Federal judge won’t stop lawsuit against NC over kids confined in psychiatric residential treatment facilities

A lawsuit accusing the North Carolina Department of Health and Human Services of improperly keeping children in psychiatric residential treatment facilities where they face abuse will move forward, after a federal judge denied DHHS’ request to dismiss the case.

Four children in foster care who have disabilities sued DHHS in the federal district court for the Middle District of North Carolina in December 2022, claiming the state was “unnecessarily segregating” them in psychiatric residential treatment facilities, or PRTFs.

Part of the complaint said children face abuse in the institutions and are held there for months and years, although the facilities are designed to provide intensive, short-term treatment.

The facilities are often prison-like with poorly trained and understaffed workers, the suit alleged, and children may face “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.”

The nonprofit advocacy group Disability Rights NC , also a plaintiff in the case, claimed DHHS directed resources and funding to PRTFs rather than building up community-based alternatives, according to a press release from the organization.

Those alternatives include therapeutic foster care, which comes with a higher level of training, and smaller group homes for children with behavioral or mental health needs, said Holly Stiles , Disability Rights NC’s assistant legal director for litigation.

“We have some of these services already, just not enough of them,” she said. “We’ve never scaled them up. We don’t pay those providers to expand.”

DHHS increased its reliance on PRTFs at a rate of 119% from 2010 to 2018, the suit said.

The N.C. branch of the NAACP is another named plaintiff. The national nonprofit group Children’s Rights joined as co-counsel.

Children of color are disproportionately affected, the suit alleged, pointing to DHHS data from fiscal year 2019 to 2020 that showed Black and Brown children make up more than 40% of the children on Medicaid in PRTFs.

DHHS sent at least 572 children from the foster care system to PRTFs during fiscal years 2020 to 2021, the suit said, an increase from previous years.

Plaintiff Isabella A. , 13, is in the custody of Montgomery County DSS and has been to multiple PRTFs, according to the suit. The suit alleged she’s been the target of bullying, including “painful sexual harassment,” from peers at the facility.

Plaintiff Steph C. , 15, in the custody of Craven County DSS, has been to multiple PRTFs and was airlifted to a hospital after another youth at the facility “slammed his head to the ground,” the suit alleged. He also suffered a head injury from a separate assault by another youth at the facility and went to the emergency room, the suit said.

Barriers to community-based treatment include waitlists for intensive in-home services and outpatient mental-health and substance-abuse services, as well as inadequate transportation for those services, according to the suit.

Irving Joyner , legal counsel for the N.C. NAACP and Chair of the Legal Redress Committee, told Carolina Public Press that the state commits to look out for the best interests of children in their custody, but are utilizing the “worst methods” to do so.

Building up community-based placements is hard work, but it’s DHHS’ job, Stiles said. The department has also lost staff which can mean a loss of subject matter experts, so she would want to see them bring in experts in the field, she said.

Part of DHHS’ argument to dismiss the case was that DSS guardians and state courts approved placing kids in PRTF. According to Marissa Nardi , lead counsel for Children’s Rights, the judge said the courts and DSS guardans can’t decide to put the child in a placement they need, such as a community-based alternative, when it doesn’t exist.

Now the case can move forward and there will be a discovery period, Nardi said.

DHHS response on PRTFs

The General Assembly gave DHHS $8 million last session and the department has been using it to expand family and community based services, Kelly Crosbie , Director of the Division of Mental Health, Developmental Disabilities and Substance Use Services, told CPP.

Over the past four years, the trend of children in PRTFs in the state has decreased, she said.

More children are now in community-based care than in residential facilities, which are a last resort, she said. But for those who are in PRTFs, the state’s expectation is that they are receiving high-quality, trauma-informed care, Crosbie said.

Workforce challenges in the mental health field are a “real challenge,” but the department tries to be creative, she said.

“It would be disingenuous or naive to say we’re not struggling with services despite our best efforts, but this kind of money (from legislators) really helps us to recruit and retain more mental health professionals for kids in the public sector,” she said.

DHHS has also worked hard to increase access to the community based treatments, such as outpatient therapy and family-based in-home services, Crosbie said.