A ruling by the Ninth Circuit Court of Appeals last week will allow a class-action lawsuit to go forward against the Arizona child protection and public health care agencies on behalf of all children in foster care.

The suit, filed in 2015 by Children’s Rights, the Arizona Center for Law in the Public Interest and law firm Perkins Coie, is based on allegations that the state’s Department of Child Safety (DCS) fails to meet the behavioral and mental health needs of children in state custody, among other shortfalls.

The Ninth Circuit backs up a 2017 ruling by U. S. District Court Judge Roslyn Silver that B.K. v McKay could proceed as a class-action lawsuit. Silver had identified the plaintiffs’ allegations as a valid basis for challenging “statewide practices affecting the proposed General Class.”

The lawsuit’s specific allegations include:

• Failure to provide timely access to health care, including comprehensive evaluations, timely annual visits, semi-annual preventative dental health care, adequate health assessments and immunizations
• Failure to coordinate physical and dental care service delivery
• Overuse of congregate care for children with unmet mental health needs
• Excessive caseworker caseloads
• Failure to close investigations in a timely fashion

The Ninth Circuit did not approve one of the sub-class groups in the lawsuit, which included all children who were eligible for Medicaid services. While the risk of harm to specific children in the lawsuit from a lack of timely Medicaid services was evident, the panel said the lower court had not established that this could be the basis for a wider claim.

“The district court failed to make a factual finding that every subclass member was subject to an identical significant risk of a future Medicaid violation that would support injunctive relief,” the decision said.

This portion of the lawsuit was sent back to the district court for further consideration.

“We are very pleased that the court’s decision affirms our ability to proceed as a class action,” said Anne Ronan, an attorney at the Arizona Center for Law in the Public Interest, in a press release. “With this decision, we can now move forward seeking relief for all children in Arizona foster care.

There are about 14,000 children and youth in foster care in Arizona, according to the state’s March 2019 semi-annual report. DCS’ budget for 2018 was a little over $977 million. The agency received more than 47,000 reports of abuse or neglect that year and removed about 9,000 children and youth from their homes.

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