30-year old class action case wrapping up in DC

On August 7, 2020, the parties in a 31-year-old class action suit against the District of Columbia’s child welfare system, currently known as LaShawn vs. Bowser, agreed to a settlement in the longstanding case. The parties agreed that the agency had made sufficient progress to recommend a process and time schedule for closing the case. Judge Thomas Hogan preliminarily approved the settlement and set a hearing for June 1, 2021 to determine whether to grant final approval after receiving information regarding the agency’s compliance with its provisions.

In 1989, the American Civil Liberties Union filed the lawsuit then called LaShawn A. vs. Barry, on behalf of the District’s abused and neglected children. The suit challenged nearly every aspect of the District’s child welfare system and sought comprehensive reform of the city’s child welfare agency, the Child and Family Services Agency (CFSA). After a trial in 1993, Judge Thomas Hogan concluded that the District’s child welfare system was “a shambles.” In 1994, he approved an extensive order requiring reform in every part of the child welfare system and appointing a court monitor, the Center for Law and Social Policy (CSSP) to oversee the agency’s remediation efforts.

In the years that followed, the original order was succeeded in turn by three different plans agreed upon by the parties to the suit and and setting forth the outcomes to be achieved by CFSA in order to exit the lawsuit. The most recent agreement, the Exit and Sustainability Plan (ESP), was approved by the court on October 31, 2019. It recognized that the agency had made progress in fixing the problems identified the lawsuit and removed 56 of the exit standards the agency had achieved, setting forth a reduced list of 24 outcomes to be achieved. The latest LaShawn progress report from CSSP, published in June 2020, described continued progress on some outcomes but indicated that others had not yet been achieved.

The Settlement Agreement contains a list of actions to be taken by the agency in order to exit the LaShawn lawsuit. These actions, which target the outcomes not yet achieved, include:

1. CFSA will contract with a provider to develop a psychiatric residential treatment facility for children in foster care between the ages of eight to twelve.
2. CFSA will license enough foster homes by December 31, 2020 “to have a 10 percent built-in surplus of foster care beds, thereby creating more matching choices and prompt and appropriate placement for all children in care.”
3. CFSA will “ensure accessibility for clinical and therapeutic services” by maintaining four in-house behavioral therapists, a behavioral health clinical supervisor, and a psychiatric nurse practitioner; maintaining a contract with a Core Services Agency that will provide for the ability to serve “150 children and families” each year with “support and specialized therapeutic and crisis stabilization services.”
4. CFSA will maintain its ongoing commitments outlined in the ESP regarding self-regulation and public reporting, including policy development and publication, continuous quality improvement, quality service reviews, and publishing an Annual Needs Assessment and Resource Development Plan.
5. CFSA will maintain caseload standards embodied in the ESP.

The agreement also lays out the schedule and parameters for continuing monitoring, enforcement, and potential exit from the lawsuit. CSSP will provide a report on CFSA’s performance during calendar Year 2020 by March 31, 2021. A hearing will be scheduled for June 1, 2021 and the case will be dismissed in the event that there are no compliance concerns. The agreement will remain enforceable as a contract between the District and the plaintiffs for a period to be defined, with CSSP acting as an “Independent Verification Agent (IVA).” CFSA will prepare two semiannual public performance reports covering Calendar Year 2021 with the second report due by March 31, 2021. These reports will be “validated” by CSSP. The plaintiffs will have an opportunity to file an action for breach of the Settlement Agreement based on the public performance reports. In such a case, the parties will attempt to resolve the concerns through mediation by IVA and the agency will have up to 60 days to fix the problems before plaintiffs may file an enforcement action. In the absence of such an action, the Settlement Agreement will expire on the 181st day following CFSA’s final public performance report.

Analysis

CFSA’s performance in protecting children from abuse or neglect, caring for children in its custody, and helping families address the problems that put their children at risk still leaves much room for improvement. However, the egregious problems that led to the lawsuit and court supervision have been addressed to the satisfaction of the plaintiffs, as the new agreement indicates. The case could be kept open forever, with new benchmarks replacing those already achieved. But court oversight is an expensive way for dealing with systemic problems, using funds that could have been used for services to children to pay attorneys and evaluators instead. Moreover, it is a blunt instrument that relies on benchmarks that are measurable but not necessarily meaningful.

As a social worker in the District of Columbia’s child welfare system between 2010 and 2015, this writer found several of the provisions of the exit plan in force at the time to be more harmful than helpful to children in the system and the social workers trying to help them. I described some of these in a blog post in 2015 when these aggravations were fresh in my memory. One example was the standard requiring that 83 percent of youth in care must have two or fewer placements. Because of this standard, I was told that I could not move one of my clients whose foster parent provided no support and left him alone most of the time. At other times I was forced to waste precious time on unnecessary activities such as performing the required four visits to a child new foster home even when the “new placement” was actually just a change in placement status and the child had not actually moved, or making sure a “Youth Transition Plan was on the books every six months even if the client refused to participate in the required meeting. Actions taken for compliance purposes take time that overwhelmed social workers need for work that actually improves the lives and futures of clients.

Not all of the outcomes outlined in the ESP have been achieved, and specific provisions of the Settlement Agreement address these continuing issues. These provisions are discussed in more detail below.

1. Contract with a provider to develop a psychiatric residential treatment facility for children in foster care between the ages of eight to twelve. CFSA has reported that it is seeing more young children with aggressive behaviors than in the past. It is often difficult to find a residential facility for these children, and they end up disproportionately staying at the agency overnight after being sent back by foster parents who cannot deal with them. According to the latest LaShawn progress report, over half of the children experiencing overnight stays in the CFSA building between April and December 2019 were between the ages of eight and 13. Therefore, establishing a facility to care for these children makes sense.
2. License enough foster homes by December 31, 2020 “to have a 10 percent built-in surplus of foster care beds. The agency must establish a recruitment plan, which will focus on traditional family-based homes as well as specialized placement types to meet special needs. This is a somewhat surprising recommendation in light of data provided to the DC Council as part of its oversight process showing that there were 327 vacant beds available in the District and Maryland out of a total of 941 beds–a vacancy rate of way over 10 percent, making it unnecessary to license more homes to achieve such a surplus. This large number of vacancies at the same time as children were spending the night at the agency indicates that the problem is not the overall number of foster homes. The issue that has been of concern in this case is the lack of placement options (therapeutic foster homes, group homes, or residential treatment centers) for young people who have more serious problems, which has resulted in children moving from placement to placement and even staying overnight at the agency. Another issue is the poor quality of care provided in many of the existing homes–a problem that has not been addressed at all in the LaShawn case.
3. Maintaining in-house behavioral therapists and contract with core services agency: CFSA added three in-house behavioral therapists in 2018 because many children entering foster care were waiting months to be evaluated and matched with mental health providers by a Core Services Agency. It was part of a new strategy to move from a model of dependence on the Department of Behavioral Health (DBH) to a model with therapists on staff at CFSA to provide time- limited services for children newly arrived in foster care or those experiencing placement instability. To further expand services CFSA also entered into a contract with MBI Health Services, a DBH “Core Services Agency,” running from October 1, 2019 until September 30, 2020. The settlement agreement aims to institutionalize these innovations. However, contracting with a Core Services Agency does not address the the inconsistent quality of behavioral health services provided by these agencies. During my time as a foster care social worker, both CFSA and private agencies contracted with private providers in order to obtain higher-quality therapeutic services for clients with more complex needs.The District needs to overhaul and enhance its behavioral health services because it is not just CFSA clients who are in desperate need of timely, high-quality therapeutic services.
4. Maintain CFSA commitments regarding self-regulation and public reporting. The maintenance of these commitments is important; however they do not substitute for review by an external monitor, as discussed below.
5. Maintain caseload standards. The closure of the court case is most worrying as it relates to this outcome. Thanks to the case, CFSA has reduced its caseloads to meet the standards imposed by LaShawn, which are considered acceptable and are lower than actual caseloads in many jurisdictions. However, even these low caseloads are too high to do the myriad of duties expected of social workers, at least in some jobs. During my service as a foster care social worker between 2010 and 2015, I found that a caseload of 15 children was almost unmanageable and made it hard to focus on anything beyond crisis management, even when working more than 50 hours per week. A caseload of ten mostly older and harder-to-serve clients was equally unmanageable. This was mostly because foster care social workers in the District (at least during the years of my tenure) performed many of the tasks that foster parents were supposed to do–like taking their children to doctors and therapists and dealing with their schools. If caseloads are allowed to get higher, investigative social workers will be forced to cut corners and ongoing services social workers will be unable to do much other than respond to crises. Children and families will pay the price. That is one reason continued oversight is needed, as described below.

A Need for Continuing Oversight

While court supervision may no longer be the appropriate way to ensure acceptable performance by CFSA, the end of CSSP’s role as court monitor leaves the District without an independent agency to report to the public on problems with the agency. With its critical responsibilities that can mean life or death for children in or out of the system, and with the need for privacy that allows the agency to refuse to share information about its failures, we need an independent agency to monitor CFSA’s performance. Legislation to establish an independent Ombudsperson for CFSA was introduced in 2019 by Councilmember Brianne Nadeau. The Ombudsperson would respond to complaints, monitor agency policies and practices, and report annually on its findings. As the Children’s Law Center outlined in its testimony on behalf of legislation, there is no other agency that can perform this role because the only other institution that have the authority to do it—the DC Council and the Citizen Review Panel–lack the resources and the capability to do this important work. At least 15 states have established independent child welfare ombudspersons that perform such a role. Councilmember Nadeau’s Ombudsperson bill was not brought up for a vote in 2019; the Councilmember was planning to make adjustments in the legislation based on the testimony received, before the pandemic intervened. The legislation should be passed as soon as possible to avoid a large gap between the closing of the court case and the opening of the office.

It is time for LaShawn vs. Bowser to close. However, we cannot leave maltreated District children in unprotected both in and out of foster care. In order to protect the children of the District, we need an independent ombudsperson to ensure that CFSA is fulfilling its mandate to protect the children or the District of Columbia and ensure their wellbeing and transition to permanent homes.