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Legal Issues Relating to Transition Planning and Post-Age 21 Services for Individuals With Autism

By Dennis C. McAndrews, Esquire

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The courts’ holdings in Schmidt, Sauers, et al. were grounded upon clear and comprehensive statutory language. Section 4201 of the Pennsylvania Mental Health and Mental Retardation Act leaves no confusion in this area:

The department shall have the power and its duty shall be: (1) to assure within the state the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them. . . .

The legislative history of the 1966 Mental Health/Mental Retardation Act firmly supports the holdings in Schmidt and Sauers. For example, Senator Pechan, the principle sponsor of the Act--an Act developed as the sole item of business of a Special Session of the Pennsylvania Legislature--stated the following in prepared remarks on the Senate floor in support of the measure:

The object of this legislation is to make it possible for every mentally disabled person to receive the kind of treatment he needs, when and where he needs it. It will make those services available to every citizen in every community. . . .

1966 P. Legis.J. 3 D.Spec.Sess., No. 33, 76 (September 27 1966).

It is also significant that shortly after the Supreme Court decided Schmidt, legislation was introduced in the Pennsylvania General Assembly which would have amended the Mental Health/Mental Retardation Act to eliminate the entitlement to mental retardation services mandated by the Act and Schmidt. House Bill 1824, Session of 1981. The purpose of H.B. 1824 was unquestionably to remove this entitlement, as the proposed legislation provided as follows:

Persons eligible for services under this Act shall receive the level of service determined by the Department or the counties as the case may be, within the limits of the resources available to the Commonwealth. It is the intention of the General Assembly that the Department or the counties may not be compelled in individual cases, or on behalf of any class of individuals, to provide services, treatment, or habilitation for which funding has not been provided by the General Assembly.

The enactment failed to gain the approval of the Pennsylvania Legislature, and did not become law. The failure of H.B. 1824 to gain the approval of the Pennsylvania Legislature is another circumstance which supports the conclusion that Pennsylvania’s mentally retarded citizens enjoy an entitlement to those services which their condition requires.

No reported appellate decision exists in which a mentally retarded person was denied necessary services in any judicial proceeding due to funding constraints. Indeed, every court which has addressed this issue has held that Pennsylvania law mandates that each mentally retarded individual is entitled to those services which his condition requires. See, cases cited supra.

Further, DPW has recognized an entitlement to services on the part of mentally retarded citizens. After the Pennsylvania Supreme Court decided Schmidt, DPW sought reargument before that Court. In DPW’s Petition for Reargument, the Department stated unequivocally that the Schmidt holding had created an entitlement to services:

The Court’s reliance on §201(1) of the MH/MR Act, 50 P.S. §4201(1) to establish an unqualified right to services is erroneous in that. . .no unconditional right to services--irrespective of funding--can or does exist under the Act. Thus, the Court erred in finding a limitless duty on either the Commonwealth or the County.

Petition for Reargument of Department of Public Welfare at 5-6 (emphasis supplied). The Pennsylvania Supreme Court was unmoved by the Department’s claim that this “unqualified” and “unconditional right to services irrespective of funding” which places a ”limitless duty” on the Department was an improper interpretation of the Mental Retardation/Mental Health Act, as the Supreme Court denied DPW’s Petition for Reargument. Moreover, in DPW’s Petition for Allowance of Appeal in Sauers, DPW stated in unmistakable terms that Sauers created an entitlement to services:

In the instant case, Commonwealth Court has held, in effect, that there is a right to the least restrictive alternative which could be created, irrespective of the availability of funds. (Emphasis in original petition of DPW).

The Pennsylvania Supreme Court agreed to hear the Sauers case, and the matter was briefed before that Court*. In DPW’s brief to the Pennsylvania Supreme Court, the Department again clearly and unequivocally stated that the Commonwealth Court’s decision had created an entitlement to services:

Orders such as that under review here are clearly issued without the necessary concern for the availability of resources. They embrace a view that the obligations under the MH/MR Act are without limit.

Brief of DPW in In re April Sauers, at 20-21.

The federal courts have also explicitly recognized the obligatory nature of the state/county obligations under the Mental Retardation/Mental Health Act. In Halderman v. Pennhurst, the Court discussed the mandatory obligations of the state and county to provide and fund appropriate mental retardation services under the Act:

The Schmidt court made clear that the Pennsylvania law imposed the obligation on both levels of government to provide habilitation in the environment providing the least restriction of personal liberty consistent with habilitation. Insofar as financial burdens are concerned, it merely referred to Sections 508 and 509 of the MH/MR Act of 1966, which impose funding duties on both levels of government, and which provide mechanisms for the allocation of appropriated funds among the counties. 429 A.2d at 633. The Commonwealth was ordered to find a placement for Schmidt in an institution with a staff-patient ratio suitable to his needs. There is no suggestion in the Schmidt opinion that this order would be qualified by the necessity for appropriations. Obviously the Schmidt Court anticipated that the adjustment mechanisms of Sections 508 and 509 would be operated in good faith. Nothing in the record which is before us on this appeal suggests that those mechanisms will be dismantled, will be operated other than in good faith, or are inhibited by the provisions of the judgement. On the record we, like the Supreme Court of Pennsylvania, must assume that the Pennsylvania legislature intends compliance with its statutes.

Halderman, 673 F.2d at 654-656 (emphasis supplied).

Consequently, the entitlement of mentally retarded persons to receive necessary residential treatment, and the obligation of local MH/MR administrations and DPW to provide and finance such appropriate treatment for the mentally retarded persons are clearly established in the statutory and decisional law.

V. Proposal to Improve Transition Services for Persons with Autism and for All Children with Disabilities

The difficulty in transitioning individuals with Autism from school age to post-school programming is particularly acute and represents one of the most serious challenges which families face. Unfortunately, because transition planning is rarely extensive in Pennsylvania, and typically involves merely providing links to agencies such as MH/MR and the Office of Vocation Rehabilitation, transition planning seldom involves intensive assessment, instruction, and services.

After the child reaches the age of 21, families are frequently denied services within the Mental Health/Mental Retardation system. While many individuals with Autism should qualify for services within the MH/MR system because of their limited social skills and adaptive behaviors, county agencies often assert a lack of funding and/or a lack of responsibility to program for individuals within the Autism spectrum. Because no user-friendly dispute resolution system exists in the MH/MR program to challenge decisions made by county agencies, the determinations of county agencies are usually effectively final. Families are thus left with one manifestly inappropriate option--commitment proceedings.

In order to address these deficiencies, the author proposes that the state Department of Education should conduct intensive monitoring of school district transition programs by reviewing randomly selected IEPs of students age 16 or over in specific school districts, so that each school district has such a review at least every five years.

The current compliance monitoring by the Pennsylvania Department of Education uses the following questions (to be answered “yes” or “no”) with regard to transition planning in IEPs:

Transition Planning

The following information is included:

121. Evidence of age-appropriate transition assessment(s).

122. Measurable post secondary goals (outcomes) for education or training and employment, and, as needed, independent living.

122a. Location, Frequency, Projected Beginning Date, Anticipated Duration, and Agency Responsible for Activity/Service identified.

123. Transition activity/services (including courses of study) that focus on improving academic and functional achievement of the child to facilitate their movement from school to post school.

124. Measurable annual goals that will reasonably enable the child to meet the desired post- school goals.

125. For transition services that are likely to be provided or paid for by other agencies, evidence that representatives of the agency(ies) were invited to attend the IEP meeting.

While these compliance monitoring questions provide a minimally adequate basis for evaluating IEPs on the issue of transition, it is respectfully submitted that greater emphasis upon issues such as measurable goals for transition services, the use of specific assessments to identify transition needs, and the utilization of research-based instruction for transition programming should become more integral parts of PDE’s evaluative processes.

In order to address the gaps in transition planning for individuals with disabilities in general, and for adults with Autism in particular, remedial legislation appears necessary. This legislation should involve a clear, independent, fair and user-friendly system by which parents can contest the determinations of county administrators concerning eligibility and entitlement to services. This fact finding/adjudicative process could be modeled after the special education due process system which presently exists, and has been successfully utilized for over 30 years under federal and state laws related to special education. See 20 U.S.C. Section 1415; 34 C.F.R. Sections 300.500 to 300.520; 22 Pa. Code Section 14.162.

Conclusion.

Transition services for children with disabilities are in a state of legal and programmatic evolution. When considered in concert with Pennsylvania’s entitlement through the MH/MR system, it is clear that a more structured and transparent system to allow access to services for persons with Autism is required. Although many fundamental protections already exist through IDEA’s emphasis upon transition services and Pennsylvania’s judicial interpretations of an entitlement to MH/MR services, it is also clear that legislative initiatives to buttress transition planning and to obtain meaningful oversight of school districts’ efforts in this field are necessary. This paper has presented meaningful solutions to these current gaps, and Pennsylvania state government is encouraged to consider remedial proposals in these areas.

If you would like to receive an electronic copy or more information regarding this article, please visit our website at http://www.mcandrewslaw.com/ or call (610) 648-9300.

*DPW’s filings in the Supreme Court in Schmidt and Sauers are, of course, matters of public record.

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