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 Children’s 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 anychild 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 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.

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, con’t.d • 17a-11(a) commissioner may admit child or youth who, in the commissioner’s opinion, could benefit from any of the services offered or administered by, or under contract with, or otherwise available to, the department. • The application shall be in writing by the parent or guardian of a child under 14. • Application shall be made in writing by “such person himself or herself if he or she is a child 14 years of age or older or a youth. • (b) deemed to be within the care of the commissioner until such admission is terminated • Commissioner shall terminate the admission within 10 days of a written request for termination for a parent or from the child unless prior to the termination the commissioner has sought an obtained an OTC. 17a-11(b) • Commissioner may terminate after giving reasonable notice in writing to the parent or to the child. 17a-11(b) • Any child or youth admitted voluntarily may be placed in, or transferred to, any resource, facility or institution with the department or available to the commissioner except the training school; BUT commissioner shall give written notice of its intent to make a transfer within at least 10 days prior to the actual transfer, unless notice is waived, or unless an emergency commitment is made pursuant to 17a-502. 17a-11(b).

8. Statutory Provisions, cont’d. Probate Court jurisdiciton • (c) Not more than 120 days after admitting a child, the department shall petition the probate court for the district in which a parent or the youth resides for a determination as to whether continuation in care is in the child’s best interest, and, if so, whether there is an appropriate case service or permanency plan. • For children who are not in an out of home placement, DCF must provide a case service plan; • For those in out of home placement, in either a licensed foster home or other facility must have a permanency plan. • Probate court must schedule a hearing within 30 days of receipt of the application, unless continued for cause shown. • Probate court must give five days notice of hearing to DCF and parent or child • Court has continuing jurisdiction in proceedings.

9. Statutory Provisions, cont’d.no requirement that VS be temporary • (d) (1) ten months after admitting a child and annually thereafter if the child remains in the custody of the commissioner and remains placed in a foster home or a facility, the commissioner shall file a motion for review of a permanency plan; hearing within 30 days with notice given. • (d)(2) At the permanency plan hearing, the court shall approve a permanency plan that is in the best interests of the child and takes into consideration the child’s need for permanency. “Health and safety of the child shall be of paramount concern” in formulating the plan. Court must consider • (A) the appropriateness of the department’s plan for service; • (B) the treatment and support services that have been offered and provided to the child to strengthen and reunite the family; • (C) if return home is not likely, the efforts that have been made or should be made to evaluate and plan for other modes of care; • (D) any further efforts which have been or will be made to promote the best interests of the child.

10. Statutory provisions, cont’d. • (d)(3) Permanency plan may include the goal of (A) placement with the parent, (B) transfer of guardianship, (C) long-term foster care with a relative licensed as a foster parent or certified as a relative caregiver; or (D) termination of parental rights and adoption or “such other planned permanent living arrangement ordered by the court provided the commissioner has documented a compelling reason why it would not be in the best interest of the child for the plan to be A- D. “Such other planned permanent living arrangement” may include, but not be limited to, placement in an independent living program or long-term foster care with an identified foster parent. • (4) At the permanency plan hearing the court shall review the status of the child and the progress being made in implementing the permanency plan, establish a timeline, and determine whether the commissioner has made “reasonable efforts to achieve the permanency plan.” At the conclusion of the hearing, the court may: • (A) direct that the services being provided, or the placement of the child or youth and reunification efforts, be continued if the court, after hearing, determines that continuation of the child in services or placement is in the child’s best interests, or • (B) direct that the child services or placement be modified to reflect the child’s best interest.

11. Summary of what’s included in the Voluntary Services “Case Plan” • DCF’s assessment of the case • The treatment and support services that have been offered and provided to the child, youth or family to treat the emotional or behavioral disorder and to strengthen and reunite the family; • The efforts that have been made or should be made to evaluate and plan for other modes of care if return home is not likely for the child or youth; • Any further efforts which have been or will be made to promote the best interests of the child or youth; … RCSA Section 17a-11-13

12. Statutory provisions, cont’d. • (e) requires adoption of regulations “describing the documentation required for voluntary admission” • And “for informal administrative case review, upon request, of any denial of an application for voluntary admission. • (f) “Any person aggrieved by a decision of the commissioner denying voluntary services may appeal such decision through an administrative hearing held pursuant to chapter 54. • (g) those already “under the care supervision of the DCF” who is over 18 but not yet 21 may be permitted to remain voluntarily, provided the commissioner, in her discretion, determines that such person would benefit from further care and support. Person is entitled to a “written plan for care and treatment, and review of such plan, in accordance with section 17a-15.

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 PLACEMENTwho 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 parent’s location; application must be accompanied by written reports from service providers and current psychiatric or psychological evaluation that addresses child’s treatment needs Reg. CSA 17a-11-11(b). • Parent or child 14 or over must complete a financial form; 17a-11-11(c); • Parent or a child age 14 or older shall sign all releases required by the department. 17a-11-11(d); • Problems for children and youth who are homeless with no mailing address;

15. The application process, cont’d. • The application will be reviewed and a decision made within fourteen (14) days; 17a-11-11(e); • Written notice to parent, the child if 14 or over, or the child’s attorney of decision;written notice of right to a voluntary services hearing if disagreement with department’s decision. 17a-11-11(e); • Commissioner or designee may waive the admission requirements or restrictions “in the case of unusual circumstances”. Burden of proof to show unusual circumstances on the parent or the child 14 years or older. 17a-11-11(f); • Parent or child 14 years or older shall be notified within ten (10) days of the right to a voluntary services hearing if eligibility denied. 17a-11-11(g)

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 can’t be met through services available to parent or guardian. 17a-11-7(a)(2); • Child’s disorder can be treated with available services at the time of application. 17a-11-7(a)(3); • Child hasn’t reached the age of 18 at time of referral. 17a-11-7(a)(4).

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 thechild, 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?a=2639&Q=327822

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 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.

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 doesn’t permit testimony; • Hearing dismissed by DCF hearing officer in written decision dated January 10, 2008; • Appeal filed Feb. 27, 2008.

28. The hearing officer’s grounds for dismissal • admission to the Voluntary services program is within the discretion of the Commissioner pursuant to Conn. Gen. Stat §17a-11, and the Commissioner exercises her discretion through the application of the regulations and DCF Policy; • because court proceedings were pending in Superior Court for Juvenile Matters, and Reg. §17a-11-18(e) provides: “[a] request for a Voluntary Services Hearing shall be stayed, denied or dismissed by the administrative hearings unit if court proceedings are pending in any court which may address the issue of services to be provided to the child or youth.” • because Ms. Martin did not meet eligibility requirements of Reg. Conn. State Agen. §17a-11-8 which provides that if the child is the subject of a pending petition alleging that he is neglected, abused or uncared for, he shall not be eligible for voluntary services; and also because DCF Policy 37-3 outlines the requirements for eligibility and clearly states that “[c]ases shall not be accepted under the Voluntary Services Program if the child/youth or the parent/guardian is the subject of a pending petition alleging neglect, abused or uncared for [and/or] requires child protective services”.

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 • DCF’s regulations frustrate and circumvent the legislative objective of providing services to children without commitment. • Under DCF regulations, any child subject to a neglect or uncared for petition in juvenile court is not eligible for voluntary services. Reg. Conn. State Agen. §17a-11-8 and 17a-11-11.

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 • 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.

33. Legal claims DCF denied plaintiff due process of law to protect her fundamental liberty interest in family integrity through the application ofRCSA §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.

34. Legal claims, cont’d. • “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 348, 96 S.Ct. 893, 909 (1976) (citations omitted). • The interest that will be affected by the official act is among the fundamental liberties afforded protection by the United States constitution and is entitled to heightened scrutiny.The risk of erroneous deprivation is substantial and extending the right to a hearing to all parents would serve the state’s interest that children receive necessary mental health treatment and remain safe.

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 DCF’s May 2006 decision to deny her eligibility for voluntary services. • The reasonable efforts hearing held in December 2007 was insufficient to protect plaintiff’s right to pre-deprivation due process. • Plaintiff was entitled to a pre-deprivation hearing to assure the health and safety of her son pursuant to Conn. Gen. Stat. §17a-11(f) and the due process clause of the 14th Amendment.

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 plaintiff’s due process rights because they create an impermissible irrebuttable presumption that parents who have matters pending in other courts are not fit to maintain custody of their children in order to access mental health services. • RCSA §17a-11-18(e) and the admission criteria and restrictions of RCSA §17a-11-7 and §17a-11-8 violate Conn. Gen. Stat. §17a-129 and the due process clause of the Fourteenth Amendment because they are arbitrary and capricious on their face and as applied to plaintiff in this case • Strict scrutiny and equal protection for children with disabilities: substantive due process claims.

37. Judge Vacchelli’s decision • Finds for mother. • Agency didn’t follow its own regulations re notice of denial and appeal. “This resulted in prejudice to the substantial rights of the plaintiff. She and her son lost a chance to apply for help in obtaining services without paying the heavy price of loss of guardianship and commitment. Gen. Stat. 17a-129 was designed to offer that chance.” 17a-11017(c) gives HO express authority to review denial of application, including application of restrictions due to pending neglect proceedings; • 17a-11-18(e) is directory, not mandatory; HO’s decision “erroneously expressed an inflexibility which resulted in substantial prejudice to the mother and her son. • Doesn’t reach constitutional claims;

38. 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.

39. 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

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 Youth’s Right to a Treatment Plan • Written plan • Must address treatment, placement and visitation • Diagnosis of child’s problems • The child's or youth's health and safety shall be the paramount concern in formulating the plan.

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. 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.

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

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).