Lawsuits, particularly class-action lawsuits, can be used to force public systems to right wrongs and make reparations by ensuring mistakes of the past aren’t repeated.
In the case of child welfare, lawsuits are sometimes effective and other times they are not, but they nearly always cost taxpayers millions of dollars.
Arizona is currently embroiled in a class action suit, brought by New York-based Children’s Rights, that by the end of 2017 had cost the state $1.8 million, according to state records. The suit was filed in 2015, and is far from over.
But Department of Child Safety (DCS) Director Greg McKay says Children’s Rights should drop B.K. v McKay, citing progress made since he was handed the reins.
“Since my appointment in February 2015, we have completely overhauled DCS and its management system, evaluating the barriers to high quality service delivery at every level and standardizing the work to overcome or mitigate those barriers,” McKay said, in a recent letter to the Arizona Republic.
Children’s Rights acknowledges some improvements in the state’s investigation process, but says its services for youth and families is still lacking.
Before the recession, in 2007, Arizona had 9,000 youth in foster care. The state slashed spending on family services when it addressed recession-related budget shortfalls, gutting its child care subsidies. By 2015, the number of youth in care was over 17,000.
The lawsuit, brought by Children’s Rights with the assistance of local attorneys in the state, argues that Arizona has failed to provide foster youth with the health screening and treatment guaranteed to them under federal Medicaid law. All youth in foster care are eligible for Medicaid, and guaranteed services under Medicaid’s Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) benefit.
In October, U. S. District Court Judge Roslyn Silver ruled that the suit – which originally was filed on behalf of 10 youths – could proceed as a class action.
Should Children’s Rights be the victors in the Arizona suit, one of the outcomes may be a consent decree, which is a judge’s order enforcing a voluntary agreement between parties.
Consent decrees are different from ordinary judgments because a judge is given the power to monitor and enforce the plan crafted to move a system in the right direction.
Research conducted by Casey Family Programs found that the lifespan of the average consent decree is 16.8 years. At least three jurisdictions – Illinois, Ohio and Connecticut – have been under consent decrees for 25 years or more.
In addition to the administrative burden consent decrees place on child welfare systems as they comply, the decrees are static and reflect a specific point in time in a given system, said David Sanders, executive vice president of systems improvement at Casey Family Programs, in testimony to a federal committee examining sue and settle agreements in 2017.
Casey’s research also determined that the cost of complying with a single consent decree is estimated to be $15 million or more, paid from a state’s general fund.
McKay suggested in his recent letter to the Arizona Republic that Children’s Rights is more concerned about lining its pockets than the impact such a suit has on taxpayers.
“CRI’s main source of income is attorneys’ fees paid by the child welfare agencies they sue. In fact, court-awarded attorneys’ fees generate about twice as much income as CRI receives from contributions,” McKay said in the letter to the Arizona Republic. “The fees come from taxpayers in numerous other jurisdictions where courts have allowed CRI to impose conditions that bind foster care systems for many years and cost state taxpayers many millions of dollars. That has consistently been the outcome when CRI prevails by trial, settlement or a state’s acquiescence to court control of its foster care agency.”
Not everyone agrees. “I would describe the system as still in crisis,” Dana Naimark, of Children’s Action Alliance, told Governing magazine in April of last year. Children’s Action Alliance declined to comment for this story.
Sandy Santana, executive director of Children’s Rights, said the issues at the heart of the suit still stand.
“They have definitely made some progress on the backlog. On the lack of a placement array, especially therapeutic foster care and mental health services, that’s still there. And that’s what that lawsuit is about,” Santana said, in an interview with The Imprint.
McKay described Arizona as being “one of the nation’s best foster care systems.” Casey Family Programs gave McKay its Casey Excellence for Children Award for exceptional leadership earlier this year.
A spokesperson for Casey declined to comment in time for this story.
John Kelly contributed to this story.