Mental Health Issues for Foster Children: Katie A. v. Bonta

1. Mental Health Issues for Foster Children: Katie A. v. Bonta Alison Barkoff Staff Attorney Judge David L. Bazelon Center for Mental Health Law

2. What is the problem? • There are approximately 85,000 children in foster care in California; 70-84% suffer from some form of mental health problem • “More than 50,000 children in the foster care system who may need mental health services do not get them” • California is spending more than $540 million to maintain children in high level group homes or institutions, placements which could be avoided if appropriate community-based services were available

3. The Litigation

4. Class members • Children in California who are: • in foster care or at risk of foster care placement AND • in need of individualized mental health services • Katie A.v. Bonta could impact more than 50,000 abused and neglected children across the State, many of whom are currently being denied care.

5. Plaintiffs’ Counsel • Bazelon Center for Mental Health Law • Protection and Advocacy, Inc. • Western Center on Law and Poverty • National Center on Youth Law • The ACLU of Southern California • Heller Ehrman LLP

6. Defendants • California Department of Health Services (DHS) • California Department of Social Services (DSS) • Los Angeles County Department of Children and Family Services (DCFS)

7. Legal Claims • EPSDT provisions of the Medicaid Act • Americans with Disabilities Act • Rehabilitation Act • Due Process Clause of the 14th Amendment

8. Relief Requested Medically necessary • Wraparound Services • Therapeutic Foster Care • Intensive Case Management for all class members

9. THE BASICS OF EPSDT

10. EPSDT -- Early and Periodic Screening, Diagnosis and Treatment, 42 USC § 1396d(r) Screening services and such “other necessary health care, diagnostic services, treatment, and other measures . . . to correct or ameliorate defects and physical or mental illnesses and conditions discovered by screening services, whether or not such services are covered under the State plan.

11. Screening • Screening does not have to be formal. • Any contact with a health care professional can be considered a screen that triggers diagnosis and treatment.

12. Diagnosis and Treatment

13. Treatment • All necessary treatment within 1396d(a) • To “correct or ameliorate physical and mental illnesses and conditions” • Even if the service is not covered under the state plan

14. Medical Necessity • “Necessary” = medically necessary • Generally defined as a decision by a health care professional/provider that a person’s condition requires a service/course of treatment to address or improve a condition

15. “Correct” means to resolve a health problem or condition. “Ameliorate” means to lessen the burdens of the problem. What does “correct or ameliorate” mean when a problem is found during a screening?

16. State Plan Issues • States must provide services so long as they could becovered under a state Medicaid plan • For children, states must cover both mandatory services and services that would be optional for adults • Fact that another state is covering a service under Medicaid is evidence that the service could be covered under a state Medicaid plan, and therefore, a child in any state should be able to get that service.

17. Examples of Services Medicaid Must Provide to Children: • Rehabilitation services • Case management • Personal care services • Prescription drugs • Dental Services • Physical or other therapies • Private duty nursing • Home health care • Transportation

18. Services not listed in 1396d(a) • Services do not specifically have to be listed in 1396d(a) • But they must be able to fit into a Medicaid category listed in 1396(d)

19. Plaintiffs’ Motion for Preliminary Injunction • Moved on Medicaid and ADA claims • Presented evidence to the court, through expert declarations, on (1) the medical necessity of wraparound and TFC; and (2) the ability of Medicaid to covered component services of wraparound and TFC • Presented evidence, through declarations, of other states whose Medicaid systems cover wraparound services and TFC

20. Katie A. Appendices A & B • Appendix A: defines wraparound services, its components, potential providers, and federal statutory authority • Appendix B: defines therapeutic foster care, its components, potential providers, and federal statutory authority

21. Highlights of Appendix B: Definition of TFC • TFC is an intensive, individualized mental health service provided to a child in a family setting, utilizing specially trained and intensively supervised foster parents. • TFC programs involve: • Specially trained foster parents • Development, through a team approach, of a strength-based individualized treatment plan • Therapeutic foster parent acting as a central agent in implementing the child’s treatment plan • Intensive oversight of the child's treatment through frequent contact with the foster parent • Availability of an array of therapeutic interventions to the child, the child's family, and the foster family • Transitioning from therapeutic foster care to placement with the child's family or alternative family placement by continuing to provide therapeutic interventions.

22. Highlights of Appendix B: Components of TFC • Recruitment and matching • Therapeutic foster care training • Development of a treatment plan • Tracking and adapting the treatment plan • Plan implementation – individualized child treatment • Plan implementation – family treatment • Transition

23. District Court Order • On March 14, 2006, a federal district court judge ordered the State of California to provide needed mental health services to thousands of Medi-Cal eligible children who are in foster care or at risk of foster care placement • The order requires the State to provide Wraparound and TherapeuticFoster Care on a consistent statewide basis as medically needed.

24. District Court order (cont’d) • Found that components of wraparound services and TFC fall within categories of services listed in 1396d(a) • Fact that other states are using Medicaid funds to cover wraparound and TFC is evidence of Medicaid-coverability • Found that services medically necessary for many children with mental health needs in foster care • Ordered the parties to develop an implementation plan

25. Implementation Plan • Define Affected Class & Desired Outcomes • Set Eligibility Criteria • Create Access Pathways • Coordinate State Agencies, MHPs, and Providers • Develop Practice Standards & Protocols • Amend Medicaid Rules • Provide Training & Technical Assistance • Expand Capacity • Institute Evaluation/oversight • Implement Continuing System Improvements

26. Principles • Partnership with the child and family • Ready Access to Wraparound and Therapeutic Foster Care • Outcome-focused system with transparency • Home and Community-based Service Settings • Stability • Coordinated Services • Comprehensive and Strength-based Plans Emphasizing Parent and Child Training and Natural Supports • Respect for the child and family's unique cultural heritage • No Eject; No Reject from Services • Provider capacity • Full funding

27. Rosie D. v. Romney • Medicaid EPST case regarding “home-based services” (aka wraparound services) • “Home-based services” include: assessment and decision-making by child and family team; intensive care coordination; and home- and community-based support services • Court found home-based services are medically necessary to prevent unnecessary removal from home and unnecessary institutionalization of class members and can be covered by Medicaid

28. Implications of the Katie A. decision • Children in any state are entitled to wraparound services and therapeutic foster care when medically necessary. • Increased availability of Medicaid funding for wraparound and therapeutic foster care will increase service capacity. • Development of clear rules regarding coverable component services and exclusions, which can be used as a model in other state.

29. Additional Information on Katie A. and EPSDT available at: • Bazelon Center webpage and publications at www.bazelon.org • National Health Law Program webpage at www.healthlaw.org Contact information: Alison Barkoff, Bazelon Center for Mental Health Law alisonb@bazelon.org 202-467-5730 x 115