By Ann Blyth
It’s been a busy few weeks in court for some of North Carolina’s strongest advocates for people with disabilities.
The North Carolina Disability Rights Association announced a settlement agreement Wednesday with the state Department of Health and Human Services in a long-running state court battle known as the Samantha R. case.
And on Thursday, the nonprofit reported that a federal judge had denied the Department of Health’s request to dismiss a lawsuit challenging the treatment of children with disabilities in the state’s foster care system.
Both lawsuits focus on the housing and treatment of people with disabilities in North Carolina, including foster children in need of mental and behavioral support who are housed in closed psychiatric facilities (PRTFs) and other children seeking community- or home-based services outside of long-term care facilities.
Disability rights groups argue that not providing such services violates the Americans with Disabilities Act.
“The ADA guarantees people with disabilities the right to receive the services they need in the least restrictive environment that best meets their needs,” Virginia Knowlton Marcus, CEO of Disability Rights NC, told NC Health News.[W]We are simply enforcing the right of people with disabilities to receive care without being forced to rely on institutions.”
Knowlton Marcus’ organization will work with the North Carolina state chapter of the NAACP later this year to seek court support to prevent children of color from continuing to be “imprisoned” in potentially dangerous locked psychiatric facilities.
“We hope the Court’s decision sends a strong message that the Department of Health cannot continue ‘business as usual’ and must make significant and lasting changes to our children’s mental and behavioral health system,” Knowlton Marcus said in a statement about the ruling, handed down March 29 by U.S. District Judge William L. Osteen Jr.
This could mean a trial is on the way, or, as happened in the Samantha R. case, mediation could be on the way as a solution that could avoid years of trials, rulings and appeals.
A dire situation
In a lawsuit filed against Health Secretary Cody Kinsley for the Middle District of North Carolina, the group claims that the children they represent “endure sexual and physical abuse, bullying and hate speech from both youth and staff, and face debilitating mental health conditions and a cocktail of powerful psychotropic medications.”
According to the 2022 lawsuit, dubbed Timothy B. Kinsley, between July 2020 and June 2021, DHHS placed at least 572 foster care children in residential care, a disproportionate number of whom were youth of color. According to DHHS data, nearly 50% of the children placed in such care in the previous fiscal year identified as Black, Brown or “other.” According to U.S. Census Quick Facts, just over 30% of North Carolina’s population identifies as people of color.
“While institutions are no place for any child, children with disabilities, particularly Black and brown children, are placed in child welfare institutions, face worse outcomes, and are at higher rates of abuse while in child welfare institutions,” Deborah Dix Maxwell, president of the North Carolina chapter of the NAACP, said in a statement Thursday. “Now is the time to sit down and make the health and safety of children our number one priority.”
The lawsuit, filed on December 6, 2022, focuses on Title II of the Americans with Disabilities Act, which prohibits unlawful discrimination, such as institutionalizing or segregating children with disabilities, despite the fact that they could be integrated into programs and activities in the community that meet their needs.
The court filings also draw on the U.S. Supreme Court’s landmark 1999 Olmstead decision, which held that it is unlawful to unnecessarily segregate people with disabilities from opportunities to work and play in the community.
North Carolina has developed a long-term plan to prevent that from happening: Last week, the Department of Health released its Olmsted Plan for next year.
“People with disabilities have a right to the holistic care and supports they need to live in inclusive communities,” Kelly Crosby, director of the Department of Health’s Division of Mental Health, Developmental Disabilities and Substance Use Services, said in a statement when the plan was announced. “It is our responsibility to ensure they have access to community-based services that make this right a reality.”
Such blueprints for the future have been welcomed by the North Carolina Disability Rights Union and other advocacy groups, but some lawsuit documents say they often lack specific details and concrete deadlines.
Friction between supporters
That frustration led to a lawsuit, Samantha R. v. State of North Carolina et al., filed in Wake County Superior Court in 2017 and now nearing a settlement after seven years of legal battle.
The lawsuit was filed by Samantha Roney’s parents after they denied them the services they needed to keep their daughter at home with them. In 2015, the Roneys say they felt forced to place their daughter at the J. Iverson Riddle Developmental Center in Morganton, but to the parents’ dismay, it turned into a years-long stay.
Benchmarking and Evaluation
In 2022, Superior Court Judge Allen Badour issued a sweeping ruling requiring states to provide services to people with intellectual and developmental disabilities in a home environment of their choice.
The order would have barred new admissions to long-term care facilities through 2028, a deadline that unnerved many who have family members in those facilities who were pleased with the services they provided. Some worried that the deadline, along with the prospect of limited availability, would create an unsustainable business model and lead to unwanted facility closures.
DHHS has appealed Badour’s ruling, and the two sides have been in negotiations to find a mutually agreeable solution to avoid a lengthy appeals process.
On Wednesday, the North Carolina Disability Rights Association and the Department of Health released a statement saying they had reached an agreement that, if approved by Governor Badour, could provide more care options for people with intellectual and developmental disabilities.
The proposed consent order establishes a two-year period during which DHHS would be required to transition more people into community-based services, including those who are institutionalized and want to live in their homes and communities.
The waiting list for community-based services has grown to 17,530 people, according to the DHHS dashboard, but under the proposed settlement agreement, that number doesn’t necessarily have to go to zero.
The agreement requires DHHS to move at least 249 people out of facilities and into community-based care by June 2027.
To help achieve this goal, DHHS has agreed to develop a plan to increase the workforce critical to providing these direct services and to increase hourly wages.
The department has been working to address a chronic shortage of direct care workers, releasing proposals over the winter to boost training for nurses, behavioral health and other care workers, but also acknowledging that meaningful progress requires legislative approval and funding.
To make the plan effective, the settlement includes reporting requirements, benchmarks, and built-in evaluations, and after the two-year period, Disability Rights North Carolina and DHHS will make recommendations on any additional provisions or benchmarks that may be needed.
“This proposed agreement is the beginning of change, not the end,” said Emma Kinyanjui, legal director for Disability Rights North Carolina. “Both DRNC and NCDHHS are committed to continuing this work for the long term because we know that communities function best when everyone, including people with disabilities, can live, work and play in the communities they choose.”
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