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 [phone]

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)
• [phone]
• www.ctserc.org
• Parent Advocacy Center, Inc. (CPAC)
• [phone]
• 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 [phone]
• Pro Bono expulsion Project
• [phone]
• Center for Childrens Advocacy
• (Juvenile Justice related re-entry issues)
• [phone]