One of the worst fears faced by some parents with disabilities is that their children may be taken away by government authorities just because of perceptions about their disability. Historically, it’s been a fear well worth weighing. A 2012 report by the National Council on Disability highlighted just how real the threat of child and protective services is for parents with disabilities. As recently as January, a Florida woman filed a complaint with a district court alleging that the state was discriminating against her based on her disability.
As reported by The Boston Globe, with the Department of Justice publicizing what it is calling a "landmark" decision, it is hoped by some that parents with disabilities in Massachusetts can sleep a little easier.
The November 18 agreement between the Department of Justice (DOJ) and the Massachusetts Department of Children and Families (DCF) centers around an investigation that concluded in 2015. That investigation (PDF), the results of which are public, found that the DCF had unjustly removed Sara Gordon’s child from the care of herself and her parents in 2012 on the basis that she had what is called in the documents a "mild intellectual disability."
Last month’s agreement states that the DOJ then "substantiated the allegations in numerous additional complaints from parents with physical, hearing, developmental, and other disabilities alleging that DCF failed to provide them with needed reasonable modifications, effective communication, and an equal opportunity to benefit from DCF’s programs and services."
The agreement stops short of declaring the Massachusetts DCF in violation of the Americans with Disabilities Act or Section 504, the latter being the federal law that prohibits discrimination based on ability when it comes programs that receive federal funding. The agreement does require the DCF to make communication with parents with disabilities accessible, provide grievance procedures to those affected by the department’s decisions, and "make reasonable modifications in policies, practices, and procedures when the modifications are necessary to avoid discrimination on the basis of disability." The agreement does allow the DCF to avoid this requirement should making an accessibility decision cause "undue hardship" for the department, but makes clear that the DCF cannot offload that cost onto those it provides services to.
The agreement also lays out definitive next steps for the department. Including, a three-month deadline to fill a state disability coordinator position and select a disability resource liaison for each of the department’s regional offices. These staff will be responsible for ensuring the Massachusetts DCF is in compliance with the ADA and section 504, but will also be tasked with giving guidance on accessibility best practices. This must be done within the next two months for the DCF to be in compliance with the agreement.
Within the next three months the Massachusetts DCF is required to revise their policies to "remove the mere fact of such disability, impairment, condition, intelligence measure, or diagnosis as a basis for removal of custody (legal, physical, or otherwise) and to reflect the requirements under the ADA and Section 504 that individuals with disabilities must be treated on a case-by-case basis consistent with facts and objective evidence, and may not be treated on the basis of generalizations or stereotypes." They are also required to distribute these new policies to all staff and contractors.
The Department of Justice has also mandated some longer-term provisions. Within eight months, the DCF has to provide the DOJ with a draft of a parents with disabilities policy. The Justice Department then has three months to work collaboratively to give comments and suggestions before implementation. Once that policy has been completed, the DCF has two months to distribute a plain language version of the policy and must provide proof to the DOJ that this has been developed and distributed. This is over and above the two hours of training that is now mandated for relevant staff on ADA and Section 504 compliance.
Finally, the agreement lays out the complaints and grievance procedures, along with the reporting that must happen to the DOJ in the case of an ADA-related complaint. In exchange for the signing of the agreement, there will be no further institution of litigation when it comes to the complaints that triggered the investigation and subsequent findings. The agreement will cease to exist in three years, or earlier if all relevant clauses have been met.
In a press release announcing the agreement, Assistant Attorney General Eric Dreiband said, "Individuals with disabilities have just as much a right to raise their children as any other person in this free country, and no government should unnecessarily infringe upon that sacred right. While child welfare agencies are faced with challenging and weighty decisions on a daily basis, they must always strive to ensure that no child is removed from a parent on the basis of unsupported stereotypes, discriminatory attitudes, or other unlawful reasons." No representative of the Massachusetts Department of Children and Families was quoted in the release.