Class Action Settlement Mandates Reform Of New York City Foster Care Agency Psychiatric Hospitalization Practices
MONDAY, MARCH 14, 2011

We are pleased to announce that a class action settlement has been reached in the United States District Court for the Eastern District of New York prohibiting the City of New York from continuing practices that cause children in its care to languish in psychiatric hospitals longer than medically necessary. The Legal Aid Society and the law firm of Patterson Belknap Webb & Tyler LLP filed the underlying lawsuit in May 2010 on behalf of a class of children in foster care, alleging that the City had systematically violated laws requiring children to be placed in the least restrictive and most homelike environments possible.

The defendants in the case, the New York City Administration for Children’s Services (“ACS”) and its various agencies, are responsible for over 14,000 children in foster care. The class action suit alleged that ACS left children with behavioral and disciplinary issues to languish in psychiatric hospitals when they no longer required hospitalization and was failing to provide children with placements in less restrictive settings as required by law when hospital staff determined that children were ready for discharge. This unlawful treatment, the suit claimed, was depriving plaintiffs of liberty and causing irreparable emotional harm.

The settlement, approved on Friday, March 11 by Judge Brian M. Cogan of the United States District Court for the Eastern District of New York, provides relief to the entire class that will help ensure children in foster care in New York City are not subjected to confinement in acute care psychiatric hospitals for any longer than is medically necessary. The settlement requires the City to comply with applicable federal and state laws and provides substantial reforms. A recently created unit within ACS will monitor children in foster care placed in psychiatric hospitals in order to find them less restrictive placements when ready for discharge. ACS must also train staff on a newly-implemented mandatory policy governing psychiatric hospitalization and discharge planning, as well as evaluate and enforce its agencies’ compliance with the policy.

The court will retain jurisdiction over the case for a five-year period for enforcement. The settlement requires ACS to produce regular, detailed reports on its compliance.

Tamara Steckler, Attorney-in-Charge of the Juvenile Rights Practice at the Legal Aid Society, stated, “The mandated notification of a child’s attorney as soon as a child is placed in a psychiatric hospital is one of the most significant aspects of the settlement. Giving the child’s attorney prompt notice is the best, and sometimes only, way to prevent children from getting lost in the system and languishing in such institutions longer than is medically necessary.” Kimberly Forte, a staff attorney in the Juvenile Rights Law Reform Unit, and Tami Steckler are handling the case for The Legal Aid Society.

Patterson Belknap partner Lisa E. Cleary remarked, “With this settlement, children in foster care will now be provided with additional safety nets to ensure that the City lives up to its obligation to provide them with appropriate care and services. We applaud the Administration for Children’s Services for its willingness to address these very serious concerns in a productive manner. With regular, appropriate training and education of ACS staff and foster care agencies, and appropriate oversight by the Mental Health Coordination Unit that ACS has given significant responsibility under the Consent Decree, we expect the number and duration of psychiatric hospitalizations of children in foster care to diminish dramatically. We will be monitoring the situation closely to ensure that ACS complies with all of the terms of the Consent Decree.”

Handling the case for Patterson Belknap are Leonard Braman, Jordan Engelhardt, William Schmedlin, and Brian Sweet, who are associates and Kim Lakeman, a legal assistant.

The case, A.M. v. Mattingly, 10-2181 (BMC) (E.D.N.Y.), has been the subject of coverage in The New York Times and the New York Law Journal.


The New York Times
March 14, 2011
City to Revise Treatment of Children in Foster Care
By Mosi Secret

New York City is no longer allowed to keep troubled foster-care children in psychiatric hospitals after doctors have recommended their release, and must closely adhere to laws that require such children to be placed in the least restrictive setting possible, after reaching a settlement agreement in federal court last week.

The agreement came less than a year after a class action lawsuit was filed against the Administration for Children’s Services, which oversees the care of nearly 15,000 foster children in the city. The suit, filed in United States District Court in Brooklyn, alleged that the agency confined children in psychiatric hospitals for prolonged periods, sometimes when there was no need for them to be in the hospital at all, and that it used the hospitals “as if they are detention centers.”

Under the terms of the settlement, the city agreed to issue mandatory guidelines regarding children who are admitted to psychiatric hospitals, to track and monitor the children and to provide training for city employees and their counterparts at contract foster-care agencies who make the hospital referrals.

A key component of the agreement was a requirement for the Administration for Children’s Services to notify a child’s lawyer as soon as the child is placed in a psychiatric hospital. “It certainly will assist in moving these cases along because there is plenty of advocacy we could do to ensure our clients don’t languish,” said Tamara Steckler, the lead attorney of the juvenile rights practice at the Legal Aid Society, which filed the suit along with lawyers from Patterson Belknap Webb & Tyler.

The city must issue regular reports to the plaintiffs’ lawyers under the agreement, which remains in effect for five years.

The settlement also awarded monetary damages to the three lead plaintiffs in the suit — children who were identified only by their initials — and legal fees to their lawyers. The amounts of the awards have not been determined. The city admitted no wrongdoing in the case.

According to the original complaint, the lead plaintiffs were held in psychiatric facilities for weeks and months beyond the dates doctors deemed them ready for release. They were rarely permitted to leave the hospital, regularly administered psychotropic medications and sometimes chemically restrained with tranquilizers. Ms. Steckler said they had since been released to more appropriate settings.

State law requires the city to place each foster child in “the least restrictive and most homelike setting in which the child can be maintained safely.” Emergency psychiatric care is generally considered the most restrictive. Less restrictive settings include residential treatment facilities, group homes and foster-care homes in which the foster parents have been specially trained to treat troubled children.

The foster-care agencies have, however, often had difficulty persuading less restrictive homes to accept children with a history of psychiatric trouble. Thus, children languished while the agencies tried to find them homes.

The Administration for Children’s Services said it had been working with foster-care agencies to train and assist them in finding treatment options, and had already moved to put in place many changes required by the settlement. The commissioner of the agency, John B. Mattingly, issued a memorandum in May 2010, about two weeks after the lawsuit was filed, detailing changes to the way the city provides psychiatric care for children in foster care.

A lawyer for the city characterized the settlement as a culmination of efforts to improve care for the children. “We are pleased to have been able to resolve this matter amicably,” Martha Calhoun, senior counsel in the city’s law department, said in a written statement. “A.C.S. has been building a stronger system for foster children and youth with psychiatric issues for a number of years.”


The New York Law Journal
March 15, 2011
New York City Settles Class Action Over Time Spent by Foster Care Youth in Psychiatric Hospitals
By Joel Stashenko

A class action settlement has been reached with New York City that is expected to reduce the number of youth in foster care who are confined to psychiatric hospitals without good reason.

The stipulation and order of settlement, which was approved Friday by Eastern District Judge Brian M. Cogan, requires that such hospital stays be maintained only as long as they are medically necessary.

The suit against the city argued that some youths were being admitted to psychiatric hospitals because they violated foster home rules such as missing curfew or because they were simply seen as "difficult" to control, not for serious mental health conditions.

A new unit will be established within the Administration for Children's Services (ACS) to track the progress of children who have been committed to psychiatric hospitals, to move for their release when they are able to leave and to find community-based treatment on their release.

The Legal Aid Society of New York sued the ACS in May 2010, contending that the agency was ignoring 18 N.Y.C.R.R. §430.11, which stipulates that the "most appropriate level of placement" for children younger than age 18 "will always be considered to be the least restrictive and most homelike setting in which the child can be maintained safely."

"Far from placing them in the 'least restrictive environment' as required by law, ACS has subjected these children, without justification, to the most restrictive environment conceivable—an acute-care psychiatric hospital," the complaint charged.

The suit alleged that the children were being penalized by being kept in secure hospitals because they are foster children and have no home to return to after release (NYLJ, May 13, 2010).

The action also claimed breaches of other statutes, the Americans with Disabilities Act and plaintiffs' due process rights under the state and federal constitutions.

Children's Rights Inc., a New York City-based advocacy group for abused and neglected children, estimated that about 2,240 of the 16,000 youth under age 18 in the custody of the ACS last year were sent to acute psychiatric hospitals.

The federal court will retain oversight of the case for the next five years. Under the settlement, the ACS will issue periodic reports on its compliance.

The agency admitted no wrongdoing as part of the settlement.

Another provision requires a youth's attorney to be notified as soon as the child is placed in a psychiatric hospital.

"Giving the child's attorney prompt notice is the best, and sometimes only, way to prevent children from getting lost in the system and languishing in such institutions longer than is medically necessary," said Tamara Steckler, attorney-in-charge of the Legal Aid Society's Juvenile Rights Division.

Patterson Belknap Webb & Tyler assisted Legal Aid in the case.

"With this settlement, children in foster care will now be provided with additional safety nets to ensure that the city lives up to its obligation to provide them with appropriate care and services," Patterson Belknap partner Lisa E. Cleary said in a statement. "We applaud the Administration for Children's Services for its willingness to address these very serious concerns in a productive manner."

Ms. Cleary predicted that the agreement's provisions for the regular training of ACS staff and foster care agencies, along with the "significant responsibility" given to the oversight agency, will "dramatically" reduce the number and duration of psychiatric hospitalizations of children in foster care.

"We are pleased to have been able to resolve this matter amicably," said Martha Calhoun, a senior counsel in the New York City Corporation Counsel's Office. "ACS has been building a stronger system for foster children and youth with psychiatric issues for a number of years. In large part, this agreement represents the culmination of those efforts in that it recognizes and incorporates the policies ACS has already developed for foster children in acute psychiatric care."

The suit that prompted the settlement was A.M. v. Mattingly, 10-2181.