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July 12, 2017 Articles

How to Use Litigation to Improve Mental Health Care for Children

By Lisa Freeman

The adequacy of mental health services for children in the child welfare and juvenile justice systems is a matter of persistent concern. Children in these systems are typically members of racially segregated, impoverished communities, and are therefore politically and economically disempowered. They are minors and therefore have virtually no voice in the political process. And, they are persons in need of mental health services, who may face individual obstacles to effectively advocating for services. As a result, it is not surprising that these children often lack access to mental health services, let alone access to quality services. At the same time, it is no surprise that the mental health needs of children in the child welfare and juvenile justice systems are great. The Juvenile Rights Practice (JRP) of the Legal Aid Society in New York, with pro bono assistance from Patterson Belknap Webb & Tyler LLP and Orrick LLP, has succeeded in improving the nature and quality of mental health services to our clients in each of these systems through federal class action litigation. While these cases certainly did not solve all the issues, they are instructive to practitioners in other jurisdictions.

As the largest legal organization serving children in New York City, the Legal Aid Society’s JRP continuously seeks to ensure that children in the child welfare and juvenile justice systems receive the mental health care they need. JRP provides legal representation to children who appear before the New York City family courts in all five boroughs, in abuse, neglect, juvenile delinquency, and other proceedings affecting children’s rights and welfare. Last year, our staff represented some 34,000 children, bringing us into daily contact with children and their families, social service providers, and state and city agencies whose practices impact our clients and their families. In addition to representing many thousands of children each year in trial and appellate courts, JRP also pursues impact litigation and other law reform initiatives on behalf of our clients and has successfully brought systemic litigation in recent years that has improved the provision of mental health services in both the child welfare and juvenile justice systems.

Mental Health Care in a Juvenile Justice Setting
The vast majority of children in juvenile detention and placement have a need for mental health care. Studies show that nearly seven in 10 youth involved with the juvenile justice system are experiencing a mental health issue, and one in four of these youth exhibit severe functional impairment. Mental Health Ass’n in N.Y. State, Inc., Report on Juvenile Justice, Mental Health & Family Engagement 4 (2013). A report by the Vera Institute of Justice made similar findings: “approximately 85 percent of young people assessed in secure detention reported at intake at least one traumatic event, including sexual and physical abuse, and domestic or intimate partner violence . . . [and] one in three young people screened positive for Post-Traumatic Stress Disorder (PTSD) and/or depression.” According to the New York City Administration for Children’s Services (ACS), which now administers juvenile detention and placement, in the first four months of 2016, 56 percent of youth in detention were referred for and received mental health services.

JRP had a long-standing concern about the quality of mental health treatment provided to children placed as juvenile delinquents with the New York State Office of Children and Family Services (OCFS), as well as concerns about the use of restraints and excessive force in OCFS facilities. In late 2006, JRP was spurred to investigate following the death of Darryl Thompson, a 15-year-old OCFS resident, who died in the course of a restraint. An investigation by the U.S. Department of Justice, under the Civil Rights of Institutionalized Persons Act, resulted in a scathing findings letter in August 2009 detailing constitutional violations. A report of then New York State Governor David Paterson’s expert task force, which included the head of JRP, provided further confirmation of the existence of system-wide problems regarding the provision of mental health services and the use of restraints in OCFS.

Litigating to Improve Mental Health Care in the Juvenile Justice System
In 2009, JRP, along with Orrick LLP, filed a federal class action lawsuit on behalf of 14 youth in certain OCFS facilities seeking individual damages and injunctive relief. That lawsuit, G.B. v. Carrión, No. 09 CV 10582 (S.D.N.Y. filed Dec. 30, 2009), alleged that as a result of OCFS policies and procedures, staff used excessive and unduly harmful restraints and failed to provide appropriate mental health evaluations and care to youth in violation of the Due Process Clause of the Fourteenth Amendment, Title II of the Americans with Disabilities Act, and section 504 of the Rehabilitation Act. The lawsuit further asserted that these issues were not unrelated—the failure to provide minimally appropriate mental health care led to the excessive use of force and restraints, and, in turn, the excessive use of restraints aggravated the mental illness of youth in OCFS’s care. As a result, the lawsuit alleged, children with mental illness were discriminated against based on their disability.

Many of our named plaintiffs had significant mental health diagnoses; however, they were receiving “treatment” from staff who lacked any training in mental health care. Some of these youth had received psychiatric treatment prior to their juvenile placement; others could have benefited from access to appropriate treatment. For many of these youth, their mental illness led to the behavior that resulted in their placement as juvenile delinquents.

The lawsuit was settled in 2013 with a requirement that OCFS implement new policies intended to reduce the use of force and physical restraints against residents, to provide comprehensive mental health services, and to establish a quality assurance and improvement system to ensure that policies and procedures are being followed. The settlement also provided damages awards for the 14 individual named plaintiffs. By the time of the settlement, then Commissioner Gladys Carrión had already dramatically increased the number of mental health practitioners serving OCFS residents and had begun implementing the “New York Model,” a behavioral treatment program, for the provision of mental health services.

Mental Health Care for Children in Foster Care
Children in foster care often have greater needs for mental health care than children in the general population. According to the Bazelon Center:

A significant proportion of the children who come into state child welfare systems have mental health disorders—between 40 and 60 percent have at least one psychiatric diagnosis and about a third have three or more mental disorders. Mental health service use by children in foster care is eight times higher when compared with other low-income youngsters on Medicaid. Use of mental health services increases with age, and fully 90 percent of youth in foster care receive mental health services.

In contrast, the Annie E. Casey Foundation estimates that 17 percent of children in the general population have one or more emotional, behavioral, or developmental conditions.

For children in foster care, access to appropriate mental health services can be particularly challenging. Although they are automatically enrolled in Medicaid, they face numerous obstacles, some typically faced by poor people accessing mental health services, others more unique. For instance, many mental health practitioners who accept Medicaid have long wait times, and child psychiatrists are in particularly short supply. In addition, clinics serving poor people frequently rely on students and other staff who turnover frequently, resulting in a lack of continuity of care, essential to building a therapeutic relationship and providing quality mental health services.

Children in foster care are particularly disadvantaged in the pool of Medicaid recipients and are particularly vulnerable to the excessive use of psychotropic medication and of psychiatric hospitalization. They may have been traumatized by events leading to their placement in foster care or by the very removal from their parents. Foster parents who are having difficulty managing children’s behavior may seek psychotropic medication as a “quick fix.” At the same time, birth parents may lack information about alternatives to recommended psychotropic medication or may feel unable to object to a recommended psychotropic medication out of fear that they will be viewed as insensitive to the needs of their children, or even neglectful, while an investigation against them is pending.

For all of these reasons, it is essential to ensure that adequate mental health services are available for children in foster care, that birth parents are provided comprehensive information to determine whether to consent to psychotropic medication for their children, and that the use of psychotropic medication is closely monitored.

In 2008 and 2009, JRP voiced great concern about clients languishing in acute care psychiatric hospitals, due to a lack of planning by their foster care agencies and a lack of oversight by ACS. In some instances, we were contacted by the hospital and told that our client was ready for discharge, but that the child could not be discharged because neither ACS nor the foster care agency had identified a placement. In other instances, we were never notified of our client’s hospitalization, and were therefore unable to timely advocate for his or her discharge. After multiple experiences of a lack of notice and repeated efforts at individual advocacy in family court, JRP decided to file a class action lawsuit to address these practices.

In 2010, along with Patterson Belknap Webb & Tyler LLP, JRP filed a federal class action lawsuit against ACS challenging the failure to provide adequate discharge planning for children in foster care in acute care psychiatric hospitals. This lawsuit, A.M. v. Mattingly, 10 CV 2181 (E.D.N.Y. filed May 12, 2010), alleged violations of Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act, which bar a public entity from discriminating against a qualified individual on the basis of his or her disability, and asserted that unjustified institutionalization constitutes such discrimination. The lawsuit also alleged a violation of New York Social Services Law and implementing regulations, which require ACS to place children in its care in the least restrictive, most home-like setting. Finally, the lawsuit alleged violations of the Due Process Clause of the Fourteenth Amendment and of Article VI of the New York Constitution.

In 2011, the parties settled A.M. v. Mattingly. The settlement provided injunctive relief requiring the creation of a Mental Health Coordination Unit (MHCU) within ACS to track and coordinate the admission and discharge of children in ACS custody from acute care psychiatric hospitals, extensive reporting to plaintiffs’ counsel, notification to family court counsel within three business days of a child’s hospitalization, and the development of a protocol to address individual clients. The settlement also required the implementation of a policy that mandated contact between a case worker and the hospital at specific intervals, and concurrent discharge planning. The settlement additionally required MHCU to train and provide technical assistance to ACS and foster care agency staff to ensure their compliance with the policy. Finally, the settlement provided for monetary damages for the individual named plaintiffs who were detained in hospitals despite being ready for discharge.

JRP monitored compliance until the stipulation of settlement expired in 2016. Over the course of the monitoring period, we found that the rate at which children in foster care were admitted to acute care psychiatric hospitals remained relatively stable. However, over time the average length of hospital stays gradually declined. Over the first two years of monitoring, the percentage of children who experienced acute care psychiatric hospital stays longer than 22 days fluctuated between approximately 80 percent and approximately 45 percent. After the first two years, the percentage of children in foster care experiencing hospital stays longer than 22 days gradually declined, hovering around 25 percent at the conclusion of monitoring. Some of those remaining hospitalized for 22 days or more were awaiting placement in a facility with a higher level of care, such as a state hospital or residential treatment facility. Waiting times for such placements remain problematic, but could not be addressed through the A.M. settlement.

Children in the child welfare and juvenile justice systems are some of the most needy and vulnerable members of our community. Because they are not a politically powerful group, litigation may be the most effective tool to force government actors to address their needs. Class action litigation, however, requires significant resources. For legal services organizations to undertake system litigation, a partnership with private law firms providing pro bono services is a virtual necessity. Not only do pro bono firms provide essential assistance, but their presence also may make the government defendants more likely to consider settling the case. The Legal Aid Society has the benefit of a strong network of private law firms seeking pro bono opportunities. With the help of these partners, and with our front-line experience representing children throughout New York City, JRP has been able to bring new attention and new resources to benefit our clients.

Lisa Freeman is the director of the Special Litigation and Law Reform Unit of the Legal Aid Society’s Juvenile Rights Practice in New York City, New York.

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