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Representing Children with Special Needs One Child One Lawyer Training October 16, 2004 Elizabeth Reimels, J.D. Overview Levels of Care Individuals with Disabilities Education Act: Parts B & C Public Benefits Medicaid (EPSDT) Peach Care Adoption Assistance TANF Food Stamps

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representing children with special needs

Representing Children with Special Needs

One Child One Lawyer Training

October 16, 2004

Elizabeth Reimels, J.D.

Barton Child Law & Policy Clinic Emory University School of Law

overview
Overview
  • Levels of Care
  • Individuals with Disabilities Education Act: Parts B & C
  • Public Benefits
    • Medicaid (EPSDT)
    • Peach Care
    • Adoption Assistance
    • TANF
    • Food Stamps

Barton Child Law & Policy Clinic Emory University School of Law

defining special needs
Defining “special needs”
  • Child with a disability
  • Child in need of mental health treatment
  • Child in need of medical treatment
  • Child experiencing school failure or disruption
  • Child living in poverty

Barton Child Law & Policy Clinic Emory University School of Law

levels of care
Levels of Care
  • Six (6) levels
  • Level is linked to a per diem
  • Level is assigned after an assessment
  • First Placement Best Placement (FPBP)
  • Assessment Level for 60 days (akin to an interim level or placement)
  • DFCS and DJJ kids

Barton Child Law & Policy Clinic Emory University School of Law

general provisions
General Provisions

Apply to all six levels of care

  • All levels of care provide individualized treatment and support services based upon an individual written service plan that identifies for each child and family the treatment goals and needed serves and resources.
  • Within the levels of care there is a variety of treatment options and settings to meet each child’s own unique needs for treatment and support no matter where the child resides.
  • At all levels there are children for whom psychotropic medications are prescribed for their mental health conditions. Medication management is more frequent and complex at the higher levels of care.
  • Each child will participate as fully as possible according to the child’s own treatment and safety needs in community-based recreation, services, and the local public school.
  • Each child is to be served in the least restrictive, most family-centered and community-based setting that meets his or her treatment needs and ensures the safety of the child, the family, and the community.
  • Additional wrap-around services to supplement the level of care placement may be utilized for crisis intervention to prevent placement disruption or to stabilize and manage the behavior of a child.
  • Children who are stable may be maintained at a higher level of care if evidence exists that moving them to a lower level of care would directly result in destabilization.*

*Source: Division of Family Children Services, Levels of Care Indicator Manual, November 2003

Barton Child Law & Policy Clinic Emory University School of Law

assessment
Assessment
  • Assessment designation allowed from 30 to 90 days* -- or 60 days** --
  • Intended for children coming into care of DFCS for the first time.
  • FPBP assessment completed during this time
  • Assessment A – levels 1-3
  • Assessment B – levels 4-6

*DFCS Indicator Manual

**FAQ Level of Care System

Barton Child Law & Policy Clinic Emory University School of Law

level 1
Level 1

At this level, the focus of care is on reassurance, consistency, and regular parenting-type activities with guidance and supervision needed to develop normalized social skills and to ensure emotional and physical well being. Services may be provided in a family foster home or basic care group home.

Barton Child Law & Policy Clinic Emory University School of Law

level 2
Level 2
  • Mild emotional and/or behavioral management problems that interfere with the child’s ability to function in the family, school, and/or community setting

Barton Child Law & Policy Clinic Emory University School of Law

level 2 medical
Level 2 Medical
  • Required monitoring by specialists
  • Diagnosed with failure to thrive, but does not require a feeding tube
  • Previous diagnosis of lung disease
  • Has been exposed to drugs or alcohol
  • Has a history of poor or no prenatal care (infant)
  • Mother tests positive for drugs or alcohol, syphilis and/or hepatitis exposure
  • Neurological work-up is needed
  • HIV exposure with no medications

Barton Child Law & Policy Clinic Emory University School of Law

level 3
Level 3

Moderate and/or occasional serious emotional and and/or behavioral management problems that interfere with the client’s ability to function in the family, school and/or community setting outside of a therapeutic setting.

Barton Child Law & Policy Clinic Emory University School of Law

level 3 continued
Level 3 continued
  • Family Peer Relationships
    • Verbal threats to harm peers / adults
    • Infrequent outbursts
    • Can form positive relationships
  • Emotional Functioning
    • Moderate levels of anxiety, depression, hyperactivity, moodiness, withdrawal, impulsivity, defiance, aggression
  • Educational Functioning
    • Frequent absences
    • School suspensions
    • IEP

Barton Child Law & Policy Clinic Emory University School of Law

level 3 medical
Level 3 Medical
  • Has global developmental delay as the primary diagnosis
  • Is diagnosed with mild cerebral palsy
  • Is diagnosed with fetal alcohol syndrome
  • Is recovering from head injury
  • Is ordered to have physical, occupational or speech therapy 1-2 times per week
  • Sees 2 or more doctors quarterly
  • Has a seizure disorder controlled by medication

Barton Child Law & Policy Clinic Emory University School of Law

level 4
Level 4

Moderate to serious emotional and/or behavioral management problems that interfere with the client’s ability to function in the family, school and community setting outside of a therapeutic setting.

Barton Child Law & Policy Clinic Emory University School of Law

level 4 continued
Level 4 continued
  • Family/ Peer Relationships
    • Occasional outbursts where client becomes danger to self & others
    • Attempts to form inappropriate relationships with peers & adults
  • Emotional Functioning
    • Child has a mental health diagnosis that would likely include a mood disorder, thought disorder, behavior disorder or cognitive disorder
  • Educational Functioning
    • Suspension / expulsion / excessive absences
    • Repeated grades

- IEP with self contained placement

Barton Child Law & Policy Clinic Emory University School of Law

level 4 medical
Level 4 Medical
  • If medical needs are present, child does not need help from medical staff to adequately monitor the condition. Follow-up care is intermittent, periodic or routine. Condition does not require access to health care staff around the clock.
  • Requires foster parents to be specially trained by medical personnel
  • Child may be visually or hearing impaired

Barton Child Law & Policy Clinic Emory University School of Law

level 5
Level 5
  • Serious to severe emotional and/or behavioral management problems that interfere with the client’s ability to function in the family, school, and community setting outside of a therapeutic environment

Barton Child Law & Policy Clinic Emory University School of Law

level 5 continued
Level 5 continued
  • Family / Peer Relationships
    • History of hurting family members
    • Fights with peers
    • Trouble attaching to others
  • Emotional Functioning
    • Child has a mental health diagnoses. Diagnoses would likely indicate the presence of a mood disorder, thought disorder, behavior disorder or cognitive disorder.
  • Educational Functioning
    • History of disciplinary actions & failure to learn
    • IEP

Barton Child Law & Policy Clinic Emory University School of Law

level 5 medical
Level 5 Medical
  • Medically fragile at this level in a specialized foster care setting. The child requires time-intensive treatments / procedures to be performed daily by the caregiver. Each individual procedure is estimated to take 30 minutes.
  • Examples: paralysis, self injurious behaviors, oxygen dependent, tube feeding, needs therapy one to 2 times a month, asthma, diabetes, etc.

Barton Child Law & Policy Clinic Emory University School of Law

level 6
Level 6
  • Severe emotional and/or behavioral management problems that interfere with the client’s ability to function in the family, school and community setting out side of a therapeutic environment. Children at this level have usually had previous treatment, but have not achieved remission of symptoms. Whatever gains were attained in treatment have limited success, even for limited time periods in structured settings. Developmental pressures and life changes have created episodes of turmoil or sustained distress.

Barton Child Law & Policy Clinic Emory University School of Law

level 6 continued
Level 6 continued
  • Family / Peer Relationships
    • Physically aggressive to family and peers
    • Dangerous to self and others
    • Engaged in sexually reactive or abusive behaviors
  • Emotional Functioning
    • Child has a mental health diagnosis. Care-givers report that functioning is socially inappropriate; may be incongruent with chronological age. Child has difficulty participating and benefiting from individual, family and/or group therapy.
  • Educational Functioning
    • IEP
    • Discipline problems

Barton Child Law & Policy Clinic Emory University School of Law

level 6 medical
Level 6 Medical
  • Child will most likely have future hospitalization as a part of treatment.
  • Examples: needs surgery, has a shunt in heart or head, cystic fibrosis, central line, sickle cell disease, awaiting organ transplant

Barton Child Law & Policy Clinic Emory University School of Law

family foster care rates
Family Foster Care Rates

The per diem rate for a child at the lowest level, Level 1, is as follows:

  • Age 0-5: $12.75
  • Age 6-12: $13.50
  • Age 13 & above: $14.25

Barton Child Law & Policy Clinic Emory University School of Law

levels of care resources
Levels of Care Resources
  • DFCS Levels of Care Indicator Manual available at

http://www.state.ga.us/departments/dhr/dfcs.html

(do a search and type in levels of care)

  • Georgia Association of Homes & Services for Children web page

http://www.gahsc.org/

Barton Child Law & Policy Clinic Emory University School of Law

education disability law
EDUCATION & DISABILITY LAW
        • STATE LAW
  • O.C.G.A. Title 20
    • 20-2-731 through 768 (Student Discipline)
    • 20-2-1160 (School Law Tribunals; Appeals)
    • 20-2-152 (Special Education Services)
  • Georgia Department of Education Regulations
    • Section 160
    • R. 160-4-7-.01 through R. 160-4-7.21 (IDEA)

Barton Child Law & Policy Clinic Emory University School of Law

education disability law26
EDUCATION & DISABILITY LAW
          • FEDERAL LAW
  • The Individuals with Disabilities Education Act
    • 20 U.S.C. 1400 et seq.; 34 C.F.R. Parts 300 & 303
  • Section 504 of the Rehabilitation Act of 1973
    • 29 U.S.C. 701 et seq.; 34 C.F.R. Part 104
  • Family Education Records Privacy Act
    • 20 U.S.C. 1232(g)-(h); 34 C.F.R. Part 99
  • Due Process Clause of the Fourteenth Amendment
    • U.S. Constitution

Barton Child Law & Policy Clinic Emory University School of Law

individuals with disabilities education act 20 u s c 1400 et seq 34 c f r parts 300 303
Individuals with Disabilities Education Act 20 U.S.C. § 1400 et seq; 34 C.F.R. Parts 300 & 303
  • Part C - covers children with disabilities from 0 -3
    • Early Intervention Services
    • Babies Can’t Wait
    • Services delivered by Georgia Department of Human Resources Division of Public Health, Family Health Branch, Children with Special Needs
  • Part B - covers children with disabilities from 3 -21
    • Special Education Services
    • Services delivered by local school districts
      • Atlanta Public Schools Decatur City Schools
      • Fulton County SchoolsDeKalb County Schools

Barton Child Law & Policy Clinic Emory University School of Law

questions to ask records to review
Questions to Ask & Records to Review
  • Absences? Truancy?
  • Discipline issues? Disciplinary tribunal?
  • Student Support Team (SST) meeting?
  • History of low academic performance? Repeated grades?
  • Sudden drop in achievement level?
  • Special education records?
  • Individual Education Program or IEPs?
  • In special classes or school?

Barton Child Law & Policy Clinic Emory University School of Law

student support team sst
Student Support Team (SST)
  • Identification of problem
  • Team approach
  • Monitoring and data collection
  • Strategy sharing and problem solving
  • Regular meetings to assess progress
  • Referral to In School Team

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slide30
IDEA

Categories of Eligibility

  • Deaf / Blind (D/B)
  • Emotional / Behavior Disorder (EBD)
  • Hearing Impairment (HI)
  • Mild Intellectual Disability (MID)
  • Moderate Intellectual Disability (MOID)
  • Severe Intellectual Disability (SID)
  • Profound Intellectual Disability (PID)
  • Orthopedic Impairment (OI)
  • Other Health Impairment (OHI)*
  • Significant Developmental Delay (SDD)
  • Specific Learning Disability (SLD)
  • Traumatic Brain Injury (TBI)
  • Visual Impairment (VI)
  • * Includes categories such as ADHD, Asthma, Leukemia, etc.

Barton Child Law & Policy Clinic Emory University School of Law

the process
The Process
  • 1. Identification of disability
  • 2. Evaluation
  • 3. Eligibility
  • 4. Free Appropriate Public Education (FAPE)
  • 5. Least Restrictive Environment (LRE)

Barton Child Law & Policy Clinic Emory University School of Law

evaluation
Evaluation
  • Identification of potential disability
  • Evaluation
    • For 0-3, call Babies Can’t Wait 1-800-229-2038
    • For children ages 3 – 21 the school psychologist conducts evaluation
  • Private evaluations are acceptable
  • Parent consent or consent of surrogate parent is required – DFCS worker cannot be surrogate parent
  • Right to an independent evaluation

Barton Child Law & Policy Clinic Emory University School of Law

eligibility
Eligibility
  • The In-School Team (school) or Multi-Disciplinary Team (Babies Can’t Wait) determines eligibility.
  • Members of team include parents, psychologist, teachers, special education coordinator, and other interested parties.
  • State law defines eligibility categories.
  • If the parent disagrees, s/he can request a due process hearing.

Barton Child Law & Policy Clinic Emory University School of Law

free appropriate public education or fape
Free Appropriate Public Education or “FAPE”
  • Each eligible student is entitled to FAPE
  • FAPE is unique to every student and is outlined in the Individual Education Program (IEP)
  • FAPE can include private school placement

Barton Child Law & Policy Clinic Emory University School of Law

iep individual education program
IEPIndividual Education Program
  • Individual plan of instruction
  • Long and short term goals
  • Goals must be measurable
  • Must contain present levels of performance – benchmarks to measure progress –academic and social levels
  • Developed by a team – members of which are defined by federal law
  • Behavior Intervention Plan (BIP)

Barton Child Law & Policy Clinic Emory University School of Law

least restrictive environment lre
Least Restrictive Environment (LRE)
  • Think of LRE as a continuum of alternative placements to meet the unique needs of each child.
  • Babies Can’t Wait Services are to be delivered in a natural (read non-institutional setting).
  • School age children should be educated as much as possible with their non-disabled peers.

Barton Child Law & Policy Clinic Emory University School of Law

parent participation and procedural protections
Parent Participation and Procedural Protections
  • Right to review school records
  • School should encourage parent participation
  • Written notice
  • Parental Consent
  • Right to independent evaluation
  • Mediation, due process hearing, appeal to state or federal district court
  • If child is in foster care, a surrogate parent should be assigned by the school or Babies Can’t Wait. The same rights & protections attach to the surrogate parent.

Barton Child Law & Policy Clinic Emory University School of Law

procedural protections school discipline
Procedural Protections & School Discipline
  • Special due process protections attach to students with disabilities
  • Manifestation hearing
  • Cannot be denied FAPE
  • Cannot be suspended for more than 10 days cumulatively

Barton Child Law & Policy Clinic Emory University School of Law

resources
Resources

ATLANTA LEGAL AID SOCIETY, INC.

TeamChild Atlanta (404)614-3955

(404) 524 – 5811 Fulton County

(404) 377-0701 DeKalb County

ATLANTA VOLUNTEER LAWYERS FOUNDATION

(404) 521-0790

GEORGIA ADVOCACY OFFICE

(770)885-1234

GEORGIA LEGAL SERVICES

(800) 498 – 9469

FULTON COUNTY JUVENILE COURT EDUCATION ADVOCATE

(404)224-4550

Barton Child Law & Policy Clinic Emory University School of Law

web resources
Web Resources

http://www.copaa.net/

  • The Council of Parent Attorneys and Advocateshttp://www.fape.org/tindex.html
  • Families and Advocates Partnership for Education.
  • http://www.doe.k12.ga.us/index.asp
  • Georgia Department of Education Web Page. http://www.cleweb.org/
  • The Center for Law and Education (CLE)
  • http://www.ccbd.net/
  • The Council for Children with Behavioral Disorders (CCBD)
  • http://www.glrs.org/
  • The Georgia Learning Resources System (GLRS).

Barton Child Law & Policy Clinic Emory University School of Law

web resources continued
Web Resources Continued
  • http://www.ideapractices.org/
  • IDEA Practices
  • http://www.ldonline.org/
  • LD On Line
  • http://teis.virginia.edu/go/cise/ose/resources/legal.html
  • Internet Legal Resources about Special Education and Disabilities sponsored by University of Virginia Curry School of Education.
  • http://www.cleweb.org/
  • The Center for Law and Education (CLE)
  • http://www.ccbd.net/
  • The Council for Children with Behavioral Disorders (CCBD)

Barton Child Law & Policy Clinic Emory University School of Law

web resources continued42
Web Resources Continued
  • http://www.ed.gov/
  • U.S. Department of Education Web Page
  • http://www.povertylaw.org/
  • National Center on Poverty Law – information regarding the McKinney Act
  • http://www.afb.org/
  • American Foundation for the Blind Web Page
  • http://health.state.ga.us/programs/bcw/index.shtml
  • Babies Can’t Wait
  • http://www.mstservices.com/
  • Multisystemic Therapy (MST

Barton Child Law & Policy Clinic Emory University School of Law

web resources continued43
Web Resources Continued

http://www.psychiatrymatters.md/index.asp

Great resource to quickly learn about treatment options for various psychiatric conditions.

  • http://www.healthlaw.org/
  • The National Health Law Program

http://www.ed.gov/about/offices/list/osers/index.html?src=mr

  • Office of Special Education and Rehabilitative Services, U.S. Dept. of Education
  • http://www.ed.gov/index.jhtml
  • United States Department of Education
  • http://www.bazelon.org
  • Bazelon Center for Mental Health Law

Barton Child Law & Policy Clinic Emory University School of Law

public benefits
Public Benefits
  • Medicaid (EPSDT)
  • Peach Care for Kids
  • Adoption Assistance
  • TANF
  • Food Stamps

Barton Child Law & Policy Clinic Emory University School of Law

medicaid epsdt
Medicaid (EPSDT)
  • Early Prevention Screening Diagnosis and Treatment

“EPSDT services include, inter alia, screening, vision, dental, and hearing services as well as:

‘such other necessary health care, diagnostic services, treatment, and other measures ... to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services....’ 42 U.S.C. § 1396d(r)(5).”

Barton Child Law & Policy Clinic Emory University School of Law

epstd continued
EPSTD continued
  • Entitlement program
    • Due process protections apply
    • Right to a hearing to challenge denial of coverage
  • Eligibility based on income
  • Once eligible all treatment that is medically necessary is covered
  • Many children in foster care are covered by Medicaid
  • If Medicaid denies services for one of your clients – PUSH the issue. Call for help from Atlanta Legal Aid or Atlanta Volunteer Lawyers Foundation.

Barton Child Law & Policy Clinic Emory University School of Law

peach care for kids
Peach Care for Kids
  • Children’s Health Insurance Program (CHIP)
  • Provides low cost health insurance to low-income families who are not Medicaid eligible, but cannot afford private insurance.
  • Nominal monthly fee ($ 20 max)
  • Apply on-line at

http://www.peachcare.org/dehome.asp

Barton Child Law & Policy Clinic Emory University School of Law

adoption assistance
Adoption Assistance
  • Assistance available to people who adopt foster care children.
  • Amount of adoption assistance matches the Level of Care funding the child receives
  • IV-E Funds
  • Certain requirements must be met in court orders in order to meet IV-E requirements. The order must specify that removal was necessary because remaining in the home of origin was “contrary to the welfare” of the child.
  • Guardianships do not contain the necessary “contrary to the welfare” finding.
  • Referring relatives who might potentially adopt a child to Probate Court will jeopardize their eligibility for adoption assistance and might negatively impact a child’s quality of life.

Barton Child Law & Policy Clinic Emory University School of Law

slide49
TANF
  • Temporary Assistance to Needy Families
  • Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) P.L. No. 104-193
  • 42 U.S.C. § 601 etseq.
  • 45 C.F.R. § 201 etseq.
  • O.C.G.A § 49-4-180 etseq.
  • Ga. R. & Regs. 290-2-28 etseq.
  • DHR Economic Support Manual (ESSM)

Barton Child Law & Policy Clinic Emory University School of Law

slide50
TANF
  • Cash assistance and support services provided to low income families with minor children.
  • Caps on lifetime assistance =
    • 48 months in GA.
    • Federal Cap is 60 months.
  • Requires work
  • Right to a hearing if denied or cut off

Barton Child Law & Policy Clinic Emory University School of Law

food stamps
Food Stamps
  • Food Stamp Act of 1977
  • 7 U.S.C § 2201 etseq.
  • 7 C.F.R. § 271 etseq.
  • DHR ESSM

Barton Child Law & Policy Clinic Emory University School of Law

food stamps52
Food Stamps
  • Eligibility formula requires an individual or family to meet categorical and financial criteria
  • 16 – 59 years of age must register for work
  • Financial eligibility calculation is fairly complicated
  • Food Stamp Fraud

Barton Child Law & Policy Clinic Emory University School of Law

thank you
Thank you!
  • Questions?

Beth Reimels

Barton Child Law & Policy Clinic

Emory University School of Law

1301 Clifton Rd.

Atlanta, GA 30322

404-712-8705

breimels@law.emory.edy

www.childwelfare.net

Barton Child Law & Policy Clinic Emory University School of Law