Minor’s Rights Advocacy: A Primer. Presented By: Anne Lukito Sherri Rita Maggie Roberts Protection & Advocacy, Inc. PRAT 2003. Why Are Minors in Facilities?. Special Education Placements Foster Care Placements Court Ordered/Juvenile Probation Placements Parental Placements Emergencies.
Minor’s Rights Advocacy: A Primer
Protection & Advocacy, Inc.
(IEP meetings, due process hearings, compliance complaints)
(Placement and service advocacy for Wards & Dependents)
(Medi-Cal Fair Hearings, Mental Health Grievances)
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]
See handouts for more information, citations to relevant laws
Welf. and Inst. Code § 4094.5.
CCR, tit. 22m § 84110.
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.
“Group homes staff may be justified/excused in using emergency interventions which include restraint if:
CCR,tit. 22, § 84300
POST INCIDENT REVIEW
The restraint review must evaluate:
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.
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.
CHILD’s RIGHTS/ FACILITY RESPONSIBILITY
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
C.C.R., section 84322.
CHILD’s RIGHTS/ FACILITY RESPONSIBILITY
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.
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:
PROTECTIVE SEPARATION ROOM
While in separation room:
CCR, tit. 22, § 84322.1
Avoiding or Transitioning From Institutional Placements
SPECIAL EDUCATION ADVOCACY
The youth (up to age 22)
The Local Education Agency (School, District, Board, SELPA)
The adult with educational rights if youth is a minor
Individuals with Disabilities Education Act (20 U.S.C. §1400 et seq.)
California Education Code §56000 et seq.
Cal. Educ. Code § 56852
Welf. & Inst. Code § 4011.5
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
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
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.
then IEP team needs to reconvene to update or improve the plan
Defined as one which
5 C.C.R. Sec. 3001(aa)
* Special Education Rights and Responsibilities (SERR)
“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)
settings: home, school,
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
See DMH Letter 01-01: One to One Mental Health Services; Title 9, C.C.R. section 1810.243
REGIONAL CENTER ADVOCACY
Individual Program Plan (IPP)…
Specialized medical and dental care
Specialized training for parents
Infant Stimulation programs
Child care/Day care
Short term out of home placement
Mental Health services
Behavior modification programs
The regional center must investigate and use creative and innovative ways to meet the family’s need and keep the child in the family home. § 4685( c)(2)
There shall be no gaps in service.
It is the regional center’s responsibility
to ensure that all needed
are being provided.
Regional Resource Developmental Project (RRDP) must conduct an assessment of
must provide any emergency services that the RRDP finds necessary.
CHILDREN & YOUTH
IN STATE CUSTODY
Licensed Children’s Institution/Group Home = Special Education Local Plan Area, County Office of Education, or Local Education Agency
Foster Home = Local Educational Agency
Juvenile Hall = County Board of Education
California Youth Authority = California Youth Authority
Children in juvenile justice system still entitled to special education and related services, including mental health services
If court plans to order out of home placement and child is special education eligible, court should be informed of child’s eligibility for special education/mental health placement
Identifying child’s special education and mental health entitlements in court order will also relieve parent and court from having to fund placement/services
If child in juvenile justice system not already identified as special education eligible, court should be asked to await assessment for eligibility prior to disposition.
If child already placed by juvenile court but not pursuant to special education eligibility, parent/educational surrogate may seek review of IEP and assessment for eligibility for mental health services and petition the court to modify its placement order in accord with the new IEP
Court should also be informed of what services can be available to child through Medi-Cal and if child found eligible for services, these services can be made part of court’s order . . . .
“Public Institution” exclusion applies to individuals who are “inmates of public institutions,” including juvenile halls, unless
22 C.C.R. § 50273
WIC §§ 362; 727(a); Appendix to Cal. Rules of Court 24(h)(4).
Cal. Rules of Court 24(h).
Welf. & Inst. Code §§ 361, 726:
When court limits right of parent/guardian to make educational decisions, shall at same time appoint responsible adult to make educational decisions (note: applies to all children, whether special education eligible or not)
34 C.F.R. § 300.515:
Educational surrogate represents child in matters relating to eligibility for special education and delivery of FAPE
Gov. Code 7579.5:
LEA required to appoint educational surrogate for child if adjudicated ward or dependent upon referral for special education, if court limits parental rights and no surrogate appointed pursuant to WIC 361or 726.
But see: Ed. Code 56055: Foster parents can exercise same rights as parents re: special education decisionmaking
Welf. & Inst. Code, Sec. 5856.2
strengths of the child and family and includes the delivery of coordinated, highly individualized unconditional services to address needs and achieve positive outcomes”
Welf. & Inst. Code § 18251
ADVOCACY FOR TRANSITION-AGED YOUTH
DISCHARGE PLANNING FOR YOUTH AND ADULTS
Protection & Advocacy, Inc.