Last February in “Before It’s Too Late, Louisiana Children Placed Out of State“, I mentioned Gary W., the class action lawsuit against Louisiana which alleged that constitutional and statutory rights of foster children were violated because the children were placed in Texas institutions where they received poor care and inadequate treatment. The trial lasted two years and cost millions during the following decades.

Of course, Louisiana is not the only state with a federal class action lawsuit in its past. Today, Louisiana is one of the two states in the Deep South that is NOT facing such a suit on behalf of children.

This does beg the question: Why would any state wait until after the federal courts intervene on behalf of the state’s children to care well for her children?

“Making Medicaid Work for Children …”

This morning while contemplating Louisiana’s medicaidization of portions of what was once one of the nation’s robust child welfare programs and remembering services that no longer exist, I read, Making Medicaid Work for Children in Child Welfare: Examples from the Field. Reading this 2013 work by Sheila Pires and Beth Stroul, I was struck by something obvious. Each of the four states used by the authors as “examples from the field” improved its care of children after being the defendant in a class action lawsuit brought against the state on behalf of children.

Of course, we all know there are well established political, financial, moral/ethical, social, business, philanthropic, and religious arguments for states to care well for children. Reading Making Medicaid Work for Children in Child Welfare forces one to agree there are also very strong legal arguments for caring well for children: it is against the law not to. The consequences a state faces for not caring for children can be more expensive than doing it well from the beginning.

In each of the four states mentioned in Making Medicaid Work for Children in Child Welfare, a class action lawsuit on behalf of children who were not receiving appropriate care was the catalyst for positive change. (I know I write this on the same website where you can find documentation of Louisiana’s 26 year average history of being the nation’s 49th worst state to be a kid. I will touch on Gary W., Louisiana’s classic class action lawsuit on behalf of children, at the end.)

Four States – Four Lawsuits on Behalf of Children

Massachusetts’ Medicaid program was the defendant in a federal class action lawsuit for failing to provide appropriate services to children. Massachusetts’ class action lawsuit is referred to as Rosie D.

Jason K. (or simply, JK) is Arizona’s class action lawsuit. The JK lawsuit was filed because Arizona failed to provide the mental health treatment mandated by Medicaid. The class of plaintiffs included all Medicaid eligible persons under 21 who required behavioral health services.

Michigan’s class action lawsuit on behalf of children was filed in federal court in 2006. It alleged Michigan was not placing children into stable, permanent homes and was not providing adequate medical, dental, and mental health services.

(As an aside, according to a January 2016 federal Department of Health and Human Services report, more than a quarter of Louisiana’s poorest children received no dental services and 55% received only some of the required dental services during the year of the DHHS/OIG review. See Most Children with Medicaid in Four States Are Not Receiving Required Dental Services, OEI-02-14-00490, by Suzanne Murrin, Deputy Inspector General for Evaluation and Inspections, Department of Health and Human Services.)

Children’s Rights, a nonprofit agency, brought a class action lawsuit against New Jersey in 1999 on behalf of foster children. The lawsuit sought improved outcomes for children in out-of-home placement by improving the state’s child welfare system. The resulting settlement agreement in 2003 was later modified in 2006 and mandated sweeping reforms in that state’s child welfare system.

Current Lawsuits on Behalf of Children

These four states’ lawsuits are now old news. Forced by the courts to meet their responsibilities for children, these states have reportedly become examples of good behavior on behalf of their children.

Today, Louisiana’s neighbors, Texas and Mississippi, are struggling to correct their own shortcomings that led to federal class action suits and consent agreements requiring our neighboring states to care well for their children.

This year, at least 12 states and Washington, D.C. have been actively monitored by courts or court-appointed monitors as a result of class-action lawsuits on behalf of children. State agencies in 7 states have been defendants in 11 unresolved class-action lawsuits on behalf of children.

Ready for Some Southern Irony?

Knowing how important family is to those of us to call the South our home, here is an odd irony. Except for Louisiana and Alabama, all the states of the Deep South currently face unresolved class-action lawsuits on behalf of children or they are actively monitored under federal court authority as a consequence of losing or settling a class-action lawsuit on behalf of children. For more information see, Mississippi fights to keep control of its beleaguered child welfare system.

The Real Question

Why would any state wait to correct service gaps for its children and appropriately meet its own children’s needs – especially those children who are in the state’s custody? Certainly, the answer varies by state.

Frankly, some states prioritize the needs of children lower than other items in their state budgets. Some states’ efforts to improve are interrupted by political agendas, operatives and partisanship. Often, political philosophies drive diverging agendas and children have no vote or voice to pull attention to themselves.

Whatever the reason, Massachusetts offers this advice to states currently at risk of federal intervention on behalf of children: “Don’t wait for a lawsuit,” but rather be proactive in assessing system needs and taking action. Massachusetts is currently facing another class action suit (Connor B.) that accuses the child welfare system of failing to provide adequate permanency and safety services for children in foster care. Energy and resources are being spent on years of discovery and depositions – resources that could be devoted to improving the system.” Making Medicaid Work for Children in Child Welfare, page 35.

Surely, that’s the same lesson Louisiana learned from Gary W.

Rick Wheat, President and CEO
Louisiana United Methodist Children and Family Services

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