Representing Children with Special Needs

1. 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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. Institutional Level of Care Rates*

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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 Barton Child Law & Policy Clinic Emory University School of Law

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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

44. Public Benefits • Medicaid (EPSDT) • Peach Care for Kids • Adoption Assistance • TANF • Food Stamps Barton Child Law & Policy Clinic Emory University School of Law

45. 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

46. 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

47. 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

48. 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

49. 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

50. 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