U.S. Department of Justice
Civil Rights Division

Assistant Attorney General
950 Pennsylvania Avenue, NW - RFK
Washington, DC 20530

May 9, 2007
The Honorable Ted Strickland
Governor
State of Ohio
30th Floor
77 South High Street
Columbus, OH 43215-6117
Re: 	 Investigation of the Marion Juvenile

Correctional Facility, Marion, Ohio 

Dear Governor Strickland:
I am writing to report the findings of the Civil Rights
Division’s investigation of conditions at the Marion Juvenile
Correctional Facility (“Marion”), located in Marion, Ohio. On
April 15, 2005, we notified you of our intent to conduct an
investigation of Marion, pursuant to the Civil Rights of
Institutionalized Persons Act, 42 U.S.C. § 1997 (“CRIPA”), and
the pattern or practice provision of the Violent Crime Control
and Law Enforcement Act of 1994, 42 U.S.C. § 14141
(“Section 14141”).1 At that time, we informed you that our
investigation of Marion would focus on protecting residents from
harm, medical care, grievances, and provision of special
education.2 As we noted, both CRIPA and Section 14141 give the
Department of Justice authority to seek a remedy for a pattern or
practice of conduct that violates the constitutional or federal
statutory rights of children in juvenile justice institutions.
We note that the State has worked cooperatively and, under
the leadership of Director of Ohio Youth Services
Thomas Stickrath, has unequivocally indicated its clear desire to
improve both facilities since being placed on notice of possible
constitutional deficiencies. Prior to the Department of Justice
investigations of Marion and Scioto, the State hired a team of

1

Prior to initiating our Marion investigation, on March 16,
2005, we notified you of our intent to conduct an investigation
of the Scioto Juvenile Correctional Facility (“Scioto”).
2

Our Scioto investigation focused on the same issues with the
addition of mental health care.

- 2 

expert consultants, led by Mr. Fred Cohen, to evaluate the
constitutional conditions at the girls’ section of the Scioto
facility.3 Mr. Cohen issued an Interim Report on August 16, 2004
and an Action Plan on September 28, 2004. In each of these
documents, Mr. Cohen found constitutional deficiencies in the
areas of protection from harm, medical care, mental health care,
grievances, and provision of special education. The State has
agreed to adopt and stipulate to Mr. Cohen’s findings, for the
purpose of our investigation, and to apply those findings
regarding the girls' facility to Marion and the entire Scioto
facility.
Given the State’s stipulation that the conditions identified
in our April 15, 2005 notice letter are constitutionally
deficient, we agreed to conduct limited facility tours.4 On
June 27-29, 2005, we conducted an on-site inspection of Marion,
accompanied by expert consultants in mental health care and
medical care. We returned to Marion on July 19 and 20 for an
on-site inspection with our special education consultant. During
our inspections, we interviewed mental health providers, medical
providers, other staff, youth residents, teachers, and facility
administrators. Before, during, and after our visit, we reviewed
an extensive number of documents, including policies and
procedures, mental health records, youth detention records, unit
logs, education records, and orientation materials. Consistent
with our commitment to provide technical assistance and conduct

3

Although the main Scioto facility houses female youth, a
separate section of the facility acts as state-wide intake for
all male youth.
4

This investigation is anomalous because Mr. Cohen's 2004
factual findings regarding the conditions of confinement at
Scioto revealed significant deficiencies in each of the areas
that were the subject of our investigation and because the State
has stipulated to all of Mr. Cohen's generally well-supported
findings. Together, these factors created the unusual
circumstance in which it was not necessary for the Department to
conduct a facility tour regarding each of the specific subject
areas of our investigation. However, we did tour Marion
regarding areas in which we required additional factual
information to make a thorough and complete finding or to frame
appropriate corrective measures. For example, we toured Marion
with a special education consultant in response to the State's
concern that Mr. Cohen's extensive findings regarding special
education in Scioto were not reflective of the conditions in
Marion.

- 3 

a transparent investigation, we conducted an exit conference with
facility staff and Ohio Department of Youth Services officials
upon the conclusion of the tour, during which our expert
consultants conveyed their initial impressions and concerns.
We commend the Marion staff for their helpful, courteous,
and professional conduct throughout the course of this
investigation. We also wish to express our appreciation for the
cooperation of Ohio Department of Youth Services officials and
staff.
Consistent with our statutory obligation under CRIPA, we set
forth below the findings of our investigation, the facts
supporting them, and the minimum remedial steps that are
necessary to address the deficiencies we have identified. As
described below, we conclude that youth confined at Marion suffer
harm or the risk of harm from constitutional deficiencies as to:
protecting residents from harm; certain discrete elements of
medical care; mental health care; grievances; and special
education services. Notwithstanding the foregoing, we are
pleased to report that our review indicates that Marion’s general
medical programs are, for the most part, good. In particular, we
find that Marion’s medical quality improvement program,
environmental conditions, and management of special dietary needs
for youth are appropriate. However, certain discrete aspects of
medical care, identified below, substantially depart from
generally accepted professional standards of care and expose
youth to harm.
I.

BACKGROUND

The State of Ohio, through its Department of Youth Services,
owns and operates Marion, located approximately 45 miles north of
Columbus, Ohio. Marion is Ohio’s only maximum-security juvenile
justice facility. Its population consists entirely of juvenile
males, aged 12 to 21, adjudicated, of felony-level crimes, in
juvenile courts. Marion’s rated capacity is 336. Its facilities
include 12 housing units, a mental health unit, a transitional
unit, and a super-max unit.
II.

FINDINGS

As a general matter, States must provide confined juveniles
with reasonably safe conditions of confinement. Youngberg v.
Romeo, 457 U.S. 307 (1982); Nelson v. Heyne, 491 F.2d 352
(7th Cir. 1974); see also Miletic v. Natalucci-Persichetti,
No. C-3-89-299, 1992 WL 1258522, *2, *4 (S.D. Ohio Feb. 6, 1992)
(holding, in a case against the Ohio Department of Youth

- 4 

Services, that “a juvenile who is involuntarily committed to a
correctional as opposed to mental health facility has a right to
treatment under the Fourteenth Amendment similar to that which
was recognized in Youngberg . . . .”).
A.

PROTECTION FROM HARM

Juveniles in state custody have a constitutional right to
reasonable safety. See Youngberg, 457 U.S. at 315-16 (“personal
security constitutes a historic liberty interest protected
substantively by the Due Process Clause”) (internal quotation
omitted).
Our review of conditions of confinement at Marion reveals
significant constitutional deficiencies regarding use of physical
force, grievance investigation and processing, and use of
seclusion. For purposes of our investigation, the State has
stipulated to Mr. Cohen’s August 2004 findings regarding the
Scioto girls' facility, agreeing that Mr. Cohen’s findings for
each of the above-mentioned subject areas apply to Marion. In
addition, our experts concur with Mr. Cohen's findings and
suggested remedies.
1.

Use of Physical Force

Juveniles at Marion have a right to be free from unnecessary
restraint and the use of excessive force. Youngberg, 457 U.S. at
315-16.
The State has stipulated to apply the findings made by its
expert regarding protection from harm issues at Scioto to
Marion.5 Because of the State’s stipulation, the Department
agreed not to perform a separate fact-finding exercise at Marion
regarding protection from harm issues.
In his report, Mr. Cohen concludes that “there has been (and
remains) a culture of violence among the uniformed staff, that
verbal and physical abuse are common, [and] sexual misconduct by
staff occurs . . . .” Mr. Cohen indicates that he and his team
of experts “have the most serious reservations as to whether [the
State’s] investigators are presently able to produce the quality
of investigative work required to identify those use of force
5

In 2004, the State hired Mr. Cohen and a team of experts to
review protection from harm issues in Scioto’s Girls’ Program
after 14 Scioto staff had been indicted on charges relating to
physical and sexual abuse of youth at Scioto.

- 5 

incidents that merit corrective actions for staff who violate the
[Department of Youth Services’] use of force policy.” Finally,
Mr. Cohen concludes that “there can be no debate on the
constitutional obligation under the Fourteenth Amendment to
provide a safe environment. Scioto has not met its obligations
to provide such an environment . . . .”
In reviewing use of force incidents at Scioto, Mr. Cohen
reported that “verbal and physical abuse are common.” In his
report, Mr. Cohen stated that he and his team “found countless
examples of situations where no force at all should have been
used and others where the force used was excessive.” Further,
according to Mr. Cohen, verbal abuse is rampant and often serves,
perhaps intentionally, to precipitate physical confrontations
with juveniles. Based on these assessments and the State’s
stipulation as to their applicability, we conclude that youth at
Marion are subject to use of excessive force and physical abuse.
In addition, from document review and youth interviews, our
medical consultant found that Marion youth are at significant
risk of physical trauma due to youth-on-youth fights. Youth have
indicated they believe that staff encourage youth to fight.
Finally, we note that Marion currently allows use of a
physical restraint technique directing staff to place an arm
across a youth’s chest below the neck and push on the cheek with
the back of the hand. As our medical expert observed during the
tour, use of any technique calling for an arm to be placed across
the neck during a physical altercation or other incident exposes
the youth to a significant risk of harm. This practice is
especially problematic in light of allegations we have received
that youth have been choked by staff during altercations.
2.

Grievances (Investigations and Processing)

Just as prisoners and juvenile detainees have a
constitutional right of access to the courts, they have a right
to a grievance system that does not carry risk of punishment as a
price for using it. See Thaddeus-X v. Blatter, 175 F.3d 378, 394
(6th Cir. 1999); see also Bounds v. Smith, 430 U.S. 817, 822 n.17
(1977) (“Our main concern here is protecting the ability of an
inmate to prepare a petition or complaint.”) (internal quotation
marks and citations omitted).
An adequately functioning grievance system ensures that
youth have an avenue for bringing serious allegations of abuse
and other complaints to the attention of the administration. It

- 6 

also provides an important tool in alerting the administration
about dangers and other problems in the facility’s operations.
We adopt the following findings by the State’s expert,
regarding the Scioto girls' section, based on the State's
stipulation as to their applicability at Marion. As part of
Mr. Cohen’s assessment, the State’s experts conducted a review of
Scioto’s incident investigation and grievance process,6 finding
that several factors contribute to its inadequacy. In
particular, Mr. Cohen’s report finds that investigations are
“pedestrian, time consuming, and full of errors or oversights.”
The State’s experts also determined that, with the exception of a
few cases, investigators rarely attempt to determine if officers
followed existing protocol.
Additionally, investigations contain few facts other than
repetition of the complaint and denials by involved individuals.
The investigations reveal a trend of repetitive questioning of
involved youth, as though questioning was to continue until the
youth provided the “correct” answer. Incidents involving
physical aggression contained no evaluation of events preceding
the incident, nor questions regarding use or attempted use of
lesser physical interventions.
In addition, although grievances contain serious allegations
such as verbal harassment and abuse, use of physical force, loss
of programs and privileges, sexual harassment, and untreated
medical issues, such investigations rarely result in corrective
action for staff or youth or any attempt to recognize or identify
patterns of behavior requiring intervention.
The inadequacies in Marion's grievance system contribute to
the State’s failure to ensure a reasonably safe environment. An
adequately functioning grievance system ensures that youth have
an avenue for bringing serious allegations of abuse and other
complaints to the attention of the administration. It also
provides an important tool in evaluating the culture at the
facility, and alerting the administration about dangers and other
problems in the facility’s operations.
3.

Seclusion

Based on the State's stipulation as to their applicability
at Marion, we adopt the following findings by the State’s expert

6

Mr. Cohen’s team reviewed the 984 incidents filed from
January 1, 2003 through August 18, 2004.

- 7 

regarding the Scioto girls' section. The State's experts
reviewed over 200 seclusion reports regarding Scioto girls from
May 2004 to June 2004. In his report, Mr. Cohen concluded that
staff use seclusion as a first response and often hold youth in
seclusion for hours even though they do not pose an imminent
threat. Additionally, the State's expert found that Scioto's
routine use of seclusion as immediate punishment is often
accompanied by use of force.
B.	

MEDICAL AND MENTAL HEALTH CARE

Juveniles in state custody have a due process right to
adequate mental health care. The Supreme Court in Youngberg
broadly labeled health care as “medical care,” but recognized
that this would include care provided by various disciplines,
including persons with appropriate training in psychology. See
id., 457 U.S. at 322-323, n.30. The Sixth Circuit also has
recognized that medical care encompasses mental health care. See
Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir.
1994) (“A detainee’s psychological needs may constitute serious
medical needs, especially when they result in suicidal
tendencies.”).
1.	

Medical

We are pleased to report that our review indicates that
Marion’s general medical programs are, for the most part, good.
In particular, we find that Marion’s medical quality improvement
program, environmental conditions, and management of special
dietary needs for youth are appropriate. However, certain
discrete aspects of medical care, identified below, substantially
depart from generally accepted professional standards of care and
expose youth to harm.
a.	

Identification of Health Problems and Initial Health
Assessments

Marion’s health records are inadequate insofar as they do
not contain problem lists. Such lists document all identified
active health problems and are necessary tools in monitoring
youth health status and providing adequate health care. Marion’s
initial health assessments are similarly inadequate, due to the
absence of problem lists.
Separately, as a matter of technical assistance, we note
that Marion’s assessments are conducted in a central area of the
clinic that is, at best, marginally confidential, as
conversations can be easily overheard. Nurses should use

- 8
private exam rooms for such assessments and ensure that
non-professional staff are unable to overhear the confidential
assessment.
b.

Evaluation and Treatment of Sick Residents

Marion’s sick call procedures make youth access to medical
case dependent upon line staff. Marion’s current system forces
youth to submit requests through line staff in a non-confidential
manner, breaching youths’ rights to privacy and confidentiality.
Marion should implement a system in which youth can submit sick
call requests confidentially and independent of the line staff.
Marion’s medication management is well-organized. However,
Marion’s policy of discontinuing medication not on the Prison
Health Services formulary constitutes a departure from generally
accepted professional standards of care, because it requires
youth to become unstable before receiving proper medication.
c.

Dental Care

Marion’s dental program fails to meet the dental needs of
its youth. We found numerous instances of youth with
significant, untreated, dental needs. Separately, Marion fails
to provide pain medications adequate to relieve severe dental
pain, reflecting inadequate dental care. In addition, Marion’s
current dentist only works two days per week to meet the needs of
its population of approximately 275 youth. This is not adequate.
d.

Special Services for Chronically Ill and Disabled Youth

We find that Marion’s care provided to patients with asthma
substantially departs from generally accepted professional
standards, as youths’ asthma medications are discontinued upon
admission to the facility. Marion should continue to provide
such necessary medication without delay.
Finally, we note that Marion, through its contractor, Prison
Health Services, inappropriately denies youth access to
specialist care, such as diagnostic tests and consultations, when
such care is clinically indicated. For example, Marion denied a
facility physician's request for an echocardiogram, to examine a
youth's significant heart murmur, finding the youth to be
“asymptomatic” because he was not yet showing disability due to
decompensated heart disease. This is a substantial departure
from generally accepted professional standards.
e.

Disease Prevention and Health Promotion

- 9 

Thirty percent of Marion’s youth had incomplete
immunizations, and youth are not fully immunized for their age.
This is a substantial departure from generally accepted
professional standards.
f.

Medical Quality Improvement Program

While we find that Marion’s current medical quality
improvement program is adequate, we suggest that Marion place
more emphasis on areas relevant to its population, such as
completing immunizations, reviewing grievances, and reviewing
hospitalizations.
g.

Special Dietary Needs for Youth

Marion adequately manages food allergies and special medical
diets.
h.

Abuse Reported By Medical Professionals

While nurses at Marion assess youth after a use of physical
restraint, they only report suspected abuse to the facility
administration, rather than to State child abuse authorities.
This reporting scheme is a substantial departure from generally
accepted professional standards and, in light of the State’s
stipulation regarding use of excessive force, is especially
problematic.
2.

Mental Health Care

The Constitution requires that youth in juvenile justice
institutions receive adequate mental health care. Youngberg,
457 U.S. at 323, n.30; Nelson, 491 F.2d at 360; see also K.H. v.
Morgan, 914 F.2d 846, 851 (7th Cir. 1990); A.M. v. Luzerne County
Juvenile Detention Center, 372 F.3d 572, 585 n.3 (3d Cir. 2004).
We find that mental health care at Marion is constitutionally
inadequate.
In 2004, Mr. Cohen, the State’s expert, concluded that the
Scioto girls’ facility’s mental health unit “is little more than
a residence for girls with mental disorders” and that “[m]ental
health care is so deficient” that it was not feasible to comment
on the various elements of such care, indicating that “[a] more
refined analysis must await another day – a day when
constitutionally required, minimally acceptable care is
instituted.”
Given the severity of Mr. Cohen’s assessment, and the

- 10 

State's stipulation applying such findings to Marion, we toured
Marion with a mental health expert. We found serious
deficiencies in the provision of mental health care regarding the
facility’s identification of youth with significant mental health
problems (“case finding”), and in the screening, assessment,
treatment planning, and monitoring of youth with such problems.
In addition, we found discrete or underlying problems regarding
the facility’s efforts to involve family in treatment decisions,
and regarding staffing, restraints, and environmental conditions.
a.	

Case Finding

We find that Marion’s efforts to identify youth with mental
disorders are significantly lacking. Our observations and
interviews with youth indicate that a significant number of youth
manifesting mental health disorders are not identified and thus,
not treated. Marion’s current 20 percent rate of youth
identified as having such disorders is quite probably a
significant underestimate. One of Marion’s own staff
psychologists estimated that the actual rate of mental disorders
within Marion’s population is between 30 and 40 percent (an
estimate consistent with current prevailing research). Marion’s
failure to adequately detect youth having significant mental
disorders is a substantial departure from generally accepted
professional standards.
b.	

Screening, Assessment, Treatment Planning, and
Monitoring

Initial screening of all Marion youth is conducted at the
intake section of the Scioto Juvenile Correctional Facility.
These assessments, which provide the basis for ongoing mental
health care at Marion, are addressed in a separate letter.
Regarding onsite treatment at Marion, we were unable to find
evidence that the facility provides any further assessment of a
youth’s adjustment to the new facility, such as systematic
rescreening. Additionally, the psychology records we reviewed
indicated that Marion does not take into account individuals’
difficulties or strengths when designing and implementing
treatment plans. Further, it was evident that clinical team
meetings do not review, and modify as warranted, treatment plans
in a formal manner or consider whether goals are being met. This
is a substantial departure from generally accepted professional
standards. Further, Marion does not base determinations on
empirical information, making such determinations overly reliant
on subjective reporting by line staff.
We find that psychopharmacological treatment at Marion for
youth identified as needing such treatment is based on an
adequate psychiatric assessment and, a cursory, but explicit,

- 11 

plan for treatment with medication. We also find that follow-up
is adequate, although Marion should ensure that it gathers
information from collateral sources when assessing a youth’s
target symptoms. Lastly, as a matter of technical assistance, we
recommend that the facility reconsider its aversion to
prescribing stimulants. Given Marion’s care in monitoring
medications, the facility should be comfortable allowing its
youth access to the therapeutic benefits of such medications.
c.

Mental Health Unit

Marion’s intensive mental health unit appears to be serving
an appropriate population and providing adequate care. We
suggest that Marion consider using any extra beds in the area for
short-term treatment for youth with more acute disturbances.
d.

Suicide Prevention Activities

We find that Marion’s plan for assessing acute risk and
preventing suicides is thorough and effective.
e.

Family Involvement

As a matter of technical assistance, we find that Marion’s
efforts to engage youths’ families in their mental health care
are lacking. Families are an extremely important source of
clinical information, and their support can make an enormous
impact on a youth. We understand that some families may live far
from Marion or not be responsive to outreach. Nevertheless, we
believe that an increased effort by Marion staff will lead to
productive outcomes for its youth.
f.

Staffing

Marion’s social work staff is not adequate to provide more
than superficial care for youth with significant mental health
disorders, and this constitutes a substantial departure from
generally accepted professional standards. The Psychology
Department is severely understaffed at Marion. Such inadequate
staffing reduces the ability of mental health staff to
collaborate appropriately with other staff in monitoring progress
of youth on the mental health list and those without identified
disorders. Additionally, poor staff size reduces psychologists’
availability to youth, reduces flexibility in responding to
specific treatment needs and designing appropriate responses, and
contributes to inconsistent recordkeeping.
Psychiatry staffing is adequate to meet the needs of youth
currently identified as having mental health disorders. However,
as noted above, the number of youth with significant mental

- 12 

health disorders is much higher than currently identified by
Marion, and the facility will need to maintain adequate
psychiatric staff as its mental health caseload changes.
g.

Restraints

Marion uses four-point restraints, forced medications, and
restraint beds to manage severely mentally ill youth. We urge
Marion to work to identify such youth early and transfer them to
mental hospitals rather than resorting to the extreme behaviormanagement options listed above.
h.

Environmental Conditions

Shower heads in some units pose suicide risks (e.g., hanging
hazards) as they are not constructed in a manner that would allow
a rope or similar implement to slip free. Easy access to such
hazards increases the possibility that potentially suicidal youth
will seriously harm themselves.
Marion should replace such
shower heads.
C.

SPECIAL EDUCATION SERVICES

Students with disabilities have federal statutory rights to
special education services under the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400-1482 (West
2000 & Supp. 2006). Marion serves its special education
population though the Hickory Grove High School. The school’s
faculty numbers slightly more than 30 individuals, including five
special education teachers. As of September 2005, the school
served 226 students. Of those, approximately 94 students have
been identified as having special education needs. We conducted
our own on-site review of the provision of special education at
Marion. In addition to our review, our expert consultant
reviewed Ms. Ava Crow's findings regarding Scioto and determined
that similar concerns exist in Marion.7
1.

Child Find

The IDEA requires that states implement systems to identify
all students who are eligible for special education services and
provide such services to all those identified as having

7

Ms. Crow, acting as part of Fred Cohen's team, reviewed
education services provided by Scioto's girls' section. The
State has agreed to adopt and stipulate to Mr. Cohen’s findings,
for the purpose of our investigation, and to apply those findings
to Marion and the entire Scioto facility.

- 13 

disabilities. 20 U.S.C. § 1412. We find that Marion violates
many of these “Child Find” requirements of the IDEA.
When youth enter the Ohio juvenile correctional system, they
are inadequately evaluated for special education needs at the
Scioto intake facility; this “evaluation” process consists of a
document request for special education records from a youth’s
prior school. There is no additional direction provided by the
Ohio Department of Youth Services to guide intake personnel in
conducting a thorough assessment to identify items in a youth’s
record that should merit further investigation regarding special
education placement. Once placed at Marion, youth appear to
receive no additional special education screening; none of the
teachers who we interviewed could recount ever having referred a
student for such an assessment. In light of the above, we find
that Marion is not in compliance with its Child Find obligations
under the IDEA.
2.

Eligibility Determinations

Under the IDEA, Marion is required to conduct a thorough
eligibility evaluation of a child suspected of having a
disability. See 20 U.S.C. § 1414 at (b)(4), (b)(5), and (c)(5).
The IDEA requires that eligibility decisions are to be reviewed
every three years. Approximately six percent of Marion’s
evaluations were more than three years old and thus not in
compliance with the IDEA. In this regard, the shortage of
psychological staff at Marion contributes to the facility’s
inability to complete necessary eligibility assessments.
3.

Implementation of Individual Education Plans

The IDEA requires that each student with a disability have
an Individualized Education Plan (“IEP”), and describes the IEP
components required to ensure that each student receives adequate
special education services. We find that Marion’s IEP process
does not ensure that students with disabilities receive such
required special education services.
For example, Marion conducts IEP meetings without the full
compliment of professionals who should attend and contribute to
the development of the IEP. Although the IEP meeting we observed
contained a substitute for the principal or vice principal, it
contained no regular education teacher, transition services
representative, or psychologist (or other individual with skill
in interpreting test results).
Furthermore, the IDEA requires that the IEP be a document
containing equal contributions from the school and the parent.

- 14 

However, at one IEP meeting we observed, although the parent was
present via telephone, she had minimal involvement. Throughout
the meeting, the special education teacher merely read the
“draft” IEP to those present. The parent was not given any
opportunity to collaborate in developing the document, and the
teacher ratified the IEP upon concluding her oral presentation.
Additionally, the IDEA requires IEPs to be reviewed at least
annually. Our document review revealed that at least 12 percent
of Marion’s IEPs had not been revised within the IDEA’s time
requirements.
Lastly, our document review revealed a clear need for
professional development to properly address youth reading
problems. The majority of special education records we reviewed
revealed substantial deficits in simple reading skills.
Moreover, we reviewed a record for one non-special education
youth showing lower level reading performance than others
currently receiving special education services. This problem
reflects the deficiencies described above regarding the special
education assessment process.
4.

Monitoring of IEPs

We find that Marion’s practices for monitoring progress of
students with disabilities is inadequate. Marion should monitor
IEPs to ensure that youth receive access to a free and
appropriate public education, as required by the IDEA. If
monitoring is not conducted frequently and appropriately,
educators are unlikely to recognize students' inadequate progress
and modify instruction to improve progress.
Our document review and teacher interviews revealed a
general lack of knowledge of how to use objective data and
quantitative methods to assess students’ progress. All
educational records we reviewed consisted of subjective
evaluations with little basis supporting the stated conclusions.
For example, an estimated 80 percent of the required blocks on
the IEP forms uniformly read “quarterly progress reports based
upon records reviews and teacher interviews.” Our review raises
doubts as to whether such reviews are actually occurring. Marion
also does not appear to have adequate professional development
for preparing teachers to monitor progress of IEP goals.
In addition, while the IDEA requires consideration of
positive behavioral interventions for students whose behavior
interferes with their learning or that of other students, our
document review revealed only one such individualized
intervention, despite the needs of Marion’s youth. Teachers we

- 15 

interviewed indicated that they believe “only a couple” Marion
students have such interventions. This does not comply with the
IDEA.
5.	

Classroom Instruction and Management

Finally, as a matter of technical assistance, we encourage
Marion to make maximum use of the instructional time available to
provide important educational opportunities for students with
disabilities. Furthermore, in order to ensure that students with
disabilities are served appropriately, we encourage Marion to
increase its school staffing.
III.

REMEDIAL MEASURES

In order to rectify the identified deficiencies and protect
the constitutional and statutory rights of the youth confined at
Marion, the facility should implement, at a minimum, the
following measures:
A.	

Protection from Harm

1.	

Ensure that youth are provided with safe living conditions
and are protected from abuse, use of excessive force, undue
seclusion, and undue restraint.

2.	

Develop appropriate policies and procedures that govern the
use of force, requiring reliable documentation and limiting
use of force to situations where a youth is physically
violent and poses an immediate danger to himself and/or
others or the youth is physically resisting institutional
rules and the institution has attempted a hierarchy of non
physical alternatives.

3.	

Prohibit verbal and physical punishment, and use of force
practices that are incompatible with minimum actions
necessary to prevent harm or obtain compliance with
reasonable orders, including practices such as shoving,
pushing, kicking, striking, or using inappropriate holds on
youth.

4.	

Monitor and supervise staff, maintaining appropriate staff
ratios and holding staff accountable for the use of
excessive force or abuse.

5.	

Develop policies and procedures to ensure that seclusion and
restraint are only used in appropriate, documented,
instances by trained staff.

6.	

Provide youth with an effective and reliable process to
raise grievances, without exposing them to retribution from

- 16
staff, ensuring that all grievances are reviewed and
addressed in a timely matter that provides youth with
notification of the final resolution.
7.	

Employ sufficiently trained and independent investigators to
ensure that all incidents of violence, use of force, or
serious injury are adequately investigated, and documented,
and that appropriate personnel actions are taken in response
to substantiated findings.
B.	

Medical and Mental Health Care

1.	

Ensure that youth receive routine, preventative, and
emergency medical and dental care consistent with current,
generally accepted professional standards, including
identification, assessment, diagnosis, and treatment of
individuals with health problems.

2.	

Develop policies and procedures to ensure that youth are
provided with: complete and accurate health records, access
to confidential health care, a complete initial health
assessment, appropriate access to health services,
appropriate medications and care to manage chronic illness,
access to specialty consults, and proper immunizations
managed according to generally accepted medical standards.

3.	

Maintain appropriate dental staffing and require that
generally accepted professional standards are followed to
ensure that: youths’ restorative needs are met in a timely
manner, youth are not denied appropriate pain medication,
needed prosthetic dental services are provided, and health
records contain adequate documentation of outside dental
consults.

4.	

Provide mental health and rehabilitative treatment
consistent with generally accepted professional standards
and ensure that there are an adequate number of qualified
mental health professionals to provide mental health and
rehabilitative services in a timely manner to all youth who
require such services.

5.	

Develop and implement policies, procedures, and practices to
ensure that, consistent with generally accepted professional
standards of care, youth are: (1) systematically evaluated
in response to problem indicators to address potential
manifestations of mental or behavioral disorders in youth
who have not been previously identified as requiring
treatment; and (2) provided appropriate mental health care,
substance abuse care, and treatment services.

6.	

Ensure that any youth determined at screening to be at
immediate risk is immediately referred to a qualified mental

- 17
health treatment professional for: assessment, treatment,
and other appropriate actions, including facility transfer
when necessary.
7.	

Implement policies, procedures, and practices according to
generally accepted professional standards to ensure that:
youth identified in screening receive timely, comprehensive,
and accurate assessments by qualified mental health
professionals; and assessments are designed to incorporate
data necessary to identify youth with mental disorders and
contribute to a plan for managing the youth’s risk.

8.	

Develop and implement policies and procedures consistent
with generally accepted professional standards of care to:
(1) ensure that treatment determinations are made by an
interdisciplinary team through integrated treatment
planning; (2) create and implement treatment plans that are
current and individualized; (3) maintain readily accessible
records containing meaningful, accurate and coherent
assessments of the individual’s treatment plan progress,
goals, and objectives.

9.	

Develop and implement a system to ensure that mental health
issues are adequately considered in making housing decisions
and that mentally ill youth receive appropriate housing.

10. 	 Prior to administration of prescribed psychoactive
medication, Marion must: (1) ensure that youth and their
parents (or guardians, if parents have lost custody due to
abuse or neglect) are provided with goals, risks, benefits,
and potential side effects of the medication, along with the
potential consequences of not treating with the medication;
(2) follow state law in order to administer such medication
without consent.
11.	 Develop and implement policies, procedures, and practices to
ensure that psychoactive medications are prescribed,
distributed, and monitored properly and safely, consistent
with generally accepted professional standards of care.
12.	 Provide training to all staff who interact directly with
youth regarding mental health information, developmental
disabilities, recognition of signs and symptoms of trauma,
teenage development, strength-based treatment strategies,
and suicide risks.
13.	 Create transition plans for youth leaving the facility that
are consistent with generally accepted practice standards.
14.	 Develop and implement polices and procedures to maintain
oversight of mental health services and ensure that such

- 18
services are provided consistent with generally accepted
professional standards of care.
C.	

Special Education

1.	

Provide prompt and adequate screening, and ongoing
rescreening and referral, of youth for special education
needs and ensure that all students requiring special
education services receive services in compliance with the
IDEA within a reasonable time following intake.

2.	

Ensure that all eligible youth have current, accurate IEPs
that are developed and implemented consistent with IDEA
requirements.

3.	

Create and implement a system to routinely develop,
implement, and monitor youths' IEPs, with involvement of
parents and guardians, as required by the IDEA.

4.	

Develop and implement a staffing plan that allows for a
sufficient number of certified special education teachers
and staff to provide all youth with the opportunity to
attend school full-time and to obtain adequate educational
services while providing teachers with sufficient time to
plan lessons, grade assignments, and participate in special
education meetings.

5.	

Develop a quality assurance program to ensure the quality of
IEPs, compliance with the IDEA, and monitoring of teaching
staff on compliance issues.

6.	

Ensure that special education staff receive in-service
training and maintain current educator licenses appropriate
to the courses they teach.
*

*

*

As stated above, we appreciate the cooperation we have
received from Ohio Department of Youth Services officials and
facility staff throughout this investigation. We hope to be able
to continue working with the State in an amicable and cooperative
fashion to resolve the deficiencies found at Marion. Provided
that our cooperative relationship continues, we will forward our
expert consultant reports under separate cover. Although this
report is our consultants’ work – and does not necessarily
reflect the official conclusions of the Department of Justice –
the observations, analyses, and recommendations contained in the
reports provide further elaboration of the issues discussed in
this letter and offer practical assistance in addressing them.
In the unexpected event that we are unable to reach a
resolution regarding our concerns, the Attorney General is

- 19 

empowered to institute a lawsuit pursuant to CRIPA to correct the
deficiencies of the kind identified in this letter 49 days after
appropriate officials have been notified of them. 42 U.S.C.
§ 1997b(a)(1).
We would prefer, however, to resolve this matter by working
cooperatively with you. We have every confidence that we will be
able to do so in this case. The lawyers assigned to this matter
will be contacting your attorneys to discuss this matter in
further detail. If you have any questions regarding this letter,
please contact Shanetta Y. Cutlar, Chief of the Civil Rights
Division’s Special Litigation Section, at (202) 514-0195.
Sincerely,

/s/ Wan J. Kim
Wan J. Kim
Assistant Attorney General
cc:	 The Honorable Marc Dann
Ohio Attorney General
Department of the Attorney General
Thomas J. Stickrath

Director 

Ohio Department of Youth Services

Dion Norman

Superintendent

Marion Juvenile Correctional Facility

The Honorable Gregory A. Lockhart
United States Attorney
Northern District of Ohio