M.K. ex rel. Mrs. K. v. Sergi.

___ F. Supp. 3d ___ (D. Conn. 2008) No. 3:96cv00482 (WIG)

United States District Court

May 12, 2008

In a case raising important disability discrimination issues, the United States District Court in Connecticut granted summary judgment in favor of the Commissioner of the State Department of Education, the Department of Children and Families, the town of Putnam Board of Education, and other individuals sued in their official capacity. The case was brought by parents of a psychiatrically disabled teenager against the Commissioner of the State Department of Education and others alleging violations of the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), and their due process rights. The parents sought enforcement of a due process ruling in their favor in which DCF was joined as a party over objections to the Due Process hearing officer’s jurisdiction. Specifically, the parents alleged that DCF’s policy of placing time limits on certain home based services in comparison to institutional services was a violation of the Supreme Court’s seminal holding in Olmstead v. L.C. 527 U.S. 581 (1999).

M.K. was initially entered into the “protective” services program of DCF after the agency sought court ordered intervention due to abuse and neglect. Protective services are mandatory in the sense that the parent must accept the DCF’s services. After providing a number of services to M.K., DCF terminated all services to him other than mentoring. M.K.’s mother requested an in-patient evaluation and M.K was admitted to a psychiatric hospital for seven months and then transferred to a residential school. After finally returning home, DCF again discontinued all services. As a result of a number of violent incidents at home which caused police involvement, DCF admitted him again as a protective services case. DCF then requested that the parents sign papers shifting M.K. to the voluntary services project instead of through its protective services program. DCF claimed that the shift to voluntary services would allow them to provide services to M.K. without any allegation of neglect or abuse. Unlike protective services, the voluntary program requires cooperation of the parents and may not be imposed without parental acceptance.

The court initially rejected M.K.’s claim that the district court did not have subject matter jurisdiction over the case. M.K. claimed that the case was barred by the failure of DCF to “exhaust all administrative remedies” in the previous due process case. He claimed that the DCF was required to present evidence as to whether it provided services which impacted the child’s ability to receive a FAPE before it could contest jurisdiction. The court found that such a theory would present a “catch-22” to DCF, either present such evidence at the hearing or surrender any jurisdictional objection. Thus, the court noted that there existed an exception to the exhaustion of administrative remedies requirement, where such exhaustion would be futile. Because DCF attended the hearing to contest jurisdiction, requiring exhaustion of remedies would mean requiring the DCF to subject itself to the process it was currently challenging.

The court went on to add that there was no claim preclusion either because the exercise of jurisdiction over DCF by the officer was improper in the first place. IDEA claims against DCF were only proper when DCF was acting as a local educational authority (“LEA”, which was only the case while M.K. was residing at the hospital. Because those times were not at issue in the case the IDEA claims against the DCF were improper.

Mrs. K alleged more seriously that DCF’s placing of time limits on voluntary services in comparison to the unlimited resources provided to “protective” services violated the ADA’s prohibition on discrimination. Such differential treatment she argued discriminated against people based on the severity of their handicap. The court however rejected this argument as well her dependence on the Supreme Court case of Olmstead.

The court noted that Olmstead specifically held that the ADA did not impose a “standard of care” nor a certain level of benefits. Rather, Olmstead stands for the proposition that with the services the state does provide it may not discriminate. It does not require that the state provide opportunities for the individual to stay out of an institution. The court noted that ADA has a comparative component meaning that in order for there to be a violation of the ADA the person must have been treated differently because of his disability. Here the court found that the mother was merely challenging the adequacy of the provision and not alleging discrimination. Moreover, the court noted that Mrs. K had failed to even show that M.K. was receiving any less services from the voluntary program as he would from the protective services program. The court agreed with DCF’s characterization of the voluntary program as essentially providing equivalent services and in no way fundamentally unequal to the protective services program.

As a result, summary judgment was granted in favor of the defendants.

Jeremy Clin, CCA Legal Intern (6/08).

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