LEBANON — School districts in Lebanon, Claremont and Sunapee are among several New Hampshire districts supporting a lawsuit against the state Department of Health and Human Services (DHHS) over the department’s restriction on services to students with developmental disabilities.
Under federal law, individuals with disabilities are guaranteed a right to an education to the age of 21. Some states, such as Vermont, have extended this age of eligibility to 22, while states like New Hampshire are considering a similar extension.
However, many of these students need a place to live, as some parents and guardians seek to end their role as the primary caregiver now that the student is a legal adult, according to educators and student advocates.
“It’s not a frequent occurrence, but it has been coming up more often during the last several years,” said Ben Nestor, director of special education in Claremont.
Nestor said he has experienced two situations involving a displaced student during his last four years in the Claremont district.
This scenario, among others, has led to ongoing disputes between school districts and the DHHS over the legal responsibility to provide residential placements and related support services.
While state statute RSA 171-a appoints those duties to DHHS, the department maintains that “home and community-based services are not available to anyone who is still in school,” according to court records.
“I have had several experiences where the DHHS is encouraging parents to push their school districts to place their children residentially, even though that’s not the district’s obligation,” Nestor said. “Our responsibility is to provide them with an education.”
In 2020, Gilford, NH, resident Lisa Verrill, guardian of Janessa Verrill, a 19-year-old disabled student, sued DHHS Commissioner Lori Shibinette and the department on behalf of Janessa after DHHS denied services to the student despite her eligibility.
Last October, Merrimack County Superior Court Judge John Kissinger struck down the DHHS policy, calling it “invalid and unlawful” and ordered the department to provide the services it had withheld.
“The court found nothing in language of (the statute) that bars the provision of services to otherwise eligible individuals on account of their enrollment in school,” Kissinger wrote in his order.
DHHS appealed the ruling to the New Hampshire Supreme Court.
Gerald Zelin, an education attorney from the Manchester-based firm Drummond-Woodsum, plans to file an amicus brief on behalf of participating New Hampshire school districts. The brief aims to convey the burden placed upon school districts by DHHS’ efforts to push the housing responsibility onto the schools.
“Economically, it becomes a huge downshifting of cost onto the local tax base,” Zelin said in a phone interview. “And it often winds up with the poorest school districts paying the highest burden.”
The annual tuition for a residential school placement can cost $150,000 to $300,000 per student, according to Zelin.
While public schools make residential placements for students with severe disabilities, it is only when necessary to meet a student’s educational needs, not because a student lacks housing, said Karen Woolsey, director of student services in the Lebanon School District.
“The DHHS is asking for the education system to pick up the responsibility of residential placements regardless of the reason,” Woolsey said.
Some educational reasons for a residential program include students whose disabilities are so severe that they require a continuous “around the clock” program to effectively reinforce essential living skills, such as basic hygiene, educators and school advocates said. Other students might have medical issues that require constant attention or that complicate the student’s ability to travel daily.
Educators also worry about the student safety and well-being when parents or guardians, overwhelmed by the cost and demand to provide care, seek new living arrangements for their student.
Relocating adult-aged students without the involvement of the social services system runs the risk of these students “falling through the educational cracks,” Woolsey said, where students lose access to their local educational services due to a loss of district residence.
In a discussion last week with the Claremont School Board, Nestor recalled one occasion when the parent of a “severely disabled” 19-year-old student unexpectedly vacated their home while the student was attending school.
When Nestor sought help from DHHS, the agency contended that “it was the school district’s responsibility.”
“We had a bit of a legal battle back and forth between the Department of Human Services and our attorney,” Nestor told the Claremont School Board on April 6. “The DHHS (eventually) funded a residential placement, which was their obligation. But it took a legal fight to make that happen.”
Zelin attributed the opioid epidemic and the novel coronavirus pandemic as contributing stressors upon caregivers.
The surge in opioid addiction in recent decades has left grandparents and other extended family members to care for children whose parents are deceased, incarcerated or otherwise absent. The high level of care for individuals with severe special needs can become increasingly overwhelming, especially when the caretakers are in their senior years, Zelin explained.
Other caregivers struggled in 2020 and 2021, when schools shifted to remote learning, Zelin said. This period was sometimes more strenuous on families with a severely disabled family member, given the higher level of needs associated with many developmental disabilities. Zelin said that the ability for a parent to work, even remotely, would be difficult if the student was regularly home during the school day.
In addition, the New Hampshire Legislature is currently considering a bill that will extend to the age of 22 the right of people with a disability to receive an education, or that will allow them at least to complete the school year in which their 21st birthday took place.
The bill, HB 1513, aims to address a large number of disabled students who “age out” of their education eligibility during a school year. The bill has bipartisan sponsorship and is recommended by several House and Senate committees.
While special education advocates support the bill, it could mean additional costs to local school districts if the state Supreme Court rules in the DHHS’ favor.
According to the New Hampshire Department of Education, 18 students with disabilities who currently attend school in a residential placement will turn 21 over the next two school years.
An additional 61 students turning 21 during those next two years attend an out-of-district day program.
Roughly 12 school districts so far have joined the amicus brief, though more districts are scheduled to consider joining at their upcoming board meetings, Zelin said.
Zelin expects to submit the brief to the state Supreme Court in midsummer, once the DHHS and the Disability Rights Center, an advocacy group acting on Verrill’s behalf, file their briefs.
Participating school districts are being asked to pledge $500 to $1,000 to help fund the amicus filing.
The Gilford and the Exeter Region Cooperative school districts, the first districts to join, have contributed a combined $11,000.
Should the total pledge amount exceed the current legal fee, Drummond Woodsum will divide the remaining fund among the school districts relative to the amount each district pledged, according to Zelin.
Zelin also encourages school districts to add their names to the amicus list even if they decline to contribute monetarily, saying “there is strength in numbers.”
Patrick Adrian can be reached at [email protected]