A federal judge turned down the North Carolina Department of Health and Human Services request to dismiss the case, so the claim that the department keeps children in psychiatric residential treatment facilities where they are abused will go forward.
Four disabled children in foster care sued DHHS in December 2022 in the Middle District of North Carolina federal district court. They said the state was “unnecessarily segregating” them in psychiatric residential treatment facilities, or PRTFs.
A part of the lawsuit said that children are abused in the institutions and are kept there for months or even years, even though the facilities are meant to provide intensive, short-term care.
The suit said that the facilities are often like prisons and have workers who aren’t properly trained or staffed. The children may have to deal with “broken bones, sprains, bruises and dangerous physical and chemical restraints; 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.”
Disability Rights NC, a nonprofit advocacy group that is also a plaintiff in the case, said in a news release that DHHS gave resources and money to PRTFs instead of building up community-based alternatives.
Holly Stiles, Disability Rights NC’s assistant legal director for litigation, said that these options include therapeutic foster care, which requires more training, and smaller group homes for kids with behavioral or mental health problems.
She said, “We have some of these services already, but not enough of them.” “We’ve never made them bigger.” “Those providers don’t get paid to grow.”
The suit said that from 2010 to 2018, DHHS relied on PRTFs 119% more than it did before.
The NAACP branch in North Carolina is also a named suit. Kids’ Rights, a national charity, joined as a co-counsel.
The lawsuit said that children of color are more likely to be impacted than white children. It used DHHS data from fiscal year 2019 to 2020 to show that more than 40% of children on Medicaid in PRTFs are black or brown.
The suit said that between fiscal years 2020 and 2021, DHHS sent at least 572 children from foster care to PRTFs. This was more than in previous years.
The lawsuit says that 13-year-old plaintiff Isabella A. is in the care of Montgomery County DSS and has been to several PRTFs. Peers at the center were said to have bullied her and subjected her to “painful sexual harassment,” according to the lawsuit.
Steph C., the plaintiff, is 15 years old and in the care of Craven County DSS. He has been to several PRTFs and was flown to a hospital after another youth at the facility “slammed his head to the ground,” according to the lawsuit. The suit said that he also went to the emergency room with a head injury from an attack by another youth at the center.
The suit says that waiting lists for intensive in-home services and outpatient mental health and substance abuse services, as well as not having enough transportation to get to those services, make community-based care harder to get.
A lawyer for the N.C. NAACP and Chair of the Legal Redress Committee named Irving Joyner told Carolina Public Press that the state says it will look out for the best interests of children in their care, but they are using the “worst methods” to do so.
It’s DHHS’ job to build up community-based placements, even though it’s hard work, Stiles said. They’ve also lost staff, which can mean losing experts in the field. That’s why she wants them to hire experts in the field, she said.
One reason DHHS gave for throwing out the case was that DSS guardians and state courts had agreed to put the kids in PRTF. Child Rights lawyer Marissa Nardi says the judge said that the courts and DSS guardians can’t choose to place the child in a setting they need, like a community-based alternative, if it doesn’t exist.
Nardi said that the case can now move forward and there will be a time for discovery.
DHHS’s answer to PRTFs
Last session, the General Assembly gave $8 million to DHHS. Director of the Division of Mental Health, Developmental Disabilities, and Substance Use programs Kelly Crosbie told CPP that the money has been used to increase family and community-based programs.
She said that the number of children in PRTFs in the state has gone down over the last four years.
She said that there are now more kids in community-based care than in residential facilities, which are only used as a last option. But for people in PRTFs, Crosbie said, the state expects them to get high-quality care that takes stress into account.
She said that the tough job market in mental health is a “real challenge,” but the department tries to find creative solutions.
“It would be dishonest or naive to say that we’re not having trouble with services, but this kind of money from lawmakers really helps us hire and keep more mental health professionals for kids in the public sector,” she said.
Crosbie said that DHHS has also worked hard to make community-based treatments like outpatient therapy and family-based in-home programs easier for people to get.
