Education rights of committed children

1. Education rights of committed children 2013 Civil Commitment Conference: Working with Child Clients January 25, 2013

2. Introduction • Our Organization: • Advocates for Children’s Services • Our Background: • Peggy Nicholson • Jason Langberg • Handouts

3. Agenda • Why advocate? • Education rights of committed children • Enforcing education rights of committed children • Education in Private PRTFs • Current Problems • Advocacy efforts • Story sharing

4. Why Advocate? • Most committed children already face education barriers: • Issues that led to commitment likely affecting child in school (i.e. suspensions, behind academically) • Difficulty making transition to facility (i.e. different coursework and class structure) • Difficulty making transition back to public school (i.e. transfer of credits, stigma of commitment) • These problems exacerbated because: • Many facilities, especially private facilities, that serve committed children don’t provide adequate education services (i.e. too few hours, don’t follow NC Standards Course of Study, no special education, lack of coordination with school child will return to). • Causes children to fall further behind and makes transition home more difficult.

5. Education Rights of Committed Children Support for right to general education: • Art. I, § 15 and Art. IX, § 2 of NC Constitution • guaranteeing all children of appropriate age the right to a basic education • N.C. Gen. Stat 115C-81 • Every student in the state is to be provided with equal access to the Basic Education Program implemented by the state • This includes NC’s Standard Course of Study No exceptions for children who are committed in order to receive treatment

6. Education Rights of Committed Children More support for right to general education: “Children or adolescents residing in a PRTF shall receive educational services through a facility-based school. Educational services shall meet applicable standards as required by federal and state law.” • N.C. Admin. Code tit. 10A 27G.1903(f)(2005)

7. Education Rights of Committed Children Support for right to special education: • Child receiving treatment in 24-hour facility has the right to “receive special education and vocational training in accordance with federal and state law.” • Right to special education can only be restricted if: • Restriction approved by qualified professional (QP) responsible for client’s treatment plan • QP provides written statement in client’s record detailing reason for restriction • Restriction is reasonable and related to client’s needs • Restriction lasts no more than 30 days • QP evaluates restriction at least every seven days (evaluation must be documented) • Any renewal of a restriction supported by written statement from QP in client’s record • Legally responsible person notified of each initial restriction or renewal and reason for it (notification must be documented in client’s record) • N.C. Gen. Stat. 122C-62(c) and (e)

8. Education Rights of Committed Children More support for right to special education: • NC Policy applies special education law to all public agencies within the State that are involved in education of children with disabilities, including DHHS and DJJ. • NC Policies Governing Services for Children With Disabilities1500-1.2 . • Federal law (34 CFR 300.145) extends this to students who have been placed in or referred to private facilities: • Each SEA (i.e. DPI) must ensure that a child with a disability who is placed in or referred to a private school or facility by a public agency: • is provided special education and related services; • Is provided an education that meets the standards that apply to education provided by the SEA and LEAs; and • Has all of the rights of a child with a disability who is served by a public agency. • Public agencies include state agencies such as DHHS and DJJ.

9. Education Rights of Committed Children • Established that committed child maintains right to education, including special education, but what does that mean? • Will focus on special education rights here because: • Most committed children receive some type of general education services • Most committed children likely eligible for special education services • More tools to advocate and enforce rights in special education context

10. Education Rights of Committed Children Identification and Evaluation • If parent suspects child has disability, can request evaluation in writing • School must initiate if has reason to believe child has disability • School must conduct evaluation, meet to discuss results, determine eligibility, and create IEP (if eligible) w/in 90 days • Evaluation must cover all areas of suspected disability • Examples of disabilities: attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder (ODD), conduct disorder, specific learning disability • Parent has right to free, independent evaluation if disagree w/ first evaluation • Must be re-evaluated every 3 years, unless parent waives

11. Education Rights of Committed Children Individualized Education Program (IEP) • Plan to meet individual needs of child • Includes placement, goals, services, accommodations, etc. • Child eligible to have IEP if: • Has physical or mental disability that interferes with learning; and • Needs specially designed instruction to make educational progress • Parent has right to be part of Team that creates and monitors IEP • Must be reviewed annually

12. Education Rights of Committed Children Least Restrictive Environment (LRE) • Student must be educated with non-disabled peers to greatest extent appropriate Free Appropriate Public Education (FAPE) • Student must get “special education” and “related services” that allow the student to: • Benefit from instruction provided under the IEP; and • Make “reasonable progress”

13. Enforcing Education Rights • Why you should advocate for client’s education rights: • May be only one able (or willing) to spot violation and advise client of it. • Effect on education is important collateral consequence of commitment. You should explore this with clients so they can make best decisions throughout judicial process. • Education records can be used to support arguments about client’s need for commitment (or lack thereof) and effect that such commitment will have on client. • Receiving good education services alongside treatment is almost always in best interests of the client.

14. Enforcing Education Rights • How to advocate for client’s education rights: • Investigate: • Interview client about education services • Request and review client’s education records • Learn about educational services at facility • Send communication to facility that includes: • Summary of client’s educational background • Summary of client’s educational needs • Requests—e.g., evaluation or special education service • Make Referrals • Advocates for Children’s Services (Legal Aid of NC) • Council for Children’s Rights • Disability Rights NC

15. Remedying Violations of Education Rights • If requests denied or problems persist: • Notify local local education agency and NC DPI • Notify, in writing, local management entity • File complaint with the Division of Health Service Regulation (DHSR) • Notify judge at status hearing • File a petition for a contested case hearing in the Office of Administrative Hearings • File a lawsuit in federal court

16. Education in Private PRTFs:Current State of Affairs • 2007 – General Assembly requires SBE and DHHS to determine responsibility for children with disabilities placed in private PRTFs by public agencies (other than LEA) • 2009 – DPI and DHHS issue a response that misconstrues law and neither agency takes responsibility. • Dec. 2011 - DPI and DHHS enter interagency agreement delineating responsibilities to provide FAPE to students in private PRTFs • Even under this agreement, FAPE still not being provided. • Feb. 2012 - DHHS revokes agreement Since MOU rescinded, no agency (including DPI) has taken responsibility for these students. No visible efforts have been made to address this issue.

17. Advocacy: CFCR State Complaint • Formal state complaint (filed on December 20, 2012) • Filed with NC DPI Division of Exceptional Children • On behalf of Mecklenburg County Public School students in PRTFs • Against DPI and Charlotte-Meck Schools (CMS) • Violation: failure to provide FAPE & comply with obligations of IDEA, Title II, Section 504 and NC Constitution • Requests: • DPI investigate CMS’s alleged violations • Require that CMS ensures FAPE for these students • Order immediate corrective action plan

18. Advocacy: DRNC Federal Complaint • Complaint filed with OCR of US Dep’t of Ed (May 2012) • Filed against DPI and DHHS • Violation: DPI and DHSS have 1) denied children in PRTF their right to FAPE as required by Section 504, IDEA, and Title II; 2) failed to comply with Child Find provisions. • Requests: • Investigation into alleged violations • Require that DPI and DHHS ensure children in PRTFs receive ed services that meet NC ed standards and have IEPs implemented • Require corrective action plan to remedy violations • Update: In Dec. 2012, OCR dismissed complaint against DPI for lack of jurisdiction and opened investigation against DHHS to determine jurisdiction

19. Advocacy: ACS Lawsuit • Complaint filed in Wake County Superior Court (Aug. 2012) • Filed on behalf of minor involuntarily placed in private PRTF by juvenile court order • Filed against SBE and DPI • Request for declaratory judgment that: • 1) Defendants responsible for ensuring that students with disabilities placed in private PRTFs by state action have access to IEP, FAPE, and all special education rights • 2) these students have right to IEP, FAPE and special ed rights while in private PRTF • 3) these students have right to compensatory education for time they were denied IEP and FAPE. • Update: • State removed to federal court • Federal court remanded and awarded attorney fees • Currently conducting discovery in state court

20. Story Sharing • Your experience with education in facilities?

21. Contact Information Peggy Nicholson Jason Langberg Staff Attorney Direct of the Push Out Prevention Project 919-226-0051 ext. 438 JasonL@LegalAidNC.org • Director of the Juvenile Re-entry Action Project • 919-226-0051 ext. 420 • PeggyN@LegalAidNC.org