Disability Rights Maryland Sues DHS, MDH Over Foster Children Care

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Venable and Disability Rights Maryland File Lawsuit Against State Officials Over Long-Term Placement of Foster Children in Hospitals

Washington, DC – Today, Disability Rights Maryland (DRM) and Venable LLP filed a complaint against the Maryland Department of Human Services (DHS) and Maryland Department of Health (MDH) for their failure to provide appropriate placements and services for children warehoused in hospitals and emergency departments without medical necessity, resulting in “overstay” status.

The lawsuit is filed on behalf of a class of Maryland foster children who currently are experiencing, or are at imminent risk of experiencing, medically unnecessary hospitalization. It also seeks to end hospital overstays for other children who remain in the hospital or emergency department because their parents have determined it is unsafe to care for them without additional services, which Defendants do not provide. These parents have requested help from their local Department of Social Services (DSS) in the form of a voluntary placement agreement (VPA), but DSS will not accept custody of the children until a bed becomes available in a congregate care group home, a highly restrictive residential treatment center (RTC), or a residential program for youth with disabilities.

The lawsuit covers all jurisdictions except Baltimore City, which is covered through separate ongoing litigation involving children in foster care. DRM brought a similar federal lawsuit against the state in 1987, but the reforms mandated in a settlement agreement entered into in 1993 have proved inadequate to stop the problem from recurring. “Maryland children are suffering,” said Luciene Parsley, litigation director at DRM. “Thirty years after DRM and MDH settled Lisa L., community support services in Maryland have once again deteriorated to the point where children with disabilities are forced to wait in hospitals and emergency departments for weeks and months on end, even after their medical professionals have certified that they do not require hospitalization.”

Despite recent federal legislation addressing the deinstitutionalization of foster children, local DSS offices often keep foster children with significant challenging behavior hospitalized, while they await placement in RTCs, often out of state, or in other restrictive congregate care programs, instead of facilitating less restrictive placements in the community by utilizing wraparound services, crisis prevention and intervention services, treatment foster care, or placement with willing relatives with support services.

Hospital overstays are a significant problem, affecting more than 100 foster children a year, and a chronic problem in Maryland for at least the past five years. According to a partial survey of Maryland hospitals by the Maryland Hospital Association (MHA) in June and July 2022, at least 51 children were in overstay status, languishing in Maryland hospitals without medical necessity because the state’s foster care system lacks sufficient community placements and services that would allow them to return to their families. This number likely was an undercount, as some Maryland hospitals did not participate in the survey and additional children not counted by the MHA survey have been kept in overstay status in Washington, DC and Delaware hospitals. DHS itself informed the Maryland General Assembly that in the one-year period from October 1, 2021 to September 30, 2022, 123 Maryland foster children were hospitalized without medical necessity.

Hospital overstays are devastating to the children, who are confined to beds for weeks or months on end, with little, if any, opportunity for education, recreation, socialization, fresh air, or the basic interactions so critical for healthy child development. Often their conditions deteriorate, making appropriate placements even more difficult to find. The overstays typically last for several weeks but often have lasted for months and, on occasion, for a year or longer. “Some children have been held in emergency departments for weeks, where they have difficulty sleeping because the lights are always on and there is constant activity all around them,” said Megan Berger, legal director at DRM. “It is traumatic to be confined in such arrangements after the kids’ doctors have said they are ready to leave. Kids have told us that they feel abandoned and unwanted—and the lack of available services and placements just compounds those feelings.”

Maryland is per capita the wealthiest state in the country, and yet it continues to fail its children most in need. DHS and MDH have no plan to systemically address the underlying issues that result in hospital overstays and, without judicial intervention, will continue to violate the children’s rights and cause them irreparable harm. Notes DRM managing attorney and policy counsel Leslie Seid Margolis, one of the attorneys representing the plaintiffs: “Moving children out of the hospital one by one is not a plan. We hope this lawsuit will spur the State agencies to think systemically about how to address the critical need to provide meaningful therapeutic, behavioral, and supportive services to children and youth in their homes or foster homes or, if that is not possible, then in the community with as little restriction as possible.”

For the last five years, advocates have been pressing the state to fix the problem, without success. Says Venable partner Mitchell Y. Mirviss, who also is co-counsel for Baltimore City foster children in a related federal case, “This is a tragedy that shouldn’t be happening in the twenty-first century. Hundreds of Maryland foster children have been warehoused in hospitals because the state has failed to fix its shortage of placements and its scarcity of intensive crisis-intervention and wraparound clinical services, even though it has known of the dire need.”

DRM, the designated protection and advocacy program for individuals with disabilities in Maryland, is a private, nonprofit 501(c)(3) organization. Among other activities, it advocates for the rights of children with mental health disabilities and those dually diagnosed with mental health and developmental disabilities, such as intellectual disability or autism. DRM works with people with disabilities to achieve full participation in community life, self-determination, equality, freedom from abuse and neglect, and access to civil rights. For more information, please visit www.disabilityrightsmd.org

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Venable LLP is an American Lawyer Global 100 law firm headquartered in Washington, DC that serves as primary counsel to a worldwide clientele of large and mid-sized organizations, nonprofits, high-net-worth entrepreneurs, and other individuals. With more than 850 professionals across the country, including in California, Delaware, Florida, Illinois, Maryland, New York, Virginia, and Washington, DC, the firm strategically advances its clients’ objectives in the United States and around the globe. Venable advises clients on a broad range of business and regulatory law, legislative affairs, complex litigation, and the full range of intellectual property disciplines. For more information, please visit https://www.venable.com/.