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Accessing Services for Families in Need

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Accessing Services for Families in Need Navigating DCF Voluntary Services and Representing youth with disabilities Presented by: Center for Children s Advocacy – PowerPoint PPT presentation

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Title: Accessing Services for Families in Need


1
Accessing Services for Families in Need
  • Navigating DCF Voluntary Services and
  • Representing youth with disabilities
  • Presented by
  • Center for Childrens Advocacy
  • Connecticut Legal Services
  • March 4, 2009

2
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).

3
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.

4
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 thats 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.

5
The hidden language of 17a-129.
  • 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.

6
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.

7
Statutory Provisions, cont.d
  • 17a-11(a) commissioner may admit child or youth
    who, in the commissioners 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).

8
Statutory Provisions, contd. 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 childs 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.

9
Statutory Provisions, contd.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 childs 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 departments 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.

10
Statutory provisions, contd.
  • (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
    childs best interests, or
  • (B) direct that the child services or placement
    be modified to reflect the childs best interest.

11
Summary of whats included in the Voluntary
Services Case Plan
  • DCFs 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

12
Statutory provisions, contd.
  • (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.

13
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.

14
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 parents location
    application must be accompanied by written
    reports from service providers and current
    psychiatric or psychological evaluation that
    addresses childs 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

15
The application process, contd.
  • 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 childs attorney of decision
    written notice of right to a voluntary services
    hearing if disagreement with departments
    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)

16
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 cant be met through services
    available to parent or guardian. 17a-11-7(a)(2)
  • Childs disorder can be treated with available
    services at the time of application.
    17a-11-7(a)(3)
  • Child hasnt reached the age of 18 at time of
    referral. 17a-11-7(a)(4).

17
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).

18
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.

19
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).

20
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

21
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).
  • 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

22
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.

23
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.

24
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?a2639Q327822

25
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

26
Case Summary factual background
  • Severely autistic and ID child
  • DCF first aware of childs 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.

27
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 doesnt permit testimony
  • Hearing dismissed by DCF hearing officer in
    written decision dated January 10, 2008
  • Appeal filed Feb. 27, 2008.

28
The hearing officers 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 cases
    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.

29
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.).

30
Legal issues
  • DCFs 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.

31
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.

32
Legal Issues
  • DCFs illegal restriction of eligibility for
    voluntary services and the resulting unnecessary
    commitment of a child violates parents (and
    childs) 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.

33
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
    plaintiffs right to a hearing to contest the
    DCFs 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.

34
Legal claims, contd.
  • 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 states interest
    that children receive necessary mental health
    treatment and remain safe.

35
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
    DCFs May 2006 decision to deny her eligibility
    for voluntary services.
  • The reasonable efforts hearing held in December
    2007 was insufficient to protect plaintiffs
    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.

36
More legal claims
  • RCSA 17a-11-18(e), and the admission and
    restriction criteria of RCSA 17a-11-7 and
    17a-11-8, violate plaintiffs 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.

37
Judge Vacchellis decision
  • Finds for mother.
  • Agency didnt 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 HOs
    decision erroneously expressed an inflexibility
    which resulted in substantial prejudice to the
    mother and her son.
  • Doesnt reach constitutional claims

38
Whats next?
  • Need to challenge other regulatory provisions
  • Martin appeal limited on its facts to the denial
    of a hearing thus doesnt address other
    eligibility criteria and restrictions.

39
Accessing Services for Disabled Youth in the
Child Welfare System
  • Legal entitlements to services
  • Identifying Transition/Aging Out Needs
  • Legal strategies to enforce clients rights to
    services and transition planning

40
CGS 17a-3
  • DCF must provide clinically indicated and
    appropriate community based placements.

41
Legal Entitlements to Services for Youth With
Disabilities
  • Connecticut Statutory Law
  • Federal Law
  • WR Settlement
  • Juan F Consent Decree and Orders

42
CGS 17a-15 Youths Right to a Treatment Plan
  • Written plan
  • Must address treatment, placement and visitation
  • Diagnosis of childs problems
  • The child's or youth's health and safety shall be
    the paramount concern in formulating the plan.

43
CGS 17a-16Right 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.

44
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

45
Youths 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 childs 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.

46
DCF Must Document All of Youths Health and
Mental Health Needs
  • The youths MDE will contain a list of all
    diagnoses and recommendations.
  • DCF will also identify the youths diagnoses and
    treatment recommendations in the youths
    Treatment Plan (Conn. Gen. Stat. 17a-15 DCF
    Policy 44-4-1).

47
ASFA Treatment Plan Requirements
  • 42 USCA 622, 675
  • 54 CFR 1355, 1356, 1357

48
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).

49
Section 504 of the Rehabilitation Act
  • Youth entitled to clinically indicated and
    appropriate community based placements.

50
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).

51
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).

52
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)

53
Americans With Disabilities Act
  • Under Olmstead, unnecessary institutionalization
    violates Title II of the Americans With
    Disabilities Act when a) the States 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.

54
Legal Strategies to Enforce Youths Right to
Services
  • Administrative Hearings
  • Court Hearings
  • Access to WR Services
  • Mandating compliance with Juan F Stipulations and
    Orders

55
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

56
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

57
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

58
Additional Services and Safeguards for Disabled
Youth
  • WR Settlement
  • Juan F Consent decree and accompanying
    stipulations and orders

59
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 _at_2,000 children.

60
W.R. Class membership
  • All mentally ill youth (age 0-21)
  • In DCFs care
  • Whose mental health needs cant 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.

61
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.

62
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.

63
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.

64
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.

65
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.

66
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.

67
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.

68
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 _at_10 million in new
    funding for services for mentally ill children
    and completion of 42 new group homes.

69
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.

70
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.

71
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.

72
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 ablanchard_at_connlegalservices.org

73
WR Settlement
  • What services did DCF agree to provide?
  • EMPS
  • ICBOS
  • Consultant and Implementation Support

74
Juan F Consent DecreeNew Stipulation, Sept. 25,
2009
  • Regarding Unmet Needs of Certain Youth in Care
  • Outcome Measure 3 Treatment Plans
  • Outcome Measure 15 Unmet Needs

75
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

76
Juan F Stipulation
  • Youth in cohorts entitled to service needs
    reviews at DCF special attention and planning

77
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

78
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

79
Juan F Stipulation
  • 90 Day Follow up Reviews
  • a. From the initial review
  • b. If initial needs met, Monitors office needs
    to sign off or not
  • c. Every 90 days thereafter if necessary
  • d. Attorneys invited

80
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 Monitors Office regarding failure
    to comply with procedures

81
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.

82
Needs of Disabled Youth Who are Reaching Age 18
  • Eligibility for DMHAS
  • Transition Planning
  • Legal Strategies to ensure clients needs are
    appropriate met

83
DCF/ DMHAS Transition
  • Who transitions to DMHAS?
  • Who decides?
  • How do you make sure transitioning youths needs
    are met?

84
DCF/DMHAS transition
  • What youth may DCF seek to transition to DMHAS
    services?

85
DCF/DMHAS transition
  • Who pays for the housing and services for the
    transitioning youth?

86
DCF/DMHAS transition
  • When does transition planning begin?
  • Referral process
  • DMHAS decision-making
  • Notice of DMHAS decision

87
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

88
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

89
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?

90
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)

91
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

92
DCF/DMHAS Transition
  • What should lawyer do to ensure appropriate
    planning and client participation?
  • Ensure that youths permanency plan addresses
    transition needs and plan with specificity
  • Ask court for help to clarify services and need
    for written plan

93
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?

94
Dont Forget About the Schools
  • Special Education, Transition Services for Youth
    with Disabilities

95
Special Education GuaranteesFree 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

96
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

97
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 students ability
    to learn

98
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 districts evaluation
  • District pays for IEE, unless the district
    promptly requests due process

99
IEP Development
  • Individualized Education Plan (IEP) must
  • Be tailored to meet the childs 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

100
IEP must also contain
  • Include measurable annual goals, both academic
    and functional
  • Discuss transition services beginning when child
    is 14 years old

101
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

102
IMPORTANT Transition Services
  • Begin following childs 15th birthday
  • Discuss transition from school to adult life
  • Child attends the PPT
  • IEP must include appropriate measurable
    post-secondary goals

103
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)

104
Transition Services Continued
  • IEP must consider
  • childs strengths
  • Guardians concerns
  • Recent evaluations
  • Academic, developmental and functional needs of
    child

105
Transition
  • If participating agency fails to provide
    necessary services, the buck stops with the
    school district

106
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?

107
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?

108
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?

109
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

110
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

111
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?

112
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.

113
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.

114
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 childs 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.

115
Special EducationComplaint 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.

116
Special EducationComplaint 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

117
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

118
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

119
Resources
  • SDE website publications
  • www.state.ct.us/sde/deps/special/index.htmPublic
    ations
  • Office of Protection and Advocacy for Persons
  • with Disabilities
  • http//www.ct.gov/opapd/site/default.asp
  • KidsCounsel
  • www.kidscounsel.org

120
Legal Resources
  • Statewide Legal Services of Connecticut (800)
    453-3320 or (860) 344-0380
  • Pro Bono expulsion Project
  • (800) 453-3320
  • Center for Childrens Advocacy
  • (Juvenile Justice related re-entry issues)
  • (860) 570-5327
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