Mental Health Services Required for Children in Foster Care but Not Necessarily in a "Bundled" Fashion

Article excerpt

As states ponder under what, if any, circumstances a parent should be required to relinquish legal custody of a child to enable the child to gain access to state-funded mental health services, states must also resolve what level of mental health services should be afforded a child placed in the custody of the state. More than 85,000 children are in foster care in California, and it has been asserted that 70% to 84% of them experience a mental health problem. THE BAZELON CENTER FOR MENTAL HEALTH LAW, COURT ORDERS COMMUNITY MENTAL HEALTH SERVICES FOR THOUSANDS OF CALIFORNIA FOSTER CHILDREN, http://www.bazelon.org/ newsroom/2006/3-15-06-KatieAPI.html (last visited 6/27/07).

A state-wide class action lawsuit was filed on behalf of children either in foster care or at risk of being placed in foster care in California. The lawsuit asserted that the class was entitled to and had not received medically necessary mental health services in a homelike setting as required under the Medicaid Act, 42 U.S.C. [section] 1396 et seq.

In response, a federal district court judge in California issued a preliminary injunction that ruled that governmental officials are required under Medicaid to provide wraparound services and therapeutic foster care (TFC) to foster children with mental health needs. The district court acknowledged the dilemma faced by California when the state's budgetary and administrative resources are badly strapped and the range of Medicaid-mandated services continually become ever-costlier, but nevertheless imposed this responsibility on state officials. The court limited its focus to whether these services are required by California's voluntary participation in the federal Medicaid program and did not address whether they are mandated by the Americans with Disabilities Act.

The parties did not dispute that the Medicaid Act requires a state to screen foster children for the existence of certain mental illnesses and to take steps to correct or ameliorate these mental illnesses. The question was whether the state was required to provide wraparound services and TFC. California contended that these are not services per se but rather relatively undefined approaches pertaining to the delivery of health care.

The district court determined that they are required services and are sufficiently defined. Wraparound services were found to consist of an assessment and treatment planning process that uses a team approach involving intensive case management to make available an array of therapeutic interventions, including family participation in and contribution to the array of treatment. TFC was described as an intensive, individualized health service provided to a child in a family setting that utilizes specially trained and intensively supervised foster parents, and includes placing a child singly, or at most in pairs, with a foster parent who is specially selected, trained, supervised, and matched with the child's needs. …

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