Juveniles in DSS Custody Presenting at Hospital ED for Mental Health Treatment: New Laws and New Court Hearing Possible

Perhaps it is not surprising that juveniles who experience abuse, neglect, or dependency have a higher risk of suffering from mental health issues. These children have experienced trauma, and when they are removed from their homes and families, they further experience loss, separation, and disruption. The National Conference of State Legislatures reports that “[u[p to 80 percent of children in foster care have significant mental health issues, compared to approximately 18-22 percent of the general population.”* According to the American Academy of Pediatrics, “[m]ental and behavioral health is the largest unmet health need for children and teens in foster care.”**

Some North Carolina laws set forth in the Juvenile Code address the issue of children in DSS custody who experience mental health issues. For example, G.S. 7B-505.1(c) addresses the need for DSS to obtain a court order to consent to non-routine and non-emergency medical treatment for a juvenile in its custody – such treatment includes mental health treatment requiring informed consent. And, G.S. 7B-903(d) authorizes the court to order a juvenile to receive a psychological or other necessary examination to determine the juvenile’s needs. Other laws, such as those in G.S. Chapter 122C, address mental health treatment generally and include provisions specific to juveniles. Laws specifically addressing treatment and the coordination of services between a DSS with a juvenile in its custody and managed care organization (MCO) or prepaid health plans (PHP) were lacking, until the enactment of S.L. 2021-132.

This post focuses on two new laws that were included in S.L. 2021-132 that specifically address situations where a juvenile who is in DSS custody presents to a hospital emergency department for mental health treatment. Effective October 1, 2021, a new statute in G.S. Chapter 122C was enacted to address care coordination for the juvenile by DSS, the LME/MCO or prepaid health plan (PHP), the hospital, and the North Carolina Department of Human Services (DHHS): G.S. 122C-142.2. Effective January 1, 2022, a new statute in the Juvenile Code, G.S. 7B-903.2, was enacted to authorize an emergency motion and hearing to address compliance with the requirements of G.S. 122C-142.2.

Juvenile presenting at hospital for mental health treatment. When a juvenile who is in DSS custody presents to a hospital emergency department for mental health treatment and it is determined that the juvenile should not remain at the hospital and there is no immediately available appropriate placement for the juvenile, the DSS director must contact the appropriate LME/MCO or PHP within twenty-four hours of that determination. The director requests an assessment of the juvenile. G.S. 122C-142.2(b). Within five business days of the director’s request, the LME/MCO or PHP must, when applicable or required by their contract with DHHS, arrange for an assessment of the juvenile by the juvenile’s clinical home provider, the hospital (if able or willing), or another qualified clinician. G.S. 122C-142.2(c). Depending on the level of care recommended by the assessment, DSS and the LME/MCO or PHP must act as provided for in the following table. G.S. 122C-142.2(d).

Involvement by DHHS Rapid Response Team. If the recommendations of the assessment differ or if DSS or the LME/MCO or PHP is unable to identify a provider, DSS must immediately notify the Rapid Response Team at DHHS. G.S. 122C-142.2(f). The Rapid Response Team consists of representatives from the Division of Social Services; the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services; and the Division of Health Benefits at DHHS. G.S. 122C-142.2(g). Information sharing by DSS to the Rapid Response Team is permitted by G.S. 7B-302(a1)(1a), and the information remains confidential and is not a public record. G.S. 122C-142.2(f). The Rapid Response Team evaluates the information provided to it and coordinates a response to address the juvenile’s immediate needs. G.S. 122C-142.2(g). The response may include

• Identifying an appropriate level of care;
• Identifying appropriate providers or placement;
• Referring the juvenile to qualified service providers;
• Developing an action plan to meet the juvenile’s needs;
• Developing a plan to ensure the relevant parties fulfill their responsibilities to the juvenile.

G.S. 122C-142.2(g).

While the juvenile is staying at the hospital, DSS must provide ongoing case management to address the juvenile’s educational and social needs. The hospital must cooperate with DSS to provide access to the juvenile. G.S. 122C-142.2(e).

Emergency motion for placement and payment in the abuse, neglect, dependency action. When DSS or the LME/MCO or PHP does not fulfill its responsibilities under G.S. 122C-142.2, any party to the abuse, neglect, or dependency action, the hospital, DHHS, or the LME/MCO or PHP may file a motion in the abuse, neglect, or dependency action to address the juvenile’s continued stay at the hospital. G.S. 7B-903.2(a). The motion must contain a specific description of which requirements under G.S. 122C-142.2 were not complied with. G.S. 7B-903.2(b).

Limited appearance. DHHS, the LME/MCO or PHP, and the hospital make a limited appearance in the juvenile proceeding for the sole purpose of addressing the motion and complying with orders on the motion, either by filing the emergency motion or by being served with the motion. G.S. 7B-903.2(a), (c). Service of the motion must be made by Rule 5 service on each party to the juvenile proceeding, the hospital, the LME/MCO or PHP, and DHHS. G.S. 7B-903.2(c). DSS must provide the movant, when so requested, with the case file number, the juvenile’s name, and the addresses of all parties and attorneys in the juvenile matter so service may be made. G.S. 7B-903.2(d).

The hearing. The hearing is held in the district court with jurisdiction over the juvenile proceeding and is conducted in accordance with G.S. 7B-801 (addressing open versus closed hearings and consent order procedures). The Rules of Evidence apply, and any person or party served with the motion may request to be heard by the court and present evidence. G.S. 7B-903.2(e). The standard is clear and convincing evidence. See G.S. 7B-903.2(f), (g). The issues determined are whether it is medically necessary for the juvenile to remain in the hospital and whether DSS or the LME/MCO or PHP fulfilled its obligations under G.S. 122C-142.2. See G.S. 7B-903.2(f), (g). If the juvenile is discharged from the hospital and placed by DSS, the court dismisses the motion. G.S. 7B-903.2(i).

The order. The order must be entered within seventy-two hours of the hearing being completed. G.S. 7B-903.2(h). In its order, the court must make written findings of fact and conclusions of law that include whether (1) the movant proved by clear and convincing evidence that there is no medical necessity for the juvenile to remain in the hospital and (2) the responsible party (DSS, LME/MCO or PHP) did not satisfy the applicable requirements of G.S. 122C-142.2. G.S. 7B-903.2(f). The court may order the following relief:

• The responsible party pay reasonable hospital charges for the juvenile’s continued admission at the hospital, starting with when it was no longer medically necessary for the juvenile to remain in the hospital;
• The responsible party pay for any property damage the juvenile caused after it was no longer medically necessary for the juvenile to remain in the hospital;
• The responsible party satisfy its statutory requirements of G.S. 122C-142.2;
• Any other relief the court finds appropriate; however, each party has the burden of paying its own costs.

G.S. 7B-903.2(g), (j).

Orders entered under G.S. 7B-903.2 are not designated as an order that is appealable under G.S. 7B-1001.

Ongoing hearings. The clerk must schedule a subsequent hearing for review within thirty days of the order being entered. G.S. 7B-903.2(h). If the juvenile is discharged from the hospital and placed by DSS, the court dismisses the motion. G.S. 7B-903.2(i).

Further changes on the horizon. DHHS plans to launch a Specialized Foster Care Plan on July 1, 2023, a statewide Medicaid managed care plan designed specifically for children in foster care. DHHS will contract with a managed care organization responsible for providing access to comprehensive physical and behavioral health services for children in foster care, as well as for ensuring enhanced coordination of care among service providers, families, and involved agencies.

*https://www.ncsl.org/research/human-services/mental-health-and-foster-care.aspx

** https://www.aap.org/en/patient-care/foster-care/mental-and-behavioral-health-needs-of-children-in-foster-care/

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