High court ruling leaves educational support in question

By SRUTHI GOPALAKRISHNAN

Monitor staff

Published: 11-25-2023 5:00 PM

In a disappointment to disability rights advocates, the state Supreme Court vacated a ruling that gave a Gilford student access to previously denied home services when she was under the age of 21 and in school.

The court considered an appeal from the New Hampshire Department of Health and Human Services and ruled the issue was no longer relevant because Janessa Verrill, a developmentally disabled individual, is now over the age of 21 and is eligible for the services she sought.

Janessa, a high school student with a disability in the Gilford school district, sued the state in 2020. Janessa’s guardian, Lisa Verrill, challenged the withholding of home-based services when Janessa was still in school.

In October 2021, Judge John Kissinger granted the Gilford student declaratory judgment and attorney’s fees for violations of state law and the state appealed.

“We are disappointed that the Supreme Court did not affirm the trial court’s ruling granting injunctive relief for these young adults and thereby allowing them to continue their education while receiving home and community-based services, although the Supreme Court did affirm the award of attorney’s fees,” said Stephanie Patrick, executive director of Disability Rights Center – NH. “These individuals should not be forced to decide between these services and continuing their education.”

Under New Hampshire law, citizens with developmental and intellectual disabilities, like those with autism, are eligible for support services and placement options like community-based homes, specialized foster homes or group homes.

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However, a policy adopted by the Department of Health and Human Services mandates that while a student is receiving special education from a school district, they are ineligible to receive home and community-based services, which was the nature of the legal dispute.

Because the Supreme Court ruled the case moot “due to circumstances unattributable to any of the parties,” the justices avoided ruling on the issue of whether Janessa was entitled to the services or not.

“The court just kicked the can down the road to be litigated by someone in the future,” said Gerald Zelin, an education attorney who filed a friend-of-the-court brief on behalf of participating New Hampshire school districts. “It did not rule whether the policy is good or bad. The court just ducked the issue.”

For students with developmental disabilities, special education offers support within the school environment. But, the policy leaves them without some services essential for navigating life beyond school, forcing them to make a choice between educational services and critical support for their disabilities, Zelin said.

Many parents find themselves physically exhausted after caring for a developmentally disabled child into early adulthood.

“The child is physically larger and the parents may be unable to work with the child and might have real behavioral challenges and that’s where the state should have been stepping in to offer an adult residential placement in a specialized foster home or group home,” explained Zelin.

Since the filing of this case, the state has established a short-term pilot program to serve a limited number of young adults enrolled in schools and seeking home and community-based services.