DOJ extends scrutiny of WV's foster care programs; state fails to show improvements

“The West Virginia Department of Human Services [DoHS] continues to partner with the Department of Justice as DoHS’s system improves,� said spokeswoman Whitney Wetzel in an emailed statement.

The original May 2019 agreement stems from an investigation that concluded West Virginia was violating the rights of children under the Americans with Disabilities Act by unnecessarily sending them to group homes and residential treatment centers.

“The State has needlessly segregated thousands of children far from family and other people important in their lives,� wrote DOJ investigators in their 2015 findings letter. “With adequate services, the State could successfully treat these children in their homes and communities.�

In 2019, the DOJ and West Virginia reached an agreement to address the findings, by working to prevent kids with serious mental health conditions from unnecessarily entering treatment facilities. This included ramping up a number of programs designed to make mental health treatment more accessible in communities across the state. The agreement was set to terminate on December 31, 2024, if West Virginia reached substantial compliance with the terms. The amendment signed last month extends the oversight but does not set a new end date.

Many, but not all, of the kids being sent to these kinds of homes are in the foster care system. A class action lawsuit filed on behalf of foster kids that is scheduled for a bench trial in March alleges the state’s response to the long-standing and systemic deficiencies in the foster care system — including too few foster homes, not enough community mental health support and insufficient staffing — has been “slow, indecisive and inadequate.�

West Virginia has spent the past five years challenging the lawsuit, arguing that fixes were already in the works, and that foster care regulators had “met these challenges head-on, with transparency, determination, and innovation,� according to a November 2019 court filing. One of the state’s arguments has been that work was already ongoing with the DOJ, and that West Virginia should be given a chance to implement that agreement.

W.Va. not meeting goals, will assess success

But the new amendment to the agreement shows that West Virginia has not yet satisfied the requirements. And the state’s own data shows that recently, there’s been an uptick in kids in residential treatment centers.

The original agreement set a goal of reducing the number of kids in group homes and treatment facilities to 822 by the end of 2022. DoHS met that goal, and set a more ambitious one of putting no more than 712 kids in these types of homes by the end of 2024. But though the number fluctuates slightly month to month, the yearly average has instead increased since 2022, according to the monthly reports the regulators submit to the state Legislature.

As of last month, there were 819 kids in residential mental health treatment facilities.

The changes to the agreement remove the requirement that an independent subject matter expert assess West Virginia’s progress on a quarterly basis. Instead, it puts the onus on West Virginia to publish reports twice a year describing its efforts to satisfy the requirements and assessing its success.

That’s troubling to Marcia Lowry, a lawyer whose group, A Better Childhood, is representing foster children in the class action case.

“We are very concerned about the elimination of the subject matter expert because this is obviously a serious problem, one that’s gone on for a long time, and one about which the state has not made a substantial amount of progress,� Lowry said.

The amendment also gives the state more time to develop a data display system to measure whether children are still being unnecessarily institutionalized. The original deadline for this system was 18 months after the agreement was signed, which would have been in November 2020. It also clarifies how West Virginia should be sampling children to determine its success, and lays out a number of additional documents the DOJ is requiring the state to regularly submit.