Litigation Strategies

1. Constitutional Right to Family Integrity The Legal Claim The Case Law Joyner v. Dumpson In re Welfare of Kirsten Key Kruse v. Campbell Summary of Constitutional Case Analysis 2. Federal Statutory Claims: Individuals with Disabilities Education Act (IDEA) The Legal Claim The Case Law A. Class actions under the IDEA to compel an array of mental health services Cordero by Bates v. Pennsylvania Dept. of Educ. Felix v. Waihee Willie M. v. Hunt B. Cases using the IDEA entitlement to compel in-home mentalhealth services Parental and family therapy outside of the school setting In-home services and behavior management Recreational activities outside of school C. Case law determining whether residential treatment is covered under the IDEA D. Summary of IDEA case analysis 3. Federal Statutory Claims: Medicaid The Legal Claim The Case Law Larry K. v. Snider Emily Q. v. Belshe French v. Concannon Additional cases Medicaid Managed Care J.K. v. Dillenberg John B. v. Menke Christopher B. v. Premier, et al. Metts v. Houston Summary of Medicaid Case Analysis 4. Federal Statutory Claims: Americans with Disabilities Act The Legal Claim The Case Law Key v. State of Washington Dep't of Social and Health Svcs. Elizabeth B. v. Texas Dept. of Protective and Regulatory Svcs. 5. State Statutory Jurisdiction The Legal Claim The Case Law Fauquier County Department of Social Services v. Robinson In re Rami M. Additional decisions Summary of State Statute Analysis Conclusion

This document offers an overview and analysis of lawsuits addressing the problem of parents' having to give up custody in order to access the mental health care a child needs. These suits address both the issue of custody relinquishment and its underlying cause, the lack of mental health services for children and their families. Although we compiled the case list to accompany our report on the subject, we hope this analysis will be useful to advocates representing children with mental health needs in a variety of contexts. It has three sections:

• whether custody relinquishment violates the Constitution by interfering with family integrity;
• whether the underlying lack of community-based mental health services can be addressed by federal statutes such as the Individuals with Disabilities Education Act, Medicaid and the Americans with Disabilities Act; and
• whether custody relinquishment can be reduced by using state statutes to petition the juvenile court to order services without taking custody.

In each, we first describe the claim and, where appropriate, a bit of legal history. Then we highlight some of the most critical cases in the area, discuss their importance and list the relevant cases for those who want additional information. We end by analyzing the effectiveness of the preceding lawsuits.⁽¹⁾

In general, we found that cases filed under constitutional claims and allegations of discrimination based on disability have not been successful. However, few cases have tested these theories, and more favorable outcomes may be possible in different courts and with very compelling facts. Statutes that grant entitlements to services—such as the Individuals with Disabilities Education Act (IDEA) and Medicaid's Early and Periodic Screening, Diagnosis and Treatment (EPSDT)—have been more successful in obtaining mental health services for children. Policymakers and advocates should continue working to ensure that these entitlements are fully enforced. The use of state law jurisdictional statutes has produced mixed results, but relying on state-created programs may help families who do not qualify for Medicaid. This overall analysis highlights the need for an entitlement to mental health services for children who do not meet current Medicaid standards and who need services that extend beyond the school day.

1. Constitutional Right to Family Integrity

The Legal Claim

The Fourteenth Amendment to the United States Constitution provides that: "No State shall ... deprive any person of life, liberty, or property, without due process of law." The concept of liberty is not explained or defined. Beginning in the 1920s, the U.S. Supreme Court has interpreted liberty to include the right of an individual to "establish a home and bring up children." Meyer v. Nebraska.⁽²⁾ The liberty right was explained in May v. Anderson,⁽³⁾ where the court noted that the Fourteenth Amendments liberty interest included a parents "immediate right to the care, custody, management, and companionship of ... minor children."

In addition to the Fourteenth Amendment, the Supreme Court has relied on the privacy interest inherent in the Ninth Amendment to protect families from state intrusion.⁽⁴⁾ For example, in Stanley v. Illinois,⁽⁵⁾ the court declared Illinois dependency statutes unconstitutional because they deprived an unmarried father of the care and custody of his natural children on the death of their mother. The court specifically recognized that "the integrity of the family unit" is protected by the Fourteenth and Ninth Amendments and so the Supreme Court has recognized both a privacy and a liberty interest in maintaining family integrity.

The Case Law

Joyner v. Dumpson⁽⁶⁾

Our research revealed only one federal case directly challenging custody relinquishment on constitutional grounds. In Joyner v. Dumpson, the plaintiffs argued that New York Social Services Law violated the Constitution by requiring parents who sought state-subsidized residential care for their children to transfer temporary custody to the state.(7) The class included approximately 5,000 children.

The Joyner court began by recounting New York States statutory scheme for voluntary custody relinquishment, which is similar to other states. After being informed of their rights, parents may enter into a voluntary placement agreement (VPA) with the state, setting forth terms and conditions for the child's care. The social service agency must seek court approval if the child is expected to remain in care for over 30 days.

Turning to the plaintiffs' legal claims, the court rejected their constitutional claim of family integrity. Although the court appeared to acknowledge a right to family integrity, it was not convinced that New Yorks procedures required parents to give up substantial responsibility for important decisions in a child's life. The court distinguished voluntary placement agreements, where the parents retain guardianship, from termination procedures that free a child for adoption. The court then found that the New York Social Services regulations represent a serious attempt to avoid harming "family integrity" because they require the social service agency to determine whether the child can be served with alternative services, such as "day services," before providing out-of-home placement. After a child is placed, the agency must establish a visitation plan that includes the names of parents and other people who are significant in the child's life and who may want to visit.

The court went on to note that because New York was under no constitutional obligation to provide state-subsidized care, it could restrict its provisions of voluntary social programs. It concluded, "the severing of family ties cannot be attributed to the states administration of the program, but can be attributed to the parents placement of the child in the program."⁽⁸⁾

In addition to arguing that New York's program violates the Constitution on its face, plaintiffs also argued that New York administered the program in a manner that infringed on their family integrity by: failing to return children; refusing parents' requests to modify the voluntary agreement; retaining ultimate decision-making power over return, placement and treatment; and strictly controlling visitation so as to isolate the child and harm the family. The state claimed that its system fosters cooperation between the parents and the state in order to best serve children. The court noted that the two sides presented very different pictures of the system for voluntary placements and sent the case back to the district court for a factual hearing on whether the states practices during custody transfer violate family integrity.⁽⁹⁾

On one hand, this case is very disappointing because the court failed to recognize parents' anguish at having to relinquish custody of their children to receive help. The court mistakenly viewed the services as "voluntary" instead of necessary health care. On the other hand, the court's decision leaves open the possibility of challenging the custody relinquishment requirement because its implementation destroys family unity. Such a case would require a very strong factual record and compelling stories from families who were denied any help unless they relinquished custody and, upon doing so, lost all control over their child's education, treatment and placement. The most persuasive cases would generally be those where children suffered harm as a result.⁽¹⁰⁾

In re Welfare of Kirsten Key⁽¹¹⁾

Our research revealed one state court case challenging relinquishment of custody on constitutional grounds. Kirsten is a child with quadriplegia, cerebral palsy, respiratory distress and osteoporosis. For the first three years of her life, her mother cared for her at home and all medical expenses were covered by her father's health insurance plan. After her parents divorced and her father lost his employment, Kirsten lost her health insurance. Mrs. Key began working and sought help in caring for Kirsten during the hours she was gone. Social services refused to provide home health services and Mrs. Key was forced to place Kirsten in foster care.

Several times, Mrs. Key was unhappy with Kirsten's care and took her home, only to have to relinquish custody again when Kirsten's medical needs became too great. Finally, Mrs. Key and the Department of Social Services agreed on a family friend as the foster parent and Mrs. Key moved next door to help in Kirsten's care. The department then sought a court order declaring that Kirsten was a dependent child in order to get federal reimbursement for the cost of her care. Recognizing that parents have to relinquish custody to get medical care for children with disabilities, Washington State law provides that a child can be declared dependent if the parent and the department jointly determine that the child's needs cannot be met in the home. However, there is no requirement of a finding of parental unfitness. In this case, Mrs. Key acknowledged that Kirsten's needs were better met in foster care, but she opposed a declaration of dependency.

Like the Dumpson court, the majority opinion characterizes a finding of dependency as relatively benign with little change in parental rights. The court made several findings. It read Washington statutes as prohibiting the agency from changing Kirsten's placement without parental approval unless it can establish good cause by "clear and convincing evidence," the highest standard of proof required in a civil case.

The court also made much of the legislative finding that the state must declare children with disabilities dependent in order to access federal funds. Under the requirements of Section IV-E of the Adoption Assistance and Child Welfare Act, a child's case must be reviewed every six months by an administrative body or a court to allow federal funding for the out-of-home care to continue. Washington State chose to meet this requirement by court review. However, under the state's juvenile court statutes, the court must declare a child dependent in order to have jurisdiction or the ability to rule on her case. Thus, Kirsten had to be declared dependent in order to meet state and federal requirements. The court found that the state's financial interests in getting federal reimbursement were substantial and Mrs. Key's rights were adequately protected by juvenile court procedures. The Key court, like the Dumpson court, stressed the distinction between dependency and termination of parental rights and noted that Mrs. Key could terminate the dependency at any time.

A strongly worded dissent noted that the only reason for the dependency was the department's erroneous interpretation of a federal statute that merely requires periodic review of the child's voluntary placement. The state chose to conduct its review by using the juvenile court instead of some administrative method that would not necessitate custody relinquishment. In addition, the judge noted that the current juvenile jurisdictional statute could be interpreted broadly to allow review of voluntary placements without a finding of dependency.

Finally, the dissent forcefully noted that the majority opinion had ignored the substantial diminishment of parental rights due to a dependency finding. The judge wrote that "regardless of the reason for the dependency, parents lose the right to make ultimate decisions determining the care, education and housing of a dependent child."⁽¹²⁾ After finding the state's interests to be minimal, the dissent concludes, "by treating dependency like a routine, momentary inconvenience in the process of parenting, the majority neglects and therefore denigrates one of our most fundamental values."⁽¹³⁾

The dissent indicates that some judges understand the emotional and legal ramifications of custody relinquishment. However, the case also highlights the need to educate judges about the serious repercussions of giving up custody. Cases showing the greatest loss of parental control will have the greatest probability of success. It should also be noted that even though the plaintiffs lost the case, their efforts led the majority to read state law expansively to give parents of children with disabilities control over their child's placement except where clear and convincing evidence supports the state.⁽¹⁴⁾

Kruse v. Campbell⁽¹⁵⁾

Because there are so few cases directly on point, we looked at a pre-IDEA case challenging custody relinquishment to access educational services on constitutional grounds. In Kruse, the court examined a state educational system that did not cover the full cost of residential care for children with disabilities, forcing parents to relinquish custody. The court held that requiring custody relinquishment for educational services violates the Fourteenth Amendment because "such a practice, in effect, conditions the provision of a government service, special education, upon the relinquishment of a constitutional right" to family integrity.⁽¹⁶⁾ The court then found that such "egregious" practices must be determined on a case-by-case basis with the benefit of a more developed factual record.⁽¹⁷⁾

Summary of Constitutional Case Analysis

These cases indicate the need for a well-developed factual record to establish the loss of parental control that accompanies custody relinquishment. The case law further indicates the importance of characterizing the mental health care at issue as mandatory health or educational services rather than voluntary foster care services.

A claim like this may also be successful in a state with a statutory entitlement to mental health services, where the requested services cannot be deemed voluntary. Federal legislation, such as the new Children's Health Insurance Program (CHIP), will help make the case that children have a right to medical care so it is not viewed as a voluntary service. It is interesting to note that custody relinquishment to access educational services was a prevalent problem prior to the passage of an educational entitlement for children with disabilities. It is quite possible that a federal entitlement to mental health services also would help reduce custody relinquishment.

2. Federal Statutory Claims: Individuals with Disabilities Education Act (IDEA)

The Legal Claim

The IDEA was originally passed by Congress more than 20 years ago as the Education for the Handicapped Act (EHA). The law entitles children with disabilities to "a free appropriate public education which emphasizes special education and related services designed to meet their unique needs."⁽¹⁸⁾ The statute further defines children with disabilities to include those with serious emotional disturbance (SED).⁽¹⁹⁾ This law has been used to obtain a variety of services for children with SED, including counseling, day treatment and residential services. However, the law limits "related" services to those required to assist a child in benefiting from special education. This is an important restriction because school districts use it to deny payment for services (including room and board costs for residential treatment) and to exclude critical family supports (including respite and evening and weekend crisis services).

The Case Law

Because the case law is so extensive in this area, we have divided it into systemic class actions and individual claims for in-home and residential treatment.

A. Class actions under the IDEA to compel an array of mental health services

Cordero by Bates v. Pennsylvania Dept. of Educ.⁽²⁰⁾

The facts in this case confirm that the failures of the educational system often lead to loss of custody. The plaintiff class of SED children argued that they were deprived of an appropriate education while placed on very long wait lists for private-school placements after the school district determined that the public schools lacked programs to meet their needs. In support of a motion for summary judgment to resolve the issue, plaintiffs submitted numerous affidavits from parents and guardians of children who told stories of children waiting months in home instruction or other unsuitable placements while their condition deteriorated.

The court ruled for the plaintiffs and ordered the state educational agency to develop additional public and private placements for children. In its opinion, the court recounted the affidavit of a mother who waited eight months for a private-school placement while her son's behavior worsened. Finally, she was forced to give up custody of her son, who was eventually placed far from home. The state billed her $560 for the cost of her son's program.

In this case, attorneys skillfully used the compelling facts of custody relinquishment, children's deteriorating mental condition and high fees for public services to convince a court to enforce a statutory entitlement so children could receive services. In addition, the attorneys did not focus exclusively on obtaining residential or private services, instead noting that the lack of appropriate, less restrictive public programs often necessitated private placements.

Felix v. Waihee

This comprehensive case was brought in May 1993 to address the systemic inadequacies of the Hawaii service system for children with serious behavioral health needs. The lawsuit alleged that the State of Hawaii and its Departments of Education and Health had failed to provide educational and mental health services to children between the ages of 3 and 20 in compliance with IDEA and Section 504 of the Rehabilitation Act. The plaintiff class was defined as children who were eligible for services, but for whom the programs were unavailable, inadequate or inappropriate because of a lack of a continuum of services and placements.

In 1994, the court granted partial summary judgment for the plaintiffs, finding the state liable primarily on the basis of their own admissions as to the inadequacies of services.⁽²¹⁾ By October of that year, the court approved a consent decree jointly drafted by the attorneys for the children and the state. The consent decree required:

• the Department of Education to provide all educational services needed by the plaintiff class and the Department of Health to provide all of the mental health services the children require to benefit from those educational services;
• a set of operating principles and standards that will guide the system and timelines for developing more specific implementation procedures based on these standards; and
• a monitor who will assess progress and assist with implementation.

In 1995, the parties developed an elaborate implementation plan, which included the establishment of Community Children's Councils to foster local integration of services and involvement in planning. Training was offered in 17 communities statewide to educate localities as to the system-reform efforts. According to a Fall 1998 report on the Felix implementation by a family advocate, the state's support for these community councils has been "fragmented and minimal."⁽²²⁾ Family members report that educators and service providers continue to be unwilling to view families as partners in planning services. Although families recognized that there has been much activity in the two years since the filing of the consent decree, they find that the pace of system change is not meeting the urgency of their childrens needs.

Willie M. v. Hunt⁽²³⁾

This class action was filed 20 years ago in response to a crisis in the juvenile court system in North Carolina. Claims were brought under the Fourteenth Amendment, the IDEA and state law. Judges and lawyers were increasingly frustrated by the lack of treatment alternatives for violent and assaultive youth with serious emotional disturbance. Then, as now, the vast majority of the children affected by the lawsuit are adjudicated through the juvenile justice or child welfare systems and have behavior that includes violence. As such, it is not a preventive program or one designed to keep children out of state custody.⁽²⁴⁾ However, unlike many of the children who are placed in state custody, the Willie M. class receives comprehensive services. In fact, the state has so succeeded in building a system of care for these children that a district court recently dismissed the action.⁽²⁵⁾

B. Cases using the IDEA entitlement to compel in-home mental health services

Although the IDEA has been used successfully to obtain school-based mental health services, many of the children at risk of custody relinquishment require a more comprehensive plan. The class actions discussed above used the IDEA in combination with other statutes to achieve a broader remedy. For individual children, however, advocates often want to explore the ramifications of the single statute fully before proceeding to other claims.⁽²⁶⁾ Accordingly, we examine the case law surrounding some of the more common mental health treatments sought by individuals under the IDEA.

Parental and family therapy outside of the school setting:

Generally, the cases appear mixed on this topic and turn on whether the child's attorney has established that the counseling is necessary for educational progress. Compare San Lorenzo Unified Sch. Dist.,⁽²⁷⁾ (holding that the district was required to fund the entire cost of parental counseling while the student attended out-of-state residential placement because counseling was necessary to benefit from educational placement) with Belcherton Pub. Sch.,⁽²⁸⁾ (finding that parents of 15-year-old with post-traumatic stress disorder, depression and learning disabilities were not entitled to private family counseling because counseling addressed family issues, not school matters).⁽²⁹⁾

In-home services and behavior management:

We were unable to find any cases where the school district was ordered to pay for in-home behavioral health services for a child with serious emotional disturbance. For example, in Krichinsky v. Knox County Sch.,⁽³⁰⁾ the administrative law judge (ALJ) had awarded additional occupational, speech and language therapy as well as an extended day program and an at-home behavioral management program designed by an experienced psychologist. However, the district court affirmed the additional speech and language therapy but declined to rule on the other services to allow the parents and district to negotiate a new IEP. In another case, the hearing officer ruled that the school district was not required to provide a mentor to supervise the study at home and in the community because this was not an educational support service. In re Child with a Disability.⁽³¹⁾

The cases for children with autism and developmental disabilities were mixed. Compare Taunton Pub. Sch.⁽³²⁾ (ordering school to provide 10 to 15 hours of in-home applied behavioral analysis training) to Burke County Bd. Of Educ. v. Denton⁽³³⁾ (in-home behavior management services were not necessary to achieve an educational benefit where student showed progress in their absence and such services were the responsibility of the state department of human resources). See also Hunger v. Leininger⁽³⁴⁾ (hearing officer ordered school to provide in-home "transitional services" such as counseling, occupational and physical therapy to enable student to move from home schooling to public school) and Seattle Sch. Dist.⁽³⁵⁾ (rejecting parents' request for an attendant at their house before and after school for a blind, quadriplegic student who was experiencing psychosis because of uncertainty about his environment. The student was given an attendant for school hours and on the bus).

Recreational activities outside of school:

The few cases in this area indicate that the IDEA does not cover such services when the school provides some alternatives. See San Lorenzo Unified Sch. Dist.⁽³⁶⁾ (high-school student with serious emotional disturbance who sought physical release through a boxing and weight-training program did not require these services to benefit from his education when the school provided other sports and physical education classes, even if the child was not interested in those programs); East Windsor Bd. of Educ.⁽³⁷⁾ (student with physical disability not entitled to horseback riding program because school's physical therapy program was adequate).

C. Case law determining whether residential treatment is covered under the IDEA

A thorough analysis of this topic is beyond the scope of this paper because of the volume of cases. Generally, the cases in this area appear mixed, with parents having many legal hurdles to surmount in seeking coverage for this service under the IDEA. Often when they are unsuccessful, they turn to the child welfare system and relinquish custody.

When seeking reimbursement for the cost of residential services, parents must meet both prongs of a two-prong test. Burlington v. Department of Educ.⁽³⁸⁾ First, the parent must establish that the childs IEP does not meet the Rowley standard—i.e., the IEP is not "reasonably calculated to enable the child to receive educational benefits." Board of Educ. v. Rowley.⁽³⁹⁾ Then the parent must demonstrate that the proposed placement is appropriate. Most cases do not reach the second stage of analysis because the Rowley standard is fairly easy for school districts to meet. See, e.g., OToole v. Olathe Dist. Sch. Unified Sch. Dist. No. 233⁽⁴⁰⁾ (denying residential placement for student who met some, but not all, of her IEP goals) and Hall v. Shawnee Mission Sch. Dist.⁽⁴¹⁾ (finding no support for residential placement where student "progressing academically, engaging in no violent behavior at school, and functioning on par with his grade level academically").

If the case does reach the stage of determining "appropriateness," the court in County of San Diego v. California Special Educ. Hearing Office⁽⁴²⁾ describes three possible tests to determine the appropriateness of residential placement: "(1) where the placement is 'supportive of the pupil's education; (2) where medical, social or emotional problems that require residential placement are intertwined with educational problems; and (3) when the placement is primarily to aid the student to benefit from special education."⁽⁴³⁾ See also Kruelle v. New Castle County Sch. Dist.⁽⁴⁴⁾ (basing the decision on determination of whether residential placement is "necessary for educational purposes, or ... a response to medical, social or emotional problems that are segregable from the learning process) and North v. District of Columbia Bd. of Educ.⁽⁴⁵⁾

Successful cases tend to document serious school failure in a day program prior to the residential placement and subsequent progress in the residential setting. See, e.g., Mrs. B. v. Milford Bd. of Educ.,⁽⁴⁶⁾ Kruelle and County of San Diego. In Mrs. B, the parents sought from the school district reimbursement for the educational expenses of residential placement for their 17-year-old daughter, who was diagnosed with learning disabilities and serious social and emotional problems. (The non-educational expenses were already being paid by the Department of Child and Youth Services, which placed the child.⁽⁴⁷⁾) The student's "history in the public school [prior to her residential placement] ... was marked by very limited academic progress, and serious regression in the year prior to placement."⁽⁴⁸⁾ The court concluded by noting that the "fact that a residential placement may be required to alter a child's regressive behavior at home as well as within the classroom, or is required due primarily to emotional problems, does not relieve the state of its obligation ... so long as it is necessary to insure that the child can be properly educated."⁽⁴⁹⁾

In County of San Diego, the history of prior school failure was even stronger. The student was hospitalized after she attacked her mother and broke windows in an outburst over a homework assignment.⁽⁵⁰⁾ The student's behavior worsened during the next four placements in day programs—including incidents of criminal behavior and attacks against family members—and culminated with another hospitalization.⁽⁵¹⁾ At the administrative level, the hearing officer concluded that there was "simply no evidence to establish that [the student] made any progress toward the goals in her IEP."⁽⁵²⁾ The facts were so strong that the court found that a residential placement would be appropriate under any of the three tests described above.⁽⁵³⁾

At least one circuit, however, has held that Rowley does not entitle a school district to try a day program and require student failure before having to fund a residential placement. Seattle Sch. Dist., No. 1 v. B.S.⁽⁵⁴⁾ In B.S., the student was first referred for an evaluation in 1990. Although the student exhibited serious behavioral problems, the district's professionals did not classify her as entitled to special education services under the IDEA. Instead they undertook interventions that proved ineffective in addressing the student's problems. In December 1992, when the student "became so verbally and physically assaultive that she was placed in restraints and taken to [the hospital]," the school expelled her.⁽⁵⁵⁾ The student remained out of school for the rest of the school year and was not reevaluated until five months after the expulsion. The school provided no educational services for six months until ordered to provide tutoring, and later a residential placement, by the ALJ at the administrative hearing level.⁽⁵⁶⁾ The parents prevailed again at the district court and appellate levels. The appellate court rejected arguments that the school district was being held to a standard higher than Rowley or that a residential placement violated the LRE provisions of the IDEA, concluding that the IDEA "does not require [a student] to spend years in an educational environment likely to be inadequate and to impede her progress simply to permit the School District to try every option short of residential placement."⁽⁵⁷⁾

Parents seeking a residential placement also face a challenge regarding the IDEA's requirements that children with disabilities be educated in the least restrictive environment (LRE). See, e.g., Kruelle,⁽⁵⁸⁾ ("before ordering residential placement, a court should weigh the mainstreaming policy embodied in the [IDEA]"). In Lenn v. Portland Sch. Committee,⁽⁵⁹⁾ for example, the court denied a residential placement even though the parents provided evidence that the student made little to no academic progress.⁽⁶⁰⁾ Applying the LRE preference expressed in the IDEA, the court found that "a student 'who would make educational progress in a day program' is not entitled to a residential placement even if the latter 'would more nearly enable the child to reach his or her full potential.'"⁽⁶¹⁾

Caregivers of children with psychiatric disabilities often must surmount the stigma and blaming associated with these disabilities. Although the appellate court in Mrs. B. found in favor of the parents, the administrative decision contains some disturbing language that reveals continuing biases about children with emotional and behavioral problems. The hearing officer denied reimbursement for the residential placement, reasoning that "where predominantly and significantly the child's problems grow out of the home situation rather than the school environment, the school cannot be taken to task" and concluding that the child was responsible for her own failure to learn.⁽⁶²⁾ In Muller v. East Islip Union Free Sch. Dist.,⁽⁶³⁾ parents faced similar attitudes by a hearing officer. The parents sought reimbursement for a private day program for their child with serious emotional problems. Although the parents ultimately prevailed, the hearing officer ruled against them, concluding that Treena's problems were the result of "family issues."⁽⁶⁴⁾

Creating a detailed factual record that includes the emotional costs to families and children may be helpful in combating this stigma. In North v. District of Columbia,⁽⁶⁵⁾ the parties made the court aware that a denial of services would lead to custody relinquishment. The court relied heavily on the testimony of the child's treating physician, who stated that "a neglect proceeding in Superior Court would have a devastating impact on plaintiffs' course of treatment."⁽⁶⁶⁾ The physician also testified that the child's disability had been exacerbated by his perception that his parents have abandoned him. The court was influenced by "the unrefuted medical opinion ... that the stigma of having his parents adjudicated neglectful and unwilling to care for him would seriously cripple efforts to deal with his problems and to reunite his family."⁽⁶⁷⁾ Based on this testimony, the court ordered the school district to pay for residential treatment. Citing North, the court in Christopher T. v. San Fran. Unif. Sch. Dist.,⁽⁶⁸⁾ also granted residential treatment services under IDEA to two young men whose parents had relinquished custody because they had been informed that it was the only avenue to services. The parents later learned about IDEA and brought suit successfully.

D. Summary of IDEA case analysis

The IDEA provides an important entitlement to educational services for children with serious emotional disturbance and is a useful tool for securing school-based mental health services such as an attendant care, counseling and other supports. This broad entitlement, however, has several important limitations. First, services are limited to those providing some educational benefit. Case law indicates that judges tend to use the school day as a proxy for educational benefit, often rejecting services before and after school or in the home. Next, residential services are only available after surmounting several legal hurdles and are most often awarded in response to egregious neglect by a school district. Finally, parents have the extra burden of battling the stigma and negative attitudes associated with mental health impairments.

3. Federal Statutory Claims: Medicaid

The Legal Claim

The Medicaid program provides public health insurance to indigent families. States also have the option of covering certain "medically needy" individuals meeting less stringent income criteria. The states pay part of the program costs and the federal government pays a matching percentage, which varies by state. In exchange for the match dollars, states must comply with federal law and regulations. Traditionally, state Medicaid programs have operated on a fee-for-service basis, with providers giving services in exchange for reimbursement from the state. Recently, many states have contracted with managed care entities, which receive a fixed sum per beneficiary for services. These entities then contract with providers.

Under either financial mechanism, children retain their most important right under Medicaid: the EPSDT entitlement. This provision, found at 42 U.S.C. Sec. 1396(r)(5), requires a state to provide "necessary health care, diagnostic services, treatment, and other measures ... to correct or ameliorate defects and physical and mental illnesses and conditions." Although states can choose not to provide certain Medicaid services for their adult population, they must provide all necessary services to children. The statute also requires states to provide outreach and information to eligible families about the entitlement, as well as medical screens to uncover any conditions needing treatment. The EPSDT statute provides a very comprehensive entitlement for Medicaid-eligible children.

The Case Law

Most children subject to custody relinquishment have already been identified as having serious emotional or behavioral health problems, so this review does not discuss the outreach, informing and screening requirements of the law. We focus on cases that attempt to expand and enforce the entitlement to services. There are no published decisions regarding access to mental health services because most of these cases have settled or are currently in litigation. This analysis sets forth the basis for the complaint and the substance of the settlement agreements and one preliminary injunction obtained to date. Because advocates have only recently begun to use the EPSDT entitlement to address behavioral health needs, many of these cases are ongoing.⁽⁶⁹⁾

Larry K. v. Snider⁽⁷⁰⁾

One of the first complaints filed to challenge the state's failure to comply with the EPSDT entitlement for mental health services detailed the story of parents who sued rather than relinquish custody. Larry was an 8-year-old with attention deficit hyperactive disorder and conduct disorder, confined to a mental hospital because the state refused to pay for residential treatment. The complaint noted that if Larry's parents gave custody to the foster care system, his care would be funded; however, his parents did not want to relinquish their rights and responsibilities.

The parents sued the Department of Public Welfare, Office of Medical Assistance (MA) and Office for Mental Health Services for Children to ensure that MA would pay for medically necessary mental health services. The case settled out of court when the state agreed that MA would pay for medically necessary residential treatment and wraparound mental health services for children and adolescents under age 21. This means that MA will cover virtually any in-home support and therapy, counseling or clinically supervised activity that is designed to keep children with behavioral disorders at home or in a community setting. The lawsuit is significant because it shows how families can use the entitlement guaranteed by the Medicaid law to obtain home and residential services for children with significant mental health needs.

The settlement agreement addressed the underlying problem that Pennsylvania, like many states, did not include several needed services on the state Medicaid fee schedule, so providers had no way to bill for reimbursement. As a result, the services were unavailable, even though children were entitled to them under the EPSDT mandate. The settlement provided that the Department of Public Welfare would issue bulletins explaining to providers the requirements and procedures necessary to be reimbursed for a comprehensive array of mental health services. The department issued two bulletins: The first directive added important wraparound services to the fee schedule and specified the procedures for receiving payment, and the second clarified the procedures for residential treatment facilities to qualify for payment.

The additional list of home and community services inclded: mobile therapy, therapeutic staff support, behavioral specialist consultant, individual diagnostic personality evaluation, comprehensive neuropsychological evaluation, cognitive retraining and psychological evaluations.

Emily Q. v. Belshe⁽⁷¹⁾

Building on the Pennsylvania experience, advocates in California recently filed a case seeking similar relief—a procedure for and the actual provision of home- and community-based wraparound services. The Emily Q. plaintiffs are children with intense mental health needs who have been placed in or are being considered for placement in a psychiatric facility or have had at least one emergency hospitalization. They seek wraparound services such as behavior management services, a one-on-one therapeutic aide, attendant care, crisis intervention, case management and transportation assistance. The complaint describes Pennsylvania's well developed system for requesting these additional services and contrasts it with California's failure to provide a list of services, reimbursement rates or procedures. This complaint is very useful because it details the concept of wraparound and describes why these services should be provided as "medically necessary" treatment under the EPSDT mandate.

After filing their complaint, plaintiffs' attorneys requested a preliminary injunction to require the state Department of Health Services and the county Department of Mental Health to provide services immediately. Shortly thereafter, the state agency told the court that it saw merit in many of the plaintiffs' claims and would develop and implement procedures for county mental health plans to submit requests to a new committee for authorization of services. The agencies and the children's lawyers were unable to negotiate such procedures successfully and the court recently issued a preliminary injunctive order.⁽⁷²⁾

The court held that the plaintiff children demonstrated a high likelihood of success on the merits and the possibility of irreparable harm. The court specifically found that the defendant was required under Medicaid law to provide "preventive and rehabilitative services" to children under age 21 and that "therapeutic behavioral health services could be considered both preventive and rehabilitative as contemplated by the statute." The court was further convinced by the affidavits of plaintiffs' experts that the children faced "patent harm" from the defendants' failure to provide adequate services. Finally, the court noted its concern about granting relief against the state, but noted that the state opted into the federal Medicaid program. The state was ordered to implement procedures for plaintiffs to request and access therapeutic behavioral services and to inform class members about the procedures. Although the case is ongoing, the preliminary injunction in Emily Q. has helped to educate state and local officials about the scope of the mental health entitlement in EPSDT.

French v. Concannon⁽⁷³⁾

In addition to building on prior work in Pennsylvania, the Emily Q. attorneys relied on a successful Maine case, French v. Concannon. The French plaintiffs are a class of Medicaid-eligible children who need home-based mental health services but could not obtain these services because of Maine's policies and practices. For example, the state required that the Department of Mental Health and Mental Retardation provide the state Medicaid match funding for several services, including case management, clinic services, day treatment and day habilitation services. Because the agency provided insufficient funds, children went without necessary care. In addition, the state refused to provide any coverage for personal-care attendant services, failed to provide sufficient reimbursement to recruit and retain qualified providers of home-based services, and used an assessment tool that was not designed to evaluate episodic mental impairments. Many of the children were placed on a wait list for home- and community-based waiver services, but were receiving no services in the meantime. As in Emily Q., the plaintiffs moved for preliminary relief to get immediate help in obtaining services and the state entered into negotiations to avoid a trial.

Negotiations were successful and the French case settled. The court dismissed the lawsuit, but retained jurisdiction to ensure that the defendants would comply with the terms of a letter spelling out changes the state will implement. The state agreed to issue new rules and regulations so that children with behavioral health needs and mental retardation receive:

• timely case management services;
• the presumption of medical necessity for services developed in a treatment plan by a provider after an assessment;
• prompt services, generally provided no later than six months after the date an assessment was requested;
• services which are not denied or delayed based on lack of seed money;
• a resource directory of services for case managers and the state's best efforts to develop additional resources where needed; and
• removal of the annual cap on day habilitation services.

Other provisions of the letter address outreach, screening, provider training, monitoring and quality improvement. The letter outlines a comprehensive state plan for the provision of mental health services.

Additional cases:

The three cases described above—Larry K., Emily Q. and French—are the most significant legal developments seeking to enforce the mandate for mental health services. However, several other cases may be useful for policymakers and advocates:

• D.R. v. Concannon,⁽⁷⁴⁾ (requiring the state to promptly provide medically necessary behavioral health services for children who previously have been screened and found in need of such services);
• Scott v. Snider,⁽⁷⁵⁾ (EPSDT case for all conditions and services; settlement required outreach, complete screening, increased participation in EPSDT program, and expanded services);
• Visser v. Taylor,⁽⁷⁶⁾ (holding that state violated Medicaid by refusing to provide clozapine to adult who needed that particular drug);
• Bond v. Stanton,⁽⁷⁷⁾ (holding that Indiana did not sufficiently define the content of the screening package to ensure that needy children receive the thorough screening intended by Congress);
• Tallahassee Memorial Regional Medical Center v. Cook,⁽⁷⁸⁾ (requiring the state to pay for inpatient psychiatric care for adolescents even when such care exceeds the medically necessary time period when the state has failed to provide the less restrictive placements due to funding constraints or bureaucratic hurdles); and
• Salazar v. District of Columbia,⁽⁷⁹⁾ (finding that D.C.'s general EPSDT program failed to comply with requirements for informing, screening, follow-up treatment, scheduling and transportation assistance, and due process)

Medicaid Managed Care

The advent of managed behavioral health care has added a new dimension to litigating EPSDT claims. This section discusses two state-wide class action lawsuits for children in managed care: (1) one specifically seeking mental health services and (2) one with broader claims for physical and mental health treatment. We then describe an individual child's case that seeks damages for a gross failure to provide appropriate mental health services. Finally, some information is provided about a particularly interesting case in which advocates want to carefully monitor denials and prevent arbitrary rejections of service requests.

J.K. v. Dillenberg⁽⁸⁰⁾

A lawsuit was filed in 1991 in federal district court in Arizona alleging that approximately 20,000 Medicaid-eligible children identified as needing mental health services were not receiving them as required by EPSDT. This case, now known as J.K. v. Allen, is the first to examine a state's implementation of EPSDT within a mental health managed care system. (Arizona is one of the oldest statewide managed care systems, having refused to join the Medicaid program until it was allowed to do so under managed care). The Medicaid-eligible children covered by the lawsuit receive mental health services through one of the regional behavioral health authorities in the state.

The state's first response to the lawsuit was to deny responsibility for the program because it had contracted with private entities for the provision of services. The district court flatly rejected this argument, holding "it is patently unreasonable to presume that Congress would permit a state to disclaim federal responsibilities by contracting away its obligations to a private entity."⁽⁸¹⁾

After this early decision, the parties began a time-consuming and expensive discovery process, seeking information to prove their case. In December 1997, the parties entering into an interim settlement agreement which required the state to appoint an independent expert panel to study whether children in Maricopa County (the Phoenix area) were receiving medically necessary mental health services. The study focused on this county because half of the children in the lawsuit's class live there. The study, directed by a nationally recognized children's mental health expert,⁽⁸²⁾ reviewed more than 100 case files and conducted in-depth follow-up interviews on a smaller subset. The panel's conclusions confirmed the plaintiffs' concerns, finding that more than half the children were not receiving necessary care and confirming that children were being forced into state custody because of the mental health system's failures.

The state then hired the chair of the panel to facilitate a remedial plan and corrective action and asked him to participate in meetings between the parties and a new managed care entity. This process is ongoing. The history of this case demonstrates the value of studies by independent experts, which can provide objective evidence to state policymakers, help educate community stakeholders and galvanize interest in changing the status quo.

John B. v. Menke⁽⁸³⁾

Two independent studies were required by a consent decree in an EPSDT lawsuit against the state of Tennessee for failing to provide outreach, screening and treatment for both physical and mental conditions. The studies addressed two questions: whether children in state custody were receiving proper EPSDT services and whether children received appropriate mental health services before entry into state custody. The first study concluded that children in the foster care system did not have sufficient access to EPSDT screening and treatment services. The second study noted that many children did not receive adequate mental health services before coming into state care and that 6 percent of the children's records specifically documented that they had entered custody because of a need for mental health services. According to the plaintiffs' attorneys, the state has failed to submit an adequate remedial plan to address these findings and it is likely that the parties will resume litigation.

As a result of the lawsuit, the state has amended its managed care contracts to include a minor financial penalty for managed care entities whose refusal to provide necessary services leads to custody relinquishment to the state. Advocates report that the amendment has failed to address the problem due to bureaucratic hurdles, such as a lack of a well-publicized and accessible complaint mechanism.

Christopher B. v. Premier⁽⁸⁴⁾

In at least one case, attorneys have directly sued the managed care entities that failed to provide needed mental health services. The alleged facts in this case are particularly worth recounting as an example of compelling plaintiffs who were threatened with loss of custody.

Christopher B. is a 15-year-old who has autism, developmental delays, Tourettes syndrome, major depression with psychotic features, and post-traumatic stress disorder (PTSD). Christopher's mother, Mrs. B., waited 10 hours for the managed care entity to approve his hospitalization because he was acutely suicidal. While she waited, her son was violent toward her and constantly stated that he wanted to end his life. Christopher finally entered the hospital and a few days later, Mrs. B. was called and told to pick up her son because he no longer needed acute care. The staff readily acknowledged that he needed residential treatment, but said it was his mother's responsibility to find the treatment.

Mrs. B called a representative from the managed care company, who told her to have the hospital call. That same night, she went to visit Christopher and found him very upset. The doctor then informed her that her son had been sexually victimized by a roommate the night before. Although the staff knew that Christopher had previously been diagnosed with PTSD from prior sexual abuse in a hospital facility, they placed him in an unsupervised room with a roommate.

The next day, the managed care company finally certified Christopher for residential treatment, but they limited the authorization period to one day. The hospital could not get any center to take him with such a short authorization period. They threatened Mrs. B. that if she did not pick up her son, he would be placed in state custody due to abandonment. After an attorney intervened, the hospital agreed to keep him for further evaluation but they informed Christopher that he could not go home because his mother refused to pick him up. With this news, he went out of control, screaming that he never wanted to see his mother again and he hated her. The hospital kept him for six more weeks before he began a series of moves from place to place without an adequate assessment or proper discharge planning.

The complaint includes contract, tort (negligence, outrageous conduct/intentional infliction of emotional distress), Consumer Protection Act, due process and Medicaid EPSDT claims. The case is proceeding in litigation and will be closely watched as one of the very few challenging the private managed care companies.

Although the facts are very compelling, plaintiffs have already encountered the difficult issue of determining the proper entities to sue because managed care entities frequently subcontract to have some services provided by other organizations. With these complex corporate relationships, it is easier for companies to avoid accepting responsibility. The managed care company has agreed to pay for a residential treatment facility specifically designed for children with developmental disabilities as well as serious emotional disturbance and is planning to contest the school district's failure to pay the educational part of the placement. These developments may provide an opportunity for settlement.

Metts v. Houston⁽⁸⁵⁾

This case was brought to secure both mental and physical health services for children and adults. Metts deals extensively with due process rights and medical-necessity definitions. The settlement agreement contains some useful information on monitoring a managed care system, including a mechanism for plaintiffs' attorneys to review copies of all notices of denials, reductions and terminations of services by the managed care entity and a requirement that the state conduct a random review of 10 percent of these notices at least every three months. The state agency also is required to conduct a random telephone survey to determine whether the HMOs are verbally denying claims without giving plan members or their families notice of their decisions in writing. Another useful provision is the requirement that an individuals case manager cannot also have responsibilities for reviewing requests for outpatient services.

Summary of Medicaid Case Analysis

Although Medicaid claims can only assist children who are eligible for the program, the EPSDT requirements remain one of the strongest entitlements to behavioral health services. Advocates are just beginning to realize the potential of this statute to prevent custody relinquishment for eligible children. Although there are no published cases, the favorable negotiated outcomes and preliminary injunction indicate a good probability of success. They also provide guidance on how to work with state agencies to expand access to services through administrative changes and how to use independent studies to galvanize change.

4. Federal Statutory Claims: Americans with Disabilities Act

The Legal Claim

The Americans with Disabilities Act (ADA) is the newest federal civil rights statute prohibiting discrimination on the basis of disability. The ADA extends and expands Section 504 of the Rehabilitation Act, which prevents disability-based discrimination in all federally funded programs. Passed in 1990, the ADA prohibits discrimination in the areas of employment, public services, public accommodations and telecommunications. In the findings section of the Act, Congress recognized that:

[H]istorically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination continue to be a serious and pervasive social problem ... discrimination against individuals with disabilities persists in such areas as ... institutionalization.⁽⁸⁶⁾

Title II of the ADA applies to public entities, such as state agencies. It provides that "no 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 subject to discrimination by any such entity."⁽⁸⁷⁾ The ADA also requires that public agencies make "reasonable modifications" to rules, policies and practices to accommodate individuals with disabilities.⁽⁸⁸⁾

The Department of Justice is the federal agency charged with enforcing Title II and promulgating regulations. One of these regulations, commonly known as the "integration mandate," provides that "a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities."⁽⁸⁹⁾ This claim is used to challenge the unnecessary institutionalization of individuals with disabilities when their treating professionals recommend community placement, but the state refuses to provide the needed funding.

The Case Law

Key v. State of Washington Dept. of Social and Health Serv.^.(90)

Key directly addressed custody relinquishment under the ADA. Kirsten Key and her mother first brought suit under the Constitution in state court (see the discussion above). After receiving an unfavorable decision, they sued in federal court under the ADA, which became effective after the state trial court's decision. The facts will not be repeated here.

The district court granted summary judgment in favor of the defendant state agency on the basis of four arguments:

• The court ruled that Kirsten was not excluded from a benefit or service on the basis of a disability because she qualified and received services as a result of her disability.
• The court cited and followed the reasoning of the Joyner court that all children in long-term care must be periodically reviewed by a court after a finding of dependency, so there can be no discrimination against the children with disabilities.
• The court ruled that the less stringent criteria for finding dependency in the case of children with disabilities was not discrimination, but rather a means of offering families an option that would not otherwise be available. The court interpreted the state law as a benign tool assisting families in getting treatment without a finding that they are an "unfit parent."
• The court rejected plaintiffs' argument that foster care is not the least restrictive setting for Kirsten and the state must provide a reasonable accommodation of in-home care while Mrs. Key works. The court held that the ADA does not require a state to provide specific services or those most favorable to those with disabilities. The court did not address plaintiffs' argument for the least restrictive or most integrated setting.

Although the court ruled against plaintiffs, it noted:

The system devised by the State of Washington, though it does not offend federal law, offends family values. As a practical matter, it encourages parents who cannot afford adequate care for their disabled children during the hours they work to join the ranks of the unemployed and live off public assistance in order to avoid placing their children in foster care.⁽⁹¹⁾

The court admonished the state that it would be wiser to find a way for Mrs. Key to keep both her employment and custody of her child. Although the plaintiffs' legal claims were unsuccessful, the court's commentary recognizes the negative public policy consequences of custody relinquishment requirements.

Elizabeth B. v. Texas Dept of Protective and Regulatory Svcs, et al.⁽⁹²⁾

The Key court failed to address plaintiffs' claims that the state policy led to a more restrictive setting for Kirsten. In Elizabeth B., the court considered and rejected a similar claim. The Elizabeth B. plaintiffs are dependent children with severe developmental disabilities who were placed in long-term residential facilities instead of family settings. Most of the children resided at a home serving 30 children. Children as old as 11 slept in cribs, some covered by bars or plastic domes. Despite these facts, the court rejected the plaintiffs' claim under the ADA, finding that because the state agency places both children with and children without disabilities in congregate care, the children are not denied placement because of their disability but rather because of the lack of family foster homes.

It should be noted that the cases raising ADA claims on behalf of children were decided prior to the recent Supreme Court decision in Olmstead v. L.C.⁽⁹³⁾ That case was brought by two adult women with both mental illness and mental retardation who were confined in a Georgia state psychiatric hospital long after the state's professionals determined that they were ready for discharge to the community. The Supreme Court held that unnecessary institutionalization of individuals with disabilities violates the ADA's "integration mandate," unless the remedy would require a fundamental alteration.

The most critical feature of the L.C. decision is that it plainly establishes that unnecessary segregation of people with disabilities in institutions is a form of discrimination under the ADA. The Supreme Court offered two rationales for this holding. First, unnecessary institutional placement perpetuates unfounded assumptions that people with disabilities are incapable or unworthy of participating in society. Second, serving someone in an institution severely curtails that person's opportunities for participation in everyday activities, such as family and social activities, work and educational options, economic independence and cultural enrichment. Although the plaintiffs in the L.C. case were adults, the reasoning is equally applicable to children. The case specifically rejects the argument that the ADA is limited to discrimination between the disabled and non-disabled.

In implementing the ADA's integration mandate, the Supreme Court said, the state may "generally may rely on the reasonable assessments of its own professionals" concerning whether a particular individual might be served in the community. The court also said that a state may not impose community-based services on an individual who does not want them.

While rendering unnecessary institutionalization presumptively unlawful, the L.C. decision affords states—and other potential defendants—a defense to integration claims. A state is not required to transfer an unnecessarily institutionalized person to the community if doing so would fundamentally alter the state's program. Whether serving particular individuals in a more integrated setting would require a fundamental alteration depends on: (1) the cost of providing community services to the individuals, (2) the resources available to the state, and (3) the state's need both to maintain a range of facilities and to distribute services in an evenhanded way. As an example of how a state might establish a fundamental alteration defense, the Court said that a state might avoid liability if it had a "comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated." Where such a plan is in effect, individual plaintiffs may not jump to the top of the waiting list by bringing a lawsuit.

No cases since Key have raised claims that the custody-relinquishment requirement itself violates the ADA by providing services in a more restrictive environment than the family home. For such a case, it would be useful to have medical experts testify that staying at home is the most integrated setting appropriate to the child's needs and that removal would harm the child. The presence of two systems—child welfare and mental health—will complicate the case and it may be best to begin with children who are receiving services from the mental health system in a residential facility or hospital but for whom the agency will not pay for community-based care because the child loses Medicaid eligibility when leaving an out-of-home placement. The full scope of the integration mandate and state defenses for all populations—adults and children—will be developed through further litigation.

5. State Statutory Jurisdiction

The Legal Claims

Simply put, the statute defining a juvenile court's jurisdiction determines whether the court has the power to decide the general question in the case and if it can order the particular remedy requested. Each state has its own statutes defining court jurisdiction. These statutes become important when dealing with custody relinquishment for two reasons: 1) they often dictate whether the agency must take custody in order to give the court jurisdiction over the child so it can order services; and 2) they control whether the court has the power to order a particular agency, such as mental health, to provide services.

Attorneys also have used state statutes to argue that the child welfare agency must pay for medical expenses when it retains legal custody but the child is placed with the parent.

The Case Law

Fauquier County Department of Social Services v. Robinson⁽⁹⁴⁾

In this case, the court relied heavily on Virginia's Comprehensive Services Act for At-Risk Youth and Families to gain jurisdiction to order residential services for the child without relinquishment of custody. The act provides that a Family Assessment and Planning Team (FAPT) will work with families to determine services needed by the family and child. These decisions are reviewed by a Community Management and Policy Team (CMPT) and then funds are dispersed to the target population, which includes children "for whom foster care services ... are being provided to prevent foster care placements."⁽⁹⁵⁾

The child at issue in Robinson displayed very aggressive behavior toward her family, had persistent homicidal thoughts, and was diagnosed with depression, attention deficit disorder and conduct disorder. The FAPT developed a plan requesting residential treatment, which was denied by the CMPT as too restrictive. Intermediate plans were put into place, including in-home mentoring, counseling and an alarm on the bedroom door in case the mentor fell asleep. Despite these measures, the girl's behavior seriously deteriorated and she was hospitalized for a suicide attempt.

The FAPT developed a plan for foster care services without participation by the parents, who later opposed it as inappropriate. Because they would not sign the plan, the family was denied all services. The parents then petitioned the Juvenile and Domestic Relations Court to order residential treatment and the Department of Social Services responded that the court lacked jurisdiction. The trial court agreed with the department, but on appeal, the circuit court reversed the decision and held evidentiary hearings, which indicated that residential treatment was needed. The department then appealed to the Virginia Court of Appeals, which agreed with the circuit court and ordered residential services.

The Court of Appeals relied on Virginia Code Sec. 16.1-241(G), which gave the juvenile court jurisdiction over "petitions filed by or on behalf of a child ... for the purpose of obtaining treatment, rehabilitation or other services which are required by law to be provided to that child." The court then noted that the CSA requires the expenditure of state funds for "public or private nonresidential or residential services" for children (Sec. 2.1-757(A)-(B)) and that it gave courts the authority to review FAPT recommendations. (Sec. 2.1-757(E)). Putting together all these statutory provisions, the court ruled that it had jurisdiction to determine whether the FAPT's recommendation of therapeutic foster care was in the best interest of the child.⁽⁹⁶⁾

This decision indicates that state statutes developing a comprehensive service system can be helpful not only in creating new services, but also in giving courts the jurisdiction to order services without requiring custody relinquishment.

In re Rami M.⁽⁹⁷⁾

In Illinois, where the statutes do not create a comprehensive system of care, the court was not receptive to the parent's arguments. In re Rami M. involved the common situation where a child, previously in state custody for out-of-home treatment, was returned to his mother but needed intensive in-home services that were beyond her financial means. A psychiatric assessment indicated that the child had been institutionalized too long and needed to be back with his family. The juvenile court allowed Rami to have an extended unsupervised visit with his family while the department provided attendant care, therapy and other services. The court returned Rami to the care and custody of his mother, but ordered the department to continue providing services. Rami improved at home, his aggression decreased, and he attended school regularly.

The department, however, appealed on the ground that the juvenile court did not have jurisdiction under the juvenile court statute to order it to pay for services for children who were no longer in its custody. The appellate court agreed after reviewing all the relevant statutes. It particularly noted the code provisions indicating an intent to have parents remain financially responsible for their children. The court noted that the child could be committed to the department, which would then have to provide services, or he could remain in his mother's custody without services, but there was no statutory basis for an in-between plan. It is important to note that the court considered only the child welfare statutes and did not mention any legislation dealing with a mental health service system. It also took a very narrow view of the child welfare statutes and read them literally, despite plaintiffs' arguments that the laws should be interpreted broadly to meet the goals of reunifying families.

Additional decisions:

A similar decision was reached in Arizona Department of Economic Security v. Superior Court,⁽⁹⁸⁾ involving children who had been adjudicated dependent but placed in the physical custody of their parents. The court held that the child welfare department was not responsible for arranging and obtaining medical services for such children. In contrast, a court in Alaska read the state's statutes as "clearly assign[ing] to the department the duty to pay the medical costs of all children in its legal custody, subject to reimbursement from the parents." E.A.O. v. State of Alaska.⁽⁹⁹⁾ See also In re J.H.⁽¹⁰⁰⁾ (ruling that the child welfare agency had to pay for the costs of a private placement even when custody was given to a third party with whom the child was placed).

Finally, advocates in Connecticut are challenging individual dependency actions by relying on a state statute prohibiting custody relinquishment as a requirement for services. Although that statute should prevent the agency from filing a petition for custody, individual caseworkers are continuing to press for custody based on the agency's prior practices.

Summary of State Statute Analysis

These cases brought under state statutes indicate that parents may be in the strongest position when state law creates some mechanism for delivering health care services for children in need, similar to Virginia's Comprehensive Services Act for At-Risk Youth and Families (CSA). The mixed results in the case law also indicate that the exact wording of statutory provisions on juvenile court jurisdiction may be critical in allowing a court to order services without taking custody.

Conclusion

Until children have a comprehensive entitlement to mental health services, advocates will have to use existing statutes creatively to avoid tragic outcomes. Beginning cases using Medicaid's EPSDT mandate have been successful and we hope they will allow eligible children to receive the care they need and avoid custody relinquishment. The IDEA covers all children and provides mental health services that are needed by a child to benefit educationally, which may help some children remain in their communities and with their families. The ADA and state jurisdictional statutes also may be helpful in particularly compelling factual situations.

Notes

1. This report should not be a substitute for legal research in specific cases. Due to time lags between writing, publication and distribution, additional cases may have been decided in the interim. The report is written to analyze trends and arguments and should not be used to address individual legal concerns.

2. 262 U.S. 390 (1923).

3. 345 U.S. 528, 533 (1953).

4. The Ninth Amendment states "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

5. 405 U.S. 645 (1972).

6. 712 F.2d 770 (2nd Cir. 1983).

7. The plaintiffs also claimed that New York had failed to comply with Section 504 of the Rehabilitation Act, a civil rights statute prohibiting discrimination on the basis of disability. The court rejected this claim on the grounds that transfer of custody was linked to out-of -home placement, not disability.

8. 712 F.2d at 781. The court relied on the Supreme Court's reasoning in Harris v. McRae, 448 U.S. 297 (1980), where the Court upheld Congress' decision to deny public funding for medically necessary abortions because there was no constitutional entitlement to the service.

9. Unfortunately, the case did not continue in the district court. After the remand, court records indicated that judgment was entered for the state without an opinion and no further action on the case was ever taken. Plaintiff's counsel was contacted to verify the court records, but had no recollection of the outcome of the case after remand and no accessible records.

10. See Hutchinson v. Spink, 126 F.3d 895 (7th Cir. 1997) (state took temporary custody of child with ADHD and other mental disabilities after child had crisis and police arrived; child was placed on farm and set to work against parents' express wishes and died in an accident with the corn shredder. The court allowed parents' substantive due process claim under the Fourteenth Amendment to continue because the caseworker took custody and exposed the child to harm while in custody).

11. 836 P.2d 200 (S.Ct. Wa. 1992).

12. 836 P.2d at 211.

13. Id.

14. After losing in state court, Mrs. Key's attorney filed a lawsuit in federal court claiming a violation of the Americans with Disabilities Act. This case is discussed below.

15. 431 F. Supp. 180 (E.D. Va. 1977).

16. 431 F. Supp. at 188.

17. The court had previously found for the plaintiff class on an equal protection constitutional claim that they were denied access to education so it did not need to decide this claim. In addition, the court noted in a footnote that the Commissioner of the Department of Welfare issued a policy clarification stating that the use of voluntary placements should not include taking custody of children who required out-of-home special education services.

18. 20 U.S.C. Sec. 1400(c).

19. 20 U.S.C. Sec. 1401(a).

20. 795 F. Supp. 1352 (M.D. Pa. 1992).

21. No. 93-00367DAE (D. Hi. May 24, 1994) (on file with authors).

22. Laverne Nakamura, Hawaii Federal Court Order Mandates Consumer with Family Member Participation in Policymaking, Focal Point (Fall 1998) 11, 12.

23. No. CC-79-294 (W.D. N.C. 1980) (consent decree); see also Willie M. v. Hunt, 657 F.2d 55 (4th Cir. 1981).

24. For a detailed discussion of this lawsuit, see Mark Soler and Loren Warboys, Services for Violent and Severely Disabled Children: the Willie M. Litigation, in Sheryl Dicker, et al., Stepping Stones: Successful Advocacy for Children 61 (1990).

25. No. 3:79-CV-294-MU (W.D. N.C. Jan 22, 1998) (order terminating class action).

26. Exhaustion requirements under IDEA also make it difficult to combine claims for an individual child.

27. 26 IDELR 331 (SEA CA 1997).

28. 26 IDELR 961 (SEA MA 1997).

29. See also Bd. of Educ. of the Portage Pub. Sch., 23 IDELR 667 (SEA MI 1995) (ordering school to pay for family counseling).

30. 963 F.2d 847 (6th Cir. 1992).

31. 21 IDELR 753 (SEA CT 1994).

32. 27 IDELR 108 (SEA MA 1997).

33. 895 F.2d 973 (4th Cir. 1990).

34. 15 F.3d 664 (7th Cir. 1994).

35. 16 EHLR 1091 (SEA WA 1990).

36. 26 IDELR 331 (SEA CA 1997).

37. 20 IDELR 1478 (SEA CT 1994).

38. 471 U.S. 359 (1985).

39. 458 U.S. 176, 206-07 (1982).

40. 144 F.3d 692, 707-08 (10th Cir. 1998).

41. 856 F.Supp. 1521, 1530 (D. Kansas 1994).

42. 93 F.3d 1458 (9th Cir. 1996).

43. Id., at 1467 (citing Clovis Unified v. Office of Administrative Hearings, 903 F.2d 635 (9th Cir. 1990)).

44. 642 F.2d at 693.

45. 471 F.Supp. 136 (D.D.C. 1979) (adopting intertwined test).

46. 103 F.3d 1114 (2nd Cir. 1997).

47. Sometimes the costs are divided into educational and medical costs to be apportioned among the parties. See, e.g., Drew P. v. Clarke County School Dist., 877 F. 2d 927, 929 (11th Cir. 1989) (costs of residential placement apportioned between school district and parents); Doe v. Anrig, 651 F. Supp. 424, 430-32 (D. Mass. 1987) (costs apportioned between school district and father). The recent Supreme Court ruling in Cedar Rapids Community Sch. Dist. v. Garret F., 1999 WL 104410 (1999) may result in greater allocation of non-educational costs to school districts to the extent the apportionment is based on a "medical" versus "educational" distinction.

48. Id., at 1121.

49. Id.

50. 93 F.3d at 1462.

51. Id., at 1463.

52. Id., at 1464.

53. Id., at 1468.

54. 82 F.3d 1493 (9th Cir. 1996).

55. Id., at 1497.

56. Id., at 1498.

57. Id., at 1501 (citations omitted).

58. 642 F.2d at 695.

59. 998 F.2d 1083 (1st Cir. 1993).

60. Id., at 1085 (progress had "slowed to a crawl" for two school years and the eighth-grader was two years behind in reading and six years behind in math).

61. Id., at 1086 (citing Abrahamson v. Hershman, 701 F.2d 223, 227 (1st Cir. 1983); accord, Hampton Sch. Dist. v. Dobrowski, 976 F.2d 48, 52 (1st Cir. 1992).

62. 103 F.3d at 1119.

63. 145 F.3d 95 (2nd Cir. 1998).

64. 145 F.3d at 100.

65. 471 F. Supp. 136 (D.D.C. 1979).

66. Id. at 140.

67. Id.

68. 553 F.Supp. 1107 (N.D.Cal. 1982).

69. As previously noted, this report cannot substitute for legal research. Because of the ongoing nature of the litigation, this information may become incomplete after the date of publication.

70. No. 91-680 (E.D. Pa. January 6, 1993) (settlement agreement on file with authors).

71. No. 98-4181 WDK (AIJX) (C.D. Cal.) (complaint filed May 27, 1998 on file with authors).

72. No. CV-98-4181-WDK (C.D. Cal. Feb 23, 1999) (on file with authors).

73. No. 97-CV-24-B-C (D.Me. July 16, 1998) (order of dismissal on file with authors).

74. No. 90-483 DA (D. Or. 1991) (stipulation and joint order on file with authors).

75. No. 91-CV-7080 (E.D. Pa. 1992) (stipulation of settlement on file with authors).

76. 756 F. Supp. 501 (D. Kan. 1990).

77. 655 F.2d 766 (7th Cir. 1981).

78. 109 F.3d 693 (11th Cir. 1997).

79. 938 F. Supp. 926 (D.D.C. 1996).

80. 836 F. Supp. 694 (D. Ariz. 1993) (decision on early motions for summary judgment and to dismiss the lawsuit). Subsequent interim settlement agreements are on file with the authors.

81. 836 F. Supp. at 699.

82. The panel was directed by Dr. Ivor Groves; the other members were Narrell Joyner and H.G. Whittington. Dr. Craig Anne Heflinger also provided valuable assistance to them.

83. No. 3-98 0168 (M.D. Tn. Feb. 25, 1998) (consent decree on file with authors).

84. No. 97C-1818 (Circuit Court for Davidson County) (second amended complaint filed May 26, 1998) (on file with authors).

85. No. 97-CV-4123 (E.D. Pa. Mar. 27, 1998 (settlement agreement on file with authors).

86. 42 U.S.C. Sec. 12101.

87. 42 U.S.C. Sec. 12132.

88. 42 U.S.C. Sec. 12131(2).

89. 28 C.F.R. Sec. 35.130(b)(8)(d).

90. No. CS-93-0131-FVS (E.D. Wa. Sep. 24, 1994) (unpublished order granting defendant's motion for summary judgment on file with authors).

91. Slip op. at 17-18.

92. No. SA-94-CA-0050 (W.D. Tx. Jan. 13, 1995) (opinion on file with authors).

93. 119 S.Ct. 2176 (1999).

94. 455 S.E.2d 734 (Va. Ct. App. 1995).

95. VA ST. Sec. 2.1-757(B)(3).

96. The court also noted an alternative basis for jurisdiction because state law authorized judges to order any government agency or government institution to provide services mandated by state law. The CPMT and the FAPT qualify as governmental entities, so the court had the authority to compel the needed services from them.

97. 673 N.E.2d 358 (Ill. App. 1 Dist. 1996).

98. 171 Ariz. 688 (1992).

99. 816 P.2d 1352, 1358 (Alaska 1991).

100. 770 P.2d 1355 (Co. Ct. App. 1989).