with DCF, DMHAS, youth, advocate, school representative and service providers Goal of meeting is to develop a written transition plan
DCF/DMHAS transition What Should Written Plan Consist of? Services to be provided by DCF Services to be provided by DMHAS Need for conservator Discussion of clinical/financial information Plan to maintain appropriate educational services
DCF/DMHAS transition What should lawyer do to ensure appropriate planning and client participation? Are timely referrals made? Are referrals appropriate? Is client eligible for continuing DCF services?
DCF/DMHAS Transition What should lawyer do to ensure appropriate planning and client participation? What services should DCF provide? What services should DMHAS provide What services should school provide (coming up later in presentation)
DCF/DMHAS Transition What should lawyer do to ensure appropriate planning and client participation? Mandate compliance with MOA Mandate written transition plan created with appropriate participants
DCF/DMHAS Transition What should lawyer do to ensure appropriate planning and client participation? Ensure that youth’s permanency plan addresses transition needs and plan with specificity Ask court for help to clarify services and need for written plan
DCF/DMHAS Transition What should lawyer do to ensure appropriate planning and client participation? Is youth eligible for WR services or Juan F special case reviews?
Don’t Forget About the Schools Special Education, Transition Services for Youth with Disabilities
Special Education Guarantees Free Appropriate Public Education (FAPE) FAPE Requires that an appropriate education be provided to a child at no cost to parent Includes aids and services necessary for child to have access to the educational program designed for the student
Getting Special Education Services Child Find Federal and State laws require school districts to identify children with mental and/or physical disabilities and to determine if they require additional school services
Child With A “Disability” Disability categories in Connecticut Autism Deaf-blindness Deafness Developmental delay (3-5 years only) Emotional disturbance Hearing impairment Intellectual disability (mental retardation) Multiple disabilities Orthopedic impairment Other health impairments, e.g., ADHD Specific learning disability Speech or language impairment Traumatic brain injury Visual impairments, incl. blindness Must have a negative impact on student’s ability to learn
Evaluations 45 school days from the initial request for referral to Special Education & consent by parent. Evaluation must be dominant language of student Parent has the right to obtain an Independent Evaluation (IEE) if parent disagrees with district’s evaluation District pays for IEE, unless the district promptly requests due process
IEP Development Individualized Education Plan (IEP) must: Be tailored to meet the child’s unique needs Address behavioral/psychological issues through a Behavior Intervention Plan (BIP) Be implemented in the Least Restrictive Environment (LRE) Child educated with non disabled peers to the maximum extent appropriate. Include Related Services if necessary
IEP must also contain Include measurable annual goals, both academic and functional Discuss transition services beginning when child is 14 years old
Related Services Supportive services, including assistive technology, required to assist a child with a disability to benefit from special education Examples: Speech & language services Transportation Social work services Teaching the parent about the disability
IMPORTANT: Transition Services Begin following child’s 15 th birthday Discuss transition from school to adult life Child attends the PPT IEP must include appropriate measurable post-secondary goals
Transition Services Continued Transition services needed to assist child in reaching goals May require district to get other agencies involved (DDS, DMHAS, Vocation and Rehabilitation Services, BRS)
Transition Services Continued IEP must consider child’s strengths Guardian’s concerns Recent evaluations Academic, developmental and functional needs of child
Transition If participating agency fails to provide necessary services, the buck stops with the school district
Special Education: Red Flags Key Questions/Red Flags for advocates when a youth is not receiving services Has the youth ever been diagnosed with a disability? Has the youth ever had PPT meeting? (for referral or services) Has the youth been absent from school for more than 20 days of the school year?
Special Education: Red Flags Key Questions/Red Flags for advocates when a youth is not receiving services Has the youth been suspended for more than 10 days, expelled, or getting into continuous trouble in school?
Special Education: Red Flags Key Questions/Red Flags for advocates when a youth is not receiving services Has the youth ever been hospitalized for mental health reasons or placed in a clinical day treatment program? Is the youth not getting access to basic mental health care? Does it appear that the youth does not have a thorough evaluation or proper diagnosis of his/her mental health/emotional problems by the school system ?
Special Education Services What if youth is not receiving adequate or appropriate services? Due Process Hearing Request Mediation Request Administrative Complaint If in Juvenile Court, bring school district in as a necessary party
Special Education Services What if youth is not receiving adequate or appropriate services? Is there a surrogate Is DCF educational consultant involved? Is court aware of educational issues? Do DCF court updates address educational issues and services
Special Education What if youth is not receiving adequate or appropriate services? Does permanency plan address educational needs and issues? Does DCF treatment plan address educational needs Does DCF/DMHAS transition team include requisite district representative?
Special Education What if youth is not receiving adequate or appropriate services? Mandate that PPT be held and that client be invited to participate in discussion of transition goals and services. DCF and surrogate and, if appropriate, DMHAS rep, should be present at PPT.
Due Process A parent or guardian may request a due process hearing within two years of the time the school district proposes or refuses to: Consider or find that the child is disabled; Evaluate the child; Place the child in a school program that meets his or her needs; or Provide the child with a free appropriate education that meets his or her needs.
Special Education Complaint Resolution Process What is the Special Education Resolution Process? A written complaint with the Bureau of Special Education alleging that the school district has violated a child’s right to special education services What if a due process hearing was also requested? A complaint must be filed within one year of the time it is believed that the school district failed to follow the law. A written report of findings, conclusions, corrective action and recommendations, if appropriate, will be mailed within 60 calendar days of receipt.
Special Education Complaint Procedure The complaint should state the following: The school district is not carrying out IDEA or state laws that protect children with disabilities; and The facts on which the complaint is based.
Special Education Complaint Procedure You can file a complaint by writing to: Connecticut State Department of Education Bureau of Special Education P.O. Box 2219, Room 359 Hartford, CT 06145-2219 FAX: (860) 713-7153
Mediation Both parent/guardian and the school district must agree to enter into mediation before it can occur If guardian and the school district reach agreement on the issues, what you have agreed to will be put in writing The mediation agreement is a legally binding contract enforceable in court Confidential Guardian may bring an advocate and/or lawyer to help in the mediation conference Mediation is not mandatory
Resources Connecticut State Department of Education (SDE) www.ct.gov/sde/ State Education Resource Center (SERC) (860) 632-1485 www.ctserc.org Parent Advocacy Center, Inc. (CPAC) (800) 445-2722 www.cpacinc.org
Resources SDE website publications www.state.ct.us/sde/deps/special/index.htm#Publications Office of Protection and Advocacy for Persons with Disabilities http://www.ct.gov/opapd/site/default.asp KidsCounsel www.kidscounsel.org
Legal Resources Statewide Legal Services of Connecticut (800) 453-3320 or (860) 344-0380 Pro Bono expulsion Project (800) 453-3320 Center for Children’s Advocacy (Juvenile Justice related re-entry issues) (860) 570-5327