Testimony of Heidi Dalenberg (B.H. v. Walker Class Counsel and Partner, Riley, Safer Holmes & Cancilla) Before the Illinois Senate House Human Services Committee

August 14, 2018

To Chair Morris and members of the Senate Human Services Committee, 

As legal counsel for the children under the care of the Illinois Department of Children and Family Services (DCFS), the ACLU of Illinois appreciates the opportunity to share this brief statement with you as you convene this hearing about children and youth in DCFS’s care who are hospitalized and held beyond medical necessity. The ACLU (as lead counsel), along with pro bono co-counsel from Schiff Hardin and Riley, Safer, Holmes & Cancila, represents Plaintiffs in the long-pending class action lawsuit now called B.H. v. Walker.

Because this committee is familiar with the B.H. litigation, just a brief summary of our recent work immediately relevant to today’s subject matter is needed here. In 2014, we advised the Department of reports about severe shortages of mental health services and substandard conditions at various residential treatment centers housing our clients. With hundreds of youth languishing in shelters, detention centers, juvenile prisons, psychiatric hospitals, and other settings waiting for the services and placements they needed, we asked the Court to intervene to address the Department’s violation of the B.H. Consent Decree.  

The Court appointed a panel of experts to investigate and prepare recommendations for necessary reforms. The panel ultimately issued a report finding systemic problems within the Department, including the lack of adequate home- and community-based mental health resources.  That lack of resources was resulting in long waits for less restrictive placements for children languishing in psychiatric hospitals, intensive residential treatment centers, and group home settings. The Court adopted the panel’s recommendations for change with slight modification, and the Department then submitted an Implementation Plan to the Court in February 2016 that identified specific initiatives for placement and service development. In our view, the Department’s progress to date under those Plan initiatives has been ineffective and inadequate. Few of the initiatives have been successful.  

Tragically, the youth who remain hospitalized beyond medical necessity are the living proof that the Department continues to lack the capacity it needs. The dearth of community-based services and resources for youth with significant mental and behavioral health needs continues to be at crisis levels. The most recent reports we have received from the Department confirm that we are on a pace, yet again, to end this calendar year with literally hundreds of children having been hospitalized beyond medical necessity. Nearly 150 youth already have remained hospitalized without need since January of 2018. Thirty-five of those youth were unnecessarily hospitalized for 50 days or longer. Five of those youth have been unnecessarily hospitalized for more than 100 days.  

We know that hospitalization beyond medical necessity is not simply an expensive, but benign, phenomenon. Youth suffer while this goes on – they are damaged. So, what do we do now? Frankly, the Department in our view still does not have a coherent strategy for developing the capacity it needs. And, to date, the Department has been loathe to analyze why these initiatives failed, to develop new strategies based on what it has learned, and then to commit to specific actions it will take to meet the service and resource needs of high-end youth in care.

At present, the Department does have a pilot program focusing on delivery of intensive, post-hospitalization services to youth who have been hospitalized beyond medical necessity and then are returned to community-based placements (rather than residential treatment facilities). There are some early signs that this program may have positive outcomes for these youth.  

From our perspective, the Department should also be focusing its efforts on supporting children with significant needs in a more comprehensive and realistic way. Children who end up hospitalized beyond medical necessity are children for whom crises were to be expected, and may well require hospitalization in the future. We believe the Department should be building a system that recognizes that reality, provides individualized clinical services to youth in their community-based placement, identifies in advance where the youth will be cared for if hospitalization becomes necessary, and contemplates return to the youth’s prior placement when a crisis passes. The court-appointed experts in B.H. already have recommended that the Department move in that direction by, for example, building Intensive Placement Stabilization (“IPS”) around specialized foster homes. IPS provides intensive support to high-risk children in foster care to stabilize placements and prevent entry into higher levels of care.

Specifically, we are urging the Department to build a robust and meaningful crisis response system that enables youth’s providers to work with particular hospitals to help prevent disruptions in placement. The Department should be thinking about where a child’s clinical home will be not if, but whenintensive services are needed and build those into its array of services at a sufficient capacity. To do that, however, the Department in our view must focus on an additional task -- rebuilding good relationships with psychiatric facilities within the state, many of which have deteriorated, either due to the State’s budget crisis, the Department’s inability to move youth out when they are ready, or both.

It also is clear, in our view, that the Department must do far more to identify what resources it needs to develop throughout the State. We have asked repeatedly for the Department to prepare and provide such an analysis, but if that has been done, it certainly has not been shared with us. Does the Department know how many times youth service plans called for a service that they did not receive? Have those unmet needs been identified and tracked? Was the Department unable to provide what was needed because it did not exist? Was transportation an issue? Which children are on waitlists, where are they, and what are they waiting for? We cannot conceive of a way in which the Department can make meaningful progress toward developing what youth in care need, or securing a budget sufficient to allow development of those resources, if it does not know the answers to these questions.  

Finally, it is our view that the Department’s success depends on genuine collaboration between and across state agencies. That need is especially acute as between DCFS and the Department of Healthcare and Families Services (HFS), given their shared ownership of responsibility for youth who rely on the State for their care. A child’s care – particularly in an acute behavioral crisis—should not be impeded or delayed because one agency thinks the other is responsible for finding services, developing services, or paying for them.  Clear definition of authority and responsibility for youth in care must be established before, not after, the impending and anticipated move to the Illinicare MCO.