& Advocacy, Inc.
January 25, 2006
Prepared by Melinda Bird,
Therapeutic Behavioral Services (TBS)
Emily Q. lawsuit
Special Master Issues Final
Report Concluding that Children Do Not Have Timely and Consistent Access to TBS.
A year ago, the federal court in the Emily Q. case appointed a special master
to review access to TBS and try to resolve a series of problems and disputes
between the children’s attorneys and the state about TBS implementation. On October 14,
the special master issued a final report in which he concluded that “[c]hildren
who are eligible for and in need of TBS are not having timely and consistent
access to TBS services in all counties.” Emily
Q. v. Bontá, CV 98-4181 AHM (AJWx) (C.D.Cal.), Special Master’s Report
Regarding Disputed Issues and Implementation, ¶ 18, p. 13.
The master explained that in recommending TBS,
clinicians were “constrained by lack of capacity, a time consuming and
complicated approval process which varies significantly across counties,
limitations in use by the mandated eligibility criteria, management concerns
with regard to risk of audit liability and mixed messages regarding priority
for use of the service.” ¶ 36, page 24. The
master also found that the 2900 children and youth who were receiving TBS each
year represented about 1.6% of all EPSDT recipients, and that the rate
reflected under-utilization of TBS.
The master issued a series of recommendations to
improve access to TBS but before the federal court could take action, the
special master resigned due to time commitments in another children’s mental
health lawsuit in which he serves as court monitor. PAI and other attorneys for the children have
proposed appointment of a new master.
County “Focused Reviews” of
Services To Class Members Offer a New Way To Evaluate
Mental Health Services.
As part of an earlier agreement in the Emily Q. lawsuit, the state Department
of Mental Health (DMH) has been conducting “focused reviews” of services to Emily Q. class members in five counties:
Yolo, San Bernardino, Los Angeles, Napa and Contra Costa. These incorporate a unique case review
approach which has not been used previously in California. Of the children who meet the class definition
(psychiatric hospitalization within the past year, or in or at risk of
placement in a group home level 12 and above), from 10 to 20 are selected for a
review of quality and appropriateness of the services provided, as well as outcomes. Children who did not receive TBS as well as
some who did are included. The review
team members interview the family, child case workers and other key informants
and write up their findings. In
addition, the reviewers conduct focus groups and interview county staff in
preparing their report. Following each
review, the county Mental Health Plan prepares a plan
of correction to address problems identified during the review. The focused review process is not aimed at
recoupment or penalties, but rather on improving front-line practice. DMH plans to conduct focused reviews of five
more counties by July 1, 2006.
More than 20 states are moving towards a similar
case review approach focused on quality and outcomes for their mental health,
child welfare and special education programs. This quality review approach has
also been used increasingly to resolve contested litigation involving children’s
State Seeks to
Dissolve Court Orders in Emily Q.
On January 18,
the state filed a new motion to set aside the judgment in the Emily Q. case and end any further court
supervision. The state argues that as
long as TBS is listed as Medi-Cal service, the court has no authority to
consider access to TBS, that is, whether children actually receive it. The state also contends that regardless, TBS
utilization is adequate, the special master’s findings were erroneous and that
all children who need the service receive it.
Most recently, the federal court has ordered the children’s attorney’s
to submit evidence that that TBS “made a difference” in childrens’ lives
through declarations from providers and families. Submissions are due to the court on February 13, 2006.