In Washington state, Medicaid-eligible children with serious mental health issues are often forced to seek the intensive care they need in state institutions and foster care.
That's why, in November 2009, NCYL, Disability Rights Washington, Perkins Coie, and the National Health Law Center sued the state for failing to provide adequate home- and community-based mental health services for children on Medicaid. The limited weekly in-office therapy sessions and medication management offered by the state to most children are not enough to combat the serious mental illnesses from which they suffer.
The lawyers say in order to receive the care they need, poor children must enter state institutions and, in some cases, foster homes, where they are separated from their families and are forced to endure the high turnover rates of both institution staff and inmates.
The lawyers say this is not only harmful to the children forced into unstable living situations without their families; it’s also illegal. The lawsuit claims the Washington Department of Social and Health Services (DSHS), the entity responsible for managing Medicaid, has violated the Social Security Act by not providing intensive home- and community-based treatment, which is mandated by the act. This is unfair, they claim, since the state, by choosing to participate in the program, receives billions of dollars from the federal government.
The lawsuit also claims that the state has failed to comply with the American with Disabilities Act (ADA), which requires that public entities such as DSHS provide services to the disabled – including those with mental illnesses – in a setting that is as integrated with the rest of the community as possible. The lawyers say the state must provide mental health services for children on Medicaid as close to their homes as possible – and inside their homes when necessary.
Since at least 2002, DSHS has commissioned and issued reports that recognize the need for a better system of caring for mentally ill children on Medicaid. The reports recognize the failures of Washington's current system and recommend the state offer more home- and community-based services. Despite these recommendations, the system is still failing the children it represents.
The class-action lawsuit names ten plaintiffs who have been denied treatment that would help improve the serious mental illnesses they have been diagnosed with, such as schizophrenia, depression, and bipolar disorder. Most of the plaintiffs had been institutionalized repeatedly and for extended periods, despite recommendations by therapists and case workers that they return home and receive services in their homes and local communities. These services have been denied by the state’s Medicaid program.
T.R., for example, who was ten years old at the time of filing, had been placed in the psychiatric ward of his local hospital four times in two years after the death of his mother in 2005. He has been under the supervision of one-to-one case aids, but the state denied him further supervision, claiming TR has reached a spending cap. Even when case aids began to work with T.R. again, they did so at a drastically lower rate – and were frequently unavailable in case of crises. T.R. is now at Western State Hospital, where his treatment team has said the unfamiliar environment and frequent turnover are harming T.R., and recommended he return home under the care of in-home case aids.
In March 2012, after more than a year of negotiation, the parties reached a collaborative Interim Agreement. The agreement suspended litigation while the State worked to build a framework for reform of the mental health system for children on Medicaid.
Before the Interim Agreement expired, the parties returned to the negotiating table to craft a full settlement agreement. On September 27, 2013, the court granted preliminary approval of the parties' proposed settlement. The court will hold a fairness hearing to determine whether to give final approval to the settlement agreement on December 19, 2013.
Counsel: Leecia Welch, Erin Liotta, NCYL, Oakland, CA; David Carlson, Susan Kas, Disability Rights Washington, Seattle, WA; Susan Foster, Frederick B. Rivera, Travis Exstrom, Austin Rainwater, Perkins Coie LLP, Seattle, WA; Kim Lewis, National Health Law Program, Los Angeles, CA; Patrick Gardner, Wesley Sheffield, Young Minds Advocacy Project, Menlo Park, CA.