Keerthi Vedantam

Friday, April 26, 2019

Court lets class-action suit proceed against state for foster care

WASHINGTON – A divided federal appeals court Friday ruled that a class-action lawsuit over the state’s care of foster children can proceed against the Arizona Department of Child Safety and the state’s Medicaid agency.

The suit was filed in 2015 on behalf of 10 children who said that state policies threatened their access to medical care and placed them in unsafe facilities away from family members.

A federal district court said the children could sue on behalf of all foster kids in the state, certifying a general class and two subclasses: a non-kinship class for those who were not placed with family members and Medicaid class for those who were due health care services.

A three-judge panel of the 9th U.S. Circuit Court of Appeals on Friday upheld the general and non-kinship classes, but rejected the Medicaid class, saying any claims there would have to be considered individually.

In a partial dissent, District Judge Lynn S. Adelman said all three classes should have been upheld, calling the majority’s decision to reject the Medicaid class “flatly contradicts” its approval of a due process claim.

Calls seeking comment from DCS and the Arizona Health Care Cost Containment System were not immediately returned Friday. Attorneys for both sides in the case also were not available to comment.

Most of the 10 original plaintiffs have either been adopted or have aged out of the foster care system, leaving only a girl identified in court documents as B.K.

B.K.’s complaint argued that she was “separated from her siblings, deprived of family contact, and placed in inappropriate care environments.” It also said she has a medical diagnosis that requires urgent medical care, but was deprived of that care from the foster system, saying she was not provided with glasses, orthopedic shoes, dentist check-ups and psychological evaluations.

Circuit Judge J. Clifford Wallace, writing for the majority, said the standard for the due process claim B.K. is pressing is whether “a state’s policies and practices can expose all persons within its custody to a substantial risk of harm.”

“She faces a risk of harm from DCS policies and practices that inadequately provide for children who do not have available kinship placements,” especially due to her behavioral and medical needs, Wallace wrote.

But the court rejected a class-action Medicaid claim, saying questions remained as to whether B.K.’s deprivations applied “across the whole subclass, or whether some categories of children were deprived services while others were not.”

“Nowhere in its order is there a factual finding that every subclass member was subject to an identical ‘significant risk’ of a future Medicaid violation,” Wallace wrote of the district court’s ruling.

But Adelman’s dissent called it “logically impossible” for B.K. to represent all children in one area of her care, and only herself in the other.

“I also struggle to discern how, in the majority’s view, B.K.’s claim for injunctive relief could be ‘typical’ of the claims of all foster children in Arizona for purposes of the Due Process Clause but not for purposes of the Medicaid statute,” Adelman wrote.

Adelman said the lower court correctly classified the Medicaid claims for class action because it determined that they stemmed from state policies that could be “answered for all subclass members in one stroke” by the state agencies.

The case now heads back to district court for hearing.

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