Attorneys with Disability Rights Maryland and Venable LLP Tuesday filed a lawsuit against the Maryland Department of Human Services, the state health department and other state agencies for “illegally and unconstitutionally” housing foster children in hospitals and restrictive institutions beyond medical necessity.

The nearly 90-page complaint, filed in U.S. District Court for the District of Maryland, seeks declaratory and injunctive relief as well as monetary damages for what attorneys say are longstanding violations of children’s rights across the state. Maryland officials, they say, have failed to provide a sufficient range and number of services and placements for children with complex behavioral health needs. As a result, many hospital emergency departments — the de facto placement option for parents or caregivers with nowhere else to turn — have been forced to “warehouse” kids for weeks, months, or more than a year until they can be transferred to more medically appropriate settings, such as outpatient or residential treatment centers.

It’s the latest step forward in attorneys’ fight to reform the practice in Maryland over a long and fraught history. In 1987, Disability Rights Maryland, then called the Maryland Disability Law Center, filed a lawsuit aimed at addressing the so-called “overstays” of children in Maryland’s public psychiatric hospitals. The case settled in 1993 and required specific hospitals to promptly discharge patients and have other protections in place. Many of the hospitals covered in the settlement no longer exist or do not serve children, the complaint says.

The phenomenon, which attorneys say has worsened over the last decade and affected more than 100 foster children in Maryland a year for the last five years, not only detracts from vulnerable kids’ mental health, but drains hospitals of critical personnel and space for other patients. While languishing in hospitals, attorneys say, the children do not receive adequate access to education, are restricted from the outdoors and may be receiving treatment that ultimately worsens their conditions. The suit excludes children in Baltimore City due to an existing consent decree and separate ongoing litigation, but it applies to Maryland’s 23 counties.

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Ideally, advocates for children with disabilities and complex mental health needs say, an extensive range of care options would be available for kids in distress and their families, from long-term residential facilities to short-term respite care centers. There would also be in-home aid, crisis prevention and intervention services, and training for families, caregivers, teachers and other members of a household’s inner circle.

But Disability Rights Maryland attorneys are alleging that state services for youths and families have been dismantled, particularly during the tenure of Gov. Larry Hogan. Following the death of Maryland girl in a Delaware facility in 2016 and recent federal legislation aimed at deinstitutionalizing foster children, state officials started sending fewer emotionally and behaviorally complex children to out-of-state institutions, but did not create enough Maryland-based placement options, attorneys say.

Venable partner Mitchell Y. Mirviss, co-counsel for Baltimore City foster children in a related federal case, said in a statement that the state has deliberately ignored demands to fix the problem. “This is a tragedy that shouldn’t be happening in the 21st century,” he said. “Hundreds of Maryland foster children have been warehoused in hospitals because the state has failed to fix its shortage of placements and its scarcity of intensive crisis-intervention and wraparound clinical services, even though it has known of the dire need.”

The suit references reporting from The Baltimore Banner multiple times, including statements made by former Maryland Comptroller Peter Franchot that the state did not lack money but rather the “political will” to implement change for kids with disabilities. It also references data obtained by The Banner from June and July 2022 showing at least 51 children in hospital overstays and comments made to The Banner by the medical director of Greater Baltimore Medical Center’s pediatric emergency room that “jail and juvenile detention are better” for children than emergency wards.

Attorneys in the complaint give the example of a 17-year-old, identified in the suit by the initials A.B., whose parents tried to access crisis services to keep him at home. But the hotline they called only offered generic referrals to autism support organizations and called 911 to extract the teen from his house. He later died in a specialized psychiatric unit following two other emergency room stays.

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State officials from the Department of Human Services, the agency responsible for Maryland foster children in the custody of local social services agencies, and the health department, which oversees the Medicaid Administration and health care financing, regulation and the behavioral health services division, did not immediately respond to a request for comment Tuesday afternoon. Officials in the Maryland Social Services Administration, the Developmental Disabilities Administration, and in Baltimore, Prince George’s and Montgomery counties also are named in the complaint and did not immediately respond to requests for comment.

Those counties have custody over four plaintiffs in the complaint, all identified only by their initials.

One is 16-year-old T.G., a foster child in the custody of the Baltimore County social services department, who is in overstay status in Sheppard Pratt Hospital in Towson, where he is heavily medicated, sleeps much of the day and gets no exercise. His individualized education program team has indicated that his educational needs are not met there and were completely suspended for more than a month after his admission in August 2022.

Though he was ordered discharged after a few weeks, county officials have not come back for him, the complaint alleges. T.G. has spent more than half of his life in foster care, has experienced sexual abuse and trafficking, and has lived through 15 different placements in all. He has difficulty concentrating, learning, interacting with others and has limited brain function, the complaint says. Attorneys say he is eligible for Medicaid-funded services and can receive services outside the hospital, such as group therapy and medication management, but still has not been claimed by county DSS workers.

Another plaintiff, T.A., is 13 years old and in the custody of Montgomery County Department of Health and Human Services. He was admitted to Sheppard Pratt Baltimore-Washington Hospital in November 2022 after an altercation with a peer on a school bus. The hospital — a short-term crisis intervention facility — medically cleared him for discharge less than two weeks later, but the county DHHS has not picked him up, according to the complaint. He received no visitors over the winter holidays.

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T.A. requires special education services and is diagnosed with multiple developmental and mental health disabilities. He receives eight hours per week of home-and-hospital tutoring services, but he does not receive individual therapy, applied behavioral analysis services, or the one-on-one support recommended by his clinical team. He received clearance to enter a Florida facility in June.

D.B., a 16-year-old in the custody of the Prince George’s County social services department, also is in overstay status in Sheppard Pratt in Towson and has resided there since early December. She has been cleared for discharge but also has not been picked up by county officials, the complaint says. She has missed out on months of educational services and has barely been outside. She is eligible to receive Medicaid-funded services in the community but remains stuck in the facility.

And M.G., a 17-year-old foster child in Montgomery County’s custody who is in overstay at the Psychiatric Institute of Washington, also has been cleared for discharge since March but remains in the hospital. Both M.G. and D.B. require special education services but have not received any since their admissions.

While the suit was filed on behalf of foster children, dozens of other children whose parents are unable to care for them at home have also been stuck in emergency rooms. Sunday Stillwell spent a year struggling to find a placement for her son, Noah, while he was at Sheppard Pratt. “I am glad to hear that someone is finally wanting to hold the state accountable for our most vulnerable citizens,” she said. “They are taking up for our children, these individuals who otherwise are being ignored and silenced. They don’t have a voice.”

The complaint details a possible solution that went underutilized by state officials. Disability Rights Maryland hosted a symposium in 2017 to educate state agencies about a crisis prevention and intervention system called START (Systemic, Therapeutic, Assessment, Resource and Treatment), a research-based program that provides comprehensive in-home services to minimize unnecessary hospitalization and institutionalization. Despite its success in other states, Maryland officials declined to fully implement START beyond a “pilot” version. Officials have previously declined to answer The Banner’s questions about START.

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In addition to hospital wards and emergency rooms, foster children also have been housed in commercial office buildings and hotels throughout Maryland, The Baltimore Banner has reported previously. In Prince George’s County, some of the children, without other options, have been relegated to homeless shelters. And officials with The Arc Northern Chesapeake Region told The Banner earlier this month that more teens in Harford County are are entering group homes or other placements where they are unlikely to receive adequate care due to a dearth of foster placements.

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