Katie A. foster care case, part 2: Sun sets, perhaps prematurely, on CA settlement

National Center for Youth Law Executive Director John O’Toole.
National Center for Youth Law Executive Director John O’Toole.

By John Kelly

In Katie A. v Bonta, a class-action lawsuit over mental health services for children involved in California’s child welfare system, Los Angeles County settled with plaintiffs in 2003; the state settled on behalf of the other 57 counties in 2011.

Like most lawsuits and the settlements that stem from them, Katie A. involves lots of technical requirements. Counties must demonstrate that they assess and treat mental health using a core practice model that involves specified coordination and service delivery strategies.

But what it comes down to is this: Prior to the settlements, child welfare agencies in California were failing on both ends of the mental health spectrum.

Most children and youth in – or at risk of entering – foster care were not assessed for problems; the ones who were treated often found themselves locked in psychiatric facilities.

Part one of our series explains the genesis of the lawsuit, and analyzes the raw numbers reported by counties to the court. Those numbers suggest clear increases in mental health assessments and mental health services delivered to children’s homes, but leave lingering questions about the consistency of reform.

In this article, we turn to the state’s settlement and what the future holds. What do leaders close to the settlement have to say about what progress has been made, and what remains undone, as the case nears a potential end date of December 1? 

The State Exit Date
In 1993, the California-based National Center for Youth Law (NCYL) settled a class-action lawsuit with the state of Utah over broad shortcomings in its child welfare system. The parties agreed on a four-year time frame for needed reforms.

The state then played a game of wait-out-the-clock for four years, said NCYL Executive Director John O’Toole.

But as is the case in most child welfare litigation, Utah wasn’t done until a judge said it was done. It took until 2007 before all parties were satisfied, and only then was the case closed.

Not so with Katie A. v. Bonta, which was settled with a strict time frame to improve mental health provision for those children deemed to be part of the Katie A. Subclass (see the first story in this series for a breakdown of the criteria).

The state secured a finite end to oversight of the court: December 1, 2014. This means that for the state Department of Health Care Services and Department of Social Services, court jurisdiction over the mental health services to these children will cease no matter how much progress has been made.

“The implementation period was only three years, that’s the most we could get the state to agree to…and its not really enough time,” O’Toole said. “It’s going to run out in December, and from my perspective, it’s not really done. “

It is not the case that Katie A. will be relegated to history in December. The state and the many county systems are not simply free to revert to the extremes of ignoring mental health challenges or hospitalizing youths who struggle with them.

But as of December 1, those requirements will exist in the policy equivalent of the honor system. The court will no longer collect data on progress.

Also gone: the only official staff. In 2009, years before the state had even settled, Judge A. Howard Matz hired Richard Saletta as a special master on the case. Saletta, a licensed social worker and California State-Chico professor, was provided a staff to help push counties toward implementation.

That office will be shuttered at the end of the year.

“The two people we’ve utilized to hold the state accountable now are not at our disposal anymore,” said O’Toole, referring to Saletta and Matz. “The obligations are still there, but not enforcement through the court.”

As the data from a progress report released in October suggests and as attorneys on the case say, the intensity of work on Katie A. over the past three years has varied widely from county to county.

“There’s areas where you’re impressed, and some where little has been done,” said National Health Law Program Attorney Kim Lewis, who is lead counsel on the settlement. “I couldn’t point to a county that has by policy said, ‘We’re gonna wait this out,’ but I would say that some counties are more serious in implementing these services than others.”

O’Toole agrees.

“Some counties are doing a good job, some are doing virtually nothing,” he said. “We have county-by-county performance data. So we know what counties are trying, and some are doing good. We also know where nothing’s happening.”

O’Toole and Lewis both said their organizations would not seek a continuance of the settlement at the state level.

“We are not at this point saying we’d be arguing to continue.” Lewis said. “The state would clearly oppose it.”

There is little more that the state could accomplish because “we have a system where the state does not hold a lot of power,” O’Toole said.

The state has always had a hands-off role in child welfare when compared to say, Florida, another large state in which the state agency employs and oversees child maltreatment investigations.

The counties gained even more independence in 2011, the same year the state settled with plaintiffs in Katie A. v Bonta. The Budget Act of 2011 realigned state funds, pushing child welfare funds down to counties with fewer strings.

Realignment “moves programs and fiscal responsibility to the level of government that can best provide the services,” according to the state’s website.

“California is one of the few to decentralize the whole thing and that makes it difficult to make change,” O’Toole said. “We could not go back to the judge and say, ‘The state didn’t do anything.’ They did do stuff.”

Another option is to go after counties where the needle really hasn’t moved.  O’Toole did not rule that out, but said NCYL is “not at a point where we’re saying we’re going to sue these counties.”

Lewis said the National Health Law Program has not yet discussed the potential of county-targeted lawsuits. “You can sue anybody in federal court,” Lewis said. “Counties have been defendants plenty of times.”

One challenge in targeting counties is that virtually all of the Katie A.-mandated services are paid for by Medicaid, which is a federal-state partnership.

“The state is on the hook” when it comes to Medicaid spending, Lewis said. “Whether counties turn around and do enough on the ground is a good question and a separate one. But legally, the state is on the hook for what counties do under federal law.”

This makes accountability decidedly murky. The settlement forces the state to make sure counties are providing home-based mental health, using services mostly funded through Medicaid. But with Medicaid, the buck stops at the state’s door, not the counties’.

Thus, the government that can be held accountable in court – the state – has relatively little control in the real world. It will lose a little more on December 1.

Next, we’ll take a close look at how Los Angeles County, the nation’s single largest child welfare system, has performed in the 11 years since its Katie A. settlement in 2003.

John Kelly is Editor-in-Chief of The Chronicle of Social Change. 

One comment

  1. Keep writing articles maybe concerning the counties who aren’t making the reforms and possibly tying up it to dollars saved in the long run. I don’t know if that kind of data is available but:

    1. Press about counties not living up and counties who are (like Michael in San diego)
    2. Try anyway possible to bring the economic value of prevention to the table. The prevention value in cm cases far outweighs what we gain from vaccination in the US for vaccine preventable illness – we do vaccinate. Just because one cannot see the brain damage on the outside from cm as one easily can from a deadly virus or bacteria that damage is still there. I don’t want to just depict folks as damages but severe cm leaves a very definite twist in any strong redwood trunk.
    3. Real human faces to real stories even faces brave enough who might speak of loss in tax revenue. I know one taxpayer who due to intermittent difficulties associated with cm who also grew up on welfare who has paid around 500,000 dollars less in taxes over many years due to intermittent unemployment from disability associated w/ cm and the real brain damage that also occurs.
    4. People are more than $ to me but I would use any means to make the case and I think for some $$$$ may be an effective method of getting some to sit up and pay attention. Thanks


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