Manchester schools vote to support lawsuit against DHHS
Aug. 23—Manchester school officials have agreed to support a lawsuit against the state Department of Health and Human Services over the department's restriction on services for students with developmental disabilities.
Under federal law, individuals with disabilities are guaranteed the right to an education up to age 21. Several states, including New Hampshire, have extended the period of eligibility to age 22.
Some of these students are in need of places to live, after parents and guardians move from serving as a primary caregiver once the student is considered a legal adult.
Legal disputes have arisen between school districts and DHHS over which is legally responsible to provide residential placements and related support services.
RSA 171-A directs New Hampshire Department of Health and Human Services and its local "area agencies" to provide a broad range of services to citizens with "developmental disabilities." These include citizens with autism or intellectual impairments.
Services available under the statute range from in-home supports to residential placements in specialized foster homes, group homes, and treatment centers.
RSA 171-A contains no age limitations. Court records show DHHS has argued students receiving special education are not entitled to any services under RSA 171-A, other than $36,000 annually for parents to hire in-home aides and respite care providers.
"In other words, so long as a student is still receiving special education, DHHS categorically refuses to offer residential services, no matter how necessary those services may be," writes Gerald Zelin, an education attorney from the Manchester-based firm Drummond-Woodsum, in a memo to school board officials.
Zelin claims the special education statutes compel the school district in which a student resides to provide a "free appropriate public education" (FAPE) to age 22 in New Hampshire or until the student earns a regular high school diploma, whichever occurs first.
"Many students with intellectual impairments or autism never earn a diploma and consequently receive special education to age (22)," Zelin writes. "Some students with developmental disabilities require residential placement in order to receive a FAPE. However, many can receive a FAPE in their local public school or a specialized day school, yet require residential placement for other reasons, such as family dynamics."
Zelin argues DHHS's position downshifts costs to school districts in several ways.
One example he lists is when parents can no longer care for their developmentally disabled child at home, they often begin legal proceedings seeking a residential placement at school district expense.
Residential placements available to school districts are more expensive and restrictive than the residential placements available to area agencies, Zelin writes. When a school district makes a residential placement, it must select a residential school that is state-approved to provide special education. The schools typically charge $150,000 to $300,000 annually per student, and most are located out of state, Zelin reports.
"It would be less expensive and less restrictive to place the student in a specialized foster home or group home operated by the area agency, allowing the student to attend a local day school," writes Zelin.
In 2020, Lisa Verrill, a Gilford resident and guardian of Janessa Verrill, a 19-year-old disabled student, sued DHHS Commissioner Lori Shibinette and her department on Janessa's behalf after the teen was denied services despite being eligible.
Last fall, Merrimack County Superior Court Judge John Kissinger struck down the DHHS policy, referring to it as "invalid and unlawful" and ordering the department to provide the services.
"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 has appealed the ruling to the New Hampshire Supreme Court.
Zelin is filing an amicus brief on behalf of school districts who agree to participate in support of the lawsuit, which will describe the financial burden put on school districts by DHHS in terms of the housing responsibility.
School districts that agree to participate are being asked to pledge $500 to $1,000 to help fund the amicus filing.
Manchester officials agreed to pledge $500, to come out of the district's legal budget.