No. CV-02-05662 AHM (SHx), US District Court for the Central District Court of California/Western Division, filed December 20, 2002
The National Center for Youth Law (NCYL) is co-counsel in the case of Katie A. v. Bontá, a child welfare reform class action against the California Department of Health Services (DHS), Los Angeles County’s Department of Children and Family Services (DCFS), and the California Department of Social Services (CDSS). Advocates seek the establishment and implementation of a community-based mental health service delivery system for California’s children in state foster care or at imminent risk of out-of-home placement.
The plaintiffs brought suit for declaratory and injunctive relief against the State and L.A. County on July 18, 2002 under provisions of the Medicaid Act, the Due Process Clause of the Fourteenth Amendment, the Americans with Disabilities Act, the Rehabilitation Act, and other state statutes. The suit challenges the County and State agencies for neglecting their duties to provide necessary and legally mandated health care services to treat the mental health conditions of California’s foster children. On June 19, 2003, the Court granted certification of class status.
L.A. County entered into negotiations and settled in March of 2003. The settlement obligates the County to a number of comprehensive reforms, including better identification of mental health needs, enhancement of permanency planning, and prompt provision of individualized services designed to promote stability and ensure quality care for children in custody. Plaintiffs also succeeded in committing the County to offering family-based wraparound services to children with mental, emotional, or behavioral issues with the aim of facilitating family reunification and reducing multiple and arbitrary placements. Finally, the settlement mandated the immediate closure of the MacLaren Children’s Center and the rerouting of its funding to family- and community-based programs.
Plaintiffs continue to monitor implementation of the settlement agreement with L.A. County. On September 15, 2005, plaintiffs invoked the dispute resolution process set forth in the settlement agreement and requested to meet with the county regarding compliance with the terms of the agreement. On October 5, 2005, plaintiffs met with the county and other county stakeholders regarding various compliance concerns. Plaintiffs filed a Motion to Compel Compliance with the Settlement Agreement against LA County on February 16, 2006. In doing so, plaintiffs asked the court to empower the advisory panel to affirmatively develop an implementation plan for the County. Judge Matz denied this motion on June 15, 2006, preferring to leave responsibility for the initial formulation of the plan in the hands of the authorities charged with carrying out that plan. Nevertheless, the court refused to deem the County in compliance with the settlement agreement – the County, it noted, had “achiev[ed] unacceptably low targets.”
The state agencies did not participate in the settlement. Accordingly, the lawsuit against them is ongoing. Fact discovery against the state agencies closed in late 2004. Expert discovery continues, and no deadlines have yet been set by the court. On September 9, 2005, plaintiffs filed a Motion for Preliminary Injunction to compel the California Departments of Health Services, Social Services and Mental Health to make wraparound services and therapeutic foster care available to all class members on a consistent statewide basis through the Medi-Cal program or other means.
On March 14, 2006, District Court Judge Howard A. Matz granted plaintiffs motion for a preliminary injunction. The Judge ordered the State to provide “wraparound services” and “therapeutic foster care,” to thousands of Medi-Cal eligible children who are in foster care or at risk of foster care placement. There are approximately 85,000 children in foster care in California and an even greater number of children served by the child welfare system in their own homes. The court’s order extends to both groups of children.
The State of California appealed Judge Matz’s order to the U.S. Court of Appeals for the Ninth Circuit and requested that the order be stayed while a decision on appeal is pending. On July 26, the Ninth Circuit denied the stay, forcing the State to adhere to all provisions of the preliminary injunction issued on March 14.
On March 23, 2007, the Ninth Circuit held that the March 14th preliminary injunction had been issued in error. Specifically, the Ninth Circuit concluded that Judge Matz had erroneously interpreted the Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) provisions of the Medicaid Act by not “explor[ing] the possibility that the State might only have an obligation to fund the component services of wraparound and TFC, rather than to offer the coordinated complex of services in a single package.” Although the Ninth Circuit’s decision effectively vacates the preliminary injunction, the decision affirms the state’s obligation to provide effective mental health services to foster children. The appellate court made clear that the trial court had the power to require California to provide wraparound and TFC as Medicaid services. In addition, the court acknowledged compelling evidence that wraparound services and therapeutic foster care (TFC) are medically necessary for many children and that, without them, these children would face grave harm from unnecessary institutionalization.
After the Ninth Circuit ruling, Plaintiffs engaged in further discovery and on January 11, 2008, Plaintiffs filed another Motion for Preliminary Injunction, incorporating the rulings from the Ninth Circuit. The Plaintiffs presented evidence that the make each component service of wraparound and TFC falls under a provision of § 1396d (a), and defendants have not effectively provided each mandated component service. The Plaintiffs also argued that the State should be required to provide wraparound and TFC as a package of components or the process is not successful. On March 17, 2008, the State Defendants filed an Opposition to the Plaintiffs Motion for a Preliminary Injunction. The State argued in its motion that services are being provided to children under EPSDT and Medicaid where appropriate and that wraparound and TFC are not services, but a package of services that the state is not required to provide. The State also argued that the Plaintiffs have failed to show irreparable injury and an inadequate remedy at law, as required to receive a preliminary injunction.
The hearing for the Motion for Preliminary Injunction took place on August 14, 2008 in the United Stated District Court for the Eastern District in Los Angeles, again before the Honorable A. Howard Matz. The Court ordered the parties to meet promptly and report back to the Court by October 29 on how “wraparound” services can be covered by Medi-Cal and properly billed, thereby ensuring that mental health care providers will be reimbursed for delivering these critical services to children in foster care.
The Court ruled that all of the mental health services identified by Plaintiffs as components of wraparound are Medi-Cal eligible. The Court ordered the parties to provide guidance to county mental health agencies and eligible recipients on how wraparound services should be designated and billed. Judge Matz noted that these negotiations will “assist the parties in reducing or eliminating the confusion about wraparound’s Medicaid/ Medi-Cal status” and will “reduce or eliminate the concern of MHPs (County Mental Health Plans), providers, and recipients as to whether such services will be reimbursed.”
At the outset of his decision, Judge Matz described what he called the ‘big picture’ challenge:
“This case involves complex statutes and regulations; innovative strategies for dealing with mental illness and behavioral problems afflicting children and adolescents; the challenge of coordinating the efforts of such disparate Medicaid providers as physicians, social workers, lawyers, teachers, family members and foster parents, all of whom serve or treat those children; foster care systems throughout the state that are beleaguered on many fronts, and the ever present (and growing) gap between the legal responsibilities of governments and their capacity to discharge those costly responsibilities.”
More concretely, Judge Matz observed that there is “genuine… confusion as to whether certain components of wraparound and TFC (Therapeutic Foster Care) qualify as required [mental health] services.” “[T]he main practical barrier,” he concluded, “is determining how providers may and should bill for those services.” In response to these challenges, Judge Matz determined that:
- Changes during and after the hearing in the State Defendants’ position on what components are covered by Medi-Cal “went a considerable distance toward accepting Plaintiffs’ contentions.”
- Wraparound services consisting of nine specific components, including family and child engagement and ongoing crisis and safety planning, are Medi-Cal eligible.
- “[T]here is clear support for the conclusion that wraparound services must be coordinated to be effective. In addition, “wraparound is considered an ‘evidence-based practice’ and the ‘gold-standard’ in the mental health field…”
Parties are currently negotiating to accomplish the tasks set forth in Judge Matz’s Order.
Given the time and effort needed to resolve the complex issues in this case, the Court allowed pleadings for appointment of a special master. Plaintiffs requested a Special Master to effectively forge consensus among the parties and to efficiently secure positive outcomes for California’s foster children. The State Defendants’ opposed Plaintiffs’ proposals for a Special Master because “they assume entitlement to wraparound.” However, in March 2009, Judge Matz appointed Richard Saletta, who successfully facilitated a settlement as special master in the related Emily Q. v. Bonta case. Special Master Richard Saletta is now engaged in the settlement negotiations with the parties to accomplish the tasks set forth in Judge Matz’s Order.
The Special Master will have five months to determine whether the parties can reach agreement on these issues and will have an additional four months to produce a final written agreement or to make recommendations to the Court.
Counsel: Patrick Gardner,
Leecia Welch,
John O’Toole, NCYL; the ACLU of Southern California; the Western Center on Law & Poverty; Protection and Advocacy, Inc.; the David L. Bazelon Center for Mental Health Law; and Heller Ehrman White & McAuliffe, LLP.
