Class-action Lawsuit in Arizona Seeks a ‘Remedy for All Kids in Care’

A lawsuit filed against Arizona’s child welfare and mental health systems was granted class-action status last month by a federal judge.

The recent decision by U. S. District Court Judge Roslyn Silver is significant because it ensures that a positive ruling in the suit will benefit all kids in the state’s foster care system.

“By granting our motion for class-action certification, the court is allowing us to speak for all kids in foster care,” said Harry Frischer, lead counsel for Children’s Rights, which is one of the firms representing the plaintiffs. “This is important because it clears the way forward for a remedy for all kids in care and not just the kids listed in the complaint.”

The suit, filed in February of 2015, names the directors of the Department of Child Safety (DCS), the Department of Health Services (DHS), and the Arizona Health Care Cost Containment System (AHCCCS) as defendants.

Included among the state’s struggles, according to the complaint, are a “severe shortage of mental, behavioral and other health services, failure to conduct investigations of reports that children in care have been maltreated while in state custody, a severe shortage of foster homes and failure to engage in basic practices for maintaining family relationships.”

The initial lawsuit claimed that Arizona has violated the constitutional rights of ten children in foster care. It also claims the state failed to provide them with health screening and treatment guaranteed to them under federal Medicaid law. All youth in foster care are eligible for Medicaid, and guaranteed services under Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) benefit.

EPSDT requires access to health screening for children, including vision and dental, and reimbursement for any Medicaid-allowable treatment necessary for problems identified during such a screening. Researchers and Medicaid advocates have argued the benefit is underused and in need of updates.

During the recent effort to repeal or replace the Affordable Care Act, several reforms to Medicaid were considered that would have eliminated EPSDT, or made it subject to state choices.

The plaintiffs called for several areas of improvement on the part of the three agencies, including:

  • Guarantees that the two agencies will ensure EPSDT services.
  • An increase in the number of available foster homes for youth who cannot be placed with relatives.
  • A stronger and more frequent visitation program for birth parents in line for reunification, and more caseworker visits with birth parents.

Silver’s ruling means that these claims, and any potential remedies if the plaintiffs prevail, will apply to all youth in foster care. Court documents place the class at about 18,000 youth, with 17,000 eligible for Medicaid and 10,000 living in congregate care or with non-relative foster parents.

Before the recession, in 2007, Arizona had 9,000 youth in foster care. The state slashed spending on family services in when it addressed recession-related budget shortfalls, gutting its child care subsidies. By 2015, the number of youth in care was over 17,000.

After it was revealed that some 20,000 child abuse or neglect reports had gone completely uninvestigated or were not investigated for more than 60 days, state legislators in 2014 removed responsibility for the state’s child welfare system from the Department of Economic Security, and established DCS as an independent agency.

Three years later, it is unclear whether circumstances have gotten any better in the state.

“Thirty kids will come into foster care today [in Arizona], and I worry about the quality of life for those kids,” said Kris Jacober, executive director of the Arizona Friends of Foster Children Foundation. “I’m in support of this lawsuit because the day a kid comes into foster care is the worst day of their life, and this is the clearest path toward improving these kids’ lives.”

Arizona Department of Child Safety Director Greg McKay. Photo: DCS

Both agencies named as defendants in the lawsuit, DCS and DHS, disputed the notion that the lawsuit’s claims should be extended to include all youth in foster care. DCS has said publicly that the agency has already made progress.

Darren DaRonco, a DCS spokesman, told the Arizona Daily Star the day the class-action certification was issued that the decision was not indicative of the merits of the lawsuit. “The Department looks forward to articulating the policies implemented over the last three years which have solidified an enduring commitment to ensuring children in state custody receive the care they need and deserve,” DeRonco said.

DCS Director Greg McKay told the Arizona Republic that his agency’s plans to improve the system will ensure that foster children no longer face “substantial risk of serious harm,” rendering meaningless the grounds for the lawsuit.

According to a report from Open Minds on child welfare spending, Arizona spent $529,028,207 on child welfare services in 2015, nearly $150 million more than it spent in 2013.

Source: Open Minds Market Intelligence Report, “Trends In State Spending On Child Welfare Services: The 2017 Update.”

Jacober and Frischer disagreed that the agency had moved the needle.

“I haven’t seen evidence that [children and families] have any better access to services, better follow-through, or that sibling visits are easier,” said Jacober. “It has not been my observation that things have improved.”

“They’re still getting general counseling when they need specialized trauma therapy,” Frischer said. “There’s still too many kids in group homes, and kids are still being separated from their siblings when there’s no reason to separate them.”

Frischer said the backlog of investigations has been addressed, but that “doesn’t cure the problems we’re addressing in this lawsuit. Unfortunately for kids in care, the state hasn’t fixed these problems, and kids remain at substantial risk of harm.”

A trial is expected sometime in 2018. Should the judge rule in favor of the plaintiffs, Frischer expects that an independent monitor will be appointed to ensure the state complies with certain performance criteria, which will be spelled out in the court order.

DHS and AHCCCS just recently exited a lawsuit regarding the overall quality of mental health services for people under the age of 21. The “J.K. Settlement” was initially reached in 2001; a federal judge finally closed the case in 2014.

Children’s Rights has sued state or county child welfare agencies in 14 states and the District of Columbia. In 2015, the federal judge ruled in its favor against the State of Texas.

John Kelly also contributed to this story.

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Christie Renick
About Christie Renick 124 Articles
Tucson-based vice president of Fostering Media Connections. Follow @christiejrenick.