Public Counsel - Pro Bono Online

Daily Journal- Nov. 17, 2003

State Violated Pact for Kids, Lawyers Claim -- Children Lack Home, Mental Health Care, Advocates Charge -- 'Institutionalized'

By Susan McRae

Daily Journal Staff Writer

LOS ANGELES - State officials have violated terms of a settlement aimed at providing home and community-based mental health services to certain children so they don't end up institutionalized, public interest lawyers charge.

The lawyers are taking the state to court today, claiming that the state's new restrictions on services amount to a contempt of court.

The lawyers want U.S. District Judge A. Howard Matz in Los Angeles, who presided over the settlement in 2001, to fine the state Department of Health Services $10,000 a day until officials withdraw the new rules. Emily Q. v. Bonta, CV98-4181 (C.D. Cal., filed 1998).

New Treatment
The settlement compelled the state to provide funds to counties for a relatively new form of short-term mental health treatment for a class of children and young adults.

Called "therapeutic behavioral services," the treatment, while authorized under Medi-Cal, previously had not been offered to these clients. Plaintiffs' lawyers estimated 24,000 children throughout the state could qualify for the services.

Now, 21/2 years into the settlement, the state is backpedaling on its obligation by changing the ground rules, the plaintiffs' lawyers claim.

Responsible Oversight
" These new rules, which went into effect on Sept. 1, 2003, will delay and deny desperately needed services to children in crisis," said Stuart Seaborn of Los Angeles' Protection & Advocacy Inc., one of four firms representing the class.

Among the chief complaints, the children's lawyers say, are rules limiting the number of treatment hours and a provision requiring payment authorization in advance.

But the attorney general's office, representing Diana Bonta, director of the Department of Health Services, contends that the state merely is applying responsible oversight for short-term treatment.

And the advance payment authorization is a common standard throughout Medi-Cal/Medicaid programs for a host of covered services, the state said.

Moreover, the state argues, plaintiffs' lawyers have failed to show any instance in which the new rules have deprived children of services.

" The plaintiffs' request is premised on their totally unsubstantiated claim that the regulation has caused or will cause, grievous harm to class members," the motion states. "They have submitted no admissible evidence to support that claim."

Plaintiffs' lawyers noted that they are not required to provide such proof for purposes of a contempt hearing. Nonetheless, they have submitted declarations contending that services for children have been impeded.
In one, John Hitchcock, executive director of Hillside Homes, a community-based treatment center in Pasadena, detailed how the cutbacks have affected his clientele.

Hitchcock wrote that the new authorizations are "so burdensome" that he had to assign a full-time staff person to provide the required information to the state to obtain services.

Additionally, he wrote, since October only seven of his 32 clients have received treatment, and some of the children have had to wait four weeks for authorization.

Protection & Advocacy and Los Angeles' Western Center on Law and Poverty brought the contempt motion. The original complaint included plaintiffs' lawyers from Los Angeles' Public Counsel and Mental Health Advocacy Services.

Lawyers credit Protection & Advocacy's Melinda Bird for being the driving force in obtaining the special mental health services for troubled children so they could grow into productive adults.

Bird met the lead plaintiff, Emily Q., during a tour of Metropolitan State Hospital. Emily had been locked up in the state-run psychiatric facility on and off since she was 3. Bird said that she was struck by how such a vibrant and hopeful person could be locked away.

Ironically, Emily Q. never met the state requirements for therapeutic behavioral services, because she already was institutionalized, and, by the time she was released, she was too old.

To be eligible for therapeutic behavioral services, recipients must be younger than 21 and cannot be institutionalized at the time of service. But they must be living in or under consideration for placement in a high-level treatment facility. In addition, they must have undergone at least one emergency psychiatric hospitalization within the preceding two years.

As a result, Bird had to take a different approach to help Emily. She filed an administrative claim with the hospital to obtain special education rights. The hospital appealed in federal court. Metropolitan State Hospital v. Special Education Hearing Office, CV02-8607 (C.D.Cal., filed 2002).

Last month, the parties reached a settlement, resulting in Emily's release. Since then, Emily, now 23, has been living in a psychiatric nursing home and receiving intensive one-on-one care, similar to therapeutic behavioral services, Bird said.

" Emily is an example of someone who was almost destroyed by the foster-care system, and I feel very strongly about that," Bird said.

" There are hundreds like Emily in the system now," she said.