U.S.

Department of Justice
Civil Rights Division

Assistant Attorney General

950 Pennsylvania Ave, NW - RFK
Washington, DC 20530

October 12, 2022

VIA ELECTRONIC MAIL AND FEDEX

Jonathan S. Schlenker
Deputy Attorney Counsel
Alabama Department of Human Resources
50 North Ripley Street
P.O. Box 304000
Montgomery, AL 36130
[email protected]

Jason Swann
General Counsel
Alabama State Department of Education
50 North Ripley Street
P.O. Box 302101
Montgomery, AL 36104
[email protected]

Re: Investigation Under Title II of the Americans with Disabilities Act with respect to Public
School Children with Emotional and Behavioral Disabilities in the Foster Care System in
Alabama, D.J. No. 169-1-127

Dear Mr. Schlenker and Mr. Swann:

We write to report the findings of the United States Department of Justice (the
“Department”) based on our investigation of the State of Alabama, including the Alabama
Department of Human Resources (“DHR”) and the Alabama State Department of Education
(“ALSDE”) (collectively, the “State”), for alleged violations of Title II of the Americans with
Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. §§ 12131 et seq., and its implementing
regulation, 28 C.F.R. pt. 35.1

1
The United States is authorized to investigate the allegations in this matter and to file a civil action in federal court
if the Attorney General finds a violation of the ADA has occurred. 42 U.S.C. § 12133; 28 C.F.R. pt. 35, subpart F.
 Based on our investigation, we conclude that the State, through its statewide system for
delivering educational and therapeutic services, discriminates against students with emotional
and behavioral disabilities in the foster care system who have been enrolled in Specialized
Treatment Centers (“STCs”) on the campuses of Alabama’s psychiatric residential treatment
facilities (“PRTFs”). While some Alabama agencies refer to STCs as ‘on-site schools,’ they
differ in numerous and substantial ways from a general education school, including in their
physical attributes, the multi-grade composition of the classes, their heavy reliance on online
programs in classrooms without certified staff, and an overall and profound lack of resources.
Many STCs also lack grade-appropriate curricula; provide insufficient instructional services and
supports, including through their use of shortened school days; and are often unable to provide
students with access to facilities that are common in general education settings, such as libraries,
gyms, and science labs, or opportunities to participate in sports and extracurricular activities.
The vast majority of students enrolled in STCs while receiving residential care are unnecessarily
segregated and could be served in general education schools given appropriate services and
supports. In many cases, these students could be successful in general education settings even
without additional services or supports other than transportation.

This Letter constitutes notice of our findings of fact and conclusions of law pertaining to
the above violations of Title II of the ADA. We also describe the minimum steps the State must
take to bring its programs, services, and activities into compliance with, and to remedy past
violations of, Title II of the ADA, including by improving the State’s policies, practices, and
procedures. See 28 C.F.R. pt. 35, subpart F. This Letter addresses only those steps necessary to
comply with Title II of the ADA relating to (1) the inappropriate educational segregation of
students with disabilities in foster care who could be appropriately served in general education
settings and (2) the State’s failure to provide those students with equal educational opportunities
compared to students in general education settings. It does not address or obviate the State’s
obligation to comply with Title II of the ADA in all other respects or with any other federal
statute.

We would like to acknowledge the assistance and cooperation of the State’s counsel and
officials throughout our investigation. We hope to continue our collaborative and productive
relationship as we resolve the violations described below.

I. FACTUAL BACKGROUND
“We’re given the same work even though we’re in different grades.”
“I had help in school before I was in facilities. I am not getting enough help now.”
“I know it ain’t real school.”

- Statements made by students in Alabama’s PRTFs

about their educational experiences at STCs2

Alabama is charged with providing care for children in Alabama’s foster care system.
Ala. Admin. Code 660-5-28-.03. Alabama’s DHR divides the responsibilities for providing child
welfare services among a number of Deputy Commissioners overseeing various components,
2
Alabama Disabilities Advocacy Program July 2020 Report, app. 1, pp. 1, 5-6
(https://adap.ua.edu/uploads/5/7/8/9/57892141/sequel_attachments__a_b_and_c__r_.pdf).

2
such as Children and Family Services, Family Resources, and Quality/Resource Management,
many of which touch upon care for children in foster care. DHR, through these entities and the
field offices it oversees, authorizes every placement decision, making the State responsible for
the choice to place into PRTFs certain children with disabilities in the foster care system. DHR
also develops principles, regulations, and procedures regarding the minimum standards for
residential care provided to children in foster care, including the children’s care, treatment, and
education, and is responsible for the licensing and oversight of these facilities.3 The State also
requires that educational records be updated and transferred to foster care providers at the time of
each placement of a child in foster care. See Ala. Admin. Code 660-5-28-.03, .07(2).

Although the number of facilities serving children in DHR’s custody has varied, as of
January 2022, DHR placed children into thirteen PRTFs, all of which have STCs. Between
August 1, 2019 and July 31, 2020, DHR placed 909 unique children in foster care in PRTFs for
at least part of the year. Alabama places students in congregate care settings that provide basic,
moderate, and/or intensive residential care depending on the child’s needs. See DHR Out of
Home Care Policies and Procedures, Placement of Children, Rev. No. 19 at 28 (2014) (“DHR
Out of Home Care Policies and Procedures”), https://dhr.alabama.gov/wp-
content/uploads/2021/05/OHC-02-Placement-of-Children_8-9-21.pdf. The Department’s
investigation focused primarily on students placed in intensive PRTFs because nearly all of those
students receive educational services at STCs rather than in general education settings.
However, the findings and remedial measures in this letter extend to students in PRTFs at other
levels of care to the extent that any of those students are also automatically enrolled in STCs
with no consideration for their ability to be educated in more integrated settings.

The State, through ALSDE, is responsible for overseeing, regulating, and funding
educational services for public school students, including students in foster care. ALSDE
prescribes specific policies and procedures that local educational agencies (“LEAs”) must follow
when providing educational services to students in foster care. STCs are permitted to receive
allocations from the State’s Education Trust Fund to “provide[] treatment to students in grades
K-12.” See Ala. Admin. Code 290-8-8-.02(6).4 Before receiving funding from the Education
Trust Fund, STCs serving Alabama students must receive an ALSDE Educational Endorsement
of Operation, which confirms that the facility “has met requirements” necessary to receive the
funds. Ala. Admin. Code 290-8-8-.01, -.02. STCs must annually certify their compliance with
all State and Federal laws pertaining to special education students and ALSDE requirements
regarding staff qualifications and curriculum. Ala. Admin. Code 290-8-8-.04.

3
https://dhr.alabama.gov/wp-content/uploads/2020/09/REVISED-MINIMUM-STANDARDS-FOR-
RESIDENTIAL-CHILD-CARE-FACILITIES-AUGUST-27-2019.pdf. The State’s Department of Mental Health
and Department of Youth Services also play a role in licensing some facilities, but the focus of our investigation has
been on the STCs located on the campuses of PRTFs into which DHR places children in foster care.
4
Except where otherwise noted, the citations to Ala. Admin. Code 290-8-8 in this Letter are to the version in effect
throughout most of our Title II investigation. The regulation was amended in November 2021, and those changes
took effect in January 2022. The revised code defines STCs as “state-endorsed centers [that] receive[]
appropriations from the Education Trust Fund to provide educational services to students in grades P-12.” Ala.
Admin. Code 290-8-8-.02(6).

3
 The State has been aware for some time of its failure to provide equal educational
opportunities to students in STCs. During an ALSDE work session5 held on April 11, 2019,
former Deputy State Superintendent of Education, Dr. Daniel Boyd, acknowledged that ALSDE
has had no way of knowing whether STCs “are doing good work with these students,” or even
whether STCs are providing “adequate materials” for the students. Dr. Boyd stated that the
shortcomings needed to be “fixed,” specifically recognizing issues relating to (1) poor record-
keeping and assessment procedures; (2) meeting students’ needs; (3) the STCs’ ability to
properly identify each student’s disability; (4) the failure to conduct entry and exit assessments;
(5) the failure to track students with unique identifiers to allow accurate educational records
transfers; and (6) ALSDE’s lack of knowledge about whether teachers at these facilities have the
proper credentials and certifications. In January 2022 the State enacted limited changes to the
State regulations. The Department is aware of no other official actions taken by the State during
our investigation to address these recognized shortcomings.

A July 2020 monitoring report by the Alabama Protection and Advocacy (“P&A”)
organization, Alabama Disabilities Advocacy Program (“ADAP”) (“the July 2020 ADAP
Report”)6 about children with disabilities in four Alabama PRTFs operated by Sequel Youth &
Family Services (“Sequel”) offers further context about the use of PRTFs and the educational
services provided there. The July 2020 ADAP Report was published following an investigation
that included site visits to the facilities and interviews with children residing in the facilities.
Among other things, ADAP reported concerns about the quality of the educational services at the
PRTFs, including student reports that “they receive limited direct instruction and are provided
worksheets that are not on grade level” even apart from the “common occurrence” of there being
no teacher available.7

In response to the July 2020 ADAP Report, DHR Commissioner Nancy Buckner
indicated that an investigation was then taking place.8 Subsequent news reports citing DHR’s
spokesperson and Sequel’s compliance director do not identify any changes with respect to the
educational services offered at the facilities, and the State continues to place children who are in
the foster care system into Sequel facilities.9 The Department’s interviews with ALSDE
personnel revealed that the agency was unaware of any children being removed from the
facilities or of educational endorsements being revoked as a result of these concerns.10

II. LEGAL BACKGROUND

Congress enacted the ADA in 1990 “to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C.
5
The Alabama State Board of Education’s public meetings and work sessions are made available at
https://www.alabamaachieves.org/state-board-of-education/meeting-agendas/. The archived agendas and videos of
the sessions no longer include sessions from 2019.
6
https://www.childrensrights.org/wp-content/uploads/2020/07/Sequel-Attachments-A-B-and-C.pdf.
7
Id. at 8.
8
See https://www.waff.com/2020/07/20/ala-dhr-responds-report-safety-issues-abuse-child-treatment-facility/.
9
See https://www.nbcnews.com/news/us-news/profitable-death-trap-sequel-youth-facilities-raked-millions-while-
accused-n1251319; https://www.alabamaachieves.org/state-board-of-education/meeting-agendas/.
10
See also 2021 National Disability Rights Network report titled “Desperation without Dignity: Conditions of
Children Placed in For Profit Residential Facilities.”

4
§ 12101(b)(1). In so doing, Congress found that the forms of discrimination encountered by
individuals with disabilities include “overprotective rules and policies” and “exclusionary
qualification standards and criteria.” Id. § 12101(a)(5). Congress further determined that
“discrimination against individuals with disabilities persists in such critical areas as . . .
education.” Id. § 12101(a)(3). For these and other reasons, Congress enacted Title II of the
ADA, which prohibits discrimination against individuals with disabilities by public entities:

[N]o qualified individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such
entity.

Id. § 12132.

Title II’s prohibition against discrimination against people with disabilities in the
provision of services by a public entity applies to the State of Alabama and its departments,
agencies, or other instrumentalities. See 42 U.S.C. § 12131; 28 C.F.R. § 35.104. Pursuant to
Congressional directive, 42 U.S.C. § 12134(a), the Department has issued a regulation for Title
II of the ADA, which reflects the statute’s broad nondiscrimination mandate. See 28 C.F.R
§ 35.130(a). The Title II regulation mandates that public entities “administer services, programs,
and activities in the most integrated setting appropriate to the needs of qualified individuals with
disabilities.” 28 C.F.R. § 35.130(d).

The Supreme Court addressed Title II’s integration mandate in Olmstead v. L.C., 527
U.S. 581 (1999). The Court held that a State discriminates against individuals with disabilities
under Title II of the ADA when it fails to offer community-based services where (a) such
services are appropriate; (b) the affected persons do not oppose community-based treatment;
and (c) community-based services can be reasonably accommodated, taking into account the
resources available to the entity and the needs of others who are receiving disability services
from the entity. Id. at 607. In Olmstead, the Supreme Court recognized that unjustified
segregation of persons with disabilities “perpetuate[d] unwarranted assumptions that persons so
isolated are incapable or unworthy of participating in community life.” Id. at 600. The Court
further held that such segregation “severely diminishes the everyday life activities of individuals,
including family relations, social contacts, work options, economic independence, educational
advancement, and cultural enrichment.” Id. at 601. The children with disabilities who are the
focus of this investigation have been denied educational opportunities in an integrated setting on
the basis of their disabilities, even though they could have been reasonably accommodated in,
and did not oppose enrollment in, general education settings.

Like the plaintiffs in Olmstead, students with disabilities who have been inappropriately
segregated from their peers without disabilities also face tremendous ongoing harms, like stigma
and denial of essential opportunities to learn and to develop skills that enable them to effectively
engage with their peers. Those skills in turn prepare them to participate in mainstream society as
they mature into adulthood. The injuries from segregation are exacerbated when, as in the STCs,
educational services are unequal to, and less effective than, the services provided to students
without disabilities. In J.S. v. Hous. Cnty. Bd. of Educ., 877 F.3d 979, 986 (11th Cir. 2017), the
Eleventh Circuit acknowledged the applicability of Olmstead to unjustified segregation in public

5
education, even for part of the day. See also K.M. v. Hyde Park Central Sch. Dist., 381 F. Supp.
2d 343, 360 (S.D.N.Y. 2005) (citing Olmstead, 527 U.S. at 600–01).11

III. INVESTIGATION

In 2019, the Department opened this investigation in response to a complaint alleging that
the State, among other things, was improperly assigning a large number of children in the State’s
foster care system to STCs with substandard educational services and facilities, as a consequence
of the children’s placement in institutional settings. We requested data and other information
from ALSDE, DHR, and numerous residential facilities; gathered publicly available information;
and sought information from other relevant stakeholders regarding the educational and
therapeutic services provided to students placed in Alabama residential facilities. The
Department retained experts who specialize in educational and/or therapeutic services for
students with disabilities to assist with the review of the individual student records produced.
After reviewing documents from providers across the state as well as a large volume from
ALSDE and DHR, in the fall of 2021 we conducted site visits of several STCs located on the
campuses of PRTFs which offered intensive levels of care, some of which also offered moderate
levels of care.12 The site visits included tours of the facilities, interviews with facility personnel,
and interviews with students. We conducted additional interviews, including with personnel
from DHR and ALSDE tasked with oversight of the educational placements of and services for
students in foster care. Several teachers who we interviewed had prior experience teaching in
Alabama general education schools. The Department and our consulting experts carefully
reviewed and analyzed all of this information.

IV. FINDINGS

Our investigation revealed that, for students with emotional and behavioral disabilities in
DHR’s custody who are enrolled in STCs (and students who are at risk of such assignment), the
State fails to provide educational and therapeutic services in the most integrated setting
appropriate to their needs.13 We further found that the segregated STCs provide unequal
educational opportunities to students compared to the services provided in general education
settings. In order to prevent and remedy discrimination against such students with disabilities in
foster care, the State of Alabama must make reasonable modifications to its existing service

11
Title II further prohibits public entities from aiding or perpetuating the discrimination of other entities by
providing significant assistance to them, 28 C.F.R. § 35.130(b)(1)(v), and from utilizing criteria or methods of
administration that have the effect of discriminating against students with disabilities (or that perpetuate the
discrimination of another public entity, if both public entities are subject to common administrative control or are
agencies of the same State). 28 C.F.R § 35.130(b)(3). In addition, such entities must make reasonable
modifications to policies, practices, or procedures when necessary to avoid discrimination, unless the public entity
can demonstrate that doing so would fundamentally alter the nature of the service, program, or activity. 28 C.F.R.
§ 35.130(b)(7).
12
The Department largely participated virtually, but a Department representative was physically present for two of
the facility visits.
13
Alabama public schools offer school-based mental health services, and such services, which are frequently
included in students’ Individualized Educational Programs, would be sufficient to meet the needs of a number of
students enrolled in STCs.

6
delivery systems, which will not require any fundamental alterations to the State’s programs or
result in any undue burden or expense for the State. See Olmstead, 527 U.S. at 606 & n.16.

A. The State Fails to Serve Students with Disabilities in the Foster Care System
Enrolled in STCs in the Most Integrated Setting Appropriate to their Needs.

For many students with disabilities who are in its care, the State fails to adequately
consider educational assignments to the most integrated settings appropriate to their needs,
defaulting instead to assignments to highly segregated STCs often for extended periods of time.14
The Department’s experts concluded that many of the students in STCs could receive
educational and therapeutic services in general education schools with the appropriate services
and supports. Moreover, even for those students who may need to receive educational services
in STCs for a brief period of time, the State denies those students opportunities to receive
appropriate, evidence-based educational services. In some instances, these students are also
subjected to inappropriate and potentially dangerous restraints and seclusions, which can
contribute to the inequality of the students’ educational experiences.

1. The students served in the STCs on the campuses of PRTFs are students with
disabilities.

To be admitted to the State’s PRTFs and, by extension, the PRTFs’ on-site schools, all
students must have a disability diagnosis. In addition, the intensive PRTFs we examined had
explicit eligibility provisions requiring that children meet certain diagnostic criteria in order to be
placed in the facility. See, e.g., Ala. Admin. Code 560-X-41-.01, -.02, -.09, -.13; 42 C.F.R.
§ 482.62. We reviewed facility policies and interviewed facility personnel who confirmed that
children at those facilities must have a diagnosed disability as a criterion for admission, with
certain other factors serving as bases for exclusion (e.g., active suicidal ideation or certain
cognitive impairments). Because STCs are the on-site schools for students in these PRTF
placements, the eligibility criteria to attend the STCs are the same.

In addition, many of the children who were observed and interviewed by our experts have
likely experienced physiological effects from trauma that manifest as impairments under the
ADA. The ADA defines a person with a disability to include someone who has, is regarded as
having, or has a record of having a “physical or mental impairment that substantially limits one
or more major life activities.” 42 U.S.C. § 12102(1). Federal courts have acknowledged that the
physiological effects resulting from exposure to complex trauma could constitute a physical
impairment cognizable as a disability under the ADA or Section 504. See, e.g., Peter P. v.
Compton Unified Sch. Dist., 135 F. Supp. 3d 1098, 1109-11 (C.D. Cal. 2015); Stephen C. v.
Bureau of Indian Educ., No. CV-17-08004-PCT-SPL, 2018 WL 1871457, at *3-*4 (D. Ariz.
Mar. 29, 2018). Here, our experts note that these children have all been made wards of the State
and placed in the child welfare system, which likely stemmed from a traumatic experience (e.g.,
abuse, neglect). Further, many of these children have encountered additional traumatic

14
These placements reflect State action, as referrals for placements into the PRTFs must receive prior approval from
DHR. Ala. Admin. Code 660-5-52-.02 (also noting that DHR will adopt policies and licensure standards relating to
referral to, admission to, and discharge from placements in institutions serving children in foster care).

7
experiences after being placed in foster care, including multiple moves and placement
disruptions and the loss of connection with their families, schools, and communities.15 Exposure
to these types of adverse childhood experiences can lead to complex trauma, which unaddressed,
impairs the child’s ability to process stimuli (e.g., impairing thinking, behavior, and social skills)
and could constitute a disability under the ADA.

2. Most students in STCs are not being served in the most integrated setting
appropriate to their needs.

We found that most students with disabilities in DHR’s custody who are served in
segregated on-site schools could be served in more integrated educational settings. These
students often remain in these segregated educational environments for extended periods of time,
despite ample research showing improved academic outcomes and social benefits for students
with disabilities who are educated in inclusive settings.16 Better outcomes for students with
disabilities in integrated settings have been consistently found regardless of race, socioeconomic
background, gender, and type of disability.17 Moreover, enrolling students in segregated STCs
unnecessarily severs children’s ties to their home schools (including staff connected to their
academic lives), social activities, and peers. The severing of all of these connections makes it
more difficult for students to successfully transition back to community-based and general
education settings. Nevertheless, we found the State lacks an adequate educational assessment to
determine whether students with disabilities placed in these STCs could be appropriately served
in more integrated educational settings.

In addition, the services provided to students in STCs do not effectively meet the
complex educational needs of the children enrolled there. The Department’s experts concluded
that several policies and practices of the STCs actually hinder students’ success in reaching
individual goals to exit the program and transition back to general education settings. These
include zero tolerance policies (implemented through disciplinary systems that wipe out the
benefits earned through prior good behavior based on a single lapse) and token economy
systems.18 In some institutions, there is mandatory manual labor as a substitute for classes like
vocational education or physical education. The practices that we observed in the facilities
create obstacles to trauma resolution and normal childhood development; indeed, they often
further traumatize the children subjected to them.

15
DHR’s policies acknowledge that placement in foster care can be traumatic for a child (“Any separation of a child
from his natural family is a traumatic experience.”). DHR Out of Home Care Policies and Procedures at 1.
16
Thomas Hehir et al., Instituto Alana, A Summary of the Evidence on Inclusive Education 13 (2016), available at
https://alana.org.br/wp-content/uploads/2016/12/A_Summary_of_the_evidence_on_inclusive_education.pdf.
17
See Thomas Hehir & Lauren I. Katzman, Effective Inclusive Schools: Designing Successful Schoolwide
Programs xviii (2012).
18
In many cases, our experts found that these children were being held to unrealistically high behavior standards
that require them to entirely avoid typical, age-appropriate behaviors, and when they are unable to comply with
PRTF rules, they remain placed in the facilities—and at STCs—for even longer periods of time. For instance, what
was reported as a student displaying “intense aggression” was revealed in supporting documentation to be a student
unplugging a television after having been told not to do so.

8
 a. Assignment to Segregated STC settings

Students with disabilities in DHR’s custody who have been enrolled in STCs are
receiving educational services separate from their non-disabled peers in general education
settings.19 Students enrolled in the STCs typically spend the entire school day with other
students with disabilities in the facility and are unable to attend classes off site. Consequently,
they are deprived of opportunities to interact with non-disabled peers outside of the STC.

Further magnifying the harm, students enrolled in STCs are segregated from their non-
disabled peers, teachers, and friends from their home schools for extended periods of time. For
instance, at PRTF Brewer-Porch,20 65% of students stayed at the facility for over a year, and
other facilities’ records reflected, consistent with student reports, average lengths of stay from
eight months to well over a year. Several facilities reported students who had been discharged
after stays of longer than two to four years, while one facility’s records indicate that a student has
not yet been discharged after having already been in placement there for over five years. These
students were typically enrolled in the STCs throughout their placement at the PRTFs. The harm
of these long-term enrollments in STCs is compounded by the frequency with which children are
moved directly from one facility with an STC to another without any educational evaluation.

b. Failure to assess appropriate school enrollment

Our investigation revealed that the State fails to conduct an adequate educational
assessment to determine whether students in STCs could be appropriately served in local general
education schools. For example, when asked whether there is a state policy or procedure
requiring consideration of whether to send a child placed in a PRTF to a general education
school, the Deputy Director for Family Services at the DHR said “no.” Similarly, the State
Superintendent stated that allowing students placed at a PRTF for treatment purposes to attend a
nearby general education school would be considered a “best practice.” Yet the Superintendent
was unable to identify a policy or communication announcing to PRTFs or LEAs that such
enrollment would be a best practice, or even permissible, and personnel at the STCs themselves
were unaware of any process for assessing the appropriate school placement. The State does not
require residential treatment facilities to administer an assessment to students at the time of
placement in the PRTF to determine whether they could receive educational services in a more
integrated setting for some or all of the school day. Our investigation similarly did not reveal
any State-level process for considering whether students at STCs could attend a general
education school for even part of the school day (such as for courses not offered at the STC) or
for extracurricular activities.

19
This is particularly problematic for children served in intensive PRTFs. Our record review, observations, and
interviews revealed that the vast majority of students, and in many cases all of the students, at intensive PRTFs
received educational services in STCs.
20
Brewer-Porch Children’s Center in Tuscaloosa is one of the PRTFs reviewed in our investigation. The others
named in this letter include: Safety Net in Montgomery; Sequel Montgomery (run by the organization also operating
the other Sequel facilities covered in ADAP’s July 2020 Report); Pathway, Inc. in New Brockton; and Mountain
View Hospital in Gadsden.

9
 In practice, most students placed at intensive PRTFs are automatically enrolled in STCs.
In fact, the Memoranda of Agreement and funding formulas are premised on an assumption that
all children placed in intensive PRTFs will be enrolled in the STCs (as the education funds are
based on the bed count), and record reviews and interviews revealed that students placed in
intensive PRTFs were never or almost never enrolled in off-site schools.21 To the extent that no
statewide policy regarding a placement assessment exists, students in these facilities also are at
risk of enrollment in STCs when they could be served in more integrated educational settings.

c. Ability to be served in general education schools

Our investigation, including the review of student records provided by PRTFs, revealed
that the vast majority of students in DHR custody receiving educational services at STCs could
be served in more integrated settings. For example, one student at PRTF Pathway was on grade
level, always earned As and Bs in public school, and had never been held back. This student’s
record reflected that despite being on grade level in the 8th grade in the general education school,
at the STC the student was given 5th grade work and forced to sit through already-mastered
lessons. Many students reported during interviews they were doing well behaviorally at their
general education schools prior to being assigned to an STC.22

The students’ placements at STCs also may not be explained solely on the basis of their
diagnoses or medication needs. Most students have diagnoses or prescribed medications that do
not require around-the-clock monitoring by facility staff. Many have no history of restraint,
seclusion, or time-outs that might suggest that they need to remain on the facility grounds to
receive educational services. In fact, some student records provided by the PRTFs explicitly
state that the students could be placed in the general education setting. Even for these students
and for others who did not exhibit any disruptive behaviors during the school day, there had been
no individualized consideration of whether they could be served in a general education setting.23

We interviewed STC personnel who believed their students, if given the opportunity and
the appropriate services and supports, could be effectively served in a general education
classroom. For example, during one interview, an STC teacher began listing several students on
her classroom roster who she felt could successfully attend a general education school with the
appropriate services and supports while placed at the PRTF. Another teacher acknowledged that

21
In rare instances, we found intensive PRTFs that, based on their own initiative and discretion, developed and
implemented a process to allow some students to attend off-site schools. Brewer-Porch’s process for determining
whether some students can attend public school is based on their academic and behavioral progress at the facility.
That process, however, is facilitated directly by the facility and the LEA; there is no uniform, mandatory statewide
assessment and assignment process established by the State.
22
In fact, all but one of the many students we interviewed (about half of whom were selected by the experts and
about half selected by facility personnel) indicated that they did not oppose attending a general education school,
and several students expressed a keen desire to go back to general education classes and activities with their peers.
The one student who expressed reservations was concerned about being bullied.
23
Even when State personnel recognized that the placement decision should be individualized, their understanding
of why this did not happen seemed to be related to exaggerated ideas about the kinds of supports that would be
necessary for students at PRTFs to attend general education schools, with administrators referring to 24-hour one-
on-one nursing support or four-to-one paraprofessional assistance.

10
the success of a placement in a general education school while at the PRTF may vary by student
but, at a minimum, such placement could help them with their social skills.

3. Most students in the STCs are not receiving educational services appropriate to
their needs.

In addition to finding that nearly all of the students in the segregated STCs could have
been served in general education settings, we found that students in STCs are not receiving
services appropriate to their needs. Our investigation revealed that students’ educational records
are often not aligned or are inconsistent across agencies and departments and that the STCs lack
a structure for ensuring all appropriate staff have access to necessary educational and therapeutic
records. We also concluded that students in STCs are not receiving necessary services and
supports based on their educational and therapeutic needs. Moreover, in some instances,
students are subject to the unnecessary use of restraint and seclusion.

a. Lack of coordination regarding student records

We concluded that the State lacks an adequate system for ensuring that students’
educational records are properly distributed to relevant entities (e.g., PRTF, STC, LEA, DHR)
responsible for student progress throughout the educational system and that STC staff have
access to necessary information about students to meet their needs. The STC typically does not
coordinate with the local or home school that has control of the student’s records when creating
student behavior plans or performing functional behavioral assessments that are key to discipline
and effective student behavior management. As a result, information about a student may get
reported inaccurately or inconsistently as it is being transferred between the PRTF, DHR, STC,
and local/home school. For instance, one student with a diagnosed learning disability in one set
of student records was coded as having a different disability in other facility documents, and
there was no evidence that the student received any services in support of the learning disability.
One child’s initial education plan created by PRTF Sequel Montgomery indicated both that the
child was a “victim of child abuse” and a “child victim of physical abuse” but then checked off
that the child had no PTSD or trauma concerns. When school staff lack knowledge of a child’s
trauma history—or are provided inaccurate information about a child’s trauma history—they are
less able to communicate effectively with the child in certain situations, to teach with appropriate
methods, and to understand the potentially re-traumatizing impacts of practices like seclusion or
restraint. Several student records also reflected a mismatch between the child’s identified
disability and their special education goals, e.g., not including behavioral goals for children with
emotional and behavioral disabilities.

We also found that many of the relevant facility staff lacked access to—or did not have a
structure in place to review and use—the information necessary to meet the educational and
therapeutic needs of the students in their care. At PRTF Pathway, a staff member recalled that
facility personnel had become upset with a student with a hearing impairment because the staff
member thought the student was not listening; it turned out the staff member did not know the
student had a hearing impairment. At PRTF Sequel Montgomery, a paraprofessional who works
in the classroom as a teacher aide stated that she did not know any of the students’ disability
diagnoses or medications because she is not able to see clinical information. Many of the STC
teachers who were interviewed could not identify the academic or behavior goals their students

11
were working on or what accommodations or modifications should be made. In addition, STC
teachers generally reported that there was no structure in place for checking students’
educational records. A majority of the therapists interviewed acknowledged that most of the
youth at the facilities were students with special education needs, but they could not identify who
those students were, and they were not aware of specific goals in their special education plans,
nor were they aware of their academic progress or goals. Even many of the older students
themselves who we interviewed acknowledged that they did not know what goals, objectives,
accommodations, and modifications were listed in those plans.

b. Lack of specialized or evidence-based educational and therapeutic supports and

services

Our investigation also concluded that, even if short-term enrollments in STCs were
necessary in limited circumstances (e.g., when a student is being treated at a PRTF for an acute
emotional or behavioral crisis), the STCs failed to provide students access to specialized
educational and therapeutic services provided by qualified professionals. The STCs lack an
adequate system to evaluate educational progress or meet individual needs for educational
support. One facility’s documents reflected the fact that the special education plans created by
the last school a student attended would sometimes be revised at the STC to include only the
services already available on site, without independently considering the student’s needs.
Witnesses confirmed that the special education plans in place at the STCs did not require the
services that the students needed and that had been included in their previous public school
plans. For example, in one STC with 36 students, the only special education services provided
were through a contract with the County for 12 hours of service per week from a County special
education coordinator (for an average of 20 minutes per week per student). This underlying
failure to provide access to appropriate services deprives these students of the ability to access
the educational services that are available to students who are in general education settings.

Special education plans also contained boilerplate educational goals and progress notes.
Educational and behavioral plans were not based on psychological evaluations (which some
social workers mentioned but which were not present in the student files). Instead, the goals
listed in these plans largely addressed compliance with rules in the STC and larger facility. We
also found that when students are transferred elsewhere, there is no transition plan: the discharge
recommendation to DHR is often for the child to return to the community with coordinated,
comprehensive services, but the recommendation often lacks clear guidance regarding the
students’ educational placement and the services and supports that the child should be provided
in their next school.

Finally, we determined that the therapeutic supports and services that were being
provided at the STCs are not evidence-based or implemented in a manner likely to address the
students’ needs. At each facility reviewed, there was a lack of staff credentialed to properly
implement trauma-informed, evidence-based interventions. Although some facilities referenced
Cognitive Behavioral Therapy and Dialectical Behavioral Therapy, none of the staff appeared to
be credentialed in the practices and neither the student files nor the staff interviews reflect
training on or implementation of these supports and services.

12
 When children with trauma histories need services and are not provided appropriate
evidence-based supports to help recover from the traumatic injuries, they are more likely to
continue to engage in externalized behaviors that set them up for failure later. When PRTFs,
geared toward treating students with serious mental health and behavioral needs, fail to provide
necessary individualized therapeutic services, they set up the most vulnerable children to fail.

c. Inappropriate use of restraint and seclusion

We also found that some STCs inappropriately use restraint and seclusion as methods for
controlling student behavior in school settings rather than providing more appropriate therapeutic
support. The Department learned that STCs have a practice of assigning personnel to remove
students from the classroom when they exhibit undesirable behaviors. Based on interviews with
students and staff and the documentation produced by facilities, we found that the use of restraint
and seclusion is often a default response to basic behavior in some facilities—which can result in
students being removed and excluded from necessary educational services.

Too often, externalized behaviors are not met with de-escalation strategies or
individualized behavior responses, and are instead greeted with physical restraints and seclusion.
Children interviewed across the facilities reported witnessing or experiencing restraints, and
some went so far as to say that staff intentionally antagonize or trigger children so they can be
restrained. Further, the staff responsible for administering restraints and seclusions do not seem
to be fully aware of or have access to the behavior plans in place for the children they restrain
and seclude. Records reflect that even children with histories of severe sexual and physical
abuse have been physically restrained. These responses can traumatize and retraumatize students
in a way that can harm their ability to trust their environment and allow them to feel safe enough
to learn at school or benefit from therapy. In the process, the facilities fail to teach children how
to effectively manage their behaviors without extreme intervention, which sets them up for
failure in community-based and general education settings.

Despite the practices uncovered, there seems to be little oversight by the State regarding
restraint and seclusion. The Program Manager for the Office of Foster Care and Education
Liaison at DHR admitted that she does not know whether DHR personnel review a PRTF’s
restraint and seclusion policies and practices before placing a child at a facility.

B. The Segregated STCs Provide Unequal Educational Opportunities to Students.

Our investigation found significant, systematic deficiencies in educational services in

STCs compared to what is required and available in Alabama’s public, general education
schools.24 Some of these educational deficiencies are facially apparent in light of the lower
standards for STCs. In particular, ALSDE has failed to ensure through its policies and
procedures—and through its monitoring and oversight of existing policies and procedures—that
STCs are complying with requirements for educational services and supports comparable to
those applicable to general education schools. We identified additional deficiencies through
other means, including through interviews with teachers at STCs with experience teaching in

24
This finding reflects an independent violation of the ADA since, as noted above, students enrolled in STCs are by
definition students with disabilities. See Section A.1.

13
general education schools. The deficiencies in the instruction offered at STCs include the lack of
appropriate staffing and curricula, shortened school days, the failure of the STC to differentiate
instruction according to a given student’s needs, poor tracking of attendance, and other missing
or inadequate services. We also noted that there is almost no transition planning to increase the
chances of a student being able to successfully return to a general education school setting.

1. The quality and quantity of instruction in the STCs is not equal to that provided
in general education schools.

The STC classes consist largely of mixed-age students attending class in a shorter day
than their general education school peers and receiving little in the way of live, direct instruction.
In some cases, courses required to stay on track for high school graduation are not available, or
are only offered through an online portal for self-directed study.

We interviewed a former STC employee, who had ten years of prior experience as a
general and special education teacher in Alabama general education schools. This teacher
confirmed that the education provided in STCs was deficient in many respects relative to what is
being provided, as required, in general education schools. Specifically, she reported that, unlike
in general education schools, the STC where she worked only provided two or three hours of
class; STC students were not given differentiated instruction; most of the students’ time was
spent completing worksheets; there were no formative or summative assessments; there was no
interactive instruction or ‘hands-on’ work; and the STC did not offer electives, lab courses,
library, or field trips. She also confirmed that students’ math and literacy deficits were left
unaddressed.

a. Quality of instruction in STCs

The Department’s experts found the curriculum and instruction delivered to students at
STCs to be severely lacking, both in comparison to what the State of Alabama requires in its
general education settings and with respect to the needs of students with disabilities. In
particular, the experts’ review of student records and classroom roster information revealed that
students were not receiving grade-appropriate services. Certain basic educational services (e.g.,
grade-appropriate curricula, related academic programming) are mandated by law in Alabama’s
public schools.25 Yet, we saw several instances of students being grouped by age ranges, gender,
or housing units rather than by grade level—and not for programmatic reasons or based on the
educational needs of individual students. For instance, at one facility, students are generally
grouped in grade ranges (4-6, 7-8, 9-10, 11-12), but the facility states that students may be
moved up or down a range based on “social dynamics” to accommodate class capacity. At
another facility, due to enrollment numbers, five 12th grade students were grouped with six 9th
grade students for all classes so that one teacher could serve them within one classroom. In still
another facility, these inappropriate groupings were not even stable over time: classroom
assignments were based on a student’s residential placement, with all children in one “bay”
attending class together, though “bay” assignments were frequently changed due to interpersonal
conflicts.

25
The State of Alabama has differentiated mandatory curricula with requirements for supervision for Math, Social
Studies, and other academic programs with detailed curricula mandated by law. See Ala. Code § 16-35-4 (1975).

14
 Students at each of the facilities we visited reported that their classwork was too easy and
involved material that they had already learned. See also July 2020 ADAP Report, app. 1, pp. 5-
6 (Resident 2 stated, “We’re given the same work even though we’re in different grades.”;
Resident 9 stated, “Everyone works on the same exact worksheet. We get the same lessons
every year.”; Resident 15 stated, “There are 6-7 grades in one class.”).

As further evidence of the lack of individualized instruction, our experts noted a heavy
reliance on digital courseware in the instruction offered in STCs, consisting of students working
through self-paced computer curricula in a classroom facilitated by a paraprofessional or a
teacher who is not required to be appropriately certified.26 Even though general education
schools offer online instruction in some circumstances, it is unlikely that self-directed learning
through computer programs could meet the needs of all students with disabilities at STCs in the
absence of instructional facilitation by a teacher certified in the content area.27 We saw no
evidence to suggest that STCs are satisfying State requirements to ensure that students’ special
education needs are being met through online instruction.28

Some instructional offerings in general education schools, including those required for
graduation, are not available in STCs except through an online portal, which, according to our
expert, is not an appropriate substitute for instruction provided by a certified teacher. See
http://media.al.com/news_impact/other/AHSG%20requirements%20clarified%20-
Mar%2029%202016%20(002).pdf; Ala. Admin. Code 290-3-1-.02(8)(a) (requirements to
graduate from Alabama schools). Most of the STCs we visited also do not offer career or
vocational/technical education, and one facility that claims that it provides vocational training in
fact simply assigned the students to perform manual labor without any curriculum or possibility
of earning a vocational certificate. No STC claimed to offer a Gifted and Talented Program or
Language Education Services. At the high school level, many students are placed on a GED
track instead of a diploma track.

b. Number of instructional hours in STCs

Alabama law requires that LEAs establish a school year with a minimum of 1,080 hours
of instruction, or six hours for each of 180 days. Ala. Code § 16-13-231(b)(1)c.1. The school
schedules provided by STCs during the investigation reflect a range of instruction time from two

26
Cf. Alabama Connecting Classrooms, Educators, & Students Statewide (“ACCESS”) Virtual Learning, Policy
manual for teachers (2016), https://accessdl.state.al.us/sites/default/files/documents/POLICY-TEACHERS-
2016.pdf. The State’s Policy Manual for Teachers using the ACCESS virtual learning system reflects a number of
requirements for the educationally sound administration of online learning including teacher certification in and
experience teaching the relevant content area; teacher and facilitator professional development relating to online
course delivery; and appropriate supervision of a classroom facilitator.
27
Our expert emphasized that using in-person instruction optimizes time on task, provides more content coverage,
gives students opportunities to learn in varied groupings, and allows them to experience higher levels of success
than only working independently online. See also July 2020 ADAP Report, app. 1, p. 6 (Resident 12 stated, “There
are no computers for us to use because kids keep going on porn sites and downloading music;” Resident 8 stated,
“We’re not allowed to use computers now because kids were watching porn.”).
28
The ACCESS Manual sets forth a number of requirements that must be satisfied in order to ensure that online
instruction could meet the needs of students with disabilities, starting with “a review of the educational needs of the
student” taking into account the special needs identified in student files. Id. at 8.

15
and a half to six hours per school day, but the number of instructional hours was routinely less
than that listed on the schedule.29 The Program Manager for the Office of Foster Care and
Education Liaison at DHR admitted that she did not know whether STCs provide the same
number of school hours as general education schools. The Deputy Commissioner of Quality and
Interim Director of Resource Management at DHR admitted during her interview that they had
“all assumed” that students at STCs were receiving a full school day and they were “floored” to
learn through this investigation that this was not the case.

Even within the hours scheduled as part of a school day, much of what was held out as
educational services is not properly considered educational in nature. At least one facility
claimed that having students perform manual labor with no corresponding instruction, such as
helping with grounds maintenance or cleaning the kitchen, qualified as a vocational program that
was credited as educational time. Based on school schedules, it also became apparent that some
facilities count group therapy sessions as school time, even if they are facility mandated and not
pursuant to a child’s Individualized Education Program (“IEP”). Another facility offered no
instruction on Fridays, when the school day consisted of an opportunity to make up missed work
or pursue ‘electives’ online. When asked about what qualifies as educational time, the Deputy
Commissioner of Quality and Interim Director of Resource Management at DHR acknowledged
that there are no specific DHR guidelines setting forth what constitutes educational time at STCs.

2. Many STC teachers lack the educational certifications and other qualifications
required of teachers in general education settings.

Alabama law, even following the January 2022 enactment of regulatory amendments,
explicitly exempts STCs from requirements that their teachers have the same certifications as
teachers in general education settings. See Ala. Admin. Code 290-8-9-.10(6) (children with
disabilities in foster care assigned to STCs “must be provided an education that meets the
standards that apply to [general] education … except provisions related to highly qualified and
personnel qualifications” (emphasis added)). As Former Deputy Superintendent Boyd explained
at an ALSDE work session held on April 11, 2019, “[e]mployees of the STC are not employees
of the [State Board of Education], they are employed by the STC so they may not have
credentials to be teachers. Because they are not employees of the [State Board of Education],
they do not participate in the Professional Development offered by the state, either.” Some STCs
note that they have “degreed teachers and facilitators,” but STC staff are not necessarily certified
teachers, let alone certified in the content areas they are tasked with teaching, and some
instructional time consists of students doing online work in a classroom supervised only by a
paraprofessional. Throughout our record reviews and site visits, we observed a significant
number of teachers and other instructional staff who did not hold a teaching certificate or other
necessary qualifications, and many of those who were certified were identified as instructors in

29
One facility in fact provided as little as one hour of instruction for each student per day. There were also reports
of missed instructional time when teachers were unavailable. Moreover, among a population that is already missing
out educationally because of relocation and trauma, students are further losing instructional time due to barriers
created by the STCs, and some educational time may be lost due to administrative delays. Calculating the number
of hours of instruction received by individual students is complicated by the fact that STC attendance records appear
to contain systemic inaccuracies, with some facility records reflecting perfect attendance by all students or reflecting
attendance when other records indicated attendance was not possible.

16
subjects other than those for which they held certificates. Further, reports filed with the
Department of Education indicate that even within school districts that report having fully
certified teaching staffs, STCs employ uncertified personnel as teachers,30 as is permitted under
Alabama law.

3. The State is not appropriately monitoring STCs.

As discussed in previous sections, we concluded that STCs are not providing appropriate
special education and therapeutic educational services. See Section IV(A)(3). Our investigation
uncovered that the STCs’ failure to provide appropriate services has gone largely unnoticed by
the State due to the State’s lack of appropriate oversight and monitoring of STCs. Specifically,
our investigation uncovered that the State fails to ensure that appropriate screenings and
assessments are performed and that special education supports and services, including behavioral
and therapeutic services, are provided.

a. Inconsistent use of screenings and assessments

The Department’s experts could not identify whether an evaluation process existed at
some facilities because the educational records at many of the facilities were incomplete
(including some student records lacking eligibility determinations for special education services).
One facility’s intake/admission form does not even have a place to indicate whether a student has
special education needs, and in at least one case, a teacher or caretaker would not even discover
that an IEP was in place until page 26 of the student file. In addition, the former general
education and STC teacher said that students at the facility where she worked were never
evaluated, as required by federal law, even though there were a number of students who she
believed—based on her training and years of experience as a special education teacher—would
likely have been eligible for special education services. Those students were not provided any
special education services in the STC.

b. Lack of oversight regarding individualized services

As discussed above, see Section IV(A)(3)(b), even for those students whose special
education needs were identified, staff at the facilities confirmed that there was little, if any,
differentiation of instruction despite that state requirement for general education schools. STC
teachers were often not even aware of students’ disabilities and were unfamiliar with their
academic, therapeutic, and behavioral goals. Due to lack of oversight, students who were
entitled to assessments, and likely entitled to accommodations and modifications, never got
them.

Under the Alabama Code, both before and after the January 2022 enactment of regulatory
amendments, school districts have been responsible for ensuring special education services for
their students who attend STCs. Ala. Admin. Code 290-8-8-.09(1). In accordance with this
requirement, school districts are required to designate personnel to collaborate with a
representative from the STC to develop a Memorandum of Agreement, “which shall include, but

30
See, e.g., https://ocrdata.ed.gov/search/district (reflecting, with respect to the numbers of teachers who met all
state licensing and certification requirements, far lower percentages in the STC in PRTF Pathway than in Coffee
County, in which it is located).

17
not be limited to, specific processes for shared services, … [and] the oversight of educational
offerings.” Ala. Admin. Code 290-8-8.09(2). Yet, according to an ALSDE Assistant State
Superintendent, ALSDE only reviews the initial Memoranda of Agreement for completion and
does no further monitoring to determine whether the Memoranda of Agreement are actually
followed. The Deputy Commissioner of Children and Family Services at DHR acknowledged
that while her job duties include approving placements at residential facilities, she does not know
whether DHR checks to make sure facilities can actually provide required services. The
Program Manager for the Office of Foster Care and Education Liaison at DHR explained without
elaboration that it is the job of the county social worker to make sure the children under their
care are getting an appropriate education at STCs and that these individuals are supposed to
advocate for their students. When asked whether these county social workers receive any
training about educational requirements, the DHR Deputy Commissioner and Program Manager
both acknowledged that they do not.

Although DHR’s own policy specifies that “[e]ach institution type is bound contractually
to provide needed services as identified” in their service plans and that “[t]he selection of the
appropriate institution … must be based on the needs of the child in relation to the program
offered by the various institutions,” 31 interviews with State staff confirmed that these
requirements either are not followed or are unmonitored. The Division Director for Children and
Family Services at DHR explained that the DHR placement process only looks at whether a
certain level of care is appropriate for a child, not whether an individual facility can meet the
child’s educational needs. The Deputy Commissioner of Quality and Interim Director of
Resource Management at DHR, who is charged with heading the division that tracks how many
beds are available in different settings, confirmed this by acknowledging that they do not track
what services are even offered at each specific facility.32

Also concerning was the lack of oversight by ALSDE, given its responsibility for
providing Educational Endorsements of Operation to STCs, which are required before an STC
can receive State funding and which serve as a confirmation that the STC has met all of its
requirements. See Ala. Admin. Code 290-8-8-.01, -.02(3). In fact, there is not even a
mechanism in place for ALSDE staff to visit or monitor STCs. While all public schools in
Alabama are on a rotating schedule for ALSDE on-site monitoring, STCs are not routinely a part
of that monitoring process. ALSDE’s Superintendent confirmed during his interview that he
does not believe there has been any instructional monitoring of STCs by ALSDE.33

31
DHR Out of Home Care Policies and Procedures at 39-40.
32
State staff did, however, acknowledge that while there is little oversight, they recognize there are problems with
regard to the behavioral programs in these facilities. The Deputy Director for Family Services at DHR
acknowledged that the goals for the behavioral programs at some PRTFs are very unrealistic and that some of the
facilities have “no tolerance” programs that cause students to remain in facilities longer than intended. This is
despite DHR policy explicitly stating that placements at residential facilities “should be viewed as a temporary plan
with a foreseeable termination since the shared goal of DHR and most institutions and group homes is for every
child to return to family life in the community. Indefinite plans or prolonged periods of institutional care …
resulting from lack of adequate planning or lack of casework with parents, are not considered acceptable practice.”
DHR Out of Home Care Policies and Procedures at 40.
33
See also Center on Online Learning and Students with Disabilities, Equity Matters 2016, Digital & Online
Learning for Students with Disabilities, at 112 (reporting that State did not challenge finding that Alabama does not
“have monitoring procedures in order to ensure that online schools and programs are in alignment with IDEA”).

18
 As a result, neither the State agency that places students in PRTFs with on-site schools
nor the State agency that provides the educational endorsements to the on-site schools conducts
any routine oversight of the educational services provided to students at STCs.

4. The educational opportunities offered to students attending STCs are unequal in

other ways to those offered to students attending general education schools.

The STCs provide unequal educational opportunities in other ways. The facilities usually
do not have science labs, gyms or playing fields, or even libraries stocked with a variety of age-
appropriate reading materials. A few facilities had computer labs, necessitated by the high
percentage of on-line instruction, but they did not report having computer classes or clubs.
Several facilities had a basketball hoop or other limited space for outdoor activity. A few
facilities had a limited lending library set up by one of the teachers. Some facilities do not even
have cafeterias for the students to eat together at lunch, an important social experience. ADAP’s
monitoring report identified additional concerns about the inferior physical conditions of certain
STCs. For example, at PRTF Courtland Sequel, ADAP observed that all of the students attended
an on-site school “in a small and mostly inaccessible building” and that the “recreation spaces
are unsafe and not adequately maintained.” July 2020 ADAP Report, at 6-7.

Students at STCs also do not have the opportunity to participate in age-appropriate

activities like education-related field trips; while a few facilities mentioned occasional outings
pre-pandemic, they were not of an educational nature. They do not have access to pre-
professional academic activities such as working on a school newspaper or competing with a
debate team. They cannot play school sports or join a band or pep squad. With limited
exceptions, they cannot join school clubs, such as an art club, Future Farmers of America, or
chess club—or their participation in such activities is contingent on earning the ability to
participate based on their compliance with unreasonable facility rules.34 The students also do not
usually have the opportunity to attend school dances or other events that would promote social
skills. Age-appropriate socialization is often impossible; at one facility, a student told the
experts that boys and girls were not even allowed to talk to each other.

***

In conclusion, we found that the educational opportunities provided to students at STCs were
unequal to those provided to students in Alabama general education schools due to the STCs’
lack of appropriately certified educators, shortened school days, heavy reliance on digital
courseware rather than live instruction, lack of opportunities to interact with non-disabled peers,
and lack of appropriate special education and transition services to keep them on-track to
graduate, among a host of other deficiencies.

34
One facility posted a schedule for club meetings in the hallway. One student, who was interested in fashion and
hoped to join the sewing club, told us in an interview that the student was not on a “level” that was permitted to join
the club.

19
 C. Alabama Can Make Reasonable Modifications to Prevent Ongoing Discrimination
Against Students with Emotional and Behavioral Disabilities in Foster Care.

Under Title II, states must reasonably modify their service systems to avoid
discrimination on the basis of disability. 28 C.F.R. § 35.130(b)(7)(i); Olmstead, 527 U.S. at 603,
607. The State could reasonably modify its existing statewide system for delivering educational
and therapeutic services to students with emotional and behavioral disabilities in foster care who
are attending STCs, without fundamentally altering its current system, to rectify its violations of
the ADA. We have provided a list of proposed modifications below, see Section V, and have
also highlighted a few examples here to show that these proposals can reasonably modify the
State’s existing framework.

The State could reasonably modify its policies and procedures that are resulting in the
unnecessary segregation of these students to instead explicitly require that all children placed at
PRTFs attend public school except when there is an individualized assessment that demonstrates
convincingly based upon best practices that the child cannot succeed in that school. Also, as
noted, to remain eligible for funding, STCs must annually certify their compliance with all State
and Federal laws pertaining to special education students and ALSDE requirements regarding
staff qualifications. Ala. Admin. Code 290-8-8-.04. The proposed modification would simply
hold STCs to this preexisting requirement, because enrolling all students at PRTFs in STCs
without individual evaluations runs afoul of State and Federal laws pertaining to special
education. In addition, the Memorandum of Agreement with the LEA superintendent is intended
to ensure that the provision of educational services on-site complies with federal law. The State
licenses the facilities, negotiates terms governing the placement of children in the facilities, and
oversees placement decisions with respect to children in foster care. It is therefore clear that the
State has authority to modify the conditions under which it places children in facilities and the
terms that must be met with respect to required educational services. See Ala. Admin. Code
290-8-9-.10(4).

Further, the State should and could improve coordination and oversight among State
agencies responsible for providing educational and therapeutic services to this population of
students in STCs. The State has itself acknowledged that the lack of interagency coordination
has contributed to its inability to address many of the issues plaguing STCs. The State has failed
to create and implement policies and procedures that clearly delineate every state and local
agency’s responsibilities with regard to determining an appropriate educational assignment for a
child in a PRTF35 and, for the STCs themselves, the applicable hours and curriculum
requirements, teacher certification requirements, expectations about live versus online
instruction, and documentation of the provision of special education and therapeutic services. In
addition, the State needs to develop and implement a plan for training STC teachers and

35
The STCs are not overseen by any local educational agency, including the one in which a facility is physically
located. Previously, children receiving educational services in the STCs remained enrolled in the LEA of their
school of origin, which was frequently at some distance from the facility. A change to the Alabama regulations
approved during the investigation now places responsibility for the educational services of children attending STCs
with the LEA for the geographic area in which the facility is located.

20
administrators and oversight of STCs by State and LEA personnel to ensure compliance with
generally applicable educational standards and regulations.36

Finally, ALSDE personnel have reported that the State is already making improvements
in its data system which will allow student records to be more easily transferrable to schools or
STCs using certain software programs. As a result, improvements in data sharing and
coordination between agencies and facilities would not require a significant investment in terms
of infrastructure; it is imperative that this new system also be used to ensure that when students
are placed in PRTFs for medically necessary reasons, appropriate educational services are
provided to them, whether they receive their educational services through a placement at a
general education school or at an on-site STC.

***

The Department has determined that the State of Alabama has violated and continues to
violate Title II of the ADA by unnecessarily segregating certain students with emotional and
behavioral disabilities who are in foster care by assigning them to STCs, separate from their
peers in general education. In addition, the State provides unequal opportunities to these
students compared to students throughout the State who are not in such schools. Specifically, the
Department concludes that the State’s provision of educational services to children with
disabilities in foster care in STCs denies many of those students an equal right to attend, and
fully participate in, general education schools. The State’s policies, practices, and procedures
cause, aid, and perpetuate discrimination against students with emotional and behavioral
disabilities in the foster care system and deny them equal educational opportunities.

V. PROPOSED REMEDIAL MEASURES

To remedy the violations discussed above and to protect the civil rights of students with
emotional and behavioral disabilities in the foster care system in Alabama, the following
minimal steps must be taken, which will be outlined in the forthcoming proposed settlement
agreement. The State must:
 Revise regulations or promulgate guidance to specify that children in DHR’s custody
placed by the State, or by a regional representative, in a PRTF should be enrolled in a
public school in the LEA in which the PRTF is geographically located except when there
is an individualized assessment that demonstrates convincingly based upon best practices
that the child cannot succeed in that school;
 Create mechanisms to ensure that its applicable agencies and regional offices develop
child-specific education plans that (1) identify the most integrated educational setting for
the child, which – as noted above – is presumptively a public school, and (2) are aligned
with the treatment plans created by the PRTF at which the child is placed;

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As an illustration, during our Pathway site visit in Fall 2021, we identified several issues that we immediately
shared with DHR personnel out of concern for the safety and well-being of the students involved. Many of the
issues we observed stemmed from the lack of clear Statewide policies and procedures and the lack of oversight and
coordination among State agencies. We appreciate DHR’s responsiveness to the concerns that were raised, and we
highlight this situation to emphasize the importance of the State developing a plan to address these issues on a
Statewide level.

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  Update its licensure or funding conditions with private providers to require that STCs be
held to the same curricula, daily and yearly instructional hours, teacher and staff
qualifications, and other standards required for public schools under Alabama law;
 Promulgate guidance for STCs regarding requirements to prohibit the use of seclusion
and limit physical restraint to when a student is an immediate danger to himself or others
and the student is not responsive to less intensive behavioral interventions, as is required
for all public schools and educational programs under Ala. Admin. Code 290-3-1-.02,
and report violations and take steps to remedy violations of Conditions of Participation;
 Require, through licensing requirements and child-specific placement contracts, that
PRTFs screen children for mental health needs that directly impact educational services
and provide evidence-based therapeutic services and supports;
 Require, through licensing conditions and child-specific placement contracts, that every
child’s education plan includes exit criteria and that the State implement effective, child-
centered transition planning for every child entering or currently in a STC;
 Train STC staff, LEAs that contract with STCs, impartial advocates, parents/guardians,
and agency and regional office staff, on topics pertaining to educational and therapeutic
services delivered in the STCs, including academic requirements, the role of the State,
pedagogical and therapeutic best practices, and serving students with disabilities
(including the proper development and use of functional behavior assessments and
behavior intervention plans);
 Develop a complaint process that provides parents/legal guardians, impartial advocates,
providers, STC staff, and students in PRTFs a mechanism to communicate a complaint
about a STC to the State. The complaint system must include the process through which
complaints will be transmitted to the State and available to the P&A upon request, and
explain the State’s investigation and resolution process;
 Establish a monitoring and reporting process through which the State monitors both the
STCs it funds and the LEAs that have entered into agreements (e.g., Memoranda of
Agreement) with STCs, in order to assure compliance with the terms of the agreement;
and
 Create a compensatory education plan to provide services for students, who are still of
school age and have not yet graduated, who are identified as having received abbreviated
instructional hours while enrolled at an STC.

VI. CONCLUSION

We are confident that you will give this letter careful consideration and that it will assist
in swiftly addressing the violations of law caused by the unnecessary assignment of students to
inferior on-site STCs within Alabama PRTFs. In the event that we are unable to reach a
resolution regarding our concerns, the Department may take any appropriate action, including
initiating a lawsuit under the ADA, 42 U.S.C. § 12133, to correct violations of the kind identified
in this letter. We would prefer, however, to resolve this matter by working cooperatively with
the State to negotiate a court-enforceable agreement that brings the State into compliance with
the ADA and assures that the above-cited violations will not recur. To this end, attorneys for the

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United States assigned to this investigation will be contacting the State’s attorneys to discuss this
matter in further detail.

Please note that this letter is a public document, and we will share a copy of this letter
with all complainants, as required by 28 C.F.R. pt. 35, subpart F. At any time, complainants may
file a private suit pursuant to Section 203 of the ADA, 42 U.S.C. § 12133, regardless of the
contents of this letter and the Department’s findings in this matter.

If you have any questions regarding this letter, please contact Shaheena A. Simons, Chief
of the Civil Rights Division’s Educational Opportunities Section, at
[email protected], or Renee Wohlenhaus, Deputy Chief, at
[email protected].

Sincerely,

Kristen Clarke
Assistant Attorney General
Civil Rights Division
United States Department of Justice

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