A Kaneohe family is suing state education and health officials for failing to place their son, who has serious behavioral issues, in intensive treatment. 

Michelle Shores and her husband Dane filed a lawsuit against state schools Superintendent Keith Hayashi and Department of Health Director Elizabeth Char, among others, for violating the Individuals with Disabilities Education Act, which requires their departments to provide appropriate services and placements for disabled children. 

The Shores say their 17-year-old adopted son, identified as B.S. in the lawsuit, is legally entitled to placement in an intensive mental health facility that educates him and keeps him safe. They allege the DOE and DOH have effectively given up on the boy and have declared him too sick to benefit from an education.

DOE Department of Education building.
Critics say the DOE needs to do more to serve special needs students. Cory Lum/Civil Beat/2022

In a hearing in early December, a hearings officer ruled that the DOE was not responsible for B.S.’s placement because he was too unstable to benefit from education services. The ruling said it was the DOH’s responsibility to first address primary health concerns that precluded education.

The ruling also said the DOE had made genuine efforts to provide the student with access to education while he was out of state for treatment. 

For disabled students in the public school system an Individualized Education Program is created annually to lay out how the student’s needs will be met. When mental health services are required beyond what is offered in a normal school setting, the DOE contracts with the DOH to provide those services. 

DOE spokeswoman Nanea Kalani said that though the department was unable to comment on pending litigation, the DOH, not the DOE, is currently legally responsible for the student’s placement. 

‘There Needs To Be Care Here’

By the time B.S. was adopted at nine months old, he had already been abused by his birth parents, according to Shores. At age 11, he was pulled out of Nimitz Elementary School and was soon sent to the mainland for treatment first to Indiana, then Michigan, Kansas and Texas.

B.S.’s primary diagnosis, reactive attachment disorder, a mental illness thought to begin in infancy, makes it difficult for children to form healthy relationships with others, often especially their caregivers. This results in myriad antisocial behaviors, including aggression and self harm. He has been hospitalized dozens of times as a result, says the family’s lawyer, Eric Seitz.  

According to his IEP, the youth should be in a secure residential program on the mainland, to be adequately treated and educated. However, for the second half of this year, he moved between mental institutions and hospitals — neither of which provided education services, Seitz said.

Then, earlier this month, B.S. was moved from an institution in Texas to a transitional family home on the Big Island, where his mother says he is unsafe. 

In late December he was hospitalized after a self-harm incident, and more recently tried to leave, according to Shores. 

The Shores are demanding that their son be sent to a secure facility as his IEP prescribes, but ultimately they say he should have been hospitalized in Hawaii all along, where they could have been involved in his therapy. 

“Intensive therapy with us would have been best, but to try and do that over Zoom is difficult — there’s no physical contact, we can’t give him a hug, we can’t visit him,” Michelle Shores said in an interview. 

In many intensive youth facilities parents are allowed weekly visits, and some accommodate home visits if things are going well, but those are milestones the Shores could not work toward with their son on the mainland. 

“There needed to be care here — there still needs to be care here,” Shores said.

Shores, who is a licensed special education teacher, says she’s heard of other parents who detach from their children who are institutionalized in another state.

“Often we are told it is very unusual that we are still advocating for him at this point,” said Shores. 

Venus Rosete-Medeiros, president of Hale Kipa, an Oahu nonprofit that offers youth behavioral health services said that removing kids from their home is traumatic and allowing families to stay connected can be integral to healing underlying trauma.   

“The state really has to start looking at how we can keep families together. We shouldn’t be sending our children away, we should be taking care of our children here in our own state,” she said. 

For the 2022-23 school year, the DOE confirmed it is paying for 18 residential placements for students receiving special education services out of state. 

Improvements Needed Across the Board

Regardless of whether the responsibility falls to the DOE or the DOH in this particular case, advocates say broad improvements are still needed to better serve students with disabilities. 

Seitz, who helped lead a class action lawsuit in 1994 that resulted in a mandated statewide special education reform known as the Felix consent decree, says it is time Hawaii establishes more specialized treatment locally.

Seitz says there are still no long-term secure facilities for young people in the state and as a result kids like B.S. cycle between The Queen’s Medical Center, which provides acute care, and Kahi Mohala, which is residential but is not a secure facility. 

Attorney Eric Seitz leaves District Court on lunch recess.
Attorney Eric Seitz says the DOE is not properly spending the federal funds it receives for disabled students to help mentally ill teens like his client. Cory Lum/Civil Beat

Hawaii Disability Rights Center Executive Director Louis Erteschik says that though the DOE made progress after the Felix lawsuit concluded, much of it was short-lived and there is still a general lack of appropriate services in the state.

Though the DOH may prove to hold primary responsibility in the Shores’ case, the DOE has an otherwise embattled record when it comes to accommodating special education and disabled students.  

Erteschick said the center frequently receives calls from parents frustrated with a lack of services. The center’s advocates try to work with families and the DOE to access more services without going to court, but he says the department is regularly adversarial.

“They fight us tooth and nail on even manini (small) stuff like whether a kid should get an extra hour of speech therapy,” he said. 

Shores says that at times she has felt as though the system was abdicating responsibility and pushing them into giving up. 

“It’s been hard to even stay involved, but we feel like that’s best for him. Because if we’re not involved, then there’s no one to advocate for him,” she said.

Civil Beat’s education reporting is supported by a grant from Chamberlin Family Philanthropy.

Civil Beat’s health coverage is supported by the Atherton Family Foundation, Swayne Family Fund of Hawaii Community Foundation, Cooke Foundation and Papa Ola Lokahi.

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