Disability Rights Maine was recently honored by the Maine Coalition Against Sexual Assault (MECASA) and the National Sexual Violence Resource Center (NSVRC) for our work to address sexual violence for people with disabilities. We are humbled and honored to receive MECASA’s 2023 Make A Difference Award and NSVRC’s 2023 Visionary Voice Award
.
The investigation adds to years of evidence that Maine is institutionalizing children with disabilities, instead of providing necessary supports in the community
PORTLAND — An investigation into Maine’s children’s behavioral health system by the United States Department of Justice (DOJ) finds statewide failures that create a significant risk of segregating and institutionalizing children with disabilities, in violation of the Americans with Disabilities Act.
The Department of Justice issued its findings on the 23rd anniversary of the landmark Supreme Court decision Olmstead v. L.C., which found that unnecessarily segregating people with disabilities into institutional settings violates the Americans with Disabilities Act.
Yet, the DOJ investigation concluded that “Maine unnecessarily segregates children with mental health and/or developmental disabilities, in psychiatric hospitals, residential treatment facilities, and a state-operated juvenile detention facility.”
In the findings letter, DOJ concluded that:
The significant deficiencies highlighted by DOJ are the result of years of disinvestment in Maine’s children’s behavioral health system. In response to these deficiencies, a coalition of organizations – Disability Rights Maine, ACLU of Maine, GLBTQ Legal Advocates and Defenders (GLAD) and the Center for Public Representation – have been working together to advocate for concrete and urgent reforms at the state level. The coalition has expressed its serious concerns about the state’s failure to provide critical behavioral health services in children’s homes and communities, and is in active discussions with the state about specific ways Maine can improve and build on its existing services.
The following statements can be attributed as noted:
Carol Garvan, Legal Director, ACLU of Maine
“All children should have the opportunity to lead rich, full lives in their communities. The state must provide critical community-based behavioral health services to make that a reality. Because the state has disinvested in its children’s behavioral health system for years, we are unnecessarily putting children with disabilities into institutions — in prison, in emergency rooms, in psychiatric facilities. This kind of segregation violates the basic right of children with disabilities to be free from discrimination.”
Atlee Reilly, Legal Director, Disability Rights Maine
“Despite years of notice, Maine has not yet come to terms with the scope of the problem it faces, the significant harm being done to a generation of youth and families, and the enormous future costs that will continue to mount unless the longstanding deficiencies in the children’s behavioral health system are addressed with the urgency required. Maine must turn away from expensive and ineffective institutional solutions and toward a system that supports youth in their homes and communities.”
Mary L. Bonauto, Civil Rights Project Director, GLBTQ Legal Advocates & Defenders (GLAD)
“Young people have limitless potential when they receive the care and support they need. Maine’s longstanding failure to provide the full measure of needed mental and behavioral health care services is no secret. As the Department of Justice report states in its Findings Letter of June 22, 2022, this has led to an emphasis on confinement in institutions, including residential facilities, psychiatric hospitals and Long Creek, a juvenile detention facility, rather than with families in homes and communities. This is a solvable crisis, and now is the time to do so.”
Steven Schwartz, Legal Director, Center for Public Representation
“Children and youth thrive when they grow up in their homes, stay in their communities, and remain near their friends and neighbors. Removing them to distant institutions is expensive, unnecessary, and simply harmful. Several other states, including neighboring Massachusetts and Rhode Island, have created a comprehensive system of intensive home-based services that allow children to receive needed treatment while remaining with their families and in their neighborhood schools. Maine needs to do the same.”
BACKGROUND
The state is on notice about the significant failures in its children’s behavioral health system, which primarily serves low-income children who are eligible for MaineCare. An independent assessment of the system in 2018 identified many of the same deficiencies as the DOJ investigation, finding that children’s behavioral health services were not available when needed, or not available at all.
A separate independent assessment of the juvenile justice system in 2020 found that many youth are detained and incarcerated at Long Creek because they couldn’t access appropriate community-based services for their behavioral and mental health needs.
Because of years of disinvestment, conditions on the ground for youth and families have continued to deteriorate. Community-based services — such as access to behavioral health providers in home and at school — are unavailable for many youth when and where they need them. When the state fails to meet children’s mental and behavioral health needs, their situation is more likely to escalate into a crisis. This leads to the unnecessary institutionalization of children in emergency departments, in psychiatric facilities, and in prison.
As a result, Maine youth are separated from their communities and families and sent to institutions far from their homes. Maine youth are stuck in hospitals, emergency departments and crisis units for long periods of time because the services needed to support a safe discharge home are not available. And Maine continues to put children in prison because the state is failing to provide these youth with appropriate community-based services.
Source: ACLU Maine, June 23, 2022
MDOE confirms that students with disabilities outside of their school districts retain all of their rights under the IDEA, including stay put protections
On November 24, 2021, the Maine Department of Education (MDOE) issued Administrative Letter # 28 clarifying the obligations of Maine schools who receive students with disabilities from a home/sending school district through the IEP process.
DRM has heard from families with students who are left with little to no education when a receiving school decides that they will no longer serve the student – leaving the sending district and the family scrambling. While the sending district maintains the responsibility to provide the student a free appropriate public education (FAPE), it cannot be that the receiving school does not need to follow the IEP process. In response to a systemic complaint filed by DRM, the MDOE issued the Letter which sets out clear requirements for receiving schools, including:
“Special Purpose Private Schools (SPPS) and other out-of-unit entities must ensure compliance with IDEA, utilizing the IEP team process and maintaining “stay put” in the event of a dispute (34 CFR §300.518)” … “the Department has determined that SPPS and other out-of-unit placements are not in compliance with IDEA when they terminate a student’ s placement without going through the IEP process.” And, “Effective immediately, All SAUs must notify the SPPS and out-of-unit placements that in order to continue these placements, they must abide by the federal standard and provide FAPE to eligible students who are placed at SPPS and other out-of-unit placements.”
Often, when schools are seeking to place students outside the District, they seek to reduce the student’s school day or utilize segregated tutoring until a placement is found. This is almost never appropriate.
MDOE Administrative Letter # 28 is available here: https://mainedoenews.net/2021/11/24/administrative-letter-iep-requirements-for-out-of-unit-placements/
In its September 24, 2020 article “Some voters fear being ‘purged’ at the polls. Should you?” the Portland Press Herald mistakenly reports that “A clerk must remove you from the voting list if they are given notice that you have been placed under guardianship due to mental illness.” This is wrong. Any attempts to enforce this provision are unconstitutional and discriminatory.
In its article, the Press Herald incorrectly relied on obsolete language from Maine’s Constitution, language that was invalidated by a federal judge nearly 20 years ago in Doe v. Rowe, 156 F. Supp. 35 (D. Me. 2001), a case brought by Disability Rights Maine (DRM). In his ruling, U.S. District Court Judge George Z. Singal found that Maine’s Constitution violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution. To be clear, “the U.S. Constitution gives all citizens the right to vote. [A person] can register to vote if ….. [they are] under guardianship.” https://www.maine.gov/sos/cec/elec/voter-info/right.html
DRM is concerned about the impact on the fundamental right to vote that this inaccurate article may have. At a time when concerns about voter misinformation are at an all-time high, the Press Herald’s article may further disenfranchise voters with psychiatric histories or labels of mental illness.
Since the 1990’s, the Secretary of State’s Office has worked closely with Disability Rights Maine and many other disability partners to educate municipal clerks and registrars about voting rights and to ensure that voters with disabilities have full and equal access to the polls. We are hopeful that through these efforts, municipalities will disregard the information in this article.
Kim Moody
Executive Director
Disability Rights Maine