Minor’s Rights Advocacy: A Primer

1. Minor’s Rights Advocacy: A Primer Presented By: Anne Lukito Sherri Rita Maggie Roberts Protection & Advocacy, Inc. PRAT 2003

2. Why Are Minors in Facilities? • Special Education Placements • Foster Care Placements • Court Ordered/Juvenile Probation Placements • Parental Placements • Emergencies

3. Advocacy Arenas Special Education (IEP meetings, due process hearings, compliance complaints) Juvenile Courts (Placement and service advocacy for Wards & Dependents) Medicaid Benefits (Medi-Cal Fair Hearings, Mental Health Grievances) Patients’ Rights

4. Minors’ Bill of Rights in Foster Care (WIC § 16001.9) • Right to live in safe, healthy, comfortable home and be treated with respect • Right to be free from physical, sexual, emotional or other abuse and corporal punishment • Right to adequate/healthy food, adequate clothing, allowance (if in group home) • Right to medical, dental, vision, and mental health services • Right to be free from medication or chemicals unless authorized by physician • Right to contact family unless prohibited by court order • Right to contact social workers, attorneys, foster youth advocates, CASAs, and probation officers • Right to visit/contact brothers and sisters unless prohibited by court order • Right to contact CCL or Foster Care Ombudsperson re: violations of rights, confidentially and free from retaliation • Right to make/receive confidential phone calls unless prohibited by court order • Right to send/receive unopened mail unless prohibited by court order

5. Minors’ Bill of Rights in Foster Care (Cont’) • Right to attend religious services of choice • Right to emancipation bank account and manage own income unless prohibited by court order • Right to not be locked in any room, building, or facility unless in CTF • Right to attend school and participate in extracurricular activities • Right to work consistent with state law • Right to social contacts outside of foster care system • Right to attend Independent Living Program classes • Right to attend court hearings and speak with judge • Right to private storage • Right to review own case plan if over 12 • Right to be free from unreasonable searches • Right to confidentiality of juvenile court records

6. Foster Care Ombudsperson • Independent review of complaints made by or on behalf of children and youth in foster care • Information regarding rights • Contact: 1-877-846-1602 or fosteryouthhelp@dss.ca.gov • See handouts for more information

7. Educational Rights in Facilities ALL students with disabilities are entitled to FAPE that emphasizes education and related services designed to meet their unique needs and prepares them for employment and independent living. 20 USC § 1400(d)(1)(A), Cal. Educ. Code § 56000, SEHO Decision case #SN02-00778]

8. Consent Rights • Abortion • Treatment related to pregnancy (except sterilization) • Care for communicable reportable diseases/conditions (12 or older) • Care for rape (12 or older) • Care for sexual assault • Care for alcohol/drug abuse (12 or older) • Outpatient mental health treatment (12 or older) • Blood donation (17 or older) • Emergency care when parents not available • Everything if on active duty, married, previously married, emancipated, or self-sufficient (15 or older) See handouts for more information, citations to relevant laws

9. Seclusion & Restraint • Unlike Group Homes, CTFs have the capacity for secure containment. Welf. and Inst. Code § 4094.5. • CTFs are governed by the same general licensing requirements as group homes, unless stated otherwise in the regulations. CCR, tit. 22m § 84110.

10. RESTRAINTS CHILDREN IN GROUP HOMES HAVE A RIGHT TO BE FREE FROM RESTRAINT. RESTRAINT MAY BE JUSTIFIED IN CERTAIN SITUATIONS WHERE THE RISK OF IMMEDIATE HARM CAUSED BY THE CHILD’S CURRENT BEHAVIOR OUTWIEGHS THE RISK OF HARM BY THE RESTRAINT. See, Cal. Code of Regs, tit. 22, § 84300.

11. WHEN CAN RESTRAINTS BE USED AGAINST MINORS? “Group homes staff may be justified/excused in using emergency interventions which include restraint if: • The restraint is reasonably applied to prevent the child engaging in assaultive behavior from exposure to immediate injury or danger to self or others; and • The force used does not exceed that reasonably necessary to avert the injury or danger, and • the danger of the force applied does not exceed that reasonably necessary to avert the injury or the danger, and • the duration of the restraint ceases as soon as the danger of harm has been averted. CCR,tit. 22, § 84300

12. POST INCIDENT REVIEW • Following an incident involving the use of manual restraints, the administrator or his/her designee must discuss the incident with the staff involved in the incident no later than the working day following the incident. • The administrator must determine whether the actions taken were consistent with the emergency intervention plan, and document the findings.

13. RESTRAINT REVIEW The restraint review must evaluate: • what the staff did, if anything, to de-escalate the situation. What interventions were utilized and whether the staff attempted at least- two non-physical interventions. • If the use of de-escalation techniques escalated the child’s behavior, then the techniques must be re-evaluated for effectiveness. Ineffective or counter-productive de-escalation techniques must not be used.

14. QUESTIONS ADVOCATES SHOULD ASK RE: RESTRAINTS • Were manual restraints used only after less restrictive techniques were used and proven to be ineffective? • Was the restraint limited only to the period of time that the child was presenting as a danger to self or others?

15. AVOIDING USE OF RESTRAINTS IN THE FUTURE . . . The administrator/designee, authorized representative or parent, and facility social work staff must assess whether it is necessary to amend the child’s needs and services plan. CCR, title 22, § 84368.3.

16. An incident report pertaining to the use of physical restraint must include, among, many other things: Date and time of other manual restraints within the past 24 hours; Description of child’s behavior requiring restraint and precipitating factors; Description of type and duration of manual restraints; Description of what non-physical interventions were used prior to restraint and explanation of why more restrictive interventions were necessary. Description of any injuries sustained by child or staff, and what type of medical attention sought and where taken. Names of facility staff who: 1) provided restraint: and 2) witnessed the child’s behavior and the restraint. Description of child’s verbal response and physical appearance at the completion of the restraint. If post incident review shows that facility personnel did not attempt to prevent manual restraint, a description of what activity should have been taken by facility staff and what corrective action will be taken and why. Cal. Code of Regs, tile 22, § 84061. INCIDENT REPORTS

17. CHILD’s RIGHTS/ FACILITY RESPONSIBILITY DURING RESTRAINT A Child may only be restrained by facility staff who have received and maintained written certification by a certified training instructor that the staff member has successfully completed emergency intervention training in accordance with state regulations. CCR, title 22, § 84365.5

18. MINIMUM STANDARDS • IF the restraint requires two people, a minimum of two people must be used. • IF restraint continues after 15 minutes, a child must be visually checked by person(s) other than those who restrained the child to ensure that • The child is safe and the child’s personal needs, such as access to toileting facilities, are being met; • In order to continue restraints after fifteen minutes, written approval by the administrator or the administrator’s designee must be obtained after demonstration based on observation of the child that continued restraint is justified. • The child must be visually checked every 15 minutes after that to ensure that she is not being injured, that her personal needs are met, and that restraint is still justified.

19. MINIMUM STANDARDS, CONT’ • This process must be repeated again if the child is still being restrained after 30 minutes. Such a continuation must be approved, in writing, if possible, or verbally, by a member of the facility’s social work staff in addition to the administrator or her designee. There must be a specific finding by the administrator and the social work staff that the child is continuing to pose a danger to herself and that the facility has adequate resources to meet the child’s needs. • This process must be repeated every half hour, if the child remains in restraints.

20. LIMITS ON RESTRAINT • Manual restraint must not continue exceed more than 4 cumulative hours in a 24 hour period. If child is still presenting imminent danger to himself or others at that time, staff must: • Contact the child’s authorized representative; and • Community emergency services to determine whether or not the child should be removed from the facility.

21. RIGHT TO CARE WHILE IN RESTRAINTS • Staff must promptly and appropriately to a child’s request for services, assistance, and repositioning by someone other than staff doing restraining to determine whether the child is still presenting as a danger to himself or others, and whether the child is safe. C.C.R., section 84322.

22. CHILD’s RIGHTS/ FACILITY RESPONSIBILITY BEFORE RESTRAINT A continuum of interventions must be used, starting with the least restrictive intervention method must be used first. More restrictive methods such as use of separation room and restraints may be used only if less restrictive methods have been used and were ineffective and only if the child continues to be a present an imminent danger for injuring himself or others.

23. A child has an absolute right to be free from: • Mechanical restraints (Note: Acute psych. Hospitals, PHFs, and CTFs can use mechanical restraint.) • Aversive behavior modification interventions, such as water spray, sensory deprivation; • Corporal punishment; • Verbal abuse or physical threats; • Manual restraints for more than 15 minutes in a 24 hour period unless specified 84322.2. (Different rules for Acute Psych. Hospitals (See CCR, tit. 22, §71545); PHF (CCR, tit. 22, 77103); CTF (CCR, title 9. § 1929) • Manual restraints for more than a cumulative 4 hours in 24 hour period. (no exception) • Manual restraints must not be used when the child’s current condition contraindicates the use of manual restraint. 843090.

24. Notification to their authorized representative no later than the next working day, and documentation of that notification in the incident report. Cal. Code of Regs, title 22, § 84061. Post incident review of the restraint incident by the administrator or her\his designee no later than the next working day following the incident (Discussed below). Cal. Code of Rags, title 22, § 84369.3. Report by telephone to the department no later than next working day following the incident. The preparation and submission to the department within 7 days of a written incident report; Documentation by staff involved of the incident immediately or no later than end of the shift on which the restraint occurred. Immediate notice to the facility administrator or social work staff following any staff observation or client complaint of post emergency intervention injury or suspected injury; A physical exam during or after an emergency interventions if, after talking to the child, the administrator or social work staff determine that there is an injury or suspected injury to the child. CCR, tit. 22, § 84369 Whenever an inappropriate restraint technique is used on a child, the licensee must develop a corrective action plan, and as part of that plan may require facility personnel to repeat the appropriate emergency training. CCR, tit. 22, § 84365 CHILD’s RIGHTS/FACILITIES OBLIGATIONS FOLLOWING EACH EPSIODE OF RESTRAINT:

25. PROTECTIVE SEPARATION ROOM While in separation room: • Staff must maintain eye contact with child at all times • Staff must remain in the room, if necessary, to prevent injury. • Staff must ensure that there are no objects in the room with which child can injure themselves. • Threats or physical abuse may not be used a method for placing a child in an isolation room. • A child may not be placed in separation room unless facility social work staff and child’s authorized representative indicate that in writing in the child’s needs and services plan. • A child placed in separation room may not be deprived of right of eating, toileting, sleeping or other basic daily living functions. CCR, tit. 22, § 84322.1

26. Avoiding or Transitioning From Institutional Placements

27. SPECIAL EDUCATION ADVOCACY

28. The Players: The youth (up to age 22) The Local Education Agency (School, District, Board, SELPA) The adult with educational rights if youth is a minor The Law: Individuals with Disabilities Education Act (20 U.S.C. §1400 et seq.) California Education Code §56000 et seq. Special Education Advocacy

29. APPLICABLE LAWS RE: EDUCATION RIGHTS OF CHILDREN & YOUTH WITH PSYCHIATRIC DISABILITIES • Federal and state laws provide that children with disabilities are entitled to a free, appropriate public education (FAPE) in the least restrictive environment (LRE). • Individuals with Disabilities Education Act (IDEA) • 20 United States Code § 1400 et seq • 34 Code of Federal Regulations § 300 et seq • California State Education Laws • Calif. Education Code § 56000 et seq • 5 Cal. Code Regs. § 3000 et seq

30. Right to a Free, Appropriate Public Education (FAPE) • Individually designed services • With all related services necessary for students to benefit from their education • At no cost to parents

31. Right to Least Restrictive Environment (LRE) • Right to receive services in LRE with supports to the maximum extent appropriate with opportunities for children with disabilities to interact and be educated with children who do not have disabilities • Includes receiving their education in chronologically age appropriate environments with non-handicapped peers [CDE, Office of Special Education, Policy on Least Restrictive Environment (Oct. 10, 1986)]

32. FAPE IN INSTITUTIONS • A student’s right to FAPE is not abrogated or diminished because a student resides in a state hospital or other locked institution. Cal. Educ. Code § 56852 • The state hospital in which student resides is responsible for ensuring that the student is provided with FAPE Welf. & Inst. Code § 4011.5

33. FAPE IN INSTITUTIONS (CONT’) Although state hospital can contract with LEA, NPS, nonsectarian school or other agency to provide special education and related services on state hospital grounds for students whose IEPs don’t indicate that such education and services should be provided in a program other than on state hospital grounds. Cal. Educ. Code § 56857

34. Student, parents or legal guardian have a right to receive notice regarding a student’s right to receive education in the LRE, and specifically, “to be considered for education programs other than on state hospital grounds” Cal. Educ. Code §56863 Students with disabilities, including those in state hospitals, are to be educated in the least restrictive environment and have available to them a full continuum of educational services Cal. Educ. Code § 56850 Legislative intent is that to the maximum extent appropriate, students residing in state hospitals be provided services in the community near the state hospital and in the LRE Cal. Educ. Code § 56850 Just because a young person is at a state hospital, doesn’t mean that they will not be able to attend school or programs with non-disabled peers. If an IEP team determines that because of the student’s current condition and disability, the student cannot tolerate a full day of regular school FAPE IN INSTITUTIONS (CONT’)

35. Options could include partial day participation in a local public school with supports, such as a behavior plan and a 1:1 aide. Participation in an extracurricular activity in the community, such as joining a club, taking an art class, community center activity It is PAI’s opinion that there should be no reason why a student is not considered or even attending a community program (at the least part time) if they have met discharge criteria. LRE in a state hospital does NOT mean schooling in the on-grounds school, or having a tutor come in for a 1-2 hours per day, especially if they are nearing discharge from a facility. LRE OPTIONS FOR CHILDREN & YOUTH IN FACILITIES

36. Behavior Support Plans • Individually designed to help distinguish, correct, replace or ameliorate unwanted behavior(s) • Attached as part of the IEP document • Strategies must bepositive [34 C.F.R. Sec. 300.346] • If the behavior plan is not working, then IEP team needs to reconvene to update or improve the plan • If behavior is more serious and pervasive and the above step has not been effective, may need Functional Assessment and Behavior Intervention Plan pursuant to the Hughes Bill

37. NEGATIVE INTERVENTIONS Hughes Bill (AB 2586)[Cal. Educ. Code §§ 56520-56524] • Mandated the development and implementation of positive behavior intervention plans • Prohibited the use of aversive behavior interventions • Required that every special education student who demonstrates serious behavior problemsreceive a functional assessment of behavior

38. What Does “Serious Behavior Problem” Mean? Hughes Bill (cont’d) Defined as one which • is self-injurious or assaultive; • or causes serious property damage; • or is severe, pervasive, and maladaptive, and for which instructional/behavioral approaches specified in the student’s IEP are found to be ineffective. 5 C.C.R. Sec. 3001(aa)

39. Functional Analysis Assessment Should Include …Hughes Bill (cont’d) • Systematic observation & description of targeted behavior, antecedent events, consequences, alternative behaviors • Review of records, history of behavior • Analysis of communicative function of behavior and antecedents; ecological and data analysis • Recommendations to the IEP team, which may include a positive behavior intervention plan

40. Components of a Positive Behavior Intervention Plan Hughes Bill (cont’d) • Summary of information from the functional assessment • Goals and objectives; Schedules for data collection • Objective and measurable description of targeted serious behaviors and positive replacement behaviors • Detailed descriptions of interventions to be used and the circumstances for use, such as settings, time periods. • Dates for IEP team to review plan’s effectiveness

41. What Is Meant by “Positive” Interventions? Hughes Bill (cont’d) • Interventions that respect person’s dignity and personal privacy and assure physical freedom, social interaction, and individual choice • Do NOT include procedures which cause pain or trauma (ex.: pepper sprays, verbal abuse) • For more information on Hughes Bill and behavior interventions, see SERR*, Chapter 5 • CDE has a great book, “Positive Interventions for Serious Behavior Problems: Best Practices in Implementing the Positive Behavioral Intervention Regulations” • Available at 916-323-0832, www.cde.ca.gov.cdepress * Special Education Rights and Responsibilities (SERR)

42. BEFORE A CHILD IS PLACED OUT OF HOME … • Prior to the determination that residential placement is necessary for the student to receive special education and mental health services, the IEP team “shall consider less restrictive alternatives, such as providing a behavioral specialist and full-time behavioral aide in the classroom, home and other community environments, and/or parent training in the home and community environments. The IEP team shall document the alternatives to residential placement that were considered and the reasons why they were rejected. Such alternatives may include any combination of cooperatively developed educational and mental health services.” (Emphasis Added) Tit. 2, Cal. Code of Regs., Section 60100(c)

43. MEDI-CAL ADVOCACY

44. Medi-Cal Advocacy • People eligible for full scope Medi-Cal services are entitled to receive all medically necessary services, including mental health services • Children, in addition, are entitled to Early, Periodic, Screening, Diagnosis, and Treatment Services (EPSDT) • The EPSDT program is not available for adults

45. What can EPSDT Provide? • Screening and diagnosis for medical conditions and/or needs • Provide treatment services to address conditions revealed by the screening and diagnosis. EPSDT services can include: • Individual/ Group Therapy • Therapeutic Behavior Services • Family Therapy • Crisis Counseling • Case Management • Special Day Programs • Medication • Alcohol/ Drug Services

46. What Are Therapeutic Behavior Services (TBS)? • 1:1 therapeutic contact to address target behaviors • The 1:1 aide/mentor is matched specifically for the child and the child’s strengths and needs. • Assists and provides behavior modeling, Increase social/ community competencies, Engage in appropriate activities • To prevent placement in a high level group home or locked mental health treatment facility; • Or to enable transition out of such placements into a lower level of care

47. What Are Therapeutic Behavior Services (TBS)? (cont’d) • Can receive services up to 24 hours per day, 7 hours per week depending on child’s need • Can be provided in many settings: home, school, group home, recreation programs, community • Intended as a • short-term service

48. Must meet all these requirements: Eligible for full-scope Medi-Cal benefits Receiving at least 1 other specialty mental health service Without additional support, may need acute care or higher level of residential care; or may not successfully transition to a lower level of care Must meet at least one of these requirements: Placed in group home Residential Classification Level (RCL) 12 or higher, or in locked mental heatlh treatment facility Is being considered for placement in group home RCL 12 or above At least one emergency psychiatric hospitalization within last 24 months due to current presenting disability Received TBS before and needs it again Who is Eligible for TBS?

49. Limitations of TBS • Not a long-term service • Not to provide convenience for caregiver or supervision for compliance with probation • Cannot be just to ensure physical safety or to address conditions not part of the mental health condition • Child can be determined eligible in a PHF, IMD, State Hospital or Crisis Residential Facility, but can’t receive services while in such a facility or other facilities where outpatient specialty mental health services are not reimbursable through Medi-Cal

50. Rehabilitation Option Services under Medi-Cal • Assessment/Evalutation • Intensive Day Treatment • Rehab Day Treatment • In-Home Services • Collateral Services • Crisis Intervention • Medication prescription, administration, education, monitoring • Crisis Stabilization to avoid inpatient placement See DMH Letter 01-01: One to One Mental Health Services; Title 9, C.C.R. section 1810.243