Accusations of ‘warehousing’ NC foster children

Accusations of ‘warehousing’ NC foster children

By Anne Blythe

Disability Rights North Carolina and the North Carolina State Conference of the NAACP have joined forces to help children of color with disabilities in the state’s foster care program get more community- and home-based treatment instead of being “warehoused” in locked psychiatric facilities that can be dangerous.

The civil rights advocates filed a joint lawsuit on Tuesday in federal court in the Middle District of North Carolina against Kody Kinsley, in his role as secretary of the state Department of Health and Human Services, on behalf of at least four children, the court-appointed guardians tapped to represent their interests and others similarly situated.

The 74-page filing highlights a decade of problems that Disability Rights and the state NAACP contend DHHS has known about and failed to address. They claim more than 500 children a year in the ward of the state are housed in psychiatric residential treatment facilities, often many miles away from their families, schools and caseworkers familiar with their life stories.

When children with disabilities are confined to such facilities, disability rights advocates say, they suffer more longer-term consequences than if they were in home or community settings.

Many lose crucial connections with their parents, siblings and extended family. Some are more vulnerable to mistreatment, the lawsuit states.

“They are often confined to prison-like settings under the care of a poorly trained and understaffed workforce, where they are subject to broken bones, sprains, bruises, and dangerous physical and chemical restraints,” the lawsuit contends.

‘Can and must do better’

The complaint additionally states that the children “withstand sexual and physical abuse, bullying, and hate speech by both youth and staff; and face mental health deterioration and cocktails of strong psychotropic medications.”

From July 2020 to June 2021, DHHS sent at least 572 children in foster care to residential facilities, a disproportionate number of whom were young people of color. DHHS data from the previous fiscal year show that almost 50 percent of children sent to such places identified as Black, brown or “other.” U.S. Census data show that about a third of North Carolina residents are people of color. 

Disability Rights contends that DHHS has long known about and cataloged abuse occurring at such facilities, but sends children in foster care to them nonetheless.

The lawsuit also notes that DHHS sent almost 40 percent of  the children with disabilities in foster care to out-of-state facilities — some as far away as Utah, Missouri and Indiana — many hundreds of miles away from their caseworkers and families.

Such extremes, Disability Rights advocates say, put these children at a further disadvantage in their early lives instead of providing more wholesome care for them in communities, family or family-like settings near their schools and service providers that could lead to more success later.

“DHHS is failing hundreds of children with disabilities in foster care, warehousing them in dangerous, expensive, damaging institutions,” Virginia Knowlton Marcus, chief executive officer of Disability Rights North Carolina, said in a statement after the lawsuit was filed. “DHHS is obligated to provide these children the helpful support and care they need in their home communities. These children deserve and have the right to a family and place in our communities where they can meet their full potential. 

“Instead, they receive institutionalization and irreparable harm to their childhood and wellbeing.”

A spokesperson for DHHS said Wednesday that the department had received and was reviewing the federal lawsuit.

“Regardless of this specific litigation, North Carolina can and must do better for children with complex behavioral health needs,” a DHHS spokesperson said in an email statement to NC Health News. “That’s why NCDHHS has and will continue to implement, propose, and advocate for real solutions.”

Some foster care children with disabilities are confined in psychiatric residential treatment facilities with only a cot, plastic mattress, blanket and pillow. Photo contributed by Disability Rights North Carolina

Fighting for rights in federal, state courts

The lawsuit was filed in federal court nearly a month after a Superior Court judge issued a far-reaching ruling in state court ordering DHHS to deliver services to people with developmental and intellectual disabilities in home and community settings.

DHHS has appealed the decision and filed a motion on Dec. 1 in Wake County Superior Court hoping to block parts of the order issued by Judge Allen Baddour while the state Court of Appeals reviews the case. The motion for a stay is set to be considered during a February hearing.

The lawsuit filed Tuesday in federal court touches on similar issues but focuses on Title II of the Americans with Disabilities Act, which prohibits unlawful discrimination such as the institutionalization and segregation of children with disabilities when they can be integrated into programs and activities appropriate to their needs in a community setting.

“DHHS’ failure to provide community-based, family-based housing and supports for Black children with mental health needs is cruel, irresponsible, discriminatory, and must be rectified,” Deborah Dicks Maxwell, president of the North Carolina NAACP State Conference, said in a statement after the lawsuit was filed. “North Carolina already rips Black children from their families and throws them into foster care at an alarming rate, a lasting trauma that the state compounds by its brutal use of institutional care. It is past time to fix this.” 

Long wait lists, too few slots

Disability Rights NC and the state NAACP contend that  DHHS spends $100 million annually on psychiatric residential treatment facilities in lieu of building and strengthening a community-based network for such children in need.

“While DHHS ostensibly offers an array of community-based placements and services, the availability of needed services is too limited, and DHHS does not ensure that children with disabilities in foster care can actually access existing services,” the lawsuit states.

Some of those details were brought to light after Disability Rights North Carolina filed the lawsuit in Wake County Superior Court in 2017 that led to the Nov. 2 ruling in the so-called  Samantha R. case that disability rights advocates celebrated.

The Innovations Waiver, a state Medicaid program that makes it possible for people with disabilities to get state funding to receive care in their homes or community settings, was at issue in that legal challenge.

Samantha Rhoney, now 33, is the lead plaintiff in the lawsuit. She and her parents accused the state of not doing enough to provide home- and community-based support to residents with intellectual and developmental disabilities. 

The legislature has underfunded the program for years. There are 16,000 more people waiting for home- and community-based services than state-funded slots available. The waitlist could take more than a decade to attend to unless state lawmakers allocate more funds.

The Baddour ruling gives the state 10 years to move all people with intellectual and developmental disabilities in institutional settings who are eligible for Innovation Waivers into the services of their choosing.

Though top DHHS administrators have asked the General Assembly to provide more funding for home-based and community programs, Kinsley said last week that he worried that Baddour’s order would lead to some North Carolinians losing options to care before enough resources had been built up in communities.

“While the department is deeply aligned with many aspects of that decision, I have grave concerns about keeping pieces of that decision that would limit choice for individuals and potentially push over a thousand, if not more, individuals in small community-based homes and other spaces out of those stable environments that their family members and they rely on every day, in a short period of time,” Kinsley said Nov. 30 when announcing the state’s plan to appeal.

Since then, the department has shared emails and other comments from family members of people with disabilities urging the state to appeal the Baddour ruling.

Some foster care children with disabilities are confined in psychiatric residential treatment facilities with only a cot, plastic mattress, blanket and pillow. Photo contributed by Disability Rights North Carolina

‘Denying them their childhood’

The lawsuit refers to studies and consultant reports that DHHS has amassed on the foster care system.

In 2020, according to the federal lawsuit, a consultant hired by DHHS found that “North Carolina spends a disproportionate amount of its resources on institutional and congregate care settings” and “spends more to serve individuals in congregate care settings than it spends on community-integrated services options.”

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