New Ruling Issued in Quarter-Century-Old Foster Care Reform Case


    I have now been a judge for twenty years. During this time much human tragedy has passed before me; however, none has so deeply touched me as the plight of these children.

    District Judge Joseph C. Howard
    L.J. v. Massinga, 699 F. Supp. 508 (D. Md. 1988).


The history of the case was described by Judge Howard as “long and arduous.” It began over a quarter of a century ago when “a Baltimore school counselor noticed something disturbing in a classroom: a 6-year-old boy was sticking tacks into his hands, calling himself ugly and stupid,” the Baltimore Sun reports.

“As it turned out, the boy was a foster child who had been placed in the home of a violent alcoholic by the Baltimore Department of Social Services. Lifting up his shirt revealed that nearly every inch of his chest, back, arms and stomach was crisscrossed with scars,” the Sun explains.

The child wound up in a psychiatric hospital, and his case inspired what came to be known as L.J. v. Massinga, so named because among the twenty-one named Defendants was Ruth Massinga, Secretary of the Maryland Department of Human Resources.

The case started in 1984 with the filing of a complaint on behalf of foster children in the care of the Baltimore City Department of Social Services and numerous city and state foster care officials and other Department personnel. The complaint alleged that their mismanagement of the Baltimore foster care program resulted in the foster children suffering physical abuse, sexual abuse, medical neglect, and that they were otherwise being subjected to dangerous living conditions while in the custody of the Department.

In an effort to counter the allegations, Baltimore’s Department of Social Services established an investigative body that came to be known as the “Harris Task Force.”

But that effort backfired. The Department’s own internal investigation came up with findings that only served to help the Plaintiff’s case. These included a shortage of foster care homes, insufficient staff, poor training, and a general absence of adequate safeguards and oversight to ensure the children’s safety.

To be more specific, as United States District Judge Joseph C. Howard described it in a ruling that he’d issued in 1987:

    The Harris Task Force found the following “major systematic problems” in the BCDSS foster care program (1) the purpose of family care was not well-defined leading, for example, to the placement in foster homes of children whose needs could not be met within a private home setting; (2) payments to foster families were unrealistically low; (3) there were not enough homes, and there was “no concerted effort to recruit foster homes”; (4) licensing of foster homes was inadequate: a lower standard is applied to restricted homes than regular homes, and licensing is based on inadequate information; (5) “serious gaps” in the training provided to foster families, BCDSS case workers and their supervisors; (6) BCDSS files contained inadequate information about medical histories, foster parents and education; (7) the “agency’s organizational structure is conducive to chaos”; (8) some caseworkers and supervisors lacked necessary training; (9) more strict enforcement of policies requiring investigation of abuse and neglect complaints was necessary; (10) the Department of Human Resources (DHR) needed to improve monitoring of BCDSS to ensure the adequacy of services; (11) substantial increases in staff size were necessary to reduce ratios of cases handled by foster care workers; (12) poor morale among BCDSS staff; (13) need for a pre-placement diagnostic facility to place children on an emergency basis and identify their problems; (14) need for an automated system to monitor foster care cases; (15) a lack of coordination between BCDSS and agencies outside the city when children were placed outside the city; (16) a policy classification was required for nonlegally responsible custodians who requested a foster care license or payments; and (17) poor relationships among BCDSS caseworkers, BCDSS Legal Services, and the Juvenile Courts with respect to child placement decisions. The findings of the report are uncontroverted.

Pending before the Court on July 27, 1987, were the Plaintiffs’ motions for a preliminary injunction, sanctions based upon the Defendants’ failure to respond factually to the Plaintiffs’ motion for a preliminary injunction, and a default judgment.

By the time hearings on these motions were held, some 91 separate items of evidence were introduced, and the Court had heard from 12 witnesses. Among the items of evidence were seven looseleaf binders, which included “scores of documents.”

The motions were granted.

As preliminary injunctive relief, the Defendants were ordered to: (1) review the status of each foster home where there had been a report of maltreatment; (2) visit each child in a BCDSS foster home on a monthly basis; (3) visit each child who had been the subject of a report of maltreatment on a weekly basis; (4) assign sufficient staff and resources to ensure appropriate medical care was rendered and medical histories were obtained and provided to those rendering medical care to each child; and (5) provide a written copy of any complaint of maltreatment of a foster child to the juvenile court and the child’s attorney.

The Department appealed the adverse ruling to the Fourth Circuit Court of Appeals.

The Defendants challenged the entry of the preliminary injunction, alleging that they were immune to damage claims. They argued that children in foster care had no statutory rights that were privately enforceable. In addition, they invoked “the principle that immunity in the performance of discretionary duties exists where the law governing official conduct is unsettled” and alleged that the foster children’s Constitutional rights were not “clearly established” in a way sufficient to overcome qualified immunity.

In its ruling, the Fourth Circuit took note of one study that “documented systemic problems in the Baltimore foster care program with grave consequences to children in the program and great likelihood of irreparable harm.” In addition, the Court of Appeals noted that “there was testimony by relatives and expert witnesses regarding the cases of sixteen children who had recently been severely abused or neglected, or both, while in foster care.”

There was also testimony from “several experts on foster care to the effect that there were systemic deficiencies in the foster care program which placed the children at substantial risk of severe harm, including the testimony of two physicians experienced in the medical care provided to children in foster care, who concluded that defendants were failing to take responsible measures to ensure foster children essential and basic medical care, placing them at risk of severe diseases and other illnesses.”

On February 1, 1988, the Fourth Circuit upheld the lower Court’s injunction, as well as its ruling that the twenty-one Defendants in the case did not have immunity.

Baltimore went so far as to appeal the Fourth Circuit’s ruling to the U.S. Supreme Court, however the case was rejected by the high Court in 1989. L.J. v Massinga, 838 F.2d 118 (4th Cir. 1988), cert. denied, 488 U.S. 1018 (1989).

Thereafter, the Plaintiffs and the Defendants entered into negotiation and hammered out a Consent Decree, which would have – or should have – ended the case, providing that the Department of Social Services lived up to its end of the bargain.

When District Court Judge Howard finally penned his ruling in September of 1988 ratifying the Decree, he noted that since the original complaint was filed back in 1984, his court had issued over seventy orders and held a dozen status conferences with the parties. The seventeen page long docket listed over two hundred entries.

That was only fours years into the lawsuit. And, getting that far wasn’t exactly easy. Nor did conditions for the foster children in the care of the Baltimore Department of Social Services improve by any significant measure over the course of those four years. However, all parties having agreed that progress was being made, the Consent Decree was adopted.

Judge Howard closed his ruling out with what he described as a personal note, and word of caution: “I have now been a judge for twenty years. During this time much human tragedy has passed before me; however, none has so deeply touched me as the plight of these children. I believe that vigorous enforcement of this decree is essential, and I will do all within my power to see that its provisions are fully implemented.”

Baltimore was supposed to be in compliance with the Consent Decree by September 1990. But the City’s Department of Social Services did not follow though on many of the court-ordered reforms.

In 1991, the Plaintiffs and the Defendants made some changes to the Consent Decree, which the District Court approved.

A 2002 legislative audit of foster care suggested that the Department had simply ignored much of the Decree. The audit sampled 163 cases, most of them from Baltimore, finding that children frequently were not receiving medical or dental care. Many were not even enrolled in school. And, caseworkers weren’t visiting children as often as the law required, Baltimore Sun columnist Julie Bykowicz explained.

Although State officials promised change year after year, shocking cases of children neglected by the state continued to make the headlines. In December 2002, 15-year-old Ciara Jobes was starved and tortured to death by her guardian, reportedly a mentally ill woman approved by the City’s Department of Social Services, Bykowicz reported.

In 2005, the children’s lawyers became aware that the Department of Social Services was using an office building located on Gay Street in Baltimore as an overnight shelter. Their investigation of this shelter “revealed disturbing conditions, with children sleeping on the floor, unable to shower or change clothes, and subsisting on a diet of fast food. The investigation also revealed that some of the children with health problems were placed at risk by the precarious living conditions at the shelter,” the Fourth Circuit explained in its second ruling in the case.

Lawyers representing the foster children conducted their own investigation, which revealed a number of inaccuracies in Baltimore’s compliance reports to the court. When these inaccuracies came to light, Maryland’s General Assembly asked the Department of Legislative Services to address the reliability of the Department of Social Services’ compliance data. The Department of Legislative Services, in a report issued in December 2005, found that “the reliability of the data underlying the reported measures tested was questionable with several being judged unreliable.”

The audit identified “a number of problems impacting virtually every facet of Child Protective Services.” The auditors identified a lack of reliability with nearly every aspect of the system, including foster care data, caseloads, and staffing levels. Auditors also noted that a staffing report that had been presented to the Maryland General Assembly by the Department of Human Resources provided information that was “based on data of questionable accuracy.”

It was also in 2005 that Maryland’s Office of Legislative Audits conducted a review of the Department of Human Resources’ Social Services Administration, which provides (or rather is supposed to provide) oversight over local departments of social services throughout the States. In their report, auditors explained:

    Our audit disclosed that, based on SSA’s case review system used to monitor local departments’ compliance with service requirements established in State regulations, many children in foster care were still not receiving the required services necessary for their emotional, physical, and educational well-being. For example, SSA records reflect that 35 percent of these children were still not attending school. Additionally, SSA had no assurance that federal funds had been recovered for all eligible foster care children. According to SSA’s records, 232 of the 8,869 foster care cases were not receiving Title IV-E benefits as of April 2004.

    Our review also disclosed that SSA had not determined whether funds paid to group care providers were used for allowable expenses, whether the most cost effective providers were used, and the extent of any overpayments made to these providers. Finally, SSA issued licenses and license renewals to group home providers without always obtaining the required documentation, such as evidence of criminal background checks.

In December 2005, the foster children’s lawyers informed their opponents that they intended to take action to address the Baltimore Department of Social Services’ lack of compliance with the Consent Decree.

In February 2006, the parties entered into negotiation to resolve their differences. The negotiations on possible modifications to the Consent Decree continued over the year.

In March 2007, Brenda Donald was appointed as the new secretary of the Maryland Department of Human Resources. She began implementing numerous reforms to the foster care system. Donald also became involved in the Consent Decree negotiations, agreeing to a number of measures that would allow the children’s counsel to monitor and assess the foster care system.

Ms. Donald, however, rejected a proposal to establish an independent monitor within the Governor’s office to oversee the foster care system. This disagreement brought negotiations to a standstill, and as a result, the children’s lawyer filed a memorandum with the District Court “detailing numerous allegations of Appellants’ noncompliance with the 1988 decree. These included several examples of mistreatment of children in foster care as well as general allegations of inadequate health care and educational services,” the Fourth Circuit explains.

Over the years, the lawsuit expanded to include other children who’d been mistreated while under the state’s care. Among them was Briana, a teenager with learning disabilities. Briana spent 42 nights sleeping with other state wards in the Gay Street office building, with little access to showers or clean clothes back in 2005. Then there was Stephen, a 14-year-old with untreated emotional problems. Stephen ran away from a group home to West Virgina in 2006, threatening suicide.

In November 2007, Mitchell Y. Mirviss, one of the lawyers representing the foster children, asked the Judge then presiding over the case to hold the state in contempt of court, alleging 96 violations of the Consent Decree – failings that included the failure to train foster parents, and neglecting children’s dental needs. A 419-page memo accompanying the motion included Briana and Stephen’s stories, as well as those of another dozen other children under state supervision, Baltimore Sun reporter Julie Bykowicz explained.

The District Court scheduled a contempt hearing for September 2008. Just five days before the hearing, the Defendants filed a report admitting to numerous instances of noncompliance with the requirements of the Decree, stating: “the analysis provided in this report suggests several areas that need our urgent attention in the immediate future.” However, the report expressed the hope that the next report would “show measurable improvements in these critical areas.”

During the Contempt hearing, the Department approached the attorneys for the foster children, offering to negotiate a “compliance and exit plan” that would “require verifiable data for the showing of compliance and exit.” The hearing was postponed pending the outcome of the negotiations.

Around that time, another report issued by the Office of Legislative Audits in October 2008 revealed that little had changed since its previous reports had been issued. Not only was Maryland’s Social Services Administration lax in providing oversight, but it was literally allowing million of dollars to slip through its bureaucratic fingers:

    Our audit disclosed that SSA did not adequately monitor local departments of social services to ensure compliance with foster care service requirements established by State and federal regulations that provided for the emotional, physical, and educational well-being of children under SSA’s supervision. SSA had reported that certain improvements had been made to ensure compliance with foster care service requirements. However, according to its May 2007 self assessment, SSA had not yet achieved six of seven federal child welfare outcomes relating to child safety, permanent living arrangements, and child and family well being. In addition, SSA could not establish that caseload staffing requirements set by Maryland law were being met. Also, SSA did not adequately monitor foster care and adoption services, such as whether all available federal funds were obtained for certain services provided to eligible foster care children, and whether the most cost-effective group home providers were used. Finally, SSA did not obtain supporting documentation for training costs for which SSA receives federal funding. During the audit period, SSA had federal disallowances totaling $3.2 million because of lack of substantiation for similar training costs.

It was reported that it was the 2007 contempt motion that prompted mediation between the parties to the lawsuit that led to the eventual filing of an “exit strategy” in June 2009. That exit strategy took the form of a Modified Consent Decree that was agreed to by both parties, and filed with the Court on June 22, 2009.

A joint press release was issued on June 23, 2009, bearing the logos of the Department of Human Resources, the Public Justice Center, and Venable LLP, announcing that: “Following an eight-month mediation process, both plaintiffs and defendants in the long-standing child welfare L.J. v. Massinga class-action lawsuit jointly filed documents in federal court late yesterday to replace a consent decree with a new compliance and exit plan. Baltimore City Department of Social Services (BCDSS) has operated under an existing consent decree since 1988.

“The filing signifies an enforceable agreement by both sides on how to address and resolve some long standing systemic child welfare issues in Baltimore City. The new decree – subject to approval by the United States District Court for the District of Maryland – will ultimately result in BCDSS providing better, more comprehensive care for the more than 5,000 foster children in Baltimore City.”

The Modified Decree called for the appointment of an “Independent Verification Agent” to verify the Department’s compliance. All costs were to be paid for by the Defendants. The parties agreed that Mark Testa, Director of the Children and Family Research Center at the University of Illinois at Urbana-Champaign, would be contracted for the position.

A memorandum filed with the proposed Modified Decree described his duties: “Dr. Testa will examine Defendants’ compliance data, certify those data that are accurate and reliable, and, where he deems necessary, conduct additional information-gathering activities to measure compliance accurately. Furthermore, the proposed Modified Consent Decree requires the parties to utilize a variety of resolution procedures to facilitate compliance and resolve disputes without resort to the Court.”

A hearing on the filing was scheduled to be held on August 5 before U.S. District Judge J. Frederick Motz, who had inherited the case from his predecessors. To have ended federal oversight, the State had to comply with 40 measurable exit standards over a period of 18 months. These standards were in areas such as family preservation, child healthcare, and education. The plan also called for sweeping renovations of case practice.

The attorneys for the children were jubilant, as it seemed that the end of their lengthy and protracted journey through the labyrinth of the legal system was in sight, and that their hard earned victory was close at hand.

But Baltimore’s child savers had another ace tucked up their sleeve.

In September 2009, the Defendants filed a motion in the District Court not only to vacate the proposed Modified Decree, but the original Consent Decree as well. After hearing arguments, the District Court denied the motion to vacate the 1988 Consent Decree, and entered the 2009 Decree.

The Defendants then filed yet another appeal in the Fourth Circuit. They based their appeal on the contention that a then-recent U.S. Supreme Court decision, Horne v. Flores, 129 S. Ct. 2579 (2009), changed the law in a way that deprived the district court of subject matter jurisdiction to enforce the 1988 decree.

The Fourth Circuit didn’t buy the argument, affirming the decision of the District Court on January 26, 2011.

The Modified consent Decree now having the full force of law, one may well wonder where we’ll go from here, some twenty-seven years after the original case had been filed.

CONCLUSION

Because this is the first time that a published opinion had been rendered since Ruth Massinga’s name had been attached to the lawsuit, Brian Wilbon, having temporarily assumed the position of Secretary of the Maryland Department of Human Resources, found his name having been substituted. Effective January 26, 2011, L.J. v Massinga is now L.J. v Wilbon.

Up until recently, Brian Wilbon’s biography on the Maryland Department of Human Resources’ web site described him as “a result-oriented executive with more than 15 years of experience in the financial, operations and healthcare industries.”

His bio continued on to explain that: “He specializes in project management, staff supervision and training, federal revenue maximization, accounting and finance, procedural compliance review and auditing, budget planning and execution, and Medicare and Medicaid reimbursement.”

According to a 2006 press release issued by the office of the District of Columbia’s Adrian Fenty, announcing his cabinet-level appointments: “Wilbon worked for MAXIMUS Corporation in Reston, Virginia as director of the Revenue Division. In this position, Wilbon provided project and program management, information technology, and consulting services to government agencies. He managed a diverse team of consultants and assisted several clients, including Maryland and New Jersey state governments, in recovering more than $100 million in additional federal Medicare and Medicaid revenue. He also helped to file and settle numerous Medicaid and Medicare appeals.”

In case you missed the news, “Maximus allegedly filed false claims for Medicaid-funded targeted case management services, which assist foster children in obtaining needed medical, social and educational, and other services. Maximus submitted 26,683 claims for Medicaid reimbursement that were not supported by documentation. The Federal Government contends that these services were never rendered.” As part of the resolution of the case, Maximus entered into a 5-year monitoring period with the Office of the Inspector General, as well as a 24-month deferred prosecution agreement with the U.S. Attorney’s Office.

“The $42.65 million settlement with Maximus demonstrates the Justice Department’s strong commitment to vigorously pursuing those companies that defraud the Medicaid program,” said Peter D. Keisler, Assistant Attorney General for the Justice Department’s Civil Division in a prepared press release.

In the final analysis, it always boils down to the money; to the federal revenue maximization schemes, to the bureaucratic imperative for expansion and survival, and to misdirecting funding intended to benefit the poor to enrich agency and government coffers.

As the Fourth Circuit Court of Appeals succinctly explained in its 1988 review of the case: “Defendants’ real harm is the expenditure of money. Admittedly the supply of money is finite, but balanced against that is the emotional, psychological and physical damage to children, much of which will continue throughout their lives.”

A report issued by the Office of Legislative Audits in January 2011 bears this out. For years, the Maryland Department of Human Resources engaged in a revenue maximization scheme involving the provision of preventive services to so-called foster care “candidates” – a practice deemed improper by the Department of Health and Human Services years earlier. The auditors explain:

    Our audit disclosed that the United States Department of Health and Human Services (DHHS) disallowed certain DHR grant expenditures totaling $9.6 million; consequently, these expenditures were paid with State general funds. In addition, procedures had not been established to ensure that payments made to legal firms on behalf of indigent individuals were proper. Furthermore, DHR did not adequately monitor its grantees to ensure that the funds were spent and services were performed in accordance with the grant agreements.

    Our audit also disclosed that DHR circumvented the procurement process to purchase computers costing $850,000. Finally, various internal control weaknesses and other procedural deficiencies were noted in the areas of cash receipts, information systems security and control, and equipment.

Leaving aside the more mundane issue of the circumvention of procurement procedures, where did DHR go wrong in terms of its dealing with the federal government?

In a 2006 report addressed to the Subcommittee on Human Resources of the Committee on Ways and Means, the General Accounting Office explained that several states had experienced disallowances due to their foster care “candidate” qualifying practices.

Delaware was denied almost $6 million worth of claims for quarters extending from December 1999 through June 2003. Pennsylvania was disallowed claims related to candidates because the state had not appropriately applied a penetration rate to the pool of costs, as required by HHS. State officials commented that it had used the same allocation method since it began claiming costs for candidates over the previous 10 to 15 years. According to Michigan officials, the State had reduced the amount of costs claimed on behalf of candidates because they did not want to risk HHS “denying reimbursement for certain claims based on insufficient documentation of caseworker effort or candidacy status.”

In Virginia, the GAO explains: “more than $28 million was denied for 8 quarters in fiscal year 2003 through fiscal year 2005 for absence of a methodology for allocating costs for candidates, charging for unallowable activities, failure to demonstrate that the children were eligible, and other problems with documentation.”

By this time, Virginia’s foster care candidate revenue maximizing scheme had lost much of its luster. On June 16, 2006, Department of Social Services Commissioner Anthony Conyers Jr. sent a memorandum addressed to all local social services directors to provide an update on Title IV-E negotiations between the Commonwealth and the federal government. In his memo, Conyers explained:

    The value of these disallowances is in excess of $50M and result from improper claims for reimbursement of Title IV-E funds. Additionally, we were concerned about tens of millions of dollars of potential additional disallowances with continued federal review of past claiming practices. The lion’s share of the disallowances received relate to a Foster Care Pre-placement Prevention Program (PPP). Actions by the ACF Region III, reviews by Covington and Burling, and review by program staff within VDSS revealed PPP activities did not meet requirements to identity children in question as “reasonable candidates” for foster care. ACF Region III and HHS Office of Inspector General (OIG) staff members reviewed 700 cases in visits to three localities and determined that three met federal criteria to be considered “reasonable candidates” for foster care.

We turn now to Fairfax County, Virginia, the subject of a federal audit released in November of 2007. As the Inspector General of the Department of Health and Human Services explains:

    As part of its revenue maximization efforts, in April 2002, Fairfax County began claiming administrative costs for candidacy determinations made by entities known as “partners.” The Fairfax County partners included the Fairfax County Juvenile and Domestic Relations District Court; Fairfax County Public Schools; the Fairfax-Falls Church Community Services Board; and five units within DFS, not including the Division of Children and Youth. The county and its partners defined their relationship through a memorandum of agreement, which provided the methodology for reporting to the county costs associated with “pre-placement preventative services.”

When all was said and done, the federal government disallowed $5,577,929 in “administrative expenses” that Fairfax County had claimed for its foster care “candidates” under this revenue maximization scheme. Similar results were obtained in Arlington County, the Inspector General explains in another audit.

Maryland’s Department of Human Resources should fairly have been put on notice by these disallowances. It either knew – or reasonably should have known – that not only were these actions unconscionable, but also illegal. The disallowances for foster care “candidate” revenue maximization schemes in other localities notwithstanding, DHR officials claimed to have found themselves surprised when they were caught with their hands in the federal cookie jar.

“The good news is that we will be able to, going forward, be able to claim these dollars,” said J. Gregory Holland, DHR’s director of cost allocation and revenue management, according to an article in the Baltimore Sun. “All of these things happening, this created the opportunity to do things the right way.”

Mr. Holland; I have some news for you: Advocates have been waiting for over a quarter of a century for your Department to start doing things the right way.


SIDEBAR

What ever happened to Ruth Massigna? Not to worry – there is always somewhere or another for the enterprising child welfare bureaucrat to find another job. If not as a field consultant with the Child Welfare League of America, then perhaps as a revenue maximization specialist in one of the private consulting firms, or as a high-ranking child welfare administrator in another State. Child welfare remains one of the few remaining growth industries, and this phenomenon has been described as the “revolving door” in the field of human services.

Ruth Massinga outdid herself when she was picked up by Casey Family Programs, which not only praises her for her accomplishments as a child saver, but also offers an award bearing her name. Her biography, according to Casey Family Programs:

    From 1983 to 1989, Ms. Massinga was secretary of the Maryland Department of Human Resources. She entered state government in 1979 as executive director of Maryland’s Social Services Administration. Two years prior to that appointment, she served as deputy director of the Child Development Associate Consortium in Washington, D.C. From 1972 to 1977, she was director of Berkeley Children’s Services, a child care resource development and referral organization. She holds a Master’s degree in social services from Boston University.

According to the organization’s description of the award: “Casey Family Programs’ Board of Trustees has established the Ruth Massinga Awards in commemoration of Ruth Massinga’s relentless advocacy on behalf of constituents of the child welfare system, particularly youth in care and alumni.”