by Dana Gentry, Nevada Current
October 12, 2021
WASHINGTON–The U.S. Department of Justice is investigating whether Nevada officials are violating the civil rights of hundreds of children who they’ve institutionalized, perhaps unnecessarily, in psychiatric hospitals, detention facilities and other residential treatment centers, according to an email obtained by the Current from the DOJ to a child policy advocacy group.
The placements, in Nevada and other states as far away as New York, may be in violation of the Americans with Disabilities Act and a 1999 U.S. Supreme Court ruling that says “unjustified isolation of individuals with disabilities” via “undue institutionalization” is discrimination, and that mentally disabled people have a right to live in the least restrictive setting possible.
“We are examining the available community-based behavioral health services for children as part of our investigation,” says the Oct. 4 email from Haley Van Erem, trial attorney for the DOJ’s Civil Rights Division’s Special Litigation Section, to Tiffany Tyler-Garner, executive director of the Children’s Advocacy Alliance. The DOJ, though a public affairs spokesperson, declined to comment on an ongoing investigation.
Tyler-Garner, a former state official who is asked in the email to assist the DOJ, did not respond to requests for comment.
The state did not respond to a number of questions submitted by the Current.
Gov. Steve Sisolak declined to comment on an ongoing investigation.
Former state Sen. Patricia Farley, a member of CAA’s Board of Directors, says she’s familiar with the investigation, which she says has been ongoing for several years.
Farley, who adopted her foster children, has personal experience with the child welfare system and the residential facilities that she says warehouse and medicate youth “to keep them sick.”
“I struggled to find quality therapists and experts on the abuse and trauma my adopted children endured,” Farley said in a statement to the Current. “I had no trouble finding facilities that would provide meds to keep them dull enough to stay in the treatment home.
“A lot of ‘service providers’ are making significant income servicing approximately 6,000 kids in the child welfare system,” she said. “There are no real accountability measures in place to ensure that service providers are meeting the terms of their service contract, the wellness of the kids, and/or successful outcomes.”
The Current’s review of inspection reports of in-state residential facilities reveals a litany of violations — from staff inappropriately touching children, to providing cocaine, to a youth in Desert Willow, a state-run hospital in Las Vegas being “placed in an acute unit by themselves and isolated from other patients for over 30 days, which led to self-harming behavior…”
A March 2019 Centers for Medicare and Medicaid inspection report of Willow Springs Center, a 116-bed private facility in Reno that also accepts wards of the state, says a 16-year-old admitted “with Bipolar disorder, Gender dysphoria, Borderline personality traits and anxiety disorder… was attacked by a peer at the nurses station… punched (47 times in the video) and kicked (3 times in the video) by a peer. (The patient) was send (sic) to the emergency room for evaluation and treatment.”
The following day, the youth was “discharged back to the facility with a head injury and concussion in stable condition.”
Two weeks later, the report says, the youth “was sleeping and three peers entered the room. Two peers held the door closed which prevented staff from entering. One peer held patient by the hair and punched P#1 in the face, the peer kicked P#1 in the face and threw P#1’s head up against a bookcase. P#1 sustained a broken nose, concussion and multiple bruises.”
In response to allegations that an employee at Never Give Up, a residential treatment facility in Amargosa Valley, touched a boy inappropriately, inspectors found “the facility failed to ensure 1 of 16 sampled residents were 1) not subject to sexual abuse, 2) provided a safe environment and failed to follow their policy on alleged abuse” by not reporting the allegations to authorities within 24 hours, according to the federal inspection report.
A June 2021 federal inspection of Never Give Up says an employee “gave cocaine to three residents in the facility gymnasium bathroom and the facility immediately reported the incident to the local police department, the State of Nevada, Bureau of Public and Behavioral Health, and the affected resident’s parents/guardians.”
The report says an allegation the facility’s buildings “were not clean, had a pungent odor and were infested with insects including spiders was substantiated.”
A public relations representative for Never Give Up agreed to arrange an interview with the company, but did not follow through.
‘Appropriate level of care’ lacking
Clark County Judge William Voy has presided over delinquency matters for nearly two decades.
He says he’s heard about the DOJ investigation.
“At one time that was probably true,” he says of children being sent unnecessarily to institutions. “But that’s changed.”
“In fact, the biggest problem we have in the state right now is the lack of ability to place kids at an appropriate level of care,” Voy says. “That’s the biggest problem, not the overuse of it, because I can’t get a kid into a residential treatment center that really needs to be in one.”
He says Nevada’s relatively generous Medicaid reimbursement rate made out-of-state placements easy when he took the bench in 2003. But in the last 10 years, the state has fallen out of favor with providers as its reimbursement rate dwindled to one of the lowest in the nation.
Now, he’s forced to leave youth who may harm themselves in an emergency room or juvenile detention for lack of a bed in a psychiatric facility.
“Nevada’s ability to place children has diminished considerably because of the expansion of Medicaid and private placements,” he said.
Private placements are those facilitated by parents seeking residential treatment for children for a variety of issues, from behavioral to gender identity.
The DOJ investigation is the result of a dearth of community-based services in the state, says former Assembly Speaker Barbara Buckley, executive director of the Legal Aid Center of Southern Nevada.
Youth with acute mental health issues, turned away by psychiatric hospitals, “are bouncing between juvenile detention and Child Haven,” a shelter for abused and neglected children staffed primarily by child care workers who are not trained to provide a higher level of care, she says.
“If you had community-based services and offer wraparound (services), kids wouldn’t escalate and spin out of control and you wouldn’t need the residential services,” Buckley said during a phone interview.
Parents with no history of abuse or neglect who can’t access help for their children are “at their wit’s end” and refusing to pick them up from ERs and detention, says Kim Abbott of the Children’s Attorneys Project at the Legal Aid Center of Southern Nevada, rendering their children wards of the state and initiating a child protection case. “They’re making this gut- wrenching decision of saying ‘here, take them if that will get them help.’ ”
“The state of children’s mental health in Nevada is in crisis,” Buckley wrote to Department of Health and Human Services Director Richard Whitley in August. “Children are at risk and suffering daily due to the lack of coordination, access to, and availability of needed services and supports for mental health.”
“Our most vulnerable youth, those in foster care or the juvenile justice system, are relegated to extended stays in local emergency rooms, juvenile detention, or in out-of-state locked psychiatric facilities due to lack of appropriate placements and services in Nevada,” she wrote.
Buckley is asking the state to allocate federal relief funds to child welfare and the provision of mental health services. An emergency meeting with the state took place last month. Participants are cautiously optimistic the crisis at hand, the DOJ investigation, and the influx of federal money could move the needle. How much is unknown.
“The system was always very weak and had major gaps, but COVID just blew it all apart because the workforce then left,” Buckley says.
Sisolak said through his spokeswoman the state’s Every Nevadan Recovery Plan “prioritizes federal funding from the American Rescue Plan to help restore and strengthen investments in mental and behavioral health resources.”
The state operates two psychiatric residential treatment facilities (RTCs) in Northern Nevada, with a total of 36 beds for children ages 6 to 17. In Southern Nevada, Desert Willow Treatment Center’s 32 beds provide “psychiatric care to the highest need youth in the most secure setting in the state,” according to a government website. “Many of the youth served present risks to themselves and/or their community.”
Another state-run residential facility in Las Vegas with two dozen beds, Oasis, was slated to close until Buckley and others intervened.
“The problem with the state is that they’ve let Desert Willow dwindle down to nothing,” Voy says. “They have really no other resources that they’ve been cultivating for the last 10 years like they should have been. And so now we’re in a situation where we’ve got kids that need that higher level of care, but we can’t get them in.”
Voy says the state has failed to adequately fund programs from specialized foster care to residential treatment, resulting in a domino-like collapse.
Nevada ranked last in the nation in the provision of mental health services before the pandemic hit.
“COVID has made everything significantly worse,” says Abbott of the Legal Aid Center. “It’s taken a huge toll on people’s mental health in general and particularly on children. And then of course we see the impact even further on kids in foster care, many of whom come to us with mental and behavioral needs.”
Nevada’s service array for children is desperately lacking, Abbott says.
“Presently, many of our kids with mental health issues get one hour of therapy a week. That’s it. And there are few options between that and landing in a psychiatric hospital,” she says. “We have kids lingering at Child Haven, our shelter for kids in foster care, which is not at all equipped to meet their needs, but we can’t get them a bed in a private hospital or in one of our safe room facilities.”
Following the money
Between 2008 and 2018, child welfare spending in Nevada increased by 48% but the state’s contribution fell by 3%. Local governments increased their spending by 109% and federal spending increased by 73%.https://datawrapper.dwcdn.net/Mf4Rd/4/
Nevada spends more of its federal funding on adoption and guardianship (39%) than other states (23%), according to Child Trends, which tracks child welfare spending.
It spends none of its federal funds on child protective services, while other states spend 12% on average.
Nevada spends 54% of its federal child welfare money — $55 million a year — on out-of-home placements (foster homes, group homes, and institutions), higher than the national average of 48%.
It’s unknown how many youth were mandated by judges and child welfare agencies to in-state institutions in recent years, as the state did not provide information requested by the Current.
In addition to in-state placements, since 2016, Nevada sent more than 720 children and teens out of state to psychiatric hospitals, boot camps, and other residential facilities as far away as New York and Florida, according to data required by 2019 legislation. But the vast majority — more than two-thirds — were mandated to institutions in Utah, where lawmakers this year, prompted in part by outrage from formerly confined youth, passed legislation designed to increase regulation of so-called “troubled teen” facilities.
The majority of children mandated to institutions out-of-state range from 14 to 17 years of age, the state’s website says.
“Placing children/youth in out of state residential facilities has traditionally been due to the lack of sufficient therapeutic interventions/providers at the community level, long wait lists, and/or unsuccessful treatment at Nevada facilities,” says a state report written in response to 2019 legislation requiring child welfare agencies to adopt plans to recruit and retain foster homes.
Abbott of Legal Aid Services says Whitley, the state Health and Human Services Department director, is bypassing Department of Child and Family Services administrator Ross Armstrong by having Dr. Megan Freeman, Clinical and Policy Advisor on Children’s Behavioral Health for DHHS, report directly to him on the crisis in care.
The DOJ investigation may also force the state’s hand.
The agency will compile “a formal public report at the end of the investigation and then if there are issues or deficiencies, they would work with the State to try to get them to agree to a corrective action plan,” says Janice Wolf, directing attorney of the Legal Aid Center’s Children’s Attorney Project. “Often that resolves things. If for some reason it did not, it could escalate to a lawsuit that would likely get resolved with a formal consent decree.”
Farley, who called for an audit of child welfare services in 2015, was admonished by her then-Republican colleagues who, she says, feared the request would make then Gov. Brian Sandoval “look bad.”
“Back in 2015, I believed following the money trail was the best way to see all the operations under the Child Welfare roof — who was getting the money, how many and what kinds of services were children/families receiving, and are successful programs being fully funded,” says Farley, who is no longer a Republican. “I still believe it is. But after six years, you cannot follow the money through the system.”
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