October 31, 2016
By Sharon Peters*
On September 27, 2016, the Oregon Law Center and Youth, Rights & Justice filed a federal class action against the Oregon Department of Human Services seeking to end the practice of warehousing foster children.1 “Tonight, some of the most vulnerable children in the state of Oregon will sleep on temporary cots in state offices; in hotel rooms; in hospitals, despite being cleared for discharge; or in juvenile detention facilities, despite the absence of any criminal charge against them,” the lawsuit says.
The Oregon class action seeks to drive change in the foster care system, focusing on children with mental health needs. According to the lawsuit, children with severe mental disabilities represent a large portion of those served by the foster care system, yet many of those children lack access to appropriate mental health care. By failing to find appropriate placements, the state has placed the children it is obligated to protect and care for in crisis, causing emotional and psychological harm, the lawsuit alleges. The claims allege violations of the following: (1) Fourteenth Amendment to the U.S. Constitution (substantive due process) and 42 U.S.C. § 1983; (2) Americans with Disabilities Act (42 U.S.C. § 12132); (3) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); and (4) Or. Rev. Stat. 659A.142 (disability discrimination). The lawsuit seeks an injunction requiring the state to stop housing foster children in temporary non-placement locations and to obtain appropriate placements for all foster children, in the most integrated, family-like setting possible.
The Oregon class action adds to a number of class actions filed around the country related to lack of resources and access to appropriate mental health services. Other class actions have appeared in California, Washington, New Hampshire, and New Jersey.
In California, on September 19, 2016, a federal court certified a nationwide class action against United Behavioral Health over denied coverage for mental health services.2 The certification signals that health insurers could be held responsible, on a class-wide basis, for denying insurance coverage for mental health treatment.
In Washington, in September 2014, a class action against the Department of Social and Health Services (DSHS) challenged the length of time individuals with mental disabilities spent in jail awaiting court-ordered competency evaluation and restoration services.3 The district court issued a permanent injunction requiring DSHS to cease violating the individuals’ constitutional rights by providing competency services in a timely manner. The court has since held DSHS in contempt for failing to comply with its order and imposed monetary sanctions to compel compliance.
In New Hampshire, in February 2012, a class action alleged that the state’s mental health system violated the rights of individuals with mental illness by failing to provide sufficient community-based services to avoid unnecessary institutionalization.4 On February 12, 2014, New Hampshire entered into a settlement agreement with the six plaintiffs and others similarly situated, designed to transform its mental health system by expanding and enhancing mental health service capacity in integrated community settings. The services include supported housing and employment opportunities, mobile crisis services, and community treatment teams available to deliver comprehensive and individualized services 24-hours per day.
On July, 29, 2009, the New Jersey Department of Human Services settled a class action that challenged the confinement of nearly 1,000 individuals, all of whom were cleared for discharge from state psychiatric hospitals.5 The state agreed to discharge these individuals, as well as provide community residential services and other community-based treatment settings to eliminate the backlog of patients awaiting discharge.
The U.S. Department of Justice is also continuing to drive change through its 2009 Olmstead initiative, which seeks to ensure that disabled individuals receive treatment and services in the most integrative setting appropriate to their needs. This initiative has resulted in enforcement actions in many states, including recent lawsuits against the states of Georgia and Mississippi in August 2016, as well as a settlement agreement in Oregon.6
Moving forward, we can expect litigation to play an increasing role in driving mental health reform. State budget and policy choices will continue to be challenged in court as failing, on a system-wide basis, to meet the legal rights of individuals with mental disorders and intellectual disabilities.
*We would like to thank Sharon C. Peters (Lewis Brisbois Bisgaard & Smith LLP, Portland, OR) and Suzette E. Gordon (Bronx Partners for Healthy Communities, New York, NY) for respectively authoring and reviewing this email alert.
1 A.R. and B.C. v. Department of Human Servs., No. 3:16-cv-01895-YY (D. Or. Sept. 27, 2016).
2 Wit v. United Behavioral Health, No. 3:14-cv-02346-JCS (N.D. Cal. May 21, 2014); Alexander v. United Behavioral Health, No.. 3:14-cv-05337 (N.D. Cal. Dec. 4, 2014).
3 A.B. (Trueblood) v. Washington State Dep’t of Social and Health Servs., No. 2:14-cv-01178-MJP (W.D. Wash. Sept. 12, 2014).
4 Amanda D., v. Hassan, No. 1:12-cv-53-SM (D.N.H. Feb. 9, 2012).
5 Disability Rights New Jersey, Inc. v. Velez, No. 05-1784 (FLW) (D.N.J. July 29, 2009).
6 See https://www.ada.gov/olmstead/index.htm.