Accessing Services for Families in
Need
Navigating DCF Voluntary Services and
Representing youth with disabilities
Presented by:
Center for Children’s Advocacy
Connecticut Legal Services
March 4, 2009
Voluntary Services
What is the voluntary services program?
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“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).
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DCF is the sole source of mental health treatment for children whose
families are poor or who are otherwise not covered by private insurance.
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Parents do not have to relinquish custody or guardianship under this
program. CGS 17a-129.
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Voluntary services is not an entitlement: the DCF Commissioner has
discretion to determine which children or youth, in her opinion, could
benefit from the services offered by the department. 17a-11(a).
What DCF Services can a Family
Access through Voluntary Services?
The family or child should have access to the gamut of
DCF funded behavioral health services, including:
 mobile crisis
 care coordination
 extended day treatment
 home based services
 respite services
 family advocacy
 child guidance clinics
 residential treatment
 group home placement
 other individualized services
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CGS 17a-11(a)
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The DCF Voluntary Services policy manual is found at §37-1 through 37-9.
Legislative History of Voluntary Services
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Solving the Problem of Parental Guardianship of the former DCF
Non-committed treatment program
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Preserving family integrity from unwarranted state intrusion under
the Connecticut and United States Constitutions.
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“I think the issue is that children, regardless of the timeframes, and
parents should not have to give up their rights simply because the
child needs out of home care and has a mental health problem. So
I think that’s the issue.”
Linda Rossi, Commissioner, Department of Children and Families.
An Act Concerning the Mental Health of Children: Hearing on HB 6006
Before the Select Comm. on Children, 1997 (Conn. 1997).
Public Act 97-242.
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.”
Connecticut Statutes governing
Voluntary Services
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The Department of Children & Families (hereinafter DCF) has a statutory duty to
develop and implement a comprehensive state-wide program of behavioral health
services for children with behavioral disorders and mental illness. Conn. Gen. Stat.
§17a-3(a) provides, in pertinent part:
The department shall plan, create, develop, operate or arrange for, administer and
evaluate a comprehensive and integrated state-wide program of services, including
preventive services, for children and youths whose behavior does not conform to the
law or to acceptable community standards, or who are mentally ill, including deaf
and hearing impaired children and youths who are mentally ill, emotionally
disturbed, substance abusers, delinquent, abused, neglected or uncared for,
including all children and youths who are or may be committed to it by any court,
and all children and youths voluntarily admitted to, or remaining voluntarily under the
supervision of, the commissioner for services of any kind. Services shall not be
denied to any such child or youth solely because of other complicating or multiple
disabilities. The department shall work in cooperation with other child-serving
agencies and organizations to provide or arrange for preventive programs….The
program shall provide services and placements that are clinically indicated and
appropriate to the needs of the child or youth.
Statutory Provisions, con’t.d
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17a-11(a) commissioner may admit child or youth who, in the
commissioner’s opinion, could benefit from any of the services offered or
administered by, or under contract with, or otherwise available to, the
department.
The application shall be in writing by the parent or guardian of a child under 14.
Application shall be made in writing by “such person himself or herself if
he or she is a child 14 years of age or older or a youth.
(b) deemed to be within the care of the commissioner until such admission is
terminated
Commissioner shall terminate the admission within 10 days of a written request
for termination for a parent or from the child unless prior to the termination the
commissioner has sought an obtained an OTC. 17a-11(b)
Commissioner may terminate after giving reasonable notice in writing to
the parent or to the child. 17a-11(b)
Any child or youth admitted voluntarily may be placed in, or transferred to, any
resource, facility or institution with the department or available to the
commissioner except the training school; BUT commissioner shall give written
notice of its intent to make a transfer within at least 10 days prior to the actual
transfer, unless notice is waived, or unless an emergency commitment is made
pursuant to 17a-502. 17a-11(b).
Statutory Provisions, cont’d.
Probate Court jurisdiciton
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(c) Not more than 120 days after admitting a child, the department shall
petition the probate court for the district in which a parent or the youth resides
for a determination as to whether continuation in care is in the child’s best
interest, and, if so, whether there is an appropriate case service or
permanency plan.
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For children who are not in an out of home placement, DCF must provide a
case service plan;
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For those in out of home placement, in either a licensed foster home or other
facility must have a permanency plan.
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Probate court must schedule a hearing within 30 days of receipt of the
application, unless continued for cause shown.
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Probate court must give five days notice of hearing to DCF and parent or child
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Court has continuing jurisdiction in proceedings.
Statutory Provisions, cont’d.
no requirement that VS be temporary
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(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.
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(d)(2) At the permanency plan hearing, the court shall approve a permanency plan
that is in the best interests of the child and takes into consideration the child’s need
for permanency. “Health and safety of the child shall be of paramount concern”
in formulating the plan. Court must consider
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(A) the appropriateness of the department’s plan for service;
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(B) the treatment and support services that have been offered and provided to
the child to strengthen and reunite the family;
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(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;
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(D) any further efforts which have been or will be made to promote the best
interests of the child.
Statutory provisions, cont’d.
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(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.
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(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:
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(A) direct that the services being provided, or the placement of the child or
youth and reunification efforts, be continued if the court, after hearing,
determines that continuation of the child in services or placement is in the
child’s best interests, or
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(B) direct that the child services or placement be modified to reflect the child’s
best interest.
Summary of what’s included in the
Voluntary Services “Case Plan”
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DCF’s assessment of the case
The treatment and support services that have been offered and
provided to the child, youth or family to treat the emotional or
behavioral disorder and to strengthen and reunite the family;
The efforts that have been made or should be made to
evaluate and plan for other modes of care if return home is
not likely for the child or youth;
Any further efforts which have been or will be made to
promote the best interests of the child or youth; …
RCSA Section 17a-11-13
Statutory provisions, cont’d.
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(e) requires adoption of regulations “describing the documentation
required for voluntary admission”
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And “for informal administrative case review, upon request, of any
denial of an application for voluntary admission.
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(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.
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(g) those already “under the care supervision of the DCF” who is
over 18 but not yet 21 may be permitted to remain voluntarily,
provided the commissioner, in her discretion, determines that such
person would benefit from further care and support. Person is
entitled to a “written plan for care and treatment, and review of such
plan, in accordance with section 17a-15.
VS regulations: how do they compare with
the statutory mandate?
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Regulations effective September 26, 2001.
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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.
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17a-11-4. Scope of regulations: services for children or youth requiring
community based services OR TEMPORARY RESIDENTIAL OR OTHER
OUT OF HOME PLACEMENT who might otherwise be committed as
neglected, uncared for, or dependent under 46b-129. Designed to
“encourage the preservation and enhancement of family relationships and
the continuing rights and responsibilities of parents” whose financial
resources prevent them from providing the required care and treatment for
the child.
The “Nuts” and Bolts of the Application
process: look who has to apply!
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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 800-8422288. Reg. CSA 17a-11-11(a).
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Within 60 days of requesting the application, the parent must submit the application
to the DCF office closest to the parent’s location; application must be accompanied
by written reports from service providers and current psychiatric or psychological
evaluation that addresses child’s treatment needs Reg. CSA 17a-11-11(b).
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Parent or child 14 or over must complete a financial form; 17a-11-11(c);
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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;
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The application process, cont’d.
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The application will be reviewed and a decision made within fourteen (14) days;
17a-11-11(e);
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Written notice to parent, the child if 14 or over, or the child’s attorney of
decision; written notice of right to a voluntary services hearing if disagreement
with department’s decision. 17a-11-11(e);
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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-1111(f);
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Parent or child 14 years or older shall be notified within ten (10) days of the right to
a voluntary services hearing if eligibility denied. 17a-11-11(g)
Regulations governing admissions to voluntary
services.
 Admission criteria. RCSA 17a-11-7.
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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-117(a)(1);
Treatment needs can’t be met through services available to parent
or guardian. 17a-11-7(a)(2);
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Child’s disorder can be treated with available services at the time of
application. 17a-11-7(a)(3);
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Child hasn’t reached the age of 18 at time of referral. 17a-117(a)(4).
Admission criteria for out-of-home
placements: who decides parental fitness?
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Out-of-home placement is the least restrictive alternative. 17a-117(b)(1);
Appropriate approved treatment program is available. 17a-117(b)(2);
There is a “reasonably healthy parent-child relationship, and
there is reason to believe that the parent or guardian will
continue to maintain a relationship with the child or youth while
he is participating in the VS program and will continue to be an
active participant in all aspects of the planning and treatment
process. 17a-11-7(b)(3).
There is a reasonable expectation that child will return home to
the parent or guardian when the case service plan is completed.
17a-11-7(b)(4).
The Admission Restrictions: Closing the door on care and
treatment.
17a-11-8. Admission Restrictions.
(a) failure to provide sufficient data to establish eligibility;
(b) The child is the subject of a pending abuse/neglect/uncared for petition;
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(c) the parent of an otherwise eligible child has an active protective services case;
(d) The child is the subject of a pending delinquency petition; hs been adjudicated
delinquent and is awaiting disposition, on probation, committed to the department,
or on parole; or is currently involved with the adult criminal justice system due to
arrest, conviction, probation or parole;
(e) Out of home placement was made prior to the request for VS; was made in a
program or facility not approved or licensed by the department; was arranged
without the prior approval of the department; or is in or would be in a program or
facility that does not meet the treatment needs of the child or youth as determined
by the department.
(f) There is reasonable cause to believe that the child, or the parents of the
child, will not cooperate with the case service plan.
VS and the IEP: education vs. “treatment”
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17a-11-9. Individualized Education program.
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Program shall not provide or arrange for the provision of any
services which are a component of an IEP. BUT COMPARE:
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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…”
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Part B of IDEA “does not limit the responsibility of agencies other
than educational agencies for providing or paying some or all of the
costs of FAPE to children with disabilities in the State”. 34 CFR
300.149(c).
Why it matters: FAPE v. costs of VS
A residential program for to assure
provision of FAPE is provided at no cost
to parents;
 Parents remain financially liable to
reimburse the state for the costs
associated with VS.
 Note: VS prevents loss of parental
authority to make educational decisions
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Accessing Services From Multiple
Agencies: a long uphill climb
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DDS memorandum of agreement with DCF;
DMHAS; MOA with DCF
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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).
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Educational right to FAPE under state and federal laws; right to
compensatory education if services not provided; Lester H. v.
Gilhool, 916 F.2d 865 (3d Cir. 1990).
Due process hearing seeking residential educational placement;
Other legal challenges by CLS
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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.
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In re Shawn S., 262 Conn. 155, 810 A.2d 799, Conn.
(2002). challenge to uncared for commitment of two
autistic children; held: parent not aggrieved by order of
commitment because she consented to placement in
exchange for residential placement from DCF. Judge to
mother: “you did nothing wrong”.
What Should the Voluntary
Services “Case Plan” Consist Of?
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A copy of the child or youth's Individualized Education Program
(IEP), if applicable, if residential placement is being sought or
contemplated.
If a child or youth admitted to the voluntary services program has a
diagnosis of mental retardation as defined by section 1-1g of the
Connecticut General Statutes, the case service plan shall be developed
by the department in conjunction with the Department of Mental
Retardation or other responsible state agencies.
A case service plan shall be signed by the department, the parent or
guardian of a child under the age of fourteen, or child or youth age
fourteen or more.
What Should Parents do if their Child is
Denied Voluntary Services?
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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 17a11-8 or the provisions for termination of services ….” RCSA §17a-1117(c).
Within 14 days of denial of services
Hearing will be held within 30 days
RCSA §17a-11-21 outlines the manner in which the hearing is held, including
the right to appeal an adverse decision.
Procedures for hearings can be found at:
www.ct.gov/dcf/cwp/view.asp?a=2639&Q=327822
Voluntary Services Case Example
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Darlene Martin v. Susan I. Hamilton, Commissioner,
Department of Children & Families, in her Official
Capacity
Docket No. HBB-CV-08-4016668-S
Superior Court, Judicial District at New Britain,
Tax and Administrative Appeals Session
Case Summary: factual background
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Severely autistic and ID child;
DCF first aware of child’s severe autism in Jan. 2002.
DCF investigated five reports of neglect between 2002 and 2004; none
was substantiated;
April 7, 2006 investigation of sister outside without supervision;
Application for VS received May 10, 2006 by DCF Willimantic.
On June 12, 2006, the voluntary services intake was closed because case
“was opened by Investigations for CPS issues”.
Application denied without written notice of denial or of right to appeal;
Neglect petition filed October 6, 2006;
Mother pleads nolo contendere to neglect on advice of counsel;
Protective supervision ordered;
2007 VS application denied; no written notice of denial or right to appeal;
Inadequate services offered; child committed after hearing on October 30,
2007.
Reasonable efforts hearing held in December; holding for the state.
Administrative hearing and appeal
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VS hearing request filed May 2, 2007;
Hearing delayed while educational evaluations pending;
Oct. 15 DCF files motion to dismiss hearing on grounds
of pending juvenile court matter;
Hearing held October 17, 2007; DCF moves for directed
verdict; granted, then vacated;
DCF hearing officer doesn’t permit testimony;
Hearing dismissed by DCF hearing officer in written
decision dated January 10, 2008;
Appeal filed Feb. 27, 2008.
The hearing officer’s grounds for dismissal
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admission to the Voluntary services program is within the discretion of the
Commissioner pursuant to Conn. Gen. Stat §17a-11, and the
Commissioner exercises her discretion through the application of the
regulations and DCF Policy;
because court proceedings were pending in Superior Court for Juvenile
Matters, and Reg. §17a-11-18(e) provides: “[a] request for a Voluntary
Services Hearing shall be stayed, denied or dismissed by the
administrative hearings unit if court proceedings are pending in any court
which may address the issue of services to be provided to the child or
youth.”
because Ms. Martin did not meet eligibility requirements of Reg. Conn.
State Agen. §17a-11-8 which provides that if the child is the subject of a
pending petition alleging that he is neglected, abused or uncared for, he
shall not be eligible for voluntary services; and also because DCF Policy
37-3 outlines the requirements for eligibility and clearly states that “[c]ases
shall not be accepted under the Voluntary Services Program if the
child/youth or the parent/guardian is the subject of a pending petition
alleging neglect, abused or uncared for [and/or] requires child protective
services”.
UAPA Appeal
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Conn. Gen. Stat. §4-183 governs appeals;
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Appeals heard in tax and administrative appeals division, Superior Court,
New Britain;
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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).
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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).
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UAPA permits an agency on its own to reconsider a final decision within a
forty day time period. Conn. Gen. Stat.§ 4-181a(a)(2). See City of Norwalk
v. Connecticut Siting Council, 2004 WL 2361540, 37 Conn. L. Rptr. 862,
(Cohn, J.).
Legal issues
DCF’s regulations frustrate and
circumvent the legislative objective of
providing services to children without
commitment.
 Under DCF regulations, any child subject
to a neglect or uncared for petition in
juvenile court is not eligible for voluntary
services. Reg. Conn. State Agen. §17a11-8 and 17a-11-11.
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Legal Issues
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DCF is in violation of Conn. Gen. Stat.
§17a-129 and Conn. Gen. Stat. §17a-11
by restricting eligibility for the Voluntary
Services program and leaving
commitment as the sole vehicle for
obtaining the residential placement
needed by otherwise eligible children.
Legal Issues
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DCF’s illegal restriction of eligibility for
voluntary services and the resulting
unnecessary commitment of a child
violates parents (and child’s) right under
to the 14th Amendment to the United
States Constitution and the Connecticut
State Constitution to be free from
unwarranted state interference in the
family relationship.
Legal claims
DCF denied plaintiff due process of law to protect her
fundamental liberty interest in family integrity through the
application of RCSA §17a-11-18(e), which impermissibly
denied plaintiff’s right to a hearing to contest the DCF’s denial
of eligibility in violation of Conn. Gen. Stat. §17a-6.
RCSA §17a-11-18(e) violates the due process clause of the
14th Amendment and Article First, Section 8, of the
Connecticut Constitution because its denial of an evidentiary
hearing to plaintiff is fundamentally unfair.
Legal claims, cont’d.
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“The fundamental requirement of due process is the
opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’” Mathews v. Eldridge, 424 U.S.
319, 348, 96 S.Ct. 893, 909 (1976) (citations omitted).
The interest that will be affected by the official act is
among the fundamental liberties afforded protection
by the United States constitution and is entitled to
heightened scrutiny. The risk of erroneous
deprivation is substantial and extending the right to
a hearing to all parents would serve the state’s
interest that children receive necessary mental
health treatment and remain safe.
Legal claims in Martin appeal
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DCF violated the due process clause of the Fourteenth
Amendment when it failed to provide plaintiff with notice
of her right to appeal the DCF’s May 2006 decision to
deny her eligibility for voluntary services.
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The reasonable efforts hearing held in December 2007
was insufficient to protect plaintiff’s right to predeprivation due process.
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Plaintiff was entitled to a pre-deprivation hearing to
assure the health and safety of her son pursuant to
Conn. Gen. Stat. §17a-11(f) and the due process clause
of the 14th Amendment.
More legal claims
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RCSA §17a-11-18(e), and the admission and restriction criteria of
RCSA §17a-11-7 and §17a-11-8, violate plaintiff’s due process
rights because they create an impermissible irrebuttable
presumption that parents who have matters pending in other courts
are not fit to maintain custody of their children in order to access
mental health services.
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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
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Strict scrutiny and equal protection for children with disabilities:
substantive due process claims.
Judge Vacchelli’s decision
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Finds for mother.
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Agency didn’t follow its own regulations re notice of denial and appeal.
“This resulted in prejudice to the substantial rights of the plaintiff. She and
her son lost a chance to apply for help in obtaining services without paying
the heavy price of loss of guardianship and commitment. Gen. Stat. 17a129 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;
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17a-11-18(e) is directory, not mandatory; HO’s decision “erroneously
expressed an inflexibility which resulted in substantial prejudice to the
mother and her son.
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Doesn’t reach constitutional claims;
What’s next?
Need to challenge other regulatory
provisions;
 Martin appeal limited on its facts to the
denial of a hearing; thus doesn’t address
other eligibility criteria and restrictions.
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Accessing Services for Disabled
Youth in the Child Welfare System
Legal entitlements to services
 Identifying Transition/Aging Out Needs
 Legal strategies to enforce client’s rights
to services and transition planning
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CGS 17a-3
DCF must provide “clinically indicated
and appropriate community based
placements.”
Legal Entitlements to Services for
Youth With Disabilities
Connecticut Statutory Law
 Federal Law
 WR Settlement
 Juan F Consent Decree and Orders
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CGS 17a-15
Youth’s Right to a Treatment Plan
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Written plan
Must address treatment, placement and visitation
Diagnosis of child’s problems
The child's or youth's health and safety shall be the
paramount concern in formulating the plan.
CGS 17a-16
Right To Treatment
Each child or youth placed or treated under the
direction of the Commissioner of Children and
Families in any public or private facility shall receive
humane and dignified treatment at all times, with
full respect for his personal dignity and right to
privacy, consistent with his treatment plan as
determined by the commissioner.
Out of State Placement
Each child or youth shall have a right to a
hearing … before he is involuntarily
transferred by the Commissioner of
Children and Families to any facility outside
the state of Connecticut
Conn. Gen. Stat. 17a-16
Youth’s Right to a Complete
Physical and Follow-Up Care
 After the child is placed in DCF custody, DCF policy provides that the
child must undergo a Multi-Disciplinary Evaluation (MDE) within 30
days of placement (DCF Policy § 44-1). The evaluation will be performed
by a community-based assessment team.
 The MDE is intended as a comprehensive physical that will assess the
child’s medical, emotional and developmental status and offer
recommendations for appropriate treatment. The MDE will assess
dental needs and indicate whether a child is in need of immediate dental
care.
DCF Must Document All of Youth’s
Health and Mental Health Needs
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The youth’s MDE will contain a list of all
diagnoses and recommendations.
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DCF will also identify the youth’s diagnoses
and treatment recommendations in the youth’s
Treatment Plan (Conn. Gen. Stat. § 17a-15;
DCF Policy § 44-4-1).
ASFA: Treatment Plan
Requirements
42 USCA 622, 675
 54 CFR 1355, 1356, 1357
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ASFA: Administrative Case
Reviews
Each child must have a “case plan
designed to achieve placement in a safe
setting that is the least restrictive (most
family like) and most appropriate setting
available and in close proximity to the
parents’ home, consistent with the best
interest and special needs of the child . . . “
42 U.S.C. § 675(5)(A).
Section 504 of the
Rehabilitation Act
Youth entitled to clinically indicated and
appropriate community based
placements.
Americans with Disabilities Act


Protects youth from unnecessary
institutionalization and segregation from
non-disabled peers
The ADA prohibits discrimination against
individuals on the basis of disability in
their programs, services, and activities.
42 U.S.C. § 12102(2)(A).
Americans with Disabilities Act
The implementing regulations of the
Department of Justice provide that public
entities shall administer their services to
individuals with disabilities in the “most
integrated setting appropriate” to their needs
[28 C.F.R. § 35.130(d)], which means “a setting
that enables individuals with disabilities to
interact with non-disabled persons to the fullest
extent possible.” 28 C.F.R. pt. 35, App. A, p. 543
(2004).
Americans With Disabilities Act

The U.S. Supreme Court has held that it
is discriminatory for a state to
institutionalize an individual with a
disability when that individual can receive
appropriate services in a less restrictive
environment in the community. Olmstead
v. L.C., 527 U.S. 581, 119 S.Ct. 2176
(1999)
Americans With Disabilities Act

Under Olmstead, unnecessary
institutionalization violates Title II of the
Americans With Disabilities Act when a) the
State’s treatment professionals have
determined that community placement is
appropriate; b) the affected person does not
oppose such treatment; and c) the placement
can be reasonably accommodated, taking into
account the resources available to the State
and the needs of others who are receiving
State-supported disability services. 527 U.S. at
603-05.
Legal Strategies to Enforce Youth’s
Right to Services
Administrative Hearings
 Court Hearings
 Access to WR Services
 Mandating compliance with Juan F
Stipulations and Orders

Administrative Hearing for violations of treatment
rights. CGS 17a-15



Must be requested in writing
Must be provided within 30 days
Decision must be issued in writing within 15 days
Using the Juvenile Court to Access
Services
CGS 46b-121
 Request most promote welfare and best
interests of child
 Order can direct DCF, parent or any other
custodian of child

Using the Juvenile Court to Access
Services

CGS 17a-16 provides youth with a right to
injunctive relief

Permanency Plan should address all
necessary services
Additional Services and
Safeguards for Disabled Youth
WR Settlement
 Juan F Consent decree and
accompanying stipulations and orders

W.R. Case basics
W.R. v. Dunbar: class action filed in 2002
by CLS vs. DCF;
 Case sought to improve services DCF
provided to mentally ill children/youth for
children not residing with their families;
 Brought by 3 named plaintiffs &/or their
parents for class of @2,000 children.

W.R. Class membership
All mentally ill youth (age 0-21);
 In DCF’s care;
 Whose mental health needs can’t be met
in traditional foster homes/institutions;
 Who are in need of community based
placements (CBPs); and
 who have experienced/or are at risk of
experiencing multiple failed placements.

W.R. Settlement: Susan K.
Plaintiff Susan K.:
Committed to DCF by age 10
 By age 18, had experienced 46 placements
 On probation for threatening roommate then
incarcerated when her DCF/DMHAS
placement fell apart;
 Court notified DCF it would release her once
placement found.

W.R. Settlement: Susan K.
While DCF & DMHAS argued over who
should provide a placement, Susan
languished in prison for months until CLS
obtained temporary injunction;
 Since Susan had turned 22 during the
suit, the settlement included 3 years of
community based services (life coach, job
coach, vocational, college support.

W.R. Settlement: Joseph R.
Joe was a Voluntary Services recipient
with significant mental health needs;
 Despite no parental fault, DCF moved to
commit--petition successfully opposed;
 Probate Court ordered 24/7 community
placement but DCF failed to provide;
 Joe subsequently experienced multiple
failed placements & incarceration.

W.R. Settlement: Joseph R.
Joe is now receiving support while in a
part-time college program
 Includes tutorial, transportation to
campus, additional staffing to check in on
Joe and significant mental health support.

W.R. Settlement: Federal claims

Main allegations:
DCF violated Americans with Disabilities Act;
 DCF violated sec. 504 of the Rehabilitation
Act of 1973
 Violations due to failing to provide class
members with a continuum of placements
and instead relying on overly restrictive
institutional placements.

W.R. Settlement: state claims
DCF violated Article 1 of the Connecticut
Constitution;
 DFC violation C.G.S. sec. 17a-3 by failing
to provide clinically indicated and
appropriate programs;
 DCF violated C.G.S. sec. 17a-16 by
exposing children to inhumane treatment.

W.R. Settlement: legal summary
Under federal & state law: DCF required
to provide a continuum of placements;
 A disproportionate number of mentally ill
children were not offered CBPs, unlike
their non-mentally ill peers;
 Once these children aged-out of DCF
care, no ability to live in the community.

W.R. Settlement Agreement
Case settled in August,2007;
 Settlement runs until 6/30/10;
 Consultant/Monitor: Robert McKeagney
(formerly of CWLA);
 Settlement comprised of @$10 million in
new funding for services for mentally ill
children and completion of 42 new group
homes.

W.R. Settlement Summary

3 main components:
Improve Emergency Mobile Psychiatric
Services;
 Provide Individual Community Based Options
(ICBO);
 Provide specific services for individual class
members.

W.R. Settlement Summary

EMPS:






Settlement required expansion/improvement of
EMPS statewide
DCF agreed to overhaul entire system; re-bidding
contracts and combining service areas;
Implementation of one call in center state-wide: 211;
Increased hours and in-person responses;
Increased ED presence ;
Improved Quality Assurance.
W.R. Settlement Summary

Individual Community Based Options
ICBO available to all class members;
 ICBO money is to supplement regular DCF
services and flex funds;
 ICBO meant for “out of the box” solutions to
move/maintain highly-involved children in the
community.

W.R. Settlement Summary

For ICBO consideration:
Ask the DCF social worker and then follow
up with the Behavioral Health Program
Director in your region;
 When you experience an unsatisfactory
response: e-mail
ablanchard@connlegalservices.org

WR Settlement
What services did DCF agree to provide?
 EMPS
 ICBOS
 Consultant and Implementation Support
Juan F Consent Decree:
New Stipulation, Sept. 25, 2009
Regarding Unmet Needs of Certain Youth
in Care
 Outcome Measure #3: Treatment Plans
 Outcome Measure #15: Unmet Needs

Juan F Stipulations and Orders
A. Target Cohorts: Eight Categories of Children
“Stuck Kids” includes (but not limited to):
 Age 12 and under in any non-family congregate care
setting (except SAFE Home for less than 60 days)
 Emergency room or temporary facility (including STAR
and SAFE homes for more than 60 days)
 Discharge delay for more than 30 days in any nonfamily congregate care setting (except in-patient
psychiatric hospital)
 Discharge delay for more than 7 days in inpatient
psychiatric hospital
Juan F Stipulation
Youth in cohorts entitled to service needs
reviews at DCF: special attention and
planning
Juan F
Complete Case File Review (DCF
internal)




to determine if central office staff needed
to initially determine needs of the child
approved by SW and SWS and PD
submitted to federal court monitor for
review
Juan F
Case Conference for each child (including attorney for
child)







to be completed within 45 days of the case file review
for all youth in the target cohorts unless has been
documented that needs are fully addressed (signed off by
the Court Monitor)
Attorneys will be notified and invited to come
Chaired by the Program Directors
Identify unmet needs and include action steps
Some regions combining ACR and Adolescent planning
conferences
In the event unmet needs identified, will be shared
with attorneys for child and parent and guardian
Juan F Stipulation




90 Day Follow up Reviews
a. From the initial review
b. If initial needs met, Monitor’s office
needs to sign off or not
c. Every 90 days thereafter if necessary
d. Attorneys invited
Juan F Stipulation
Lawyer enforcement strategies:
 Ensure that treatment plan reflects compliance
with stipulations and court orders. Ask for plan
in writing: CGS 17a-28; RCSA 17a-15
 Contact Area Director and alert to lack of
service reviews
 Contact Court Monitor’s Office regarding failure
to comply with procedures
Juan F Stipulation
If Attorney goes to Juvenile Court
Careful to frame as “unmet treatment plan
need” pursuant to C.G.S § § 17 a- 16,
17a-15 and 46b-121, and not as a
violation of the Stipulation or Order.
Needs of Disabled Youth Who are
Reaching Age 18
Eligibility for DMHAS
 Transition Planning
 Legal Strategies to ensure clients’ needs
are appropriate met

DCF/ DMHAS Transition
Who transitions to DMHAS?
 Who decides?
 How do you make sure transitioning
youth’s needs are met?
DCF/DMHAS transition
What youth may DCF seek to transition to
DMHAS services?
DCF/DMHAS transition
Who pays for the housing and services for
the transitioning youth?
DCF/DMHAS transition
When does transition planning begin?
 Referral process
 DMHAS decision-making
 Notice of DMHAS decision
DCF/DMHAS transition
How Does Transition Planning Take Place
 Meeting with DCF, DMHAS, youth,
advocate, school representative and
service providers
 Goal of meeting is to develop a written
transition plan
DCF/DMHAS transition
What Should Written Plan Consist of?
 Services to be provided by DCF
 Services to be provided by DMHAS
 Need for conservator
 Discussion of clinical/financial information
 Plan to maintain appropriate educational
services
DCF/DMHAS transition
What should lawyer do to ensure
appropriate planning and client
participation?
 Are timely referrals made?
 Are referrals appropriate?
 Is client eligible for continuing DCF
services?
DCF/DMHAS Transition
What should lawyer do to ensure
appropriate planning and client
participation?
 What services should DCF provide?
 What services should DMHAS provide
 What services should school provide
(coming up later in presentation)
DCF/DMHAS Transition
What should lawyer do to ensure
appropriate planning and client
participation?
 Mandate compliance with MOA
 Mandate written transition plan created
with appropriate participants
DCF/DMHAS Transition
What should lawyer do to ensure
appropriate planning and client
participation?
 Ensure that youth’s permanency plan
addresses transition needs and plan with
specificity
 Ask court for help to clarify services and
need for written plan
DCF/DMHAS Transition
What should lawyer do to ensure
appropriate planning and client
participation?
 Is youth eligible for WR services or Juan
F special case reviews?
Don’t Forget About the Schools
Special Education, Transition Services for
Youth with Disabilities
Special Education Guarantees
Free Appropriate Public Education (FAPE)
FAPE
 Requires that an appropriate education
be provided to a child at no cost to parent
 Includes aids and services necessary for
child to have access to the educational
program designed for the student
Getting Special Education Services
 Child
Find
Federal and State laws require
school districts to identify children
with mental and/or physical
disabilities and to determine if they
require additional school services
Child With A “Disability”
Disability categories in Connecticut
•
•
•
•
•
•
•
•
•
•
•
•
•
Autism
Deaf-blindness
Deafness
Developmental delay (3-5 years only)
Emotional disturbance
Hearing impairment
Intellectual disability (mental retardation)
Multiple disabilities
Orthopedic impairment
Other health impairments, e.g., ADHD
Specific learning disability
Speech or language impairment
Traumatic brain injury
•
Visual impairments, incl. blindness
Must have a negative impact on student’s ability to learn
Evaluations

45 school days from the initial request for referral
to Special Education & consent by parent.
Evaluation must be dominant language of student

Parent has the right to obtain an Independent
Evaluation (IEE)
if parent disagrees with district’s evaluation

District pays for IEE, unless the district promptly
requests due process
IEP Development
Individualized Education Plan (IEP) must:



Be tailored to meet the child’s unique needs
Address behavioral/psychological issues through a
Behavior Intervention Plan (BIP)
Be implemented in the Least Restrictive Environment
(LRE)
•

Child educated with non disabled peers to the maximum extent
appropriate.
Include Related Services if necessary
IEP must also contain
 Include
measurable annual goals, both
academic and functional
 Discuss
transition services beginning
when child is 14 years old
Related Services

Supportive services, including assistive technology,
required to assist a child with a disability to benefit
from special education
Examples:
• Speech & language services
• Transportation
• Social work services
• Teaching the parent about the disability
IMPORTANT: Transition Services
Begin following child’s 15th birthday
 Discuss transition from school to adult life
 Child attends the PPT
 IEP must include appropriate measurable
post-secondary goals

Transition Services Continued
Transition services needed to assist child in
reaching goals
 May require district to get other agencies
involved (DDS, DMHAS, Vocation and
Rehabilitation Services, BRS)

Transition Services Continued
IEP must consider
1. child’s strengths
2. Guardian’s concerns
3. Recent evaluations
4. Academic, developmental and functional
needs of child
Transition

If participating agency fails to provide
necessary services, the buck stops with
the school district
Special Education: Red Flags
Key Questions/Red Flags for advocates when a youth is not
receiving services

Has the youth ever been diagnosed with a disability?

Has the youth ever had PPT meeting? (for referral or
services)

Has the youth been absent from school for more than 20 days
of the school year?
Special Education: Red Flags
Key Questions/Red Flags for advocates when
a youth is not receiving services

Has the youth been suspended for more than
10 days, expelled, or getting into continuous
trouble in school?
Special Education: Red Flags
Key Questions/Red Flags for advocates when a youth is not
receiving services

Has the youth ever been hospitalized for mental health
reasons or placed in a clinical day treatment program?

Is the youth not getting access to basic mental health care?

Does it appear that the youth does not have a thorough
evaluation or proper diagnosis of his/her mental
health/emotional problems by the school system?
Special Education Services
What if youth is not receiving adequate or
appropriate services?




Due Process Hearing Request
Mediation Request
Administrative Complaint
If in Juvenile Court, bring school district in as a
necessary party
Special Education Services
What if youth is not receiving adequate or
appropriate services?
 Is there a surrogate
 Is DCF educational consultant involved?
 Is court aware of educational issues?
 Do DCF court updates address educational
issues and services
Special Education
What if youth is not receiving adequate or
appropriate services?
 Does permanency plan address
educational needs and issues?
 Does DCF treatment plan address
educational needs
 Does DCF/DMHAS transition team
include requisite district representative?
Special Education
What if youth is not receiving adequate or
appropriate services?
 Mandate that PPT be held and that client
be invited to participate in discussion of
transition goals and services.
 DCF and surrogate and, if appropriate,
DMHAS rep, should be present at PPT.
Due Process




A parent or guardian may request a due process
hearing within two years of the time the school
district proposes or refuses to:
Consider or find that the child is disabled;
Evaluate the child;
Place the child in a school program that meets his or
her needs; or
Provide the child with a free appropriate education
that meets his or her needs.
Special Education
Complaint Resolution Process
What is the Special Education Resolution Process?

A written complaint with the Bureau of Special Education alleging that
the school district has violated a child’s right to special education services

What if a due process hearing was also requested?

A complaint must be filed within one year of the time it is believed that
the school district failed to follow the law.

A written report of findings, conclusions, corrective action and
recommendations, if appropriate, will be mailed within 60 calendar days
of receipt.
Special Education
Complaint Procedure
The complaint should state the following:
The school district is not carrying out IDEA
or state laws that protect children with
disabilities; and
 The facts on which the complaint is based.

Special Education
Complaint Procedure
You can file a complaint by writing to:
Connecticut State Department of Education
Bureau of Special Education
P.O. Box 2219, Room 359
Hartford, CT 06145-2219
FAX: (860) 713-7153
Mediation

Both parent/guardian and the school district must agree to enter into
mediation
before it can occur

If guardian and the school district reach agreement on the issues, what you
have agreed to will be put in writing

The mediation agreement is a legally binding contract enforceable in court

Confidential

Guardian may bring an advocate and/or lawyer to help in the mediation
conference

Mediation is not mandatory
Resources
 Connecticut State Department of Education (SDE)
www.ct.gov/sde/
 State Education Resource Center (SERC)
(860) 632-1485
www.ctserc.org
 Parent Advocacy Center, Inc. (CPAC)
(800) 445-2722
www.cpacinc.org
Resources

SDE website publications
www.state.ct.us/sde/deps/special/index.htm#Publications

Office of Protection and Advocacy for Persons
with Disabilities
http://www.ct.gov/opapd/site/default.asp

KidsCounsel
www.kidscounsel.org
Legal Resources

Statewide Legal Services of Connecticut
(800) 453-3320 or (860) 344-0380

Pro Bono expulsion Project
(800) 453-3320
 Center for Children’s Advocacy
(Juvenile Justice related re-entry issues)
(860) 570-5327