ETT-10D U.S. District Court DISTRICT OF KANSAS (Kansas City) CIVIL DOCKET FOR CASE #: 2:18-cv-02617-DDC-GEB
Katharyn McIntyre et al v. Colyer et al Assigned to: District Judge Daniel D. Crabtree Referred to: Magistrate Judge Gwynne E. Birzer Cause: 28:1983 Civil Rights

Date Filed: 11/16/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff

Katharyn McIntyre for themselves and those similarly situated / as next friend of minor M. B. minor S. E.

represented by

Caryn G. Schechtman DLA Piper LLP (US) - NY 1251 Avenue of the Americas New York, NY 10020-1104 212-335-4593 Fax: 212-884-8593 Email: caryn.schechtman@dlapiper.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Freya Pitts National Center for Youth Law 1212 Broadway, Suite 600 Oakland, CA 94612 510-835-8098 - Ext. 3070 Fax: 510-835-8099 Email: fpitts@youthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ira Lustbader Children's Rights, Inc. 88 Pine Street, 8th Floor New York, NY 10005 212-683-2210 - Ext. 3318 Fax: 212-685-4015 Email: ilustbader@childrensrights.org

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Rotenberg DLA Piper LLP (US) - NY 1251 Avenue of the Americas New York, NY 10020-1104 212-335-4556 Fax: 917-778-8556 Email: jeffrey.rotenberg@dlapiper.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan M. King Children's Rights, Inc. 88 Pine Street, 8th Floor New York, NY 10005 212-683-2210 - Ext. 3302 Fax: 212-685-4015 Email: jking@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Kane DLA Piper LLP (US) - NY 1251 Avenue of the Americas New York, NY 10020-1104 212-335-4561 Fax: 917-778-8561 Email: joshua.kane@dlapiper.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Larry R. Rute Associates in Dispute Resolution, LLC 212 SW 8th Avenue, Suite 207 Topeka, KS 66603 785-357-1800

Fax: 785-357-1800 Email: info@adrmediate.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leecia Welch National Center for Youth Law 1212 Broadway, Suite 600 Oakland, CA 94612 510-835-8098 - Ext. 3023 Fax: 510-835-8099 Email: lwelch@youthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loretta E. Burns-Bucklew 401 W. 89th Street Kansas City, MO 64114 816-384-1198 Email: loribblawkc@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marissa C. Nardi Children's Rights, Inc. 88 Pine Street, 8th Floor New York, NY 10005 212-683-2210 - Ext. 3335 Fax: 212-685-4015 Email: mnardi@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Poonam Juneja National Center for Youth Law 1212 Broadway, Suite 600 Oakland, CA 94612 510-899-6576 Fax: 510-835-8099 Email: pjuneja@youthlaw.org LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Stephen A. Dixon Children's Rights, Inc. 88 Pine Street, 8th Floor New York, NY 10005 212-683-2210 Fax: 212-685-4015 Email: sdixon@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Teresa A. Woody Kansas Appleseed Center for Law and Justice, Inc. 211 East 8th Street, Suite D Lawrence, KS 66044 785-251-8160 Email: twoody@kansasappleseed.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur Benet Magnuson Kansas Appleseed Center for Law and Justice, Inc. 211 East 8th Street, Suite D Lawrence, KS 66044 785-856-0917 Email: bmagnuson@kansasappleseed.org TERMINATED: 03/21/2019 PRO HAC VICE
David S Sager DLA Piper LLP (US) - NJ 51 John F. Kennedy Parkway, Suite 120 Short Hills, NJ 07078 973-307-3047 Fax: 973-520-2576 Email: david.sager@dlapiper.com TERMINATED: 12/10/2019

William J. Diggs DLA Piper LLP (US) - NJ 51 John F. Kennedy Parkway, Suite 120 Short Hills, NJ 07078 973-307-3047 Fax: 973-520-2576 Email: william.diggs@dlapiper.com TERMINATED: 12/10/2019

Plaintiff
Kathryn Ashburn for themselves and those similarly situated / as next friend of TERMINATED: 07/10/2020 minor V. A. TERMINATED: 07/10/2020

represented by

Freya Pitts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ira Lustbader (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan M. King (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua Kane (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Larry R. Rute (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loretta E. Burns-Bucklew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marissa C. Nardi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen A. Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Teresa A. Woody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur Benet Magnuson (See above for address) TERMINATED: 03/21/2019 PRO HAC VICE
David S Sager (See above for address) TERMINATED: 12/10/2019
William J. Diggs (See above for address) TERMINATED: 12/10/2019

Plaintiff
Ed Bigus for themselves and those similarly situated / as next friend of TERMINATED: 07/10/2020 minor M. J. TERMINATED: 07/10/2020 minor R. R. TERMINATED: 07/10/2020

represented by

Freya Pitts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ira Lustbader (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan M. King (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua Kane (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Larry R. Rute (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Loretta E. Burns-Bucklew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marissa C. Nardi (See above for address)

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Poonam Juneja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen A. Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Teresa A. Woody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur Benet Magnuson (See above for address) TERMINATED: 03/21/2019 PRO HAC VICE

David S Sager (See above for address) TERMINATED: 12/10/2019

William J. Diggs (See above for address) TERMINATED: 12/10/2019

Plaintiff
Allan Hazlett for themselves and those similarly situated / as next friend of minor R. M. minor C. A. minor E. B.

represented by

Caryn G. Schechtman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Freya Pitts (See above for address) LEAD ATTORNEY

minor J. P.

PRO HAC VICE ATTORNEY TO BE NOTICED
Ira Lustbader (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Rotenberg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan M. King (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Kane (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Larry R. Rute (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loretta E. Burns-Bucklew (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marissa C. Nardi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Poonam Juneja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen A. Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Teresa A. Woody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Arthur Benet Magnuson (See above for address) TERMINATED: 03/21/2019 PRO HAC VICE

David S Sager (See above for address) TERMINATED: 12/10/2019

William J. Diggs (See above for address) TERMINATED: 12/10/2019

Plaintiff
Ashley Thorne for themselves and those similarly situated / as next friend of (B.B. terminated 7/10/20) minor M. A. minor

represented by

Caryn G. Schechtman (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Freya Pitts

B. B. minor Z. Z.

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Ira Lustbader (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jeffrey Rotenberg (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan M. King (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Joshua Kane (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Larry R. Rute (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Loretta E. Burns-Bucklew (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Marissa C. Nardi (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen A. Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Teresa A. Woody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Arthur Benet Magnuson (See above for address) TERMINATED: 03/21/2019 PRO HAC VICE
David S Sager (See above for address) TERMINATED: 12/10/2019
William J. Diggs (See above for address) TERMINATED: 12/10/2019

V.
Defendant
Jeff Colyer in his official capacity as Kansas

represented by

Grant Allen Harse Lathrop GPM, LLP - Kansas City 2345 Grand Boulevard

Governor TERMINATED: 04/04/2019

Kansas City, MO 64108-2618 816-460-5750 Fax: 816-292-2001 Email: grant.harse@lathropgpm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Catherine C. Theisen Barber Emerson, LC 1211 Massachusetts Street PO Box 667 Lawrence, KS 66044 785-843-6600 Fax: 785-843-8405 Email: ctheisen@barberemerson.com TERMINATED: 09/26/2019
Dennis D. Depew Office of Attorney General - Kansas 120 SW 10th Avenue, 2nd Floor Topeka, KS 66612-1597 785-368-8426 Fax: 785-291-3767 Email: dennis.depew@ag.ks.gov TERMINATED: 09/26/2019
Matthew J. Rogers Barber Emerson, LC 1211 Massachusetts Street PO Box 667 Lawrence, KS 66044 785-843-6600 Fax: 785-843-8405 Email: mrogers@barberemerson.com TERMINATED: 09/26/2019
Terrence J. Campbell Barber Emerson, LC 1211 Massachusetts Street PO Box 667 Lawrence, KS 66044 785-843-6600 Fax: 785-843-8405

Defendant Gina Meier-Hummel in her official capacity as Kansas Department for Children and Families Secretary TERMINATED: 04/04/2019
Defendant Jeff Andersen in his official capacity as Kansas Department of Health and Environment Secretary TERMINATED: 04/04/2019

Email: tcampbell@barberemerson.com TERMINATED: 09/26/2019

represented by

Corliss Scroggins Lawson Kansas Department for Children and Families - Kansas Avenue 555 S Kansas Avenue Topeka, KS 66603 785-296-4720 Fax: 785-250-0864 Email: corliss.lawson@ks.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Allen Harse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Theisen (See above for address) TERMINATED: 09/26/2019

Dennis D. Depew (See above for address) TERMINATED: 09/26/2019

Matthew J. Rogers (See above for address) TERMINATED: 09/26/2019

Terrence J. Campbell (See above for address) TERMINATED: 09/26/2019

represented by

Grant Allen Harse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Tim Keck in his official capacity as Kansas Department for Aging and Disability Services Secretary TERMINATED: 04/04/2019
Defendant Laura Kelly in her official capacity as Kansas Governor TERMINATED: 06/03/2020

Catherine C. Theisen (See above for address) TERMINATED: 09/26/2019
Dennis D. Depew (See above for address) TERMINATED: 09/26/2019
Matthew J. Rogers (See above for address) TERMINATED: 09/26/2019
Terrence J. Campbell (See above for address) TERMINATED: 09/26/2019

represented by

Grant Allen Harse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Catherine C. Theisen (See above for address) TERMINATED: 09/26/2019

Dennis D. Depew (See above for address) TERMINATED: 09/26/2019

Matthew J. Rogers (See above for address) TERMINATED: 09/26/2019

Terrence J. Campbell (See above for address) TERMINATED: 09/26/2019

represented by

Brian C. Fries Lathrop GPM, LLP - Kansas City 2345 Grand Boulevard Kansas City, MO 64108-2618

816-292-2000 Fax: 816-292-2001 Email: brian.fries@lathropgpm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carrie E. Josserand Lathrop GPM, LLP - Overland Park Corporate Woods, Building 82 10851 Mastin Blvd., Suite 1000 Overland Park, KS 66210-1669 913-451-5100 Fax: 913-451-0875 Email: carrie.josserand@lathropgpm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grant Allen Harse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Paul Bradshaw , II Lathrop GPM, LLP - Kansas City 2345 Grand Boulevard Kansas City, MO 64108-2618 816-460-5507 Fax: 816-292-2001 Email: jeanpaul.bradshaw@lathropgpm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reid Day Lathrop GPM, LLP - Kansas City 2345 Grand Boulevard Kansas City, MO 64108-2618 816-292-2001 Email: reid.day@lathropgpm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Casey E. Forsyth Barber Emerson, LC 1211 Massachusetts Street PO Box 667 Lawrence, KS 66044 785-843-6600 Fax: 785-843-8405 Email: cforsyth@barberemerson.com TERMINATED: 09/26/2019

Catherine C. Theisen (See above for address) TERMINATED: 09/26/2019

Dennis D. Depew (See above for address) TERMINATED: 09/26/2019

Matthew J. Rogers (See above for address) TERMINATED: 09/26/2019

Terrence J. Campbell (See above for address) TERMINATED: 09/26/2019

Defendant

Laura Howard

represented by

in her official capacity as Secretary

of Kansas Department for Children

and Families; in her official capacity

as Secretary of Kansas Department

for Aging and Disability Services

Brian C. Fries (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carrie E. Josserand (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Corliss Scroggins Lawson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Allen Harse

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jean Paul Bradshaw , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Reid Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Casey E. Forsyth (See above for address) TERMINATED: 09/26/2019

Catherine C. Theisen (See above for address) TERMINATED: 09/26/2019

Dennis D. Depew (See above for address) TERMINATED: 09/26/2019

Matthew J. Rogers (See above for address) TERMINATED: 09/26/2019

Terrence J. Campbell (See above for address) TERMINATED: 09/26/2019

Defendant
Lee A. Norman in his official capacity as Secretary of Kansas Department of Health and Environment

represented by

Brian C. Fries (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carrie E. Josserand (See above for address) LEAD ATTORNEY

Movant Cornerstones of Care

ATTORNEY TO BE NOTICED
Grant Allen Harse (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jean Paul Bradshaw , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Reid Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Casey E. Forsyth (See above for address) TERMINATED: 09/26/2019
Catherine C. Theisen (See above for address) TERMINATED: 09/26/2019
Dennis D. Depew (See above for address) TERMINATED: 09/26/2019
Matthew J. Rogers (See above for address) TERMINATED: 09/26/2019
Terrence J. Campbell (See above for address) TERMINATED: 09/26/2019

represented by

James D. Lawrence Bryan Cave Leighton Paisner, LLP KCMO One Kansas City Place 1200 Main Street, Suite 3800

Movant KVC Behavioral Healthcare, Inc.

Kansas City, MO 64105 816-374-3378 Fax: 816-374-3300 Email: jdlawrence@bclplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by

Danielle Marie Uzelac Franke Schultz & Mullen, PC 8900 Ward Parkway Kansas City, MO 64114 816-421-7100 Email: duzelac@fsmlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Derek G. Johannsen Franke Schultz & Mullen, PC 8900 Ward Parkway Kansas City, MO 64114 816-421-7100 Fax: 816-421-7915 Email: djohannsen@fsmlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heather Hatley Franke Schultz & Mullen, PC 8900 Ward Parkway Kansas City, MO 64114 816-421-7100 Fax: 816-421-7915 Email: hhatley@fsmlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John G. Schultz Franke Schultz & Mullen, PC 8900 Ward Parkway Kansas City, MO 64114 816-421-7100 Fax: 816-421-7915

Movant Saint Francis Ministries, Inc.
Movant TFI Family Services, Inc.

Email: jschultz@fsmlawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by

Kathryn A. Regier Sandberg Phoenix & von Gontard, PC - KC 4600 Madison Avenue, Suite 1000 Kansas City, MO 64112-3032 816-425-9683 Fax: 816-627-5532 Email: kregier@sandbergphoenix.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by

David R. Cooper Fisher, Patterson, Sayler & Smith, LLP - Topeka 3550 SW Fifth Street Topeka, KS 66606 785-633-7545 Fax: 785-286-6609 Email: dcooper@fpsslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed #
11/16/2018 1

Docket Text
COMPLAINT with trial location of Kansas City ( Filing fee $400, Internet Payment Receipt Number AKSDC-4637310.), filed by C.A. through his next friend Allan Hazlett, J.M. through his next friend Ed Bigus, Z.Z. through her next friend Ashley Thorne, M.L. through her next friend Ashley Thorne, V.A. through his next friend Kathryn Ashburn, B.B. through her next friend Ashley Thorne, M.J. through his next friend Ed Bigus, M.B. and S.E. through their next friend Katharyn McIntyre, R.M. through his next friend Allan Hazlett. (Attachments: # 1 Designation of Place of Trial)(Rute, Larry) (Entered: 11/16/2018)

11/16/2018 2
11/16/2018 11/16/2018 11/26/2018 3 11/26/2018 4 11/26/2018 5 11/26/2018 6

CIVIL COVER SHEET by Plaintiffs B.B. through her next friend Ashley Thorne, M.L. through her next friend Ashley Thorne, Z.Z. through her next friend Ashley Thorne, C.A. through his next friend Allan Hazlett, R.M. through his next friend Allan Hazlett, J.M. through his next friend Ed Bigus, M.J. through his next friend Ed Bigus, V.A. through his next friend Kathryn Ashburn, M.B. and S.E. through their next friend Katharyn McIntyre. (Rute, Larry) (Entered: 11/16/2018)
NOTICE OF JUDGE ASSIGNMENT: Case assigned to District Judge John W Lungstrum and Magistrate Judge Gwynne E. Birzer for all proceedings. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ca) (Entered: 11/16/2018)
SUMMONS ISSUED as to Jeff Andersen, Jeff Colyer, Tim Keck, Gina Meier-Hummel. (issued to Attorney for service) (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) (ca) (Entered: 11/16/2018)
MOTION for attorney Leecia Welch to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC4642836.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit, # 2 Exhibit)(Rute, Larry) (Entered: 11/26/2018)
MOTION for attorney Freya Pitts to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC-4642886.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit, # 2 Exhibit)(Rute, Larry) (Entered: 11/26/2018)
MOTION for attorney Ira Lustbader to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC4642913.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit, # 2 Exhibit)(Rute, Larry) (Entered: 11/26/2018)
MOTION for attorney Marissa C. Nardi to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC4642975.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge

11/26/2018 7 11/26/2018 8 11/27/2018 9
11/27/2018 10 11/27/2018 11 12/06/2018 12 12/06/2018 13

Gwynne E. Birzer) (Attachments: # 1 Affidavit, # 2 Exhibit)(Rute, Larry) (Entered: 11/26/2018)
MOTION for attorney Jonathan M. King to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC4642995.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit, # 2 Exhibit)(Rute, Larry) (Entered: 11/26/2018)
MOTION for attorney Stephen A. Dixon to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC4643024.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit, # 2 Exhibit)(Rute, Larry) (Entered: 11/26/2018)
ORDER granting 3 , 4 , 5 , 6 , 7 , and 8 Motion to Appear Pro Hac Vice of Leecia Welch, Freya Pitts, Ira Lustbader, Marissa C. Nardi, Jonathan M. King and Stephen A. Dixon for Plaintiffs pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Unless already registered, pro hac vice counsel should register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/. Signed by Magistrate Judge Gwynne E. Birzer on 11/27/18. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 11/27/2018)
ENTRY OF APPEARANCE by Corliss Scroggins Lawson on behalf of Gina Meier-Hummel (Lawson, Corliss) (Entered: 11/27/2018)
CLERKS ORDER EXTENDING TIME until 01/02/2019 for Defendant Gina Meier-Hummel to answer or otherwise plead Signed by deputy clerk on 11/27/2018. (ca) (Entered: 11/27/2018)
SUMMONS RETURNED EXECUTED -- Certified Mail by Kathryn Ashburn, Ashley Thorne, Ed Bigus, Katharyn McIntyre, Allan Hazlett upon Jeff Andersen served on 11/26/2018, answer due 12/17/2018 (Rute, Larry) (Entered: 12/06/2018)
SUMMONS RETURNED EXECUTED -- Certified Mail by Kathryn Ashburn, Ashley Thorne, Ed Bigus, Katharyn McIntyre, Allan

12/06/2018 14 12/06/2018 15 12/12/2018 16 12/13/2018 17 12/13/2018 18
12/28/2018 19 01/04/2019 20

Hazlett upon Jeff Colyer served on 11/26/2018, answer due 12/17/2018 (Rute, Larry) (Entered: 12/06/2018)
SUMMONS RETURNED EXECUTED -- Certified Mail by Kathryn Ashburn, Ashley Thorne, Ed Bigus, Katharyn McIntyre, Allan Hazlett upon Tim Keck served on 11/26/2018, answer due 12/17/2018 (Rute, Larry) (Entered: 12/06/2018)
SUMMONS RETURNED EXECUTED -- Certified Mail by Kathryn Ashburn, Ashley Thorne, Ed Bigus, Katharyn McIntyre, Allan Hazlett upon Gina Meier-Hummel served on 11/26/2018, answer due 1/2/2019 (Rute, Larry) (Entered: 12/06/2018)
MOTION for attorney Benet Magnuson to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC4658465.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Exhibit, # 2 Exhibit)(Rute, Larry) (Entered: 12/12/2018)
CLERKS ORDER EXTENDING TIME until 01/02/2019 for Defendants Jeff Andersen, Jeff Colyer, Tim Keck to answer or otherwise plead. Signed by deputy clerk on 12/13/2018. (ca) (Entered: 12/13/2018)
ORDER granting 16 Motion to Appear Pro Hac Vice of Arthur Benet Magnuson for Plaintiffs pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Unless already registered, pro hac vice counsel should register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/. Signed by Magistrate Judge Gwynne E. Birzer on 12/13/18. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 12/13/2018)
MOTION for Extension of Time to File Answer by Defendants Jeff Andersen, Jeff Colyer, Tim Keck, Gina Meier-Hummel (referred to Magistrate Judge Gwynne E. Birzer) (Depew, Dennis) (Entered: 12/28/2018)
MEMORANDUM IN OPPOSITION by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne re 19 MOTION for Extension of Time to File Answer (Rute, Larry) (Entered: 01/04/2019)

01/07/2019 21 01/11/2019 22 01/11/2019 23
01/18/2019 24 01/23/2019 25 02/08/2019 26 02/14/2019 27

ORDER SETTING STATUS CONFERENCE: Status Conference set for 1/11/2019 at 01:30 PM by Telephone before Magistrate Judge Gwynne E. Birzer. All participants must call the CONFERENCE LINE at 1-888-363-4749, using ACCESS CODE 9686294. Signed by Magistrate Judge Gwynne E. Birzer on 1/7/19. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(rel) (Entered: 01/07/2019)
MINUTE ENTRY for proceedings held before Magistrate Judge Gwynne E. Birzer: STATUS CONFERENCE held on 1/11/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 01/11/2019)
ORDER granting 19 Defendants' Motion for Extension of Time to File Responsive Pleading. The Court conducted a conference on 1/11/19 to discuss the above Motion. Plaintiffs appeared through counsel, Larry R. Rute; Leecia Welch; and Marissa C. Nardi. Defendants Jeff Colyer, Jeff Andersen, and Tim Keck appeared through counsel, Dennis Depew. Defendant Gina Meier-Hummel appeared through counsel, Corliss Scroggins Lawson. After reviewing the briefs and hearing argument of counsel, the Court finds good cause to grant Defendants' Motion. All Defendants shall answer or otherwise respond to the Complaint by 3/29/19. Signed by Magistrate Judge Gwynne E. Birzer on 1/11/19. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 01/11/2019)
Unopposed MOTION to Proceed Using Pseudonyms by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Rute, Larry) (Entered: 01/18/2019)
ORDER granting 24 Plaintiffs' Unopposed Motion to Proceed Using Pseudonyms and Memorandum in Support. Signed by Magistrate Judge Gwynne E. Birzer on 1/23/19. (rel) (Entered: 01/23/2019)
STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER. Signed by Magistrate Judge Gwynne E. Birzer on 2/8/19. (rel) (Entered: 02/08/2019)
ENTRY OF APPEARANCE by Loretta Ellen Burns-Bucklew on behalf of All Plaintiffs. (Burns-Bucklew, Loretta) (Entered: 02/14/2019)

02/25/2019 28 02/25/2019 29 02/25/2019 30 03/07/2019 31 03/21/2019 32 03/26/2019 33
03/28/2019 34
03/29/2019 35
04/01/2019 36
04/03/2019 37

ENTRY OF APPEARANCE by Terrence J. Campbell on behalf of All Defendants (Campbell, Terrence) (Entered: 02/25/2019)
ENTRY OF APPEARANCE by Catherine C. Theisen on behalf of All Defendants (Theisen, Catherine) (Entered: 02/25/2019)
ENTRY OF APPEARANCE by Matthew Rogers on behalf of All Defendants (Rogers, Matthew) (Entered: 02/25/2019)
ENTRY OF APPEARANCE by Teresa A. Woody on behalf of All Plaintiffs. (Woody, Teresa) (Entered: 03/07/2019)
NOTICE OF WITHDRAWAL OF APPEARANCE by attorney Benet Magnuson as to All Plaintiffs (Rute, Larry) (Entered: 03/21/2019)
Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond to Plaintiffs' Complaint by Defendants Jeff Andersen, Jeff Colyer, Tim Keck, Gina Meier-Hummel (referred to Magistrate Judge Gwynne E. Birzer) (Campbell, Terrence) (Entered: 03/26/2019)
ORDER granting 33 Defendants' Unopposed Motion for Extension of Time to Answer. Defendants' deadline to answer or otherwise respond to the Complaint is April 1, 2019. Signed by Magistrate Judge Gwynne E. Birzer on 3/28/19. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 03/28/2019)
Joint MOTION for Extension of Time to File Answer re 1
Complaint (attorney), by Defendants Jeff Andersen, Jeff Colyer, Tim Keck, Gina Meier-Hummel (referred to Magistrate Judge Gwynne E. Birzer) (Campbell, Terrence) (Entered: 03/29/2019)
ORDER granting 35 Joint Motion for Extension of Time. Defendants time period to answer the Complaint is extended to 4/29/19. Signed by Magistrate Judge Gwynne E. Birzer on 4/1/19. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 04/01/2019)
NOTICE of Substitution Pursuant to Fed. R. Civ. P. 25(d) by Jeff Andersen, Jeff Colyer, Tim Keck, Gina Meier-Hummel (Campbell, Terrence) (Entered: 04/03/2019)

04/04/2019 04/26/2019 38 04/26/2019 39 04/26/2019 40 04/29/2019 41
04/29/2019 42

DOCKET ANNOTATION: All party names for the defendants have been updated per 37 NOTICE of Substitution Pursuant to Fed. R. Civ. P. 25(d). (tvn) (Entered: 04/04/2019)
MOTION for attorney David S. Sager to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC4789939.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit of David S. Sager iso Motion for Leave to Appear Pro Hac Vice, # 2 ECF Registration Form)(Rute, Larry) (Entered: 04/26/2019)
MOTION for attorney William J. Diggs to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC4789954.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit of William J. Diggs iso Motion for Leave to Appear Pro Hac Vice, # 2 ECF Registration Form)(Rute, Larry) (Entered: 04/26/2019)
MOTION for attorney Poonam Juneja to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC4790121.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit of Poonam Juneja in Support of Motion for Leave to Appear Pro Hac Vice, # 2 ECF Registration Form)(Rute, Larry) (Entered: 04/26/2019)
ORDER granting 39 Motion to Appear Pro Hac Vice of William J. Diggs for Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre and Ashley Thorne pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Unless already registered, pro hac vice counsel should register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/. Signed by Magistrate Judge Gwynne E. Birzer on 4/29/19. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (alm) (Entered: 04/29/2019)
ORDER granting 40 Motion to Appear Pro Hac Vice of Poonam Juneja for Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre and Ashley Thorne pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Unless already registered, pro hac vice

04/29/2019 43
04/29/2019 44 05/07/2019 45 05/21/2019 46
06/03/2019 47

counsel should register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/. Signed by Magistrate Judge Gwynne E. Birzer on 4/29/19. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (alm) (Entered: 04/29/2019)
ORDER granting 38 Motion to Appear Pro Hac Vice of David S Sager for Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, and Ashley Thorne pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Unless already registered, pro hac vice counsel should register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/. Signed by Magistrate Judge Gwynne E. Birzer on 4/29/19. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (alm) (Entered: 04/29/2019)
ANSWER to Complaint by Jeff Andersen, Jeff Colyer, Tim Keck, Gina Meier-Hummel.(Campbell, Terrence) (Entered: 04/29/2019)
INITIAL ORDER REGARDING PLANNING AND SCHEDULING: InPerson Scheduling Conference set for 6/13/2019 at 10:30 AM in KC Courtroom 236 before Magistrate Judge Gwynne E. Birzer. Report of Parties Planning Meeting and Rule 26 Initial Disclosures due by 6/6/2019. Signed by Magistrate Judge Gwynne E. Birzer on 5/7/19. (rel) (Entered: 05/07/2019)
AMENDED INITIAL ORDER SETTING SCHEDULING CONFERENCE: Scheduling Conference set for 7/8/2019 at 10:00 AM in KC Courtroom 236 before Magistrate Judge Gwynne E. Birzer. The parties shall hold their Rule 26(f)conference no later than 6/27/2019. Report of Parties Planning Meeting deadline and Rule 26 Initial Disclosures deadline is 7/1/2019. Signed by Magistrate Judge Gwynne E. Birzer on 5/21/19. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(rel) (Entered: 05/21/2019)
ENTRY OF APPEARANCE by Casey E. Forsyth on behalf of Laura Howard, Laura Kelly, Lee A. Norman (Forsyth, Casey) (Entered: 06/03/2019)

07/01/2019 48 07/02/2019 49 07/02/2019 50 07/08/2019 52 07/09/2019 51 07/09/2019 53
08/06/2019 54 08/19/2019 55 08/23/2019 56

CERTIFICATE OF SERVICE of Plaintiffs' Initial Disclosures by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (Woody, Teresa) (Entered: 07/01/2019)
NOTICE OF SERVICE by Laura Howard, Laura Kelly, Lee A. Norman of Defendants' Initial Disclosures (Rogers, Matthew) (Entered: 07/02/2019)
CERTIFICATE OF SERVICE of Plaintiffs' First Sets of Requests for Production of Documents by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (Woody, Teresa) (Entered: 07/02/2019)
MINUTE ENTRY for proceedings held before Magistrate Judge Gwynne E. Birzer: SCHEDULING CONFERENCE held on 7/8/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 07/09/2019)
PROCEDURES FOR THE PRODUCTION OF DOCUMENTS (ESI PROTOCOL). Signed by Magistrate Judge Gwynne E. Birzer on 7/9/2019. (rel) (Entered: 07/09/2019)
SCHEDULING ORDER: Mediation Notice or Confidential Settlement Report Due to Magistrate Judge on 8/19/2019. Mediation deadline 12/16/2019. Discovery deadline 1/8/2021. Proposed Pretrial Order due by 1/22/2021. Final Pretrial Conference set for 2/4/2021 at 11:00 AM in Wichita Courtroom 326 before Magistrate Judge Gwynne E. Birzer.Dispositive motion deadline 2/18/2021. Court Trial set for 9/7/2021 at 09:30 AM in KC Courtroom 440 before District Judge John W. Lungstrum estimated trial time 10 days. Signed by Magistrate Judge Gwynne E. Birzer on 7/9/2019. (rel) (Entered: 07/09/2019)
NOTICE of Screened Attorney by Laura Howard, Laura Kelly, Lee A. Norman (Campbell, Terrence) (Entered: 08/06/2019)
JOINT MEDIATION NOTICE - Mediation to be held October 24, 2019 by Laura Howard, Laura Kelly, Lee A. Norman re 53 Scheduling Order,, (Campbell, Terrence) (Entered: 08/19/2019)
NOTICE by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne of taking deposition of Kansas Department for Children and Families (Attachments: # 1 Exhibit, # 2 Certificate of Service)(Woody, Teresa) (Entered: 08/23/2019)

08/30/2019 57
08/30/2019 58 09/03/2019 59
09/03/2019 60 09/06/2019 61
09/06/2019 62 09/06/2019
63 09/26/2019 64

Unopposed MOTION for Leave to Amend Complaint re 1
Complaint (attorney),, by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Exhibit A)(Woody, Teresa) (Entered: 08/30/2019)
Unopposed MOTION to Proceed Using Pseudonyms by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Woody, Teresa) (Entered: 08/30/2019)
NOTICE of Errata by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne re 57 Unopposed MOTION for
Leave to Amend Complaint re 1 Complaint (attorney),, (Attachments: # 1 Corrected Exhibit A)(Woody, Teresa) (Entered: 09/03/2019)
NOTICE of Discovery Stipulation by Laura Howard, Laura Kelly, Lee A. Norman (Campbell, Terrence) (Entered: 09/03/2019)
ORDER granting 57 Plaintiffs' Unopposed Motion for Leave to File First Amended Complaint. Plaintiffs shall file their First Amended Complaint within five days of the date of this Order. Due to the length of the Complaint, Defendants shall have 21 days to answer. Signed by Magistrate Judge Gwynne E. Birzer on 9/6/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 09/06/2019)
ORDER granting 58 Plaintiff's Unopposed Motion to Proceed Using Pseudonyms. Signed by Magistrate Judge Gwynne E. Birzer on 9/6/2019. (rel) (Entered: 09/06/2019)
AMENDED COMPLAINT against Laura Howard, Laura Kelly, Lee A. Norman, filed by Kathryn Ashburn, Ashley Thorne, Ed Bigus, Katharyn McIntyre, Allan Hazlett.(Woody, Teresa) (Entered: 09/06/2019)
WITHDRAWAL OF COUNSEL by Terrence J. Campbell, Catherine C. Theisen, Matthew Rogers, Casey E. Forsyth, Dennis D. Depew and ENTRY OF APPEARANCE OF SUBSTITUTED COUNSEL by Jean Paul Bradshaw, II on behalf of All Defendants (Bradshaw, Jean) (Entered: 09/26/2019)

09/27/2019 65 09/27/2019 66
10/02/2019 67
10/08/2019 68
10/09/2019 69 10/09/2019 70 10/09/2019 71 10/10/2019 72 10/10/2019 73

Unopposed MOTION for Extension of Time to File Answer re 63
Amended Complaint by Defendants Laura Howard, Laura Kelly, Lee A. Norman (referred to Magistrate Judge Gwynne E. Birzer) (Bradshaw, Jean) (Entered: 09/27/2019)
ORDER granting 65 Unopposed Motion for Extension of Time to Answer First Amended Complaint. Defendants' answer due 10/7/2019. Signed by Magistrate Judge Gwynne E. Birzer on 9/27/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 09/27/2019)
AMENDED NOTICE by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne of taking deposition of Kansas Department for Children and Families (Attachments: # 1 Exhibit 1, # 2 Certificate of Service)(Woody, Teresa) (Entered: 10/02/2019)
MOTION for Leave to file Answer to First Amended Complaint by Defendants Laura Howard, Laura Kelly, Lee A. Norman (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Exhibit A - Answer to First Amended Complaint)(Bradshaw, Jean) (Entered: 10/08/2019)
ENTRY OF APPEARANCE by Brian C. Fries on behalf of Laura Howard, Laura Kelly, Lee A. Norman. (Fries, Brian) (Entered: 10/09/2019)
ENTRY OF APPEARANCE by Carrie E. Josserand on behalf of Laura Howard, Laura Kelly, Lee A. Norman. (Josserand, Carrie) (Entered: 10/09/2019)
ENTRY OF APPEARANCE by Reid Day on behalf of Laura Howard, Laura Kelly, Lee A. Norman. (Day, Reid) (Entered: 10/09/2019)
STATEMENT re 68 MOTION for Leave to file Answer to First Amended Complaint (Non-Opposition) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne. (Woody, Teresa) (Entered: 10/10/2019)
ORDER granting 68 Defendants' Motion for Leave to File Answer. Defendants shall file their Answer to Plaintiffs' Amended Complaint without delay. Signed by Magistrate Judge Gwynne E. Birzer on 10/10/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 10/10/2019)

10/10/2019 74 10/17/2019 75 10/21/2019 76 10/22/2019 77
10/24/2019 78
10/25/2019 79
10/25/2019 80
11/07/2019 81

ANSWER to 63 Amended Complaint by Laura Howard, Laura Kelly, Lee A. Norman.(Bradshaw, Jean) (Entered: 10/10/2019)
CERTIFICATE OF SERVICE of Responses and Objections of Defendants to Plaintiffs' First Requests for Production of Documents by Laura Howard, Laura Kelly, Lee A. Norman. (Bradshaw, Jean) (Entered: 10/17/2019)
ENTRY OF APPEARANCE by Grant Allen Harse on behalf of All Defendants (Harse, Grant) (Entered: 10/21/2019)
MOTION for attorney Joshua Kane to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC4957241.) by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit of Joshua Kane, # 2 ECF Registration Form)(Woody, Teresa) (Entered: 10/22/2019)
ORDER granting 77 Motion to Appear Pro Hac Vice of Joshua Kane for Plaintiffs pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Unless already registered, pro hac vice counsel should register for electronic notification pursuant to the court's Administrative Procedures by completing a CM/ECF Electronic Filing Registration Form at http://www.ksd.uscourts.gov/. Signed by Magistrate Judge Gwynne E. Birzer on 10/24/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 10/24/2019)
MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Defendant Governor Laura Kelly by Defendant Laura Kelly (Bradshaw, Jean) (Entered: 10/25/2019)
MEMORANDUM IN SUPPORT of 79 MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Defendant Governor Laura Kelly by Defendant Laura Kelly(Bradshaw, Jean) (Entered: 10/25/2019)
Unopposed MOTION for Extension of Time to File Response as
to 79 MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Defendant Governor Laura Kelly by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (Woody, Teresa) (Entered: 11/07/2019)

11/07/2019 82 11/08/2019 11/08/2019 83 11/12/2019 84
11/13/2019 85

Unopposed MOTION for extension of time to File Potential Motions to Compel Regarding Discovery Responses by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Woody, Teresa) (Entered: 11/07/2019)
MOTION REFERRAL to Magistrate Judge REMOVED as to: 81 Unopposed MOTION for Extension of Time to File Response
as to 79 MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Defendant Governor Laura Kelly . The motion will be resolved by the District Judge.(rel) (Entered: 11/08/2019)
ORDER granting 81 Plaintiffs' Unopposed Motion for Extension of
Time to File Response re 79 MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Defendant Governor Laura Kelly and the Response deadline is extended to 12/30/2019. Signed by District Judge John W. Lungstrum on 11/08/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ses) (Entered: 11/08/2019)
ORDER granting 82 Plaintiffs' Unopposed Motion for an Extension of Time to File Potential Motions to Compel Regarding Discovery Responses. The Court extends the time for Plaintiffs to file a motion to compel, if necessary, regarding Defendants' responses and/or objections to Plaintiffs' First Sets of Requests for Production of Documents until thirty days after Defendants have produced all responsive documents they intend to produce in response to those requests. Signed by Magistrate Judge Gwynne E. Birzer on 11/12/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (rel) (Entered: 11/12/2019)
ORDER. Counsel has informed the Court the parties are still continuing in their mediation efforts and have another mediation scheduled for December 16, 2019. By December 20, 2019, counsel shall file an ADR report informing the Court whether the mediation is concluded, and if so, the result of such mediation, or whether the parties require more time to mediate. IT IS SO ORDERED. Signed by Magistrate Judge Gwynne E. Birzer on 11/13/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(rel) (Entered: 11/13/2019)

12/09/2019 86 12/09/2019 12/10/2019 87
12/10/2019 88 12/10/2019 89 12/20/2019 90 12/20/2019 91 12/23/2019 92

Unopposed MOTION for Extension of Time to File Response as
to 79 MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Defendant Governor Laura Kelly by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (Woody, Teresa). (Entered: 12/09/2019)
MOTION REFERRAL to Magistrate Judge REMOVED as to: 86 Unopposed MOTION for Extension of Time to File Response
as to 79 MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Defendant Governor Laura Kelly . The motion will be resolved by the District Judge.(adc) (Entered: 12/09/2019)
ORDER granting 86 Plaintiffs' Motion for Extension of Time to File
Response re 79 MOTION to Dismiss Defendant Governor Laura Kelly and the Response deadline is extended to 2/13/2020. The court grants this extension but with caveat that no further extensions are contemplated without a particularized showing why the additional time is necessary for the filing of a response. Signed by District Judge John W. Lungstrum on 12/10/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ses) (Entered: 12/10/2019)
NOTICE OF WITHDRAWAL OF APPEARANCE by attorney David S. Sager as to All Plaintiffs (Woody, Teresa) (Entered: 12/10/2019)
NOTICE OF WITHDRAWAL OF APPEARANCE by attorney William J. Diggs as to All Plaintiffs (Woody, Teresa) (Entered: 12/10/2019)
ADR REPORT by Laura Howard, Laura Kelly, Lee A. Norman. ADR session held on: See attached and conducted by Kevin Ryan. Results of ADR: Case did not settle. Status of litigation at time of ADR: Partial Discovery (Attachments: # 1 Attachment to ADR Report)(Bradshaw, Jean) (Entered: 12/20/2019)
Joint MOTION to Stay Discovery for 45 Days and Modify the Scheduling Order by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Woody, Teresa) (Entered: 12/20/2019)
NOTICE OF HEARING: Telephone Conference set for 12/23/2019 at 11:00 AM by telephone before Magistrate Judge Gwynne E. Birzer. Participants shall dial into the conference call at 888-363-

12/23/2019 93 12/23/2019 94 01/06/2020 95 02/13/2020 96 02/13/2020 97
02/14/2020 98

4749, enter access code 9686294#, and follow the prompts to join the call. THIS IS AN OFFICIAL NOTICE FOR THIS HEARING. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ala) (Entered: 12/23/2019)
MINUTE ENTRY for proceedings held before Magistrate Judge Gwynne E. Birzer: TELEPHONE CONFERENCE held on 12/23/2019. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ala) (Entered: 12/23/2019)
ORDER granting 91 Joint Motion for a 45 day stay of discovery and modification of the Scheduling Order. Mediation to be completed by 2/28/20. Discovery deadline 1/15/2021. SEE ATTACHMENT FOR FURTHER DATES. Signed by Magistrate Judge Gwynne E. Birzer on 12/23/19. (ala) (Entered: 12/23/2019)
NOTICE OF CHANGE OF ADDRESS by Grant Allen Harse (Harse, Grant) (Entered: 01/06/2020)
MEMORANDUM IN OPPOSITION by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne re 79
MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Defendant Governor Laura Kelly (Woody, Teresa) (Entered: 02/13/2020)
AFFIDAVIT of Declaration of Teresa Woody in Support of re 96 Memorandum in Opposition to Motion, by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley
Thorne. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19)(Woody, Teresa) (Entered: 02/13/2020)
ORDER OF RECUSAL. District Judge John W Lungstrum recused. Case reassigned to District Judge Daniel D. Crabtree for all further proceedings. Signed by District Judge John W. Lungstrum on 02/14/2020. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(ses) (Entered: 02/14/2020)

02/25/2020 99 02/25/2020 03/02/2020 100
03/03/2020 101
03/12/2020 102
03/13/2020 103 03/24/2020 104

Unopposed MOTION for Extension of Time to File REPLY as to 96 Memorandum in Opposition to Motion, 97 Affidavit,, by Defendant Laura Kelly (Bradshaw, Jean) (Entered: 02/25/2020)
MOTION REFERRAL to Magistrate Judge REMOVED as to: 99 Unopposed MOTION for Extension of Time to File REPLY as to 96 Memorandum in Opposition to Motion, 97 Affidavit,, . The motion will be resolved by the District Judge.(ala) (Entered: 02/25/2020)
CERTIFICATE OF SERVICE of Plaintiffs' Second Requests for Production of Documents and First Set of Interrogatories to Defendant Laura Howard, in Her Official Capacity as Secretary of the Kansas Department for Children & Families by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne. (Woody, Teresa) (Entered: 03/02/2020)
ORDER granting 99 Motion for Extension of Time to File Reply
re 79 MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Defendant Governor Laura Kelly. Reply deadline extended to 3/12/2020. Signed by District Judge Daniel D. Crabtree on 03/03/2020. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (mig) (Entered: 03/03/2020)
REPLY TO RESPONSE TO MOTION by Defendant Laura Kelly re: 79
MOTION to Dismiss for Lack of Jurisdiction Motion to Dismiss Defendant Governor Laura Kelly REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS GOVERNOR LAURA KELLY (Bradshaw, Jean) (Entered: 03/12/2020)
ADR REPORT by Laura Howard, Laura Kelly, Lee A. Norman. ADR session held on: February 7, 25, and 26, 2020 and conducted by Kevin Ryan. Results of ADR: Case did not settle. Status of litigation at time of ADR: Partial Discovery (Attachments: # 1 Attachment)(Bradshaw, Jean) (Entered: 03/13/2020)
CERTIFICATE OF SERVICE of Plaintiffs' Third Set of Requests for Production of Documents to Defendant Laura Howard, in Her Official Capacity as Secretary of the Kansas Department for Children & Families by Kathryn Ashburn, Ed Bigus, Allan Hazlett,

04/01/2020 105 04/03/2020 106
04/10/2020 107 04/10/2020 108 04/10/2020 109 04/10/2020 110 04/10/2020 111

Katharyn McIntyre, Ashley Thorne. (Woody, Teresa) (Entered: 03/24/2020)
CERTIFICATE OF SERVICE of Answers/Responses and Objections to Plaintiffs' First Set of Interrogatories and Second Set of Requests for Production of Documents by Laura Howard. (Bradshaw, Jean) (Entered: 04/01/2020)
CERTIFICATE OF SERVICE of (1) Plaintiffs' Fourth Set of Requests for Production of Documents to Defendant Laura Howard, in Her Official Capacity as Secretary of the Kansas Department for Children & Families, (2) Plaintiffs' Second Set of Requests for Production of Documents to Defendant Laura Howard, in Her Official Capacity as Secretary of the Kansas Department for Aging and Disability Services, and (3) Plaintiffs' Second Set of Requests for Production of Documents to Dr. Lee A. Norman, in His Official Capacity as Secretary of the Kansas Department for Health and Environment by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne. (Woody, Teresa) (Entered: 04/03/2020)
CERTIFICATE OF SERVICE of Plaintiffs' Notice of Subpoena to Aetna Better Health of Kansas, Inc., Sunflower State Health Plan, Inc., United Healthcare of the Midwest, Inc., and Amerigroup Kansas, Inc. by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (Woody, Teresa) (Entered: 04/10/2020)
NOTICE OF INTENT TO ISSUE SUBPOENA by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne Subpoena to be issued to: Aetna Better Health of Kansas, Inc. (Attachments: # 1 Exhibit 1)(Woody, Teresa) (Entered: 04/10/2020)
NOTICE OF INTENT TO ISSUE SUBPOENA by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne Subpoena to be issued to: Amerigroup Kansas, Inc. (Attachments: # 1 Exhibit 1)(Woody, Teresa) (Entered: 04/10/2020)
NOTICE OF INTENT TO ISSUE SUBPOENA by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne Subpoena to be issued to: Sunflower State Health Plan, Inc. (Attachments: # 1 Exhibit 1)(Woody, Teresa) (Entered: 04/10/2020)
NOTICE OF INTENT TO ISSUE SUBPOENA by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne Subpoena

04/17/2020 112 04/23/2020 113 04/30/2020 114 04/30/2020 115 05/01/2020 116
05/06/2020 117 06/03/2020
118 06/03/2020 119

to be issued to: United Healthcare of the Midwest, Inc. (Attachments: # 1 Exhibit 1)(Woody, Teresa) (Entered: 04/10/2020)
CERTIFICATE OF SERVICE of Responses & Objections to Plaintiffs' 4th RFP to Howard (DCF), 2nd RFP to Howard (KDADS), and 2nd RFP to Norman (KDHE) by Laura Howard, Lee A. Norman. (Bradshaw, Jean) (Entered: 04/17/2020)
CERTIFICATE OF SERVICE of Defendant Laura Howard (DCF) Responses & Objections to Plaintiffs' Third Set of Requests for Production of Documents by Laura Howard. (Bradshaw, Jean) (Entered: 04/23/2020)
CERTIFICATE OF SERVICE of Defendants' First Interrogatories to Plaintiffs (individually) and Defendants' First Requests for Production to Plaintiffs by Laura Howard, Laura Kelly, Lee A. Norman. (Bradshaw, Jean) (Entered: 04/30/2020)
CERTIFICATE OF SERVICE of Defendants' First Interrogatories to Plaintiffs (individually) and Defendants' First Requests for Production to Plaintiff Amended Certificate of Service by Laura Howard, Lee A. Norman. (Bradshaw, Jean) (Entered: 04/30/2020)
Unopposed MOTION for extension of time to File Potential Motions to Compel Regarding Discovery Responses by Plaintiffs Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Woody, Teresa) (Entered: 05/01/2020)
ORDER granting 116 Unopposed Motion for Extension of Time to File Potential Motions to Compel. Signed by Magistrate Judge Gwynne E. Birzer on 5/6/2020. (rel) (Entered: 05/06/2020)
MEMORANDUM AND ORDER granting 79 Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge Daniel D. Crabtree on 6/3/2020. (smc) (Entered: 06/03/2020)
NOTICE OF INTENT TO ISSUE SUBPOENA by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne Subpoena to be issued to: Cornerstones of Care (Attachments: # 1 Exhibit)(Woody, Teresa) (Entered: 06/03/2020)

06/03/2020 120 06/03/2020 121 06/03/2020 122 06/17/2020 123 06/17/2020 124 06/17/2020 125 06/17/2020 126 06/18/2020 127
06/22/2020 128
06/23/2020 129

NOTICE OF INTENT TO ISSUE SUBPOENA by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne Subpoena to be issued to: KVC Behavioral Healthcare, Inc. (Attachments: # 1 Exhibit)(Woody, Teresa) (Entered: 06/03/2020)
NOTICE OF INTENT TO ISSUE SUBPOENA by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne Subpoena to be issued to: Saint Francis Ministries, Inc. (Attachments: # 1 Exhibit)(Woody, Teresa) (Entered: 06/03/2020)
NOTICE OF INTENT TO ISSUE SUBPOENA by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne Subpoena to be issued to: TFI Family Services, Inc. (Attachments: # 1 Exhibit)(Woody, Teresa) (Entered: 06/03/2020)
ENTRY OF APPEARANCE by Kathryn A. Regier on behalf of Saint Francis Ministries, Inc.. (Regier, Kathryn) (Entered: 06/17/2020)
NOTICE of Limited Entry of Appearance by KVC Behavioral Healthcare, Inc. (Johannsen, Derek) (Entered: 06/17/2020)
ENTRY OF APPEARANCE by James D. Lawrence on behalf of Cornerstones of Care. (Lawrence, James) (Entered: 06/17/2020)
Joint MOTION for extension of time by Movant KVC Behavioral Healthcare, Inc. (referred to Magistrate Judge Gwynne E. Birzer) (Johannsen, Derek) (Entered: 06/17/2020)
ORDER granting 126 Movants' Unopposed Motion for Extension of Time to File. Movants KVC, Cornerstones, and St. Francis are granted an extension of time in which to file objections and/or motions to quash or otherwise modify the subpoenas up to and including July 6, 2020. Signed by Magistrate Judge Gwynne E. Birzer on 6/18/2020. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ala) (Entered: 06/18/2020)
NOTICE of Hearing: THIS IS AN OFFICIAL NOTICE FOR THIS HEARING (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) Telephone Status Conference set for 6/23/2020 at 09:30 AM in Telephone DDC - CONFERENCE LINE 1-888-363-4749; ACCESS CODE 8354715 before District Judge Daniel D. Crabtree. (mig) (Entered: 06/22/2020)
MINUTE ENTRY for proceedings held before District Judge Daniel D. Crabtree: TELEPHONE STATUS CONFERENCE held on

06/30/2020 130 07/01/2020 131 07/08/2020
132 07/08/2020 133 07/09/2020 134 07/23/2020 135
07/23/2020 136
07/24/2020 137

6/23/2020. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (mig) (Entered: 06/23/2020)
ENTRY OF APPEARANCE by David R. Cooper on behalf of TFI Family Services, Inc. (Cooper, David) (Entered: 06/30/2020)
STIPULATION by Kathryn Ashburn, Ed Bigus, Cornerstones of Care, Allan Hazlett, KVC Behavioral Healthcare, Inc., Katharyn McIntyre, Saint Francis Ministries, Inc., TFI Family Services, Inc., Ashley Thorne. (Johannsen, Derek) (Entered: 07/01/2020)
STIPULATION of Partial Dismissal of Named Plaintiffs V.A., M.J., R.R., and B.B. (Joint) by Kathryn Ashburn, Ed Bigus, Allan Hazlett, Katharyn McIntyre, Ashley Thorne. (Woody, Teresa) (Entered: 07/08/2020)
NOTICE OF SETTLEMENT by Allan Hazlett, Katharyn McIntyre, Ashley Thorne (Attachments: # 1 Exhibit A)(Woody, Teresa) (Entered: 07/08/2020)
NOTICE of Errata by Allan Hazlett, Katharyn McIntyre, Ashley Thorne re 133 Notice of Settlement (Attachments: # 1 Settlement Agreement with Attachments)(Woody, Teresa) (Entered: 07/09/2020)
MOTION for attorney Caryn G. Schechtman to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC-5206208.) by Plaintiffs Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit of Caryn G. Schechtman, # 2 ECF Registration Form)(Woody, Teresa) (Entered: 07/23/2020)
MOTION for attorney Jeffrey Rotenberg to appear pro hac vice ( Pro hac vice fee $50, Internet Payment Receipt Number AKSDC5206213.) by Plaintiffs Allan Hazlett, Katharyn McIntyre, Ashley Thorne (referred to Magistrate Judge Gwynne E. Birzer) (Attachments: # 1 Affidavit of Jeffrey Rotenberg, # 2 ECF Registration Form)(Woody, Teresa) (Entered: 07/23/2020)
ORDER granting 135 Motion to Appear Pro Hac Vice of Caryn G. Schechtman for Allan Hazlett, Katharyn McIntyre, and Ashley Thorne pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Signed by Magistrate Judge Gwynne E. Birzer on 7/24/2020. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ala) (Entered: 07/24/2020)

07/24/2020 138 07/27/2020 139 09/09/2020 140 09/09/2020

ORDER granting 136 Motion to Appear Pro Hac Vice of Jeffrey Rotenberg for Allan Hazlett, Katharyn McIntyre, and Ashley Thorne pursuant to D. Kan. Rule 83.5.4 for purposes of this case only. Signed by Magistrate Judge Gwynne E. Birzer on 7/24/20. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (ala) (Entered: 07/24/2020)
Unopposed MOTION for Settlement (Preliminary Approval of a Class Action Settlement) by Plaintiffs Allan Hazlett, Katharyn McIntyre, Ashley Thorne (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Declaration, # 4 Declaration, # 5 Declaration, # 6 Declaration, # 7 Declaration)(Woody, Teresa) (Entered: 07/27/2020)
ORDER granting 139 Unopposed MOTION for Settlement (Preliminary Approval of a Class Action Settlement). See order for further details and deadlines. Signed by District Judge Daniel D. Crabtree on 9/9/2020. (hw) (Entered: 09/09/2020)
Set Hearings: Final Approval Hearing set for 1/22/2021 at 09:00 AM in KC Courtroom 476 (DDC)before District Judge Daniel D. Crabtree per 140 Order.(hw) (Entered: 09/09/2020)

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 Case 2:18-cv-02617-JWL-GEB Document 1 Filed 11/16/18 Page 1 of 68

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS KANSAS CITY DIVISION

M.B. and S.E. through their next friend Katharyn McIntyre, V.A. through his next friend Kathryn Ashburn, J.M. through his next friend Ed Bigus, M.J. through his next friend Ed Bigus, R.M. through his next friend Allan Hazlett, C.A. through his next friend Allan Hazlett, Z.Z. through her next friend Ashley Thorne, B.B. through her next friend Ashley Thorne, and M.L. through her next friend Ashley Thorne, for themselves and those similarly situated,
Plaintiffs,
v.
Jeff Colyer in his official capacity as Kansas Governor, Gina Meier-Hummel in her official capacity as Kansas Department for Children and Families Secretary, Jeff Andersen in his official capacity as Kansas Department of Health and Environment Secretary, and Tim Keck in his official capacity as Kansas Department for Aging and Disability Services Secretary,
Defendants.

) ) ) ) ) ) Case No. 18-cv-2617 ) ) COMPLAINT—CLASS ACTION ) ) ) ) ) ) ) )

COMPLAINT I. INTRODUCTION 1. In September of 2018, the media reported the alleged rape of a thirteen-year-old girl sleeping in a child welfare agency office in Johnson County, Kansas. The story of this child – staying overnight in an office because Kansas’ broken system lacked any housing for her – exemplified a long known danger. Kansas’ child welfare system is, and has been for at least a decade, systematically failing to protect the safety and well-being of vulnerable children and youth

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in foster care in the custody of the Kansas Department for Children and Families (DCF). This action addresses two fundamental systemic failures creating this danger.
2. First, Defendants – state officials responsible for the operation of the statewide foster care system in Kansas – maintain the dangerous practice of subjecting children in foster care to extreme housing disruption, also known as churning. Children in DCF custody needlessly move from placement to placement more than fifteen or twenty times, and some children even move more than fifty or one hundred times. Alarmingly, DCF frequently subjects children to “night-tonight” or short-term placements. In a repetitive, destabilizing cycle, children are regularly forced to sleep for a night or several nights anywhere a bed, couch, office conference room, shelter or hospital can be found. For days, weeks, or even months at time, they spend their nights in these short-term placements and their days in agency offices waiting to find out where they will sleep next, only to repeat the same cycle again. DCF’s practice of extreme housing disruption inherently deprives children of basic shelter and effectively renders them homeless while in state custody.
3. According to DCF data, as of June 2018, there were 7,687 children in DCF custody. Between April and September of 2018 alone, 1,459 of the children in care were forced to sleep in one-night placements. This figure, while alarming, fails to fully capture the scope of the harm children in DCF custody face. It reflects neither children churning through multiple night-to-night placements nor those housed in short-term transient placements for up to a week or a month at a time.
4. The Named Plaintiff children in this action have been moved anywhere from ten to over one hundred times while in DCF custody. Much of that churning has occurred in just the past one to two years. Given the fluid nature of the foster care population, Defendants constantly expose
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different children to extreme housing disruption, as a child with just one or two placements today can become the child with ten, twenty, or more placements in the near future.
5. The practice of churning in Kansas causes and presents a risk of emotional, psychological, developmental and neurological harm. Research literature and studies show that churning causes and worsens both attachment and behavioral disorders. Research literature and studies also demonstrate that churning causes direct physical harm to children’s normal brain development; a child’s brain, central nervous system, and endocrine system are directly harmed by the practice.
6. Second, Defendants fail to provide children in DCF custody with mental health and behavioral health screening, diagnostic services, and treatment, including trauma-related screening and diagnostic services. The failure to provide mental health services mandated by the federal Medicaid statute causes, and risks causing, profound emotional and psychological harm to children in foster care. All children entering foster care in Kansas have suffered the known trauma of removal from their homes, and thousands of children in DCF custody have identified mental health needs and disorders at any given time. Yet, known shortages, delays, and waitlists for mental health services and treatment, including administrative barriers to prompt and sustained service delivery, continue to result in children being deprived of the mental health care they require.
7. The fundamental problems of churning and mental health service delivery failures are deeply interconnected. In Kansas, churning often delays or disrupts mental health screens, diagnostic services, and treatment, and the trauma of churning itself causes harm and makes the need for prompt mental health services even more urgent. This in turn contributes to more instability because foster families are frequently unable and unprepared to meet children’s unidentified and/or untreated mental health needs. For instance, while in foster care, ten-year-old
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Named Plaintiff C.A. has been moved among foster homes, group homes, and agency offices more than seventy times. In 2018, he endured a three-month string of continuous night-to-night placements. Treatment for C.A.’s attention deficit disorder (ADD) and post-traumatic stress disorder (PTSD), both diagnosed while C.A. has been in DCF custody, has been disrupted in significant part because he has been moved around so often. Similarly, seventeen-year-old Named Plaintiff M.L. was diagnosed with a mood disorder after being moved over forty times while in DCF custody, bouncing among homes, facilities, offices and other night-to-night placements. Yet she has received inconsistent or negligible mental health treatment, in significant part because she has been moved so frequently.
8. Named Plaintiffs and their Next Friends bring this federal civil rights class action pursuant to FED. R. CIV. P. 23(a) and (b)(2), as well as 42 U.S.C. § 1983, on behalf of themselves and a statewide general class of children who are or will be placed in foster care in the protective custody of DCF, and a subclass of children who have identified mental health treatment needs.
9. Defendants include Kansas Governor Jeff Colyer, Kansas DCF Secretary Gina Meier-Hummel, Kansas Department of Health and Environment (“KDHE”) Secretary Jeff Andersen, and Kansas Department for Aging and Disability Services (“KDADS”) Secretary Tim Keck, all sued in their official capacities.
10. Plaintiffs seek solely declarative and injunctive relief compelling Defendants to remedy known dangerous practices and specific structural deficiencies in the Kansas foster care system. Plaintiffs further seek to end violations of their federal rights under the Fourteenth Amendment to the U.S. Constitution, and under the Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) provisions of the federal Medicaid Act, and the resulting harms, and risks of harm, to foster children in DCF custody.
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II. JURISDICTION & VENUE 11. This class action for declaratory and injunctive relief is brought pursuant to 42 U.S.C. § 1983 to redress the ongoing deprivation of rights guaranteed by the United States Constitution and federal statutory law. 12. Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). Plaintiffs’ claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201 and 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure. 13. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events and omissions giving rise to the claims herein occurred in this district and because Defendants maintain offices in this district.
III. PARTIES A. THE NAMED PLAINTIFFS AND NEXT FRIENDS M.B. and S.E.
14. M.B. and S.E. are brothers, aged seven and eight, respectively, who are currently in foster care in DCF custody. M.B. and S.E. have both been in DCF custody for almost eight months. Pursuant to FED. R. CIV. P. 17(c)(2), M.B. and S.E.’s case is brought by their adult Next Friend, Katharyn McIntyre, who resides in Leavenworth County, Kansas. Ms. McIntyre is sufficiently familiar with the facts of M.B. and S.E.’s situation and is dedicated to fairly and adequately representing M.B. and S.E.’s interests in this litigation.
15. M.B. and S.E. first entered DCF custody together in Doniphan County in March 2018, when they were six and seven years old, respectively.
16. Prior to entering DCF custody, S.E. was diagnosed with attention deficit hyperactivity disorder (ADHD), and received medication for this condition.
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17. Upon entering DCF custody, M.B. and S.E. were immediately separated from their older sister. Defendants subjected M.B. and S.E. to extreme housing disruption, including nightto-night placements for nearly a week.
18. M.B. and S.E. did not receive any diagnostic services to assess the trauma they suffered in connection with their removal.
19. For a period of approximately four months in 2018, DCF placed M.B. and S.E. together in Ms. McIntyre’s home. While in this home, M.B. began exhibiting behavioral health issues. Ms. McIntyre requested mental health assessment and treatment for M.B. multiple times. Despite these requests, DCF failed to provide either M.B. or S.E. with the mental health treatment they required. M.B.’s mental health continued to deteriorate, and he required hospitalization twice during this four-month period.
20. Despite their clear need for mental and behavioral health services, DCF continued to fail to provide adequate mental health services for M.B. and S.E. Without these necessary supports, that foster home was unable to continue caring for them. DCF then separated M.B. and S.E. from each other, again subjecting them to a period of extreme housing disruption, including night-to-night placements. After leaving Ms. McIntyre’s home, S.E.’s mental health deteriorated and he required hospitalization.
21. Upon information and belief, DCF is still separating M.B. and S.E. from each other, and their mental health treatment has been inconsistent, disrupted and inadequate. DCF has moved both M.B. and S.E. at least fifteen times.
22. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate M.B. and S.E.’s substantive due process and federal statutory rights. Defendants have failed to protect M.B. and S.E. from harm and risk of harm by subjecting
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them to extreme housing disruption, including repeated night-to-night placements, and by failing to provide for their mental health screening, diagnostic, and/or treatment needs. M.B. and S.E. continue to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices. V.A.
23. V.A. is a fifteen-year-old boy currently in foster care in DCF custody. V.A. has been in DCF custody for approximately seven months. Pursuant to FED. R. CIV. P. 17(c)(2), V.A.’s case is brought by his adult Next Friend, Kathryn Ashburn, who resides in Franklin County, Kansas. Ms. Ashburn is sufficiently familiar with the facts of V.A.’s situation and is dedicated to fairly and adequately representing V.A.’s interests in this litigation.
24. Upon information and belief, V.A. first entered DCF custody in April 2018 in Franklin County.
25. DCF has already subjected V.A. to extreme housing disruption and has moved him among different placements over ten times in the seven months that V.A. has been in custody. His placements have included over a week of night-to-night placements, two group homes, and a foster home. Although V.A. is originally from Franklin County, DCF has already moved him to Paola County, Sedgwick County, and Wyandotte County. He is presently in a foster home in Shawnee County.
26. Upon information and belief, V.A. still does not have a stable placement. Since entering DCF custody, V.A. has not received any diagnostic services to assess the trauma he suffered in connection with his removal. Additionally, V.A. has not received any mental health or behavioral health screening, diagnostic services, or treatment.
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27. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate V.A.’s substantive due process and federal statutory rights. Defendants have failed to protect V.A. from harm and risk of harm by subjecting him to extreme housing disruption, including repeated night-to-night placements, and by failing to provide for his mental health screening, diagnostic and/or treatment needs. V.A. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices. J.M.
28. J.M. is a sixteen-year-old boy currently in DCF custody in foster care. J.M. has been in DCF custody since March 2018. Pursuant to FED. R. CIV. P. 17(c)(2), J.M.’s case is brought by his adult Next Friend, Ed Bigus, who resides in Miami County, Kansas. Mr. Bigus is sufficiently familiar with the facts of J.M.’s situation and is dedicated to fairly and adequately representing J.M.’s interests in this litigation.
29. J.M. first entered DCF custody in Johnson County, Kansas. J.M. has a history of physical abuse, acting out, and depression. J.M. has been assessed with having disruptive mood dysregulation disorder and other specific episodic mood disorders, for which he requires counseling and/or psychotherapy. Despite his mental health needs, DCF did not even conduct an intake mental health assessment until he had been in custody for more than three months. On July 30, 2018, J.M. was found to be suffering from traumatic stress.
30. DCF has subjected J.M. to extreme housing disruption and has moved him among different placements more than twenty-five times in the few months he has been in DCF custody. J.M. has experienced weeks of short-term and night-to-night placements, spending his days at KVC offices. He has also spent the night at the KVC office.
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31. Despite his clear need for stability and consistent mental health services, DCF has continued to subject J.M. to extreme housing disruption, worsening J.M’s mental and emotional health.
32. J.M. still does not have a stable placement. He also has not been provided with consistent mental health services to meet his identified mental health treatment needs. The mental health treatment he has received has been repeatedly disrupted and inadequate.
33. J.M. has run away from his placements on multiple occasions. 34. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate J.M.’s substantive due process and federal statutory rights. Defendants have failed to protect J.M. from harm and risk of harm by subjecting him to extreme housing disruption, including repeated night-to-night placements, and by failing to provide for his mental health screening, diagnostic, and/or treatment needs. J.M. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices. M.J. 35. M.J. is a seventeen-year-old boy currently in DCF custody in foster care. M.J. has been in DCF custody for nine years. Pursuant to FED. R. CIV. P. 17(c)(2), M.J.’s case is brought by his adult Next Friend, Ed Bigus, who resides in Miami County, Kansas. Mr. Bigus is sufficiently familiar with the facts of M.J.’s situation and is dedicated to fairly and adequately representing M.J.’s interests in this litigation. 36. M.J. first entered DCF custody nine years ago in Johnson County, Kansas, when he was eight years old. 37. M.J. has intense mental health needs, for which he has been prescribed medications. He is currently housed at a youth residential facility.
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38. DCF has subjected M.J. to extreme housing disruption and has moved him more than eighty times among different placements, including group homes, shelters, psychiatric residential treatment facilities (“PRTFs”), and multiple night-to-night placements. For the past five years, M.J. has been repeatedly housed in night-to-night placements, sometimes for weeks at a time. When subjected to night-to-night placements, J.M. would be forced to stay in KVC offices during the day.
39. Despite his clear need for stability and consistent mental health services, DCF has continued to subject M.J. to extreme housing disruption, worsening M.J.’s mental and emotional health.
40. DCF has also failed to provide M.J. with mental health services for prolonged periods of time, especially after he has been discharged from residential facilities or moved to different parts of the state. Any mental health services he has received have been inconsistent, disrupted, and inadequate.
41. The churning DCF has imposed on M.J. has disrupted his access to education. During his numerous night-to-night placements, J.M. was not attending school at all.
42. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate M.J.’s substantive due process and federal statutory rights. Defendants have failed to protect M.J. from harm and risk of harm by subjecting him to extreme housing disruption, including repeated night-to-night placements, and by failing to provide for his mental health screening, diagnostic, and/or treatment and service needs. M.J. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
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R.M. 43. R.M. is a thirteen-year-old boy currently in DCF custody in foster care. R.M. has
been in DCF custody for six years. Pursuant to FED. R. CIV. P. 17(c)(2), R.M.’s case is brought by his adult Next Friend, Allan Hazlett, who resides in Shawnee County, Kansas. Mr. Hazlett is sufficiently familiar with the facts of R.M.’s situation and is dedicated to fairly and adequately representing R.M.’s interests in this litigation.
44. R.M. first entered DCF custody in 2012 in Shawnee County, Kansas, when he was seven years old. He remained in foster care for three years until 2015 when he became eligible for adoption.
45. R.M. was moved out of state for a possible adoption with a relative in Iowa. However, DCF failed to take the necessary steps to finalize the adoption. As a result, the placement disrupted and R.M. returned to Kansas.
46. When he returned to DCF custody, R.M was placed in a PRTF. In or around 2016, R.M. was diagnosed with attention deficit disorder (ADD), oppositional defiance disorder (ODD), post-traumatic stress disorder (PTSD), and a mood disorder, for which he was prescribed psychotropic medications and requires counseling and/or psychotherapy.
47. DCF has subjected R.M. to extreme housing disruption and has moved him among different placements over 130 times since he has been in DCF custody. R.M.’s placements have included foster homes, group homes, and other facilities, as well as multiple night-to-night and short-term placements. While in DCF custody, R.M. has received inconsistent mental health services. In 2016, at eleven years old, R.M. was so desperate for a stable loving home that he ran away from his DCF placement for several days.
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48. Despite his clear need for stability and consistent mental health services, DCF has continued to subject R.M. to extreme housing disruption, worsening R.M.’s mental and emotional health. Since 2016, R.M. has been hospitalized for mental health related issues on three separate occasions.
49. The churning DCF has imposed on R.M. has caused him to frequently change schools. During some of his night-to-night and short-term placements, he has not attended school at all. Despite being a competent student, the constant disruption has caused R.M. to fall behind in his education.
50. R.M. still does not have a stable placement. He also is not receiving mental health services, including counseling and/or psychotherapy, to meet his identified mental health treatment needs. Any mental health services he has received have been inconsistent, disrupted and inadequate.
51. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate R.M.’s substantive due process and federal statutory rights. Defendants have failed to protect R.M. from harm and risk of harm by subjecting him to extreme housing disruption, including repeated night-to-night and short-term placements, and by failing to provide for his mental health screening, diagnostic, and/or treatment needs. R.M. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
C.A. 52. C.A. is a ten-year-old boy currently in DCF custody in foster care. C.A. has been
in DCF custody for six years. Pursuant to FED. R. CIV. P. 17(c)(2), C.A.’s case is brought by his adult Next Friend, Allan Hazlett, who resides in Shawnee County, Kansas. Mr. Hazlett is
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sufficiently familiar with the facts of C.A.’s situation and is dedicated to fairly and adequately representing C.A.’s interests in this litigation.
53. C.A. first entered DCF custody in 2012 in Shawnee County, Kansas, when he was four years old. C.A. entered DCF custody with his sister. However, C.A. was soon separated from his sister when she was placed with her biological father.
54. DCF has subjected C.A. to extreme housing disruption and has moved C.A. among different placements over seventy times since he has been in DCF custody. C.A.’s placements have included foster homes and group homes, as well as multiple night-to-night and short-term placements. DCF has forced C.A. to sleep overnight at child welfare offices on multiple occasions. From approximately March through May of 2018, DCF subjected C.A. to a near continuous threemonth string of night-to-night placements in different settings. During this time, ten-year-old C.A. never knew where he would sleep each night.
55. While in DCF custody, C.A. has been diagnosed with ADD and PTSD. He has been prescribed psychotropic medications for ADD and requires counseling and/or psychotherapy. He has an individual education plan (IEP) at school for behavioral health issues relating to his mental health conditions. The churning DCF has imposed on C.A. has caused him to frequently change schools, and during some of his night-to-night and short-term placements he has not attended school at all.
56. C.A. still does not have a stable placement. He is also not receiving mental health services, including counseling and/or psychotherapy, to meet his identified mental health treatment needs. Any services he has received have been inconsistent, disrupted and inadequate.
57. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate C.A.’s substantive due process and federal statutory rights.
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Defendants have failed to protect C.A. from harm and risk of harm by subjecting him to extreme housing disruption, including repeated night-to-night and short-term placements, and by failing to provide for his mental health screening, diagnostic, and/or treatment needs. C.A. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices. Z.Z.
58. Z.Z. is an eleven-year-old girl currently in DCF custody in foster care. Z.Z. has been in DCF custody for six years. Pursuant to FED. R. CIV. P. 17(c)(2), Z.Z.’s case is brought by her adult Next Friend, Ashley Thorne, who resides in Sedgwick County, Kansas. Ms. Thorne is sufficiently familiar with the facts of Z.Z.’s situation and is dedicated to fairly and adequately representing Z.Z.’s interests in this litigation.
59. Z.Z. first entered DCF custody in 2012 in Butler County, Kansas, when she was five years old. Z.Z. was initially placed with an elderly foster mother. Due to the foster mother’s health, she was unable to adequately care for Z.Z., and Z.Z. was moved from this home.
60. After her initial placement disrupted, Z.Z. started to exhibit behavioral health problems. DCF placed Z.Z. in a PRTF in Topeka, across the state from her home community.
61. While Z.Z. was living in the PRTF for several months, her mental health began to improve, but, upon information and belief, her treatment was artificially cut short. Despite Z.Z.’s continued need for mental health treatment, she left the PRTF prematurely and without access to any “step down” placements to meet her ongoing treatment needs. Instead, Z.Z. was moved from the PRTF to a string of night-to-night and short-term placements, including being forced to sleep overnight in child welfare offices.
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62. DCF has subjected Z.Z. to extreme housing disruption and has moved Z.Z. among different foster homes, group homes, and other facilities over twenty-five times since she has been in DCF custody. Z.Z.’s placements have included multiple night-to-night and short-term placements.
63. After a desperate and tragic episode where she placed her own life and her foster mother’s life at risk, Z.Z. languished for months on a waiting list for a second PRTF placement. She did not receive a diagnostic brain scan or alternative treatment despite an identified need and requests for this treatment.
64. Even while Z.Z. was on the PRTF waiting list due to her identified need for mental health services, DCF continued to subject her to continued extreme housing disruption. Z.Z. was moved among ten different placements between May 2017 and June 2018.
65. Z.Z. still does not have a stable placement. She has not received mental health services, including counseling and/or psychotherapy, that are necessary to meet her identified mental health treatment needs. Any services she has received have been inconsistent, disrupted and inadequate.
66. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate Z.Z.’s substantive due process and federal statutory rights. Defendants have failed to protect Z.Z. from harm and risk of harm by subjecting her to extreme housing disruption, including repeated night-to-night placements, and by failing to provide for her mental health screening, diagnostic, and/or treatment needs. Z.Z. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
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B.B. 67. B.B. is a sixteen-year-old girl currently in DCF custody in foster care. B.B. has
been in DCF custody for six years. Pursuant to FED. R. CIV. P. 17(c)(2), B.B.’s case is brought by her adult Next Friend, Ashley Thorne, who resides in Sedgwick County, Kansas. Ms. Thorne is sufficiently familiar with the facts of B.B.’s situation and is dedicated to fairly and adequately representing B.B.’s interests in this litigation.
68. B.B. first entered DCF custody in 2012 in Butler County. B.B. was adopted shortly after she entered DCF custody, but the adoption disrupted and she returned to DCF custody. B.B.’s mental health and behavior deteriorated after the adoption disrupted.
69. DCF has subjected B.B. to extreme housing disruption and has moved B.B. among different placements numerous times since she has been in DCF custody. B.B.’s placements have included foster homes, group homes, and other facilities, as well as multiple night-to-night and short-term placements. B.B. has been placed in a PRTF several times. She has also been placed in juvenile justice facilities.
70. B.B. still does not have a stable placement. She also is not receiving mental health services, including counseling and/or psychotherapy, to meet her identified mental health treatment needs. Any services she has received have been inconsistent, disrupted and inadequate. Upon information and belief, for the last several months DCF has subjected B.B. to a string of night-to-night and short-term placements, and B.B. has run away from them on multiple occasions.
71. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate B.B.’s substantive due process and federal statutory rights. Defendants have failed to protect B.B. from harm and risk of harm by subjecting her to extreme housing disruption, including repeated night-to-night placements and by failing to provide for her
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mental health screening, diagnostic, and/or treatment needs. B.B. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
M.L. 72. M.L. is a seventeen-year-old girl currently in DCF custody in foster care. Pursuant
to FED. R. CIV. P. 17(c)(2), M.L.’s case is brought by her adult Next Friend, Ashley Thorne, who resides in Sedgwick County, Kansas. Ms. Thorne is sufficiently familiar with the facts of M.L.’s situation, and she is dedicated to fairly and adequately representing M.L.’s interests in this litigation.
73. M.L. first entered DCF custody in 2007, in Sedgwick County, when she was approximately six years old. She entered care with two biological siblings, her then approximately seven-year-old sister and her infant brother.
74. After the three siblings’ adoption in 2010, their adoptive father and adoptive brother repeatedly sexually assaulted and sodomized M.L. and her sister. Upon information and belief, the sisters remained in this home for three years despite multiple calls to Child Protective Services reporting the abuse.
75. In 2013, DCF finally removed M.L. and her siblings from their adoptive father’s home and they reentered foster care. M.L. was immediately separated from both of her biological siblings.
76. Since M.L. returned to DCF custody in 2013, DCF has subjected her to extreme housing disruption and has moved her among different placements more than forty-two times. M.L.’s placements have included foster homes, group homes, PRTFs, and other facilities, as well as multiple night-to-night and short-term placements. In one of her placements, M.L. was sexually exploited and a victim of sex trafficking. On several occasions, DCF cycled M.L. through night-
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to-night placements for weeks at a time. At other times, DCF forced M.L. to sleep overnight in child welfare agency offices – once for an entire week. During one of M.L.’s overnight office stays, a DCF contract agency staff member physically assaulted M.L. Despite this assault, DCF continued to house M.L. in the agency office.
77. Following years of trauma and extreme housing disruption in DCF custody, M.L. developed a mood disorder. In 2017, she was diagnosed with PTSD and bipolar disorder. She was also prescribed psychotropic medications. Since her diagnosis, however, she has not received consistent medically necessary mental health treatment. Instead, her frequent placement changes and changes in service providers have repeatedly disrupted and delayed treatment.
78. Beginning in 2017, DCF placed M.L. in a PRTF for more than twelve months. M.L.’s documented mental health needs did not require restrictive residential treatment, but no less restrictive placement existed to meet her needs.
79. On at least two occasions in 2018, M.L. has run away from DCF care in an effort to escape the churning and further abuse. M.L. still does not have a stable placement. She is also not receiving mental health services to meet her identified mental health treatment needs. Any services she has received have been inconsistent, disrupted, and inadequate. During periods when DCF housed M.L. in night-to-night and short-term placements, she often did not attend school.
80. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate M.L.’s substantive due process and federal statutory rights. Defendants have failed to protect M.L. from harm and risk of harm by subjecting her to extreme housing disruption, including repeated night-to-night placements, and by failing to provide for her mental health screening, diagnostic, and/or treatment needs. M.L. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
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B. DEFENDANTS 81. Jeff Colyer, Governor of Kansas, is sued in his official capacity. Under Article I,
Section 3 of the Kansas Constitution, the governor holds supreme executive power and is responsible for the enforcement of the laws of the state. He is therefore responsible for ensuring all Kansas executive agencies comply with all applicable laws. Governor Colyer has the authority to issue executive reorganization orders “transferring, abolishing, consolidating or coordinating the whole or any part of any [executive] state agency, or the functions thereof” and to significantly reshape the functions and coordination of defendant agencies DCF, KDHE, and KDADS. Governor Colyer is also responsible for appointing, and has the power to remove, the Secretaries of DCF, KDHE, and KDADS. The governor has used his executive authority to manage the work of defendant agencies DCF, KDHE, and KDADS, including child welfare and Medicaid. Governor Colyer’s office is located in this District.
82. Gina Meier-Hummel, Secretary of DCF, is sued in her official capacity. DCF serves as the executive agency responsible for the safety and well-being of children in need of care. DCF is the agency with overall direct non-delegable custodial responsibility for investigating allegations of abuse and neglect, placing children in foster care in placements that meet their needs, ensuring children’s safety and well-being, and ensuring that children in foster care receive appropriate mental health screening and treatment. Secretary Meier-Hummel has “the power and duty to determine the general policies relating to all forms of social welfare which are administered or supervised by the secretary and to adopt the rules and regulations therefor.” Secretary MeierHummel is responsible for developing and administering or supervising program activities including the care and protection of children in need of care. Secretary Meier-Hummel is ultimately responsible for ensuring that DCF finds suitable homes for children in need of care and
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supervises those children in such homes. Secretary Meier-Hummel maintains her principal office in this District.
83. Jeff Andersen, Secretary of KDHE, is sued in his official capacity. KDHE is the single state Medicaid agency pursuant to 42 U.S.C. § 1396a(a)(5). KDHE is the executive agency responsible for financial management and contract oversight of Kansas’ Medicaid program, KanCare. Secretary Andersen is responsible for ensuring that Kansas’ Medicaid and mental health services are administered in a manner consistent with federal and state law. Secretary Andersen maintains his principal office in this District.
84. Tim Keck, Secretary of KDADS, is sued in his official capacity. KDADS is the executive agency responsible for operating hospitals and institutions in Kansas and for administering Medicaid waiver programs for disability services, mental health, and substance abuse. KDADS is also responsible by statute and holds the authority and responsibility to coordinate and provide mental health services in Kansas. KDADS also oversees the Home and Community Based Services (HCBS) program in Kansas. Secretary Keck is responsible for ensuring that Kansas’ Medicaid and mental health services are administered in a manner consistent with federal and state law. Secretary Keck maintains his principal office in this District.
IV. CLASS ACTION ALLEGATIONS 85. Plaintiffs M.B., S.E., V.A., J.M., M.J., R.M., C.A., Z.Z., B.B., and M.L. bring this action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated children.
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General Class 86. All Plaintiffs seek to represent a statewide General Class defined as all children who are now, or in the future will be, in the protective custody of DCF pursuant to KAN. STAT. ANN. § 38-2242(c)(1). 87. The General Class is sufficiently numerous to make joinder of all members impracticable. According to DCF data, as of September 2018, there were 7,530 children in DCF’s protective custody in foster care. Upon information and belief, a similar number of children are currently in DCF’s protective custody in foster care. 88. The questions of fact and law raised by the Named Plaintiffs’ claims are common to and typical of members of the General Class whom they seek to represent. Each Named Plaintiff and putative General Class member relies on Defendants for their safety and well-being, and has been subjected to significant harms, and/or risks of harm, as a result of the known dangers and structural deficiencies alleged in this Complaint. 89. Defendants have acted or failed to act on grounds generally applicable to all members of the General Class, necessitating class-wide declaratory and injunctive relief. Plaintiffs’ counsel know of no conflicts between or among members of the General Class. 90. The common questions of fact shared by the Named Plaintiffs and the members of the General Class they seek to represent include: (1) whether Defendants have a pattern, custom, policy, and/or practice of extreme housing disruption, exposing the General Class to psychological, emotional, and physical harm and/or an ongoing immediate risk of such harm; and (2) whether Defendants have a pattern, custom, policy, and/or practice of failing to provide children in foster care with required screening and diagnostic services, including trauma-related screening and diagnostic services.
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91. The common questions of law shared by the Named Plaintiffs and members of the General Class they seek to represent include: (1) whether Defendants’ pattern, custom, policy, and/or practice of extreme housing disruption, and the structural deficiencies contributing to that known danger, subject the General Class to continuing risk of deprivation of their substantive due process rights conferred by the Fourteenth Amendment to the United States Constitution; and (2) whether Defendants’ pattern, custom, policy and/or practice of failing to provide the General Class with screening and diagnostic services, including trauma-related screening and diagnostic services, violates their rights under the EPSDT provisions of the Medicaid Act.
92. The Named Plaintiffs will fairly and adequately represent the interests of the General Class they seek to represent.
93. Defendants’ patterns, customs, policies and/or practices harm and/or present an ongoing imminent risk of harm to all members of the General Class. Accordingly, final injunctive and declaratory relief is appropriate for the class as a whole.
Mental Health Treatment Subclass 94. Plaintiffs M.B., S.E., J.M., M.J., R.M., C.A., Z.Z., B.B., and M.L. seek to represent a Mental Health Treatment Subclass of all children in the General Class who have or will have an identified mental health or behavioral health treatment need pursuant to the EPSDT provisions of the Medicaid Act, 42 U.S.C. §§ 1396a(a)(10)(A)(i)(I), 1396a(a)(43)(C), 1396d(a)(4)(B), and 1396d(r). Children with identified mental health or behavioral health treatment needs include: children eligible for the Serious Emotional Disturbance (“SED”) Waiver Program; children prescribed psychotropic medications; and/or children who have received a DSM-III, DSM-IV, or DSM-5 diagnosis.
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95. The Mental Health Treatment Subclass is sufficiently numerous to make joinder impracticable. According to Kansas data reported to the federal government in 2016, there were over 3,000 children identified as emotionally disturbed in out of home care at any point during federal fiscal year 2016. Upon information and belief, a similar number of children in foster care in DCF protective custody are currently identified as having a serious emotional disturbance.
96. The questions of fact and law raised by the Named Plaintiffs’ claims are common to and typical of members of the Mental Health Treatment Subclass they seek to represent. Each Named Plaintiff and putative Mental Health Treatment Subclass member relies on Defendants for his or her safety and well-being, and has been subjected to known harms, and risks of harm, as a result of the known patterns, customs, policies, practices, and structural deficiencies alleged in this Complaint.
97. Defendants have acted or refused to act on grounds generally applicable to all members of the Mental Health Treatment Subclass, necessitating class-wide declaratory and injunctive relief. Plaintiffs’ counsel know of no conflicts between or among members of the Mental Health Treatment Subclass.
98. The common question of fact shared by the Named Plaintiffs and the members of the Mental Health Treatment Subclass they seek to represent is whether Defendants have a pattern, custom, policy and/or practice of failing to provide children in DCF foster care custody with access to timely medically necessary mental and behavioral health treatment, as required by law.
99. The common question of law shared by the Named Plaintiffs and the members of the Mental Health Treatment Subclass they seek to represent is whether Defendants’ patterns, customs, policies and/or practices, noted above, violate the rights of children in the Mental Health Treatment Subclass under the EPSDT provisions of the Medicaid Act.
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100. The Named Plaintiffs will fairly and adequately protect the interests of the Mental Health Treatment Subclass they seek to represent.
101. Defendants’ patterns, customs, policies and/or practices harm and/or present an ongoing imminent risk of harm to all members of the Mental Health Treatment Subclass. Accordingly, final injunctive and declaratory relief is appropriate for the subclass as a whole.
Next Friends 102. Each Named Plaintiff appears by a Next Friend. Each Next Friend has sufficient familiarity with the facts of the respective Named Plaintiff and is dedicated to fairly and adequately representing that Named Plaintiff’s interests in this litigation. Each Next Friend is also dedicated to representing the best interests of the putative General Class and/or Mental Health Treatment Subclass they seek to represent.
Plaintiffs’ Representatives 103. Plaintiffs, the General Class, and the Mental Health Treatment Subclass are represented by: a. Attorneys from Kansas Appleseed Center for Law & Justice, Inc., a nonprofit,
nonpartisan advocacy organization dedicated to vulnerable and excluded Kansans, who investigate social, economic, and political injustice in Kansas and work toward systemic solutions, and who serve as a voice for the public at large and for individuals and groups who are without effective legal representation; b. Loretta Burns-Bucklew, J.D., Child Welfare Law Specialist, an attorney in Kansas City, Missouri, who has experience in complex federal child welfare class actions and impact litigation, the individual representation of children in child welfare proceedings, and the child welfare service delivery structure in Missouri and Kansas;
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c. Attorneys from the National Center for Youth Law, a national nonprofit organization specializing in representing children and adolescents in child welfare, mental health, education, and juvenile justice reform class actions and impact litigation; and
d. Attorneys from Children’s Rights, a national nonprofit organization, who have experience in complex federal class actions in child welfare, mental health, education, and juvenile justice.
104. These attorneys and organizations have investigated all claims in this action and committed sufficient resources to represent the General Class and the Mental Health Treatment Subclass.
105. Plaintiffs’ counsel are well-suited to fairly and adequately represent the interests of the General Class and the Mental Health Treatment Subclass.
V. FACTUAL ALLEGATIONS A. Foster Care Housing and Mental Health Delivery and Oversight Structure in Kansas
Kansas’ Foster Care Delivery and Oversight Structure 106. Kansas began the process of privatizing its child welfare system in 1996. Kansas DCF continued to investigate allegations of abuse and neglect, but awarded contracts to three nonprofits covering five regions of the state to assist in the provision of foster care services, including placements and the delivery of mental health and behavioral health services. 107. Kansas’ most recent foster care contracts started on July 1, 2013. Currently, Kansas contracts with two lead agencies, KVC Behavioral HealthCare Kansas (“KVC”) and St. Francis Community Services (“SFCS”), to provide family preservation, foster care, adoptive, and reintegration services throughout the state. KVC provides services to children in the East and Kansas City regions and SFCS provides services to children in the West and Wichita regions.
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These two lead agencies subcontract with a variety of other placement and service providers and agencies.
108. When children enter foster care, they are placed in DCF’s protective custody pursuant to KAN. STAT. ANN. § 38-2242(c)(1). DCF engages contractors and subcontractors to perform some functions, but it always retains the direct legal duty and responsibility for the safety and well-being of children in foster care. As stated in a July 2016 audit, DCF “has a primary role in recommending whether a child should be removed from their home,” remains responsible for placement, and has the authority to place children. Additionally, DCF is responsible for licensing foster homes.
Kansas’ Children’s Mental Health Delivery and Oversight Structure 109. Medicaid is a cooperative federal and state funded program authorized and regulated pursuant to Title XIX of the Social Security Act, providing for medically necessary health and mental health care for low-income children and families, among others. State participation is voluntary, but states including Kansas that choose to accept federal funding and participate in Medicaid must adhere to its statutory and regulatory requirements. 42 U.S.C. § 1396 et seq. States receive federal matching funds for their own programs in the form of reimbursements by the federal government for a portion of the cost of providing Medicaid benefits. 110. As a participant in the Medicaid program, Kansas must provide all Medicaideligible children and youth under the age of twenty-one with EPSDT screenings that include “a comprehensive health and developmental history (including assessment of both physical and mental health development).” 42 U.S.C. § 1396d(r)(1)(B). Periodic screening must occur at regular age intervals as laid out on a periodicity schedule. 42 U.S.C. § 1396d(r)(1)(A)(i). Kansas adopted
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the Bright Futures periodicity schedule, which requires a psychosocial/behavioral health assessment at every periodic screening.
111. In addition, Kansas must provide EPSDT screening at other intervals indicated as medically necessary to determine the existence of certain physical or mental illnesses or conditions. 42 U.S.C. § 1396d(r)(1)(A)(ii). For children entering foster care, all of whom have known exposure to trauma, such medically necessary screening includes screening to assess their trauma-related needs.
112. Kansas must also provide and arrange for such other health care, diagnostic services, treatment, and other measures necessary to correct or ameliorate a psychiatric, behavioral, or emotional condition discovered by the screening services. 42 U.S.C. § 1396d(r)(5). For children entering foster care, such diagnostic and treatment services must address their known trauma history and any trauma-related treatment needs. Among the intensive home and community-based treatment services that Kansas is obligated to provide are: home health care services, 42 U.S.C. § 1396d(a)(7), recommended medical and remedial services, 42 U.S.C. § 1396d(a)(13), case management services, 42 U.S.C. §§ 1396d(a)(19), 1396n(g), and personal care services, 42 U.S.C. § 1396d(a)(24).
113. All children in DCF protective custody in foster care are entitled to Medicaid services, including these mandated EPDST screenings, diagnostic services and treatment. Such medical assistance, including EPSDT services, must be provided with reasonable promptness. 42 U.S.C. §§ 1396a(a)(8), 1396d(a)(4)(B).
114. States, including Kansas, may adopt managed care models for required services, contract with other entities concerning the delivery of services, and arrange services through provider networks. Nonetheless, all the states, including Kansas, remain responsible for ensuring
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compliance with all relevant Medicaid requirements, including the mandates of the EPSDT program. 42 U.S.C. §§ 1396a(a)(5), 1396a(a)(43), 1396u-2. States, including Kansas, must ensure that the managed care entity has the capacity to offer the full range of necessary and appropriate preventative and primary services for all enrolled beneficiaries. 42 U.S.C. § 1396u-2(b)(5).
115. All Defendants share responsibility for delivering mental health and behavioral health services to children in foster care in Kansas. KDHE and KDADS jointly administer KanCare, which is the program through which Kansas has administered Medicaid since 2013. KDHE maintains financial management and contract oversight of the KanCare program, while KDADS administers Medicaid waiver programs for disability services, mental health, and substance abuse, while also operating state hospitals and institutions. KanCare provides services to consumers through three health plans, Sunflower Health Plan, United Healthcare Community Plan of Kansas, and Amerigroup Kansas (to be replaced by Aetna Better Health of Kansas effective in January 2019). Each of these entities is responsible for coordinating all care, including preventive services, screenings, diagnostic services, and ongoing treatment, for its members. DCF, as the agency charged with the protection of children in need of care (including all foster children in DCF custody), has a legal responsibility to protect children’s well-being by ensuring that they have access to and are provided with the mental and behavioral health services they need, and that these services are provided with reasonable promptness.
B. Defendants’ Known Practice of Extreme Placement Instability, Including “Night-toNight” Placements, Harms Children and Imposes an Unreasonable Risk of Harm. 116. Defendants have a known dangerous policy, custom, pattern or practice of
subjecting children in foster care to extreme housing disruption, also known as churning. It is not uncommon for children in DCF custody to move between placements more than fifteen or twenty
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times, and even more than thirty, forty, or fifty times. This practice also includes a “high frequency of one-night placements,” also known as short-term and “night-to-night” placements, in which children are forced to sleep for a night or a short-term period anywhere a bed, couch, office conference room, shelter or hospital bed can be found. The next morning, children are collected at an agency office to wait for their next placement, in a loop that can repeat for days, weeks or even months at a time. For example, when Named Plaintiff M.L. has been subjected to night-to-night and short-term placements, DCF and/or a placement or service provider under contract with DCF drop her off at a foster home in the late afternoon or early evening with barely more than the clothes on her back. After a one-night, or perhaps several-night stay, she is picked up again, restarting the cycle. On several occasions, DCF has subjected M.L. to night-to-night placements for weeks at a time. More than once, DCF has forced M.L. to sleep overnight in a child welfare agency office.
The Practice of Placement Instability Has Steadily Worsened to its Current Crisis. 117. The known practice of churning in the Kansas foster care system dates back almost
twenty years. Since 2001, the Federal Children’s Bureau, part of the Administration of Children Youth and Families in the Department of Health and Human Services, has reviewed state child and family services programs through the Child and Family Services Reviews (“CFSR”). These reviews determine whether such programs are in substantial conformity with federal requirements for federal funding purposes.
118. Kansas has significantly failed to meet the National Standard for “stability of foster care placements” in all three rounds of the CFSR, going back to 2001. In the first round of the CFSR in 2001, the national standard for “stability of foster care placements” was established at 86.7% or more of “children who entered foster care during a twelve-month-period that had two or
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fewer placements,” but Kansas’ percentage was only 64.2%. In the second round of the CFSR in 2007, the national standard for placement stability was a composite score of three measures together totaling 101.5 or higher, but Kansas’ composite score was only 77.5. In the third round of the CFSR in 2015, the measure was a maximum of 4.12 moves per 1,000 days in foster care for all children who enter care in a twelve-month period, but Kansas’ performance was 5.28 moves.
119. Housing instability for Kansas children in foster care has continued to escalate after the third round of the CFSR. In State Fiscal Year (“SFY”) 2016, Kansas’ Observed Performance for placement instability increased to 6.6 moves per 1,000 days in foster care, and in SFY 2017 it climbed to 7.1. Even worse, data for SFY 2018 was reported at 8.6 moves per 1000 days, more than double the federal CFSR standard and a thirty percent increase in instability from 2016. Kansas’ most recent data report to the federal government on the actual frequency and number of moves of foster children, completed in 2016, reveals that 696 children had experienced more than ten placements; of those, 247 children experienced more than twenty placements, and 105 children experienced more than thirty placements. This 2016 data does not account for the thirty percent increase in the average number of moves experienced by children entering DCF foster care from 2016 to 2018. Accordingly, upon information and belief, the current number of moves actually experienced by large numbers of foster children is significantly higher.
120. The current housing disruption crisis in Kansas’ foster care system is reflected in the experiences of the Named Plaintiffs. DCF has moved each of these children anywhere from ten to over one hundred times while in DCF custody, with much of that extreme movement occurring in the last one to two years. For example, Named Plaintiffs V.A. and J.M. both entered DCF custody in 2018 and have already been moved more than ten and twenty times, respectively. DCF has moved Plaintiff R.M. between different placements over 130 times.
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The Current Crisis of “Night-to-Night” Placements in Kansas 121. A Report of the Child Welfare System Task Force to the State Legislature in January 2018, identified “increasing numbers of children and youth who are forced to sleep overnight in child placement agency offices because there is nowhere else for them to go after being removed from their homes.” The Task Force specifically referred to both “one-night placements” and “overnight stays in contractor offices.” Such placements may be literally for one night or may occur for several nights at a time. Whether the overnight setting is an office, foster home, or facility, it is part of the same ongoing dangerous practice and cycle. Instead of providing optimal or even appropriately matched housing to meet children’s needs, Defendants often have nowhere to house a foster child in DCF custody. As a result, children spend their days at contractor agency offices, and then are either forced to sleep in the office or dropped off in the evening at any foster home or facility willing to provide a bed just for the night. The same process then repeats over and over again. 122. Kansas’ Child Welfare System Task Force received testimony in April 2018 that many foster children “without permanent placement do not know from night-to-night where they will be staying. They are literally packing a suitcase and moving every morning,” and “they frequently have no idea where they will be sleeping that night.” This practice amounts to an inherent deprivation of shelter and is de facto homelessness. 123. According to testimony by Defendant Meier-Hummel to the Child Welfare System Task Force, SFCS, one of the two DCF lead contractor agencies in Kansas, subjected 764 children to one-night placements from April to September of 2018. In the same testimony, Defendant Meier-Hummel stated that during that same period, KVC, the other lead DCF contractor agency, subjected 695 children to one-night placements. Thus, combined, according to DCF data, 1,459
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children were forced to sleep in one-night placements just from April to September of 2018. This data does not identify children who were subjected to multiple night-to-night placements or include all children sent to “short-term” transient placements where they stayed more than one night.
124. The “night-to-night” practice is not limited to children just removed from their homes or older teens; the practice also affects children who have already been in DCF custody for months or years, and children of varying ages. For example, eleven-year-old Named Plaintiff Z.Z., who first entered DCF custody in 2012, was moved ten times in 2017 and 2018 alone.
125. Additionally, the “night-to-night” practice is not limited to a day or even a few days; it is sometimes forced on children for weeks or even months at a time, resulting in an almost incomprehensible level of chaos and instability and literally dozens of placement moves in a short period of time. For example, ten-year-old Named Plaintiff C.A. was subjected to three months of near continuous night-to-night placements in 2018.
126. The “night-to-night” crisis has even expanded to state-sanctioned “couch surfing,” whereby DCF contractors pay a foster parent additional funds to house a child for one night on their couch or to add a child to an already full bedroom. Inadequate sleeping space for children in foster care in DCF custody was noted in a January 2016 audit report, which found that “during a 15-month period, DCF granted 98% of the approximately 1,100 requests by child placing agencies to waive the capacity or sleeping space requirements.” The report “saw no evidence of DCF scrutiny or review of the requests that were approved.” Further, the report noted that “[f]our of the 12 foster homes in our targeted review did not have sufficient sleeping space.” In one example, one home had ten children (regulations allowed for six), including seven foster children, and “five of the foster children shared a room with only 25 square feet per child—well below the state’s minimum requirement.”
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127. Additionally, upon information and belief, since 2017, DCF has no longer required provider agencies to even request an exception to placement regulations when a foster home is at full capacity, as long as the child does not return to the home multiple times in a seven-day period. Accordingly, for this category of transient placements, DCF fails to consider or track any capacity conditions. For example, in information provided to the Child Welfare Task Force, KVC stated that it “did not request or require any exceptions for one-night placements during FY17.” Similarly, SFCS indicated only one capacity exception in FY 2017.
128. Additionally, upon information and belief, DCF’s private contractors pay a premium to homes that will take a “night-to-night” drop-off at late hours of the night, such as after 9:00 PM.
129. Whether or not they actually sleep there, children may also stay in contractor offices for extended periods without DCF oversight. DCF’s contracts with its private providers do not stipulate how long children can be in contractors’ offices. According to a May 2017 news article, a DCF official stated that DCF “doesn’t require private contractors to report [] data” on “overnight [or] long-term stays at [contractor] facilities.” Reflecting how routine the pattern of office stays has become, the DCF official stated: “[c]hildren . . . waiting to be placed with a foster family . . . spend most of their time in rooms equipped with couches, televisions, toys and games.”
Extreme Housing Disruption in Kansas Harms Children and Places Children at Risk of Emotional, Psychological and Physical Harm.
130. According to a February 2018 Task Force update, one of the two lead contractor agencies, KVC, explained that “if [a] youth is in a short-term placement overnight, the youth is in the office with staff during the day. We have anywhere from 30-50 kids in our offices daily, which makes it difficult for workers to complete their daily tasks, and has caused several severely unsafe scenarios.” Also in February of 2018, according to a news article, Defendant DCF Secretary Meier-
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Hummel stated that the use of “night-to-night” placements in agency offices is “not an acceptable practice.”
131. However, the “severely unsafe scenarios” referenced in the DCF report in February of 2018 were not corrected. In September of 2018, the media reported that authorities charged an older youth with raping a thirteen-year old girl in foster care in DCF custody at an Olathe child welfare office where they were both forced to sleep overnight. According to a news report, the sexual assault was reported in May of 2018. The news report quoted the Johnson County District Attorney as stating: “This is not an isolated incident involving criminal conduct at the KVC offices involving children.”
132. The risk that children subjected to extreme housing disruption will be harmed in their placements is not limited to children housed in agency offices. The chaos of an ever-changing transient population moving among different placements, overcrowded homes beyond their capacity, and the lack of monitoring and oversight by DCF exposes children to a risk of harm in their placements. As set forth in Section V.D. of this Complaint, DCF maintains the practice of subjecting caseworkers to excessive caseloads and turnover, resulting in the failure of caseworkers to visit children in DCF custody as required. Caseworkers simply cannot identify dangers to children’s safety or well-being in placements they do not visit. This danger is greatly heightened when children are exposed to churning.
133. Kansas’ churning crisis also disrupts children’s educational stability and contributes to poor educational outcomes. A 2016 audit found that the majority of Kansas foster children in out of home placements – over 85% – do not attend their school of origin, violating a federal standard.
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134. When youth bounce from placement to placement, they often bounce from school to school, too. DCF is aware of the problems associated with frequent school changes. For instance, it reported in 2015 that former Kansas foster youth complain of “the difficulty in keeping up with school when placement changes occur.” More recently, in 2018, a Kansas educator testified to the Child Welfare System Task Force that the “growing segment of [] children in the custody of DCF and/or their contractors . . . that have no permanent placement . . . frequently have no idea where they will be sleeping that night, only that it will likely be in a different and more distant town from where they are asked to attend school.” Further, “due to frequent placement changes, these children do not have the educational stability required for successful learning,” and “are not ready to learn at the level of performance expected of them and their typically-developing peers.” As a result, they are “much more likely to receive special education services,” and are “significantly behind academically and exhibit high social, emotional, and behavioral needs that require extensive interventions.”
135. The churning crisis in Kansas not only disrupts children’s education but also precludes access to education itself. Kansas foster children do not consistently attend school while subjected to churning. Children shuffled among numerous placements are often picked up by caseworkers in the morning and dropped off at an office, rather than being dropped off at school. Inexplicably, school-age children often sit around an office during the day instead of sitting in a classroom. According to testimony to the Child Welfare Task Force in 2018, “[i]n some circumstances, DCF and/or their contractors who have physical custody of these children, wait days or weeks before enrolling them in school.” For instance, “a student had been spending their days at the contractor’s office for two weeks, and was only enrolled after [an educator] sought them out and alerted the county truancy officer.” A KVC official stated in a 2017 news article that
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“[i]f you have a child that’s grade school aged, they should be in school [] during the day and not in the office,” yet she acknowledged that children may remain in offices for more than twentyfour-hour periods. The article reported that “according to a Facebook forum devoted to foster and adoptive parents, it isn’t uncommon for children, especially those who frequently ‘bounce’ in and out of homes, to miss days or weeks of school.” For example, Named Plaintiffs M.J., R.M., C.A., and M.L. all missed school during periods of night-to-night placements.
136. The educational instability tied to churning contributes to poor educational outcomes for Kansas foster youth. DCF self-reported in 2016 that 58.2% of Kansas youth in outof-home placements for at least a year do not progress to the next grade level, which violates a federal standard.
137. Faced with churning, some Kansas foster youth turn to escaping the system itself in the hopes of a better life: they run away. For instance, Named Plaintiff M.L. has been so desperate for a stable, permanent, safe placement that she has run away several times. Named Plaintiff R.M., who has been moved more than 130 times since he entered DCF custody in 2012, also tried to run away, at the age of eleven in 2016.
138. According to DCF data, as of June 2017, seventy-eight foster youth were runaways. As of February 2018, DCF data showed an average of eighty-five foster children on “runaway” status each month since July 2017. As of August 31, 2018, DCF reported that there were sixtythree missing or runaway youth, and in October 2018, DCF reported that “the number of youth who have run away from placement continues to fluctuate daily.” Additionally, DCF’s oversight and tracking of youth is inadequate, such that when foster youth do run away, DCF sometimes fails to even notice.
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139. Additionally, the risk of children becoming victims of sex trafficking is prevalent among vulnerable foster youth generally, and is a known risk for foster youth subjected to churning in Kansas. A February 2018 news article referred to Kansas as a “known . . . crossroads for human trafficking.” Dr. Karen Countryman-Roswurm, Executive Director of the Center for Combating Human Trafficking at Wichita State University, explained in a February 2018 news article that the Kansas foster care to human trafficking pipeline is well-known. She noted that foster youth experience trauma that places them at a greater risk of trafficking; and “the [foster] system [] exacerbates a disconnect between children and a community, putting them further in jeopardy.” Dr. Countryman-Roswurm further stated that the risk of trafficking is “of particular concern when there were 71 foster care children in Kansas who have run away[.]”
140. According to a 2018 news article, DCF reported that it conducted 285 assessments on possible survivors of trafficking since 2014. But, as the Kansas Attorney General’s Office stated in the same article, concrete data on trafficking “is elusive” because of the crime’s underground nature. Named Plaintiff M.L. has been victimized multiple times by trafficking while in DCF custody.
141. Kansas’ extreme housing disruption crisis further threatens children’s health by systematically denying them access to mental health care. For example, the very nature of churning creates barriers to actually receiving mental health treatment. Many of the Named Plaintiffs experienced delay or disruption in their mental health treatment, including counseling and/or psychotherapy, as a result of the extreme housing disruption that they suffered in DCF custody. The short-term nature of placements makes it difficult for a child’s temporary placement even to obtain and schedule an appointment with a mental health care provider for the child. The frequency of placement changes makes it difficult for children to attend appointments and receive consistent
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care. According to an April 2017 audit of DCF, eight of eleven children’s files in a random sampling indicated “mental health services . . . were delayed or infrequent,” and tellingly, one child with “extreme, trauma-related emotional and behavioral issues” was denied treatment because Defendants’ frequent placement moves caused her providers to “doubt[] that she would be able to make progress before [she] moved again [emphasis added].”
142. In addition to the above dangers created by extreme housing disruption, churning itself is widely recognized as inherently detrimental to children in the child welfare system. As Lori Ross, President and CEO of Kansas City’s FosterAdopt Connect, explained in a May 2017 news article, removal from one’s home is traumatic for any child, especially for those who have been repeatedly removed from homes, and long-term use of temporary placements simply adds to the burden. She stated that “[w]hat this does is create more trauma for the child,” whereby “each time they need to move, they hear in their head, ‘You’re not part of this family, you’re not valuable, you’re being moved like an animal, not a human.’”
143. On the issue of whether frequent moves cause trauma for children, Defendant Meier-Hummel stated in a media interview on October 31, 2018: “absolutely trauma [is] associated with that. I mean you know if [] you are unsure about where you are sleeping, if you are unsure about what where you’re going to go to school, if you’re concerned about having to move the next day, I mean all of those things create uncertainty and, and then ultimately lead to, you know, mental health issues and perhaps bad outcomes for kids. So we certainly yeah have to do better than that[.]”
144. It is widely recognized that churning causes both immediate and long-term emotional, psychological, physical developmental and neurological harm.1 Studies show that
1 Rae R. Newton et al., Children and Youth in Foster Care: Disentangling the Relationship Between Problem Behaviors and Number of Placements, 24 CHILD ABUSE & NEGLECT 1363, 1363-4, 1371-3 (2000).
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extreme housing disruption negatively affects a child’s ability to form secure attachments, or enduring emotional bonds, with caregivers.2 These attachment disorders are connected to
behavioral and mental health problems and contribute to foster children’s disproportionately high risk for poor developmental, social, emotional, behavioral, cognitive, and mental health outcomes.3
145. Specifically, children who experience extreme housing disruption are at an
increased risk of mood disorders, such as depression, anxiety disorders, and behavior problems, such as substance use and disruptive behavior disorders.4 Studies show that children with multiple
placements experience a sixty-three percent increase in behavior problems compared to children who achieved any stability in foster care. 5 Churning may also compound other problems, including aggression, low self-image, and academic under-achievement.6
146. In addition to causing emotional and psychological harm, extreme housing
disruption causes physical harm to children’s normal brain development as well as their central
nervous and endocrine systems. It is a well-accepted principle that childhood experiences can
affect brain development. For children in foster care, multiple moves and a “lack of predictability”
are “chronic adverse experiences” early in life. These experiences can “fundamentally and
permanently alter the functioning of key neural systems involved in learning, memory, and selfregulation and the complex networks of neuronal connectivity among these systems.”7 This is
2 Sonya J. Leathers, Foster Children’s Behavioral Disturbances and Detachment from Caregivers and Community Institutions, 24 CHILDREN AND YOUTH SERVICES REVIEW 239, 259 (2002); Yvonne A. Unrau et al., Former Foster Youth Remember Multiple Placement Moves: A Journey of Loss and Hope, 30 CHILDREN AND YOUTH SERVICES REVIEW 1256, 1261 (2008). 3 B.J. Harden, Safety and Stability for Foster Children: A Developmental Perspective, 14 FUTURE CHILD 31, 32-3, 38-9 (2004). 4 David M. Rubin, The Impact Of Placement Stability on Behavioral Well-being For Children in Foster Care, 119 PEDIATRICS 336, 341-42 (2007); Newton, supra note 1; Joseph P. Ryan & Mark F. Testa, Child Maltreatment and Juvenile Delinquency: Investigating the Role Of Placement and Placement Instability, 27 CHILDREN AND YOUTH SERVICES REVIEW 227, 230, 244-5 (2005). 5 Rubin, supra note 4, at 337, 341. 6 Harden, supra note 3, at 38-39; Newton, supra note 1. 7 Philip A. Fisher et al., A Translational Neuroscience Perspective on the Importance Of Reducing Placement Instability Among Foster Children, 92 CHILD WELFARE 9, 11 (2015).
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especially true for young children whose brains are at an intense stage of development.8 For these children, extreme housing disruption has been associated with executive functioning deficits,9 which are connected to serious conditions including: Post Traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, disruptive behavior disorders, and substance abuse.10
147. Extreme housing disruption has also been associated with harm to children’s central stress response system, the hypothalamic-pituitary-adrenal (HPA) axis, which involves both the central nervous system and the endocrine system.11 The HPA axis plays a major role in regulating an individual’s response to stressful events.12 Disruption of HPA axis activity has been linked to anxiety disorders, affective disorders, and disruptive behavior disorders.13
148. Published national practice standards also acknowledge the extreme trauma imposed by instability in foster care. The Child Welfare League of America, Standards of Excellence provide that “[p]roactive efforts should continually promote stability and avoid disruptions in foster care, recognizing that a disruption can be another loss, rejection, and possible trauma for the child.” Consistently, the Council on Accreditation’s Standards for Public Agencies notes that “[s]ignificant research has demonstrated the correlation between placement instability and negative child outcomes including poor academic performance and social and emotional difficulties. Regardless of a child’s prior history of maltreatment or behavioral challenges, these negative outcomes increase following placement disruptions.”
8 Id. 9 Erin E, Lewis, The Effect Of Placement Instability on Adopted Children’s Inhibitory Control Abilities and Oppositional Behavior, 43 DEVELOPMENTAL PSYCHOLOGY 1415, 1415-6, 1422-3 (2007). 10 Fisher, supra note 7, at 9, 7. 11 Philip A. Fisher, Mitigating HPA Axis Dysregulation Associated With Placement Changes in Foster Care, 36 PSYCHONEUROENDOCRINOLOGY 531, 532 (2011). 12 Id. 13 Id. at 540.
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C. Defendants’ Failure to Provide Mandated Mental Health Screenings, Diagnostic Services, and Treatment Harms Children and Imposes an Unreasonable Risk of Harm. 149. Under federal law, Defendants must provide regular health screenings for foster
children in DCF protective custody, including a “comprehensive” assessment of each child’s mental health development as required under the EPSDT provisions of the Medicaid Act. See 42 U.S.C. § 1396d(r)(1)(A)-(B). Kansas has adopted the Bright Futures periodicity schedule as its standard for pediatric preventive services. This periodicity schedule, developed by the American Academy of Pediatrics, calls for a psychosocial/behavioral assessment at every screening interval from infancy through to age twenty-one, and an annual screening for depression beginning at age twelve.
150. In addition to these periodic screenings, Defendants must provide screenings at other intervals indicated as medically necessary to determine the existence of certain physical and mental illnesses and conditions. See 42 U.S.C. § 1396d(r)(1)(A)-(B). Categorically, all children entering foster care are exposed to multiple forms of trauma stemming from their removal from their homes and the abuse, neglect, or abandonment that precipitated their removal. Accordingly, upon entry to the foster care system, they are entitled to screening and diagnostic services that assess their known trauma-related histories and needs. Trauma-related screening must also be repeated periodically thereafter.
151. The state must also provide “other necessary health care, diagnostic services, treatment, and other measures . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services . . . .” 42 U.S.C. § 1396d(r)(5).
152. The state is responsible for providing or arranging for medical assistance, including screening, diagnostic services, and treatment, in a reasonably prompt manner. See 42 U.S.C. § 1396a(a)(8), (10), (43)(B), (C); 42 U.S.C. § 1396d(a)(4)(B); 42 C.F.R. § 435.930(a).
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153. DCF is responsible for the well-being of all children in foster care, and therefore for providing timely screening, diagnostic services, and treatment for their mental health and behavioral health needs. KDHE is the designated single state Medicaid agency pursuant to 42 U.S.C. § 1396a(a)(5), and is therefore responsible for the financial management and contract oversight of Kansas’ Medicaid program, KanCare. KDADS has responsibility for operating hospitals and institutions and administers Medicaid waiver programs for disability services, mental health, and substance abuse in Kansas. Together, Defendants all share the legal responsibility for ensuring that Kansas complies with the EPSDT requirements of the Medicaid Act.
154. Despite these legal obligations, Defendants maintain a known dangerous pattern, policy, custom, or practice of failing to provide these mental health screenings, diagnostic services, and treatment to children in foster care in Kansas. Defendants’ failure to implement a system that appropriately screens, diagnoses, and treats children in foster care with mental health needs, including mental health needs related to trauma, causes deterioration of their physical, mental, and behavioral health and compromises children’s health, safety, and well-being. In exposing children to these risks, Defendants abdicate their responsibility to serve children in foster care.
Defendants Fail to Provide Required Initial and Periodic Screening and Trauma-Informed Diagnostic Services.
155. Although children in foster care in Kansas are entitled to periodic screening for their mental and behavioral health needs, including trauma-related needs, no comprehensive or coordinated system exists to ensure that these screens happen in practice. Indeed, while KanCare’s EPSDT form requires providers to complete a developmental screening tool, and refers providers to relevant resources, there is no similar prompt with respect to mental health screening. Instead, the form simply calls for the screener’s “emotional observations.” There is no reference to traumarelated screening. With no structure in place to ensure that necessary screening takes place,
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Defendants frequently fail to promptly and appropriately screen children for mental and behavioral health needs.
156. Specifically, Defendants fail to evaluate children’s trauma-related needs upon their entry into DCF custody. All children entering Kansas’ foster care system have necessarily experienced traumatic events, in that they were removed from their home and family, and that they were placed in state custody due to the state’s own finding of abuse, neglect, or abandonment. The research literature and national standards establish the undisputable known trauma of removal and of abuse or neglect.14 Indeed, the literature describes “common features” of children in foster care as including “the psychological and neurobiological effects associated with disrupted attachment to biological parents; the specific traumatic experiences (e.g., neglect and/or abuse) that necessitated placement; the emotional disruption of the placement; [and] the need to adjust to a foster care environment.”15
157. Additionally, medical research conclusively establishes that trauma, including the trauma that all children in DCF custody have experienced due to removal and from child abuse or neglect, carries a high risk of physical, developmental, and emotional harm, including by causing
14 Children’s Bureau, U.S. Dept. of Health & Human Servs., In-Home Services in Child Welfare 2 (2014), available at https://www.childwelfare.gov/pubPDFs/inhome_services.pdf; Robert Racusin et al., Psychosocial Treatment of Children in Foster Care: A Review, 41(2) CMTY. MENTAL HEALTH J. 199 (2005); Child Welfare League of America, Standards of Excellence for Family Foster Care Services § 2.37, updated 2017. 15 Racusin, supra note 14, at 200.
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or exacerbating mental and behavioral health problems and disorders.16 Up to eighty percent of children in foster care enter with significant mental health needs.17
158. Because every child entering DCF custody has experienced known trauma, and that
trauma is known to carry an extremely high risk of needing mental health treatment, all children
entering DCF custody require trauma-related screening and diagnostic services upon entry to the foster care system, in addition to their ongoing periodic trauma-informed screenings.18 These
trauma-informed screening and diagnostic services are essential to effectively identify children in
need of trauma-related treatment and to provide that treatment promptly.
159. However, upon information and belief, Defendants fail to categorically provide all
children in DCF custody either (1) an initial trauma screen and diagnostic services upon entry into
DCF custody or (2) regular, ongoing, trauma-informed mental and behavioral health screenings
while in DCF custody. A report of the Mental Health Task Force to the State Legislature in January
2018 confirmed that mental health care in Kansas is not consistently trauma-informed, and
recommended that the state “promote the education of trauma-informed practices” and “develop
trauma-based behavioral health services for parents whose children are in the custody of [DCF] or
at risk of entering custody.”
16 See, e.g., Victor G. Carrion et al., Can Traumatic Stress Alter the Brain? Understanding the Implications of Early Trauma on Brain Development and Learning, 51 J. ADOLESC. HEALTH S23-S28 (2012); Alexandra Cook, et al., Complex Trauma in Children and Adolescents, 35 PSYCHIATRIC ANNALS 390, 392 (2005); Effects of Complex Trauma, Nat’l Child Traumatic Stress Network, https://www nctsn.org/what-is-child-trauma/trauma-types/complextrauma/effects (last visited Nov. 14, 2018); Sheryl Kataoka et al., Responding to Students with PTSD in Schools, 21 CHILD & ADOLESCENT PSYCHIATRIC CLINICS N. AM. 119 (2012); Bessel A. Van der Kolk, Psychological Trauma 18, 96–98 (American Psychiatric Association Publishing) (2003); Ray Wolpow et al., The Heart of Learning and Teaching: Compassion, Resiliency, and Academic Success 11 (2016), available at http://www k12.wa.us/compassionateschools/pubdocs/TheHeartofLearningandTeaching.pdf. 17 Moira Szilagyi, et al., Health Care Issues for Children and Adolescents in Foster Care and Kinship Care, 136 PEDIATRICS 1142, 1146 (2015), available at http://pediatrics.aappublications.org/content/pediatrics/early/2015/09/22/peds.2015-2656 full.pdf. 18 See Children’s Bureau, U.S. Dep’t of Health and Human Servs., Developing a Trauma-Informed Child Welfare System 7 (2015), available at https://www.childwelfare.gov/pubPDFs/trauma_informed.pdf.
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160. Without these required screens and diagnostic services, Defendants have no way to timely identify youth with mental and behavioral health needs, and consequently no way to ensure that such children receive prompt treatment.
161. When Defendants do provide mental and behavioral health screenings, these services often come too late. Notwithstanding Defendants’ legal obligation to promptly provide required screening and diagnostic services, in Kansas, screening and diagnostic services are routinely delayed until a child receives a stable or permanent placement. This means that children who are held in temporary placements, sometimes for weeks or months, are denied access to the mental health screening and diagnostic services – and, consequently, the mental health treatment – they desperately need. Defendants’ churning practice creates an impenetrable barrier to promptly accessing services mandated under the Medicaid Act.
162. Underscoring Defendants’ systemic failure to meet their obligations under the Medicaid Act, according to the April 2017 state audit, DCF has not even developed the processes or maintained the data necessary to track whether children have or have not received their mandated screens and diagnostic services.
Defendants Fail to Provide Required Mental Health and Behavioral Health Treatment. 163. When foster children are identified as having mental and behavioral health needs,
they often do not receive medically necessary mental and behavioral health treatment. And, as indicated in an April 2017 audit, when mental and behavioral health services are provided, they are often “delayed or infrequent.” These systemic failures are due to several factors: a shortage of mental health services, the churning problem, and/or administrative barriers.
164. The Mental Health Task Force recognized in a January 2018 report that “providing crisis intervention and prevention services to children in a natural setting such as school, home, or
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community is necessary to effectively treat children and promote healthy development.” Yet that same report found “the range of [community-based] options available was limited, restricting the continuum of care.”
165. Additionally, a DCF audit in April 2017 found an insufficient range of services as well as inadequate coordination and communication between case managers, support staff, and foster parents blocking access to these community-based mental health services. Transportation issues, for instance, impede the delivery of mental health services. The January 2018 Kansas Child Welfare System Task Force Report explained that “[w]hile DCF and the contractors are to be credited for being aware of the services that are available, caseload, funding, and transportation issues are keeping the full amount of services needed from being delivered.”
166. In addition, there is often insufficient system capacity to meet the mental health needs of children in foster care. This lack of capacity results in long wait times for services. A representative of DCF contractor SFCS noted in 2015 that it “experienced longer waiting time to engage services in the communities for behavioral health needs,” particularly for youth with intellectual and developmental disabilities and/or serious emotional disturbance, “leaving children, youth and families to struggle keeping all parties safe.”
167. A representative of DCF contractor SFCS further stated in October of 2017 that the lack of a standardized protocol governing “the undefined term ‘medical necessity’ sometimes results in denying mental health treatment to a child.”
168. For children with more acute mental health needs, Defendants often fail to maintain an adequate number of available beds in Psychiatric Residential Treatment Facilities (“PRTFs”). In fact, Defendants decreased their capacity of PRTF beds by 65% between 2011 and the end of 2017; as a result, children wait weeks or months for a needed placement and medically necessary
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inpatient mental health treatment. As of February 1, 2018, for example, SFCS and KVC together had a total of twenty-four children who had met the criteria for a PRTF but were placed on a waitlist. The Children’s Continuum of Care (“CCC”) Task Force acknowledged in December 2017 that there should be an “[i]ncrease in PRTF bed capacity,” with waitlists “shorten[ed] or eradicate[d],” and recommended that “KDADS conduct data and trend analysis on PRTF bed utilization and waiting lists to determine the need” and plan “[t]he number of additional beds.” Describing the challenges it faced in 2015, a SFCS representative stated that “[i]t is extremely unfortunate to be in a position to not have access to the services needed for the children and youth we serve.” Without an increase in capacity, challenges in accessing higher levels of care will continue.
169. As the CCC Task Force recognized in 2017, while awaiting PRTF placement, children often bounced from one foster care provider to another, including through night-to-night placements. The Task Force further noted that, while they are waiting, untreated and without a stable placement, children’s symptoms can escalate, progressing from non-emergent to acute and requiring hospitalization. Additionally, according to the same CCC Task Force report, when a PRTF or hospital bed cannot be accessed, a child may even be kept in a juvenile justice facility for delinquent youth.
170. At the same time, as noted in the minutes of a Mental Health Medication Advisory Committee meeting in August of 2017, Defendants fail to provide appropriate alternative options to PRTFs, particularly for children with serious emotional, developmental, and/or intellectual needs. In some cases, as stated in an October 2017 report, PRTFs reject children whose behavioral issues they deem too severe. Upon information and belief, no other placements exist to meet the needs of these children in DCF custody.
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171. In other cases, upon information and belief, children whose needs could be met in a therapeutic foster home or other foster home with readily available mental health service supports are sometimes placed or kept in PRTFs because no such housing exists. This results both in the inappropriate placement in PRTFs of youth whose needs could be met in a less restrictive setting and in additional strain on PRTF capacity. For example, beginning in 2017, DCF placed Named Plaintiff M.L. in a PRTF for over twelve months even though her documented mental health needs did not require a restrictive residential treatment, because no less restrictive placement and service environment existed to meet her needs.
172. As acknowledged in a January 2018 Mental Health Task Force report and the CCC Task Force report of December 2017, when youth are placed in PRTFs, some are pushed out too soon, having received incomplete or inadequate treatment and without appropriate step-down services to support them in their transition. For example, Named Plaintiff Z.Z. was placed in a PRTF but her stay was artificially cut short, and without any appropriate step-down placements, Z.Z. was subjected to a string of night-night placements upon her discharge from the PRTF.
173. Further, as noted in the January 2018 Mental Health Task Force Report, very few PRTF locations offer case management, therapy, family education and support, and other aftercare services in the immediate community. The failure to properly support youth transitioning from PRTFs compromises their mental health and creates a cycle that sends children into temporary, unstable placements when foster parents are unwilling or unable to care for children with unmet mental health needs, or back to a PRTF, impeding the individual children’s treatment and exacerbating the systemic shortage of beds.
174. Even youth with less intensive mental health needs experience systemic barriers to accessing the mental and behavioral health treatment they need. Upon information and belief,
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children in foster care in Kansas often must wait to begin treatment until they are in a stable or non-temporary placement, meaning that their access to care is often denied when they need it the most – shortly after they are separated from their families, or when they are experiencing a period of extended disruption and instability through multiple short-term placements and night-to-night stays.
175. For example, a legislative audit described a child “with extreme, trauma-related emotional and behavioral issues [who] inconsistently received the therapy she needed because her issues caused her to move to new foster homes frequently.” According to contractor staff, “community mental health providers declined to provide her therapy during her short-term placements because they doubted she would be able to make progress before the child moved again. Additionally, she experienced gaps in treatment during each transition between placements, as it took time for providers to send referrals for her, transfer her records, and get her intake sessions scheduled.”
176. In addition, upon information and belief, Defendants’ practice of repeatedly moving children among placements across the state often disrupts any mental health care that has begun, and interferes with children’s ongoing relationships with their mental health care providers. DCF has acknowledged that “[w]ith placement and school instability, the challenge for case managers is referring to, securing and implementing wrap-around treatment services in a timely manner. For instance, a placement move to a new CMHC catchment area will mean starting the referral process for mental health services over again.” Even if individual children are able to continue relationships with their mental health care providers, due to unmanageable caseloads, often no one is available to transport a child to an appointment; this creates yet another barrier between children and the mental health treatment that they need.
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177. For instance, ten-year-old Named Plaintiff C.A. was diagnosed with PTSD and ADD while in DCF custody, yet C.A. has been moved more than seventy times, significantly disrupting necessary mental health treatment. Named Plaintiff M.L., who has a mood disorder, has been moved over forty times while in DCF custody, and has received inconsistent or negligible mental health treatment throughout this churning.
178. Additionally, instead of ensuring necessary and legally mandated appropriate treatment of foster children’s mental and behavioral health needs, Kansas often relies on the overuse of psychotropic medications. These medications are powerful drugs such as antipsychotics and antidepressants that act on the central nervous system and can affect cognition, emotions, and behavior. Although the use of psychotropic medications should always be paired with evidencebased and systemically monitored psychosocial interventions, children in foster care in Kansas are routinely prescribed psychotropic medications by non-specialists in order to manage behavior.
179. Not only does churning disrupt mental health treatment, but the failure to provide necessary mental health treatment to children in foster care exacerbates Kansas’ pervasive problems with extreme housing disruption, because untreated mental health needs may lead to additional placement disruptions.19 DCF describes “the challenge with caring for the children on the wait list [for services], first and foremost, [as] stability in placement.” Foster parents may not be equipped to respond to a child’s untreated mental health needs, and may feel that they cannot keep the child and others safe with the behaviors they are displaying. As a result, the child’s
19 Shannon Dorsey, et al., Children, Youth, and Family News, Am. Psychological Ass’n (2012), Trauma-Focused Cognitive Behavioral Therapy with Youth in Foster Care: The Impact of Caregiver Engagement, available at https://www.apa.org/pi/families/resources/newsletter/2012/01/winter.pdf.
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placement may change, often repeatedly. In a recurring cycle, this in turn can lead to further mental health challenges including mood difficulties, aggression, low self-image, and attachment issues.20
180. Research also shows that untreated mental health conditions can cause children to run away from their foster care placements, leaving them vulnerable to homelessness, trafficking, and involvement in the juvenile justice system.21
181. Defendants are aware that they are failing to meet the mental health needs of children in foster care in Kansas. For example, Kansas’ own Mental Health and Continuum of Care Task Forces have explicitly identified problems including the need for trauma-informed care, limited array of available services, inadequate PRTF capacity, and unacceptably long waitlists. Meanwhile, DCF’s foster care contractors report that service interventions are needed in the area of mental health, noting, for example, particular challenges with accessing higher levels of care when children need them, excessive wait times to receive services, and high usage of medication for foster youth.
182. As a KVC representative stated in October of 2017, “[t]he greatest area for improvement in the foster care system is that more effective interventions are needed in the mental health area.”
183. Despite such information and notice and despite the relevant legal mandates, Defendants have failed to take adequate actions to correct these broad failings and to provide or arrange for the screenings, diagnostic services, and treatment that children in foster care in Kansas
20 David M. Rubin, Amanda O’Reilly, R., Xianqun Luan, & A. Russel Localio, The Impact of Placement Stability on Behavioral Well-Being for Children in Foster Care, 119 PEDIATRICS 336, 336, 341-43 (2007); Rae R. Newton, Alan J. Litrownik & John A. Landsverk, Children and Youth in Foster Care: Disentangling the Relationship Between Problem Behaviors and Number of Placements, 24 CHILD ABUSE AND NEGLECT 1363, at 1363-64, 1371-73 (2000); Joseph P. Ryan & Mark F. Testa, Child Maltreatment and Juvenile Delinquency: Investigating the Role of Placement and Placement Instability, 27 CHILDREN AND YOUTH SERVICES REVIEW 227, 230, 244-45 (2005). 21 Theodore P. Cross, et al., Why Do Children Experience Multiple Placement Changes in Foster Care? Content Analysis on Reasons for Instability, 7 JOURNAL OF PUBLIC CHILD WELFARE 39, 48, 53 (2013).
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need. These failures are harming the children in their care and imposing an unreasonable risk of ongoing harm. D. Three Additional Structural Failures Cross Over, Contribute To, and Exacerbate the
Churning and Mental Health Services Failures.
184. Three additional structural failures cross over the two fundamental problems addressed in this Complaint, and contribute to and exacerbate the harms and dangers of extreme housing deprivation and the denial of mental health screenings, diagnostic services, and treatment: (1) excessive workloads, turnover and inadequate monitoring of children and their caregivers by frontline case workers; (2) the failure to directly oversee private providers; and (3) the failure to track and maintain accurate and timely data.
Defendants’ Practice of Excessive Caseworker Caseloads, Turnover and Inadequate Monitoring
185. DCF maintains a known policy, custom, pattern or practice of excessive workloads of its frontline case manager workforce, which impedes caseworkers’ ability to monitor the safety and well-being of the foster children assigned to them, and their ability to provide basic support to foster parents. The excessive workloads and high turnover of caseworkers significantly contribute to and exacerbate the harms and risks of harm to children alleged in this Complaint.
186. Defendant Meier-Hummel agrees that Kansas caseworkers’ ability to accomplish their jobs when forced to juggle so many cases is “an issue for sure.” She stated on October 31, 2018, that “[i]f we don’t have an adequate workforce and they’re asked to do too much, [that] is when children’s safety is compromised.”
187. Once in foster care in DCF’s protective custody, by definition, children are highly vulnerable and without adequate family protection. Once they enter the State’s custody, caseworkers (provided under contract with the two lead provider agencies, KVC and SFCS), are
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responsible for ensuring their safety and well-being. As noted in the April 2017 Performance Audit Report, “case management staff develop and oversee children’s case plans, refer children for physical and mental health services, supervise visits between parents and children, write court reports and testify in court proceedings.” Consistently, caseworkers are required to complete initial and ongoing assessments of children and their families; develop and implement case plans; facilitate and coordinate visits with children and their caregivers; prepare children for placement moves; provide intervention in crisis situations; support resource families to maintain placements; assess ongoing case plan goals and permanency options; and maintain written documentation in the child’s and family’s case record.
188. To perform these essential functions, as noted in a state audit report in April 2017, “[i]t is important [that] case management staff have reasonable caseloads, so they can provide each child the quality of services and individual attention they need.” Professional standards, as promulgated by the Child Welfare League of America, recommend that foster care caseworkers have workloads that range from twelve to fifteen children per caseworker in order to fulfill their responsibilities. Standards of the Council on Accreditation recommend that caseworkers have workloads between eight and fifteen children, depending on the level of need of the children.
189. An April 2017 state audit report found that, in Kansas, “[c]ase managers’ maximum caseloads frequently exceeded 30 cases during fiscal years 2014-2016.” Subsequent reports reveal that workloads have continued to increase. A media report in November 2017 found that caseworkers responsible for as many as forty-three and fifty-seven children found it impossible to complete each monthly visit as well as case plans, court hearings and meetings with families. That same month, a local magistrate judge explained to the Child Welfare System Task Force that “[c]aseworkers are carrying enormous caseloads that prevent the attention these kids require.” In
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February 2018, a news report found that “[c]aseworkers who have quit the agency and its subcontractor KVC have complained of caseloads of up to seventy at a time.”
190. Numerous press articles describe caseworker turnover, low morale, and all the harm caused to children in DCF care. A March 2017 news article reported that “DCF has cut its social worker positions by 20 percent, despite an additional 33 percent increase in children entering the system during the past five years. Experienced social workers have left in droves.” A July 2018 news article reported that DCF still had seventy-six vacant child protection positions in June of 2018.
191. Additionally, the data likely under-reports the actual caseloads of foster care caseworkers assigned to children. For example, according to the April 2017 state audit, caseworker supervisors, against practice standards, often carry caseloads of children on top of their own supervisory workloads, skewing caseload data.
192. With frequently excessive workloads, the caseworkers often do not have time to perform essential tasks to protect children’s safety and well-being, such as visit with children in their placements, ensure children are adjusting in new placements, ensure children are attending mental health appointments, facilitate follow-up behavioral health services, coordinate visits between children and their parents and siblings, and attend to other issues that may threaten the well-being of a child. As the January 2018 Report of the Child Welfare System taskforce found, “[e]xcessive caseloads and limited funding affect timely response for needed services.” Similarly, that same report notes that “mental health services are especially needed” and that “caseload[] issues . . . are keeping the full amount of services needed from being delivered.”
193. Excessive workloads also prevent caseworkers from providing basic support to foster parents. For example, a July 2016 legislative audit report showed that only thirteen percent
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of a sample of Kansas foster families had confirmed and completed documented visits from the caseworker assigned to support the foster family. In another example, as noted in the April 2017 legislative audit report, “DCF’s case review for the federal CFSR, our targeted file review, and our stakeholder survey all indicated poor communication and coordination between licensed case managers, support staff, and foster parents sometimes prevented children from receiving services they needed.” Similarly, in a 2018 Report to the Child Welfare Task Force, “[t]he working group heard and received testimony on lags in communication or misinformation between DCF and stakeholders that negatively affected persons and service providers such as foster parents, grandparents, attorneys and clinicians, to name a few.”
194. According to DCF data, in 2016, 26% of the children who were in foster care for all 12 months had three or more case managers. Upon information and belief, children continue to experience turnover among assigned caseworkers today. Frequent changes in caseworkers, combined with their high workloads, further inhibit caseworkers’ ability to do their job monitoring the safety and well-being of foster children and to support foster parents.
195. Given the critical role caseworkers play in ensuring the safety and well-being of foster children in DCF’s protective custody – including visiting children, maximizing placement stability, supporting foster parents, and coordinating the delivery of mental health services – the high caseloads and turnover of caseworkers significantly contribute to and worsen the practice of extreme housing disruption and the denial of mental health screens, diagnostic services, and treatment.
Defendants Fail to Adequately Oversee Private Contract Providers. 196. As an April 2017 state audit report stated, DCF is “ultimately responsible for the state’s foster care system” even though Kansas has privatized most of the day-to-day operations.
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“The foster care contracts and state law specify the department has ultimate responsibility for the well-being of children, the quality of the services, and the overall success of the foster care system.” DCF’s lead contractors, KVC and SFCS, provide case management, placement and service coordination for Kansas foster children statewide.
197. DCF contracts with KVC and SFCS to provide case management services, which include the obligation to “develop and oversee progress on case plans for children in foster care and their families.” KVC and SFCS subcontract with child placing agencies to provide placements for foster children in DCF custody. “Child placing agencies recruit and sponsor foster homes. They help the case management contractors find a placement for children placed in DCF custody. Child placing agencies also assist homes with licensing and are charged with regularly visiting foster families.” KVC and SFCS monitor children in those placements, and are responsible for “directing clients to appropriate services (such as family preservation and mental health services).”
198. In fiscal year 2016, “about $154 million was paid [by DCF] to foster care contractors to provide placement (reintegration, foster care, and adoption) and case management services.”
199. DCF’s contracts with KVC for “Reintegration/Foster Care/Adoption Services” provide for a “monthly prospective base rate for term July 1, 2017 through June 30, 2018 [of] $810,000.00 per month” for the Kansas City Region and “$920,500.00 per month” for the East Region. The contracts further provide for a “monthly prospective case rate [of] $1,342.00 per out of home placement per month” for the Kansas City Region and “$1,558.00 per out of home placement per month” for the East Region. DCF’s current contract with KVC extends through June 2019.
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200. DCF’s contracts with SFCS for “Reintegration/Foster Care/Adoption Services” provide for a “monthly prospective base rate for term July 1, 2017 through June 30, 2018 [of] $898,860.00 per month” for the West Region and “$725,000.00 per month” for the Wichita Region. The contracts further provide for a “monthly prospective case rate [of] $1,726.00 per out of home placement per month” for the West Region and “$1,666.00 per out of home placement per month” for the Wichita Region. DCF’s current contract with SFCS extends through June 2019.
201. As an April 2017 state audit makes clear, DCF “must actively oversee the contractors and evaluate their performance. That oversight includes ensuring children are placed in appropriate settings, children’s physical and mental health needs are addressed, and permanency is secured for them in a timely manner.”
202. DCF maintains a structural deficiency of a known, dangerous policy, custom, pattern or practice of failing to oversee private contract providers adequately, which significantly contributes to and exacerbates the dangers of churning and failing to ensure children receive mental health screening, diagnostic services, and treatment alleged in this Complaint.
203. An April 2017 state audit report found that “DCF did not collect and maintain the data it needed to effectively oversee the case management contractors.” For example, DCF requires contractors to “place each child in the foster home nearest his or her removal home that provided the best fit, as well as to ensure each child received the physical and mental health screenings, assessments, and referrals he or she needed. However, DCF did not develop the processes or maintain the data necessary to ensure these things happened for all children.”
204. DCF’s contracts with KVC and SFCS provide that, if KVC or SFCS “fails to provide all of the goods and services under [the contract] as amended, then DCF may proceed to
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institute such corrective action as it deems reasonably appropriate to ensure the requirements of the contract are met.”
205. The contracts further state that if KVC or SFCS fails to provide the required goods and services, “DCF may assess a penalty based on DCF internal audit recommendations, in addition to any damages it may incur as a result of . . . non-performance, including the need to obtain such goods and services for children and families outside the scope of the contract.”
206. The contracts also require that, subsequent to the close of the fiscal year, KVC and SFCS “shall provide to DCF any and all documentation requested by DCF” for the purposes of conducting an annual audit. Under the contracts, “audits performed by DCF may include audits of contract performance, i.e., compliance with terms and conditions of the contract with DCF including accomplishment of federal and state outcomes related to children and families.”
207. Additionally, “[t]he foster care contracts allow DCF to request and approve a performance improvement plan when a contractor does not meet federal outcome requirements or when [DCF] identifies problems through any of its oversight processes.” DCF “may assess financial penalties if a contractor fails to meet its goals for two consecutive quarters, and may terminate the contract if the contractor fails to meet them by the end of the state fiscal year in which the plan was implemented.”
208. According to the April 2017 state audit report, “DCF has not been aggressive in addressing the problems it identified with its contractors.” The report further noted that “DCF has only required two performance improvement plans since 1997 . . . despite the fact the contractors did not meet federal outcome benchmarks in several years,” including federal requirements related to timeliness and stability and including known failures to ensure the provision of mental and behavioral health services.
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209. DCF has directly failed to monitor and oversee its contractors in order to remedy the known problems of churning and the failure to provide mental health screening, diagnostic services, and treatment to Plaintiffs and members of the General Class and Mental Health Subclass.
210. DCF has failed to pursue effective remedies from its contractors, including specific corrective actions, financial penalties resulting in measurable improvement, or contract termination in response to these known dangers. DCF has effectively ignored these specific foster care system dangers.
211. In the wake of the alleged rape of a thirteen-year-old girl at KVC’s Olathe office, where she was forced to sleep in a conference room overnight in May 2018, a September 19, 2018 news article reported that since Kansas privatized its child welfare system in the mid-1990s, DCF has only penalized a contractor financially once.
212. DCF has failed and continues to fail to directly monitor and oversee the financial and programmatic operations and outcomes of KVC, SFCS, and the other private organizations that contract to provide housing and other services to children in DCF’s care. This failure significantly contributes to and exacerbates the harms and risks of harm to children alleged in this Complaint.
Defendants’ Failure to Accurately Track, Monitor, and Share Data 213. Defendants’ known failure to accurately track, monitor, and share current data is a structural deficiency that cuts across the systemic problems with placement stability; mental health care; workloads, monitoring, and visits; and contract oversight. As result, data failures significantly contribute to and exacerbate the harms and risks of harm to children alleged in this Complaint. As DCF stated in an October 2018 update to the Child Welfare System Task Force, “[o]ur current system was built 30 years ago, prior to the internet, and it [is] on a mainframe
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system. Current IT staff are unable to fix issues that arise within our system because it is so outdated. The current system is a barrier to our staff, and ultimately, puts children in danger.”
214. Data failures contribute to churning. As identified in the Report of the Child Welfare System Task Force to the 2018 Kansas Legislature in January 2018, “[a]n antiquated set of various computer systems within the DCF prevents communication between computers within DCF, as well as between DCF and the two child welfare system contractors[,]” KVC and SFCS. As found in the Legislative Post Audit Performance Audit Report in April 2017, “DCF could not monitor if children were placed in appropriate homes, in part because it did not collect integrated information about foster homes.” Moreover, “[t]he case management contractors [KVC and SFCS] may not have information about all potential foster homes when making placement decisions.”
215. Additionally, “DCF did not have a complete dataset it could easily access to show where all children in their custody had been placed.” Moreover, “DCF’s data on licensed foster homes was outdated and missing important information about the number of open beds” available to place children.
216. Data failures also contribute to problems of ensuring mental health and behavioral health screenings, diagnostic services, and treatment. For example, an April 2017 audit found that case management contractors failed to consistently document children’s mental health needs and services in their files and instead relied heavily on verbal communication.
217. In addition, data failures also contribute to problems of monitoring monthly visits. As a July 2016 Audit Report found: “For 114 cases (59%), because of poor documentation, [auditors of DCF from the Legislative Division of Post Audit] could not tell whether some monthly visits happened or [they] questioned the quality of the visit.” The Report further stated: “Poor documentation makes it difficult for DCF and case management contractors to monitor child
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placing agencies and ensure the safety of the children in foster care.” It explained that “case management staff may not always be completing or documenting required monthly visits, which puts children at risk of harm while in DCF care.”
218. Finally, data failures contribute to inadequate contract monitoring. As the April 2017 Audit Report found, “DCF’s monitoring processes did not capture important managementlevel information.” The Report “showed the department [DCF] expected the contractors to ensure children were placed in appropriate homes and their well-being, but did not maintain data to monitor whether this occurred.” Additionally, “DCF could not monitor if children were placed in appropriate homes, in part because it did not collect integrated information [or data] about foster homes.”
VI. CAUSES OF ACTION FIRST CAUSE OF ACTION Substantive Due Process Under the Fourteenth Amendment [Brought by All Named Plaintiffs and the General Class Against Governor Colyer and DCF Secretary Meier-Hummel] 219. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 220. The state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to protect a child from harm and to keep a child reasonably free from harm and risks of harm when it takes that child into foster care custody. 221. The foregoing actions and inactions of Defendants Colyer and Meier-Hummel, in their official capacities, who directly and indirectly control and are responsible for the policies of DCF, constitute a failure to meet their affirmative duty to protect from harm and keep reasonably free from harm and risk of harm all Named Plaintiffs and General Class members. These failures
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are a substantial factor leading to, and proximate cause of, the violation of the constitutionallyprotected liberty interests of the Plaintiffs.
222. The foregoing actions and inactions of Defendants Colyer and Meier-Hummel, in their official capacities, constitute a pattern, custom, policy and/or practice that are contrary to law and any reasonable professional standards, are substantial departures from accepted professional judgment, and are in deliberate indifference to known harms and imminent risk of known harms and to Plaintiffs’ and the General Class’s constitutionally protected rights and liberty interests, such that Defendants were plainly placed on notice and chose to ignore the dangers in a manner that shocks the conscience.
223. As a result of Defendants Colyer and Meier-Hummel’s actions and inactions, Plaintiffs have been harmed or are at continuing and imminent risk of harm and have been deprived of their substantive due process rights guaranteed by the Fourteenth Amendment, including but not limited to the right to be reasonably free from harm while in state custody.
SECOND CAUSE OF ACTION Medicaid Act
[Brought by All Named Plaintiffs and the General Class Against All Defendants]
224. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
225. Defendants have failed to promptly provide or otherwise arrange for Plaintiffs and the members of the General Class to receive, upon entry to foster care, early and periodic screening and diagnostic services that would determine the existence of trauma-related physical or mental illnesses or conditions, in violation of 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(A), 1396a(a)(43)(B), 1396d(a)(4)(B), 1396d(a)(13), 1396d(r)(1), and 1396d(r)(5).
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226. The foregoing actions and inactions of Defendants, in their official capacity, constitute a pattern, custom, policy and/or practice that deprives Named Plaintiffs and the General Class of the enforceable rights conferred on them by the EPSDT provisions of the federal Medicaid Act to promptly receive trauma-related early and periodic screening and diagnostic services upon entry to foster care.
THIRD CAUSE OF ACTION Medicaid Act
[Brought by All Named Plaintiffs and the General Class Against All Defendants]
227. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
228. Defendants have failed to promptly provide or otherwise arrange for Plaintiffs and the members of the General Class to receive early and periodic mental and behavioral health screening that would determine the existence of physical or mental illnesses or conditions, including trauma-related illnesses or conditions, in violation of 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(A), 1396a(a)(43)(B), 1396d(a)(4)(B), and 1396d(r)(1).
229. The foregoing actions and inactions of Defendants, in their official capacity, constitute a pattern, custom, policy and/or practice that deprives Named Plaintiffs and the General Class of the enforceable rights conferred on them by the EPSDT provisions of the federal Medicaid Act to promptly receive ongoing early and periodic mental and behavioral health screening, including trauma-related screening.
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FOURTH CAUSE OF ACTION Medicaid Act
[Brought by Named Plaintiffs M.B., S.E., J.M., M.J., R.M., C.A., Z.Z., B.B., and M.L. and the Mental Health Treatment Subclass Against All Defendants]
230. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
231. Defendants have failed to provide or otherwise arrange for Plaintiffs and the members of the Mental Health Treatment Subclass to promptly receive medically necessary behavioral and mental health services, including intensive, community, and home-based mental health services, that would correct or ameliorate their mental health illnesses or conditions, in violation of 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(A), 1396a(a)(43)(C), 1396d(a)(4)(B), and 1396d(r)(5).
232. The foregoing actions and inactions of Defendants, in their official capacity, constitute a pattern, custom, policy and/or practice that deprive Named Plaintiffs M.B., S.E., J.M., M.J., R.M., C.A., Z.Z., B.B., and M.L. and the Mental Health Treatment Subclass of the enforceable rights conferred on them by the EPSDT provisions of the federal Medicaid Act to medically necessary mental and behavioral health treatment.
VII. PRAYER FOR RELIEF 233. WHEREFORE, Plaintiffs respectfully request that the Court:
a. Assert jurisdiction over this action; b. Order that Plaintiffs may maintain this action as a class action pursuant to
Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure; c. Declare unconstitutional and unlawful pursuant to Rule 57 of the Federal
Rules of Civil Procedure:
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i. Defendants Colyer and Meier-Hummel’s violation of Named Plaintiffs’ and the General Class’s substantive due process rights to be free from harm and unreasonable risk of harm under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution;
ii. Defendants’ violation of Named Plaintiffs’ and the General Class’s rights under 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(A), 1396a(a)(43)(B), 1396d(a)(4)(B), 1396d(a)(13), 1396d(r)(1), and 1396d(r)(5);
iii. Defendants’ violation of Named Plaintiffs’ and the Mental Health Treatment Subclass’s rights under 42 U.S.C. §§ 1396a(a)8, 1396a(a)(10)(A), 1396a(a)(43)(C), 1396d(a)(4)(B), and 1396d(r)(5).
d. Permanently enjoin Defendants from subjecting Plaintiffs to practices that violate their rights and order appropriately tailored remedies directed at Defendants to ensure Defendants’ future compliance with their obligations to Plaintiffs, including, but not limited to, the following:
RELIEF REQUESTED FOR GENERAL CLASS: i. Enter a permanent injunction requiring that Defendants (1) end the practice of subjecting children to extreme housing disruption, including short-term and night-to-night placements, (2) conduct an expert workload study to determine the workload(s) necessary to conduct required visits and monitoring of foster children, coordinate mental health services for children, and support foster parents; (3) implement staff hiring and retention strategies to maintain the workload(s) identified by the workload study; (4) design and implement a plan to
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provide direct oversight over the contracts with DCF’s private providers concerning placement stability and delivery of mental health services; (5) create a single, cross-system, web-based, integrated case management and data reporting system which can be used by DCF, KDHE and KDADS to efficiently and effectively collect and share information concerning children and their placement and treatment needs, placement availability and matching, and mental health service needs and providers; (6) provide, upon entry to foster care, initial trauma-related screening and diagnostic services to all children in foster care in DCF custody; and (7) provide early and periodic mental and behavioral health screening, including periodic trauma-related screening, to all children in foster care in DCF custody. RELIEF REQUESTED FOR MENTAL HEALTH TREATMENT SUBCLASS: ii. Enter a permanent injunction requiring that Defendants establish and implement trauma-informed practices to ensure that all members of the Mental Health Treatment Subclass receive access to the medically necessary mental health treatment services to which they are entitled under the EPSDT provisions of the federal Medicaid Act by taking steps including, but not limited to: (1) conducting a current network adequacy study to identify specific shortages in the number and array of mental health treatment services for children in DCF custody, including providers of such treatment services and facilities such as PRTFs; and (2) filling any identified gaps in the network adequacy study.
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FURTHER RELIEF REQUESTED:

iii. The provisions of the Court order entered pursuant to Federal Rule of

Civil Procedure 65(d) shall be monitored by a neutral expert monitor

appointed by the Court. In addition, the Court shall have continuing

jurisdiction to oversee compliance with that Order;

e. Award to Plaintiffs the reasonable costs and expenses incurred in the

prosecution of this action, including reasonable attorneys’ fees and costs,

pursuant to 28 U.S.C. § 1920 and 42 U.S.C. § 1988, and Federal Rules of

Civil Procedure 23(e) and (h); and

f. Grant such other equitable relief as the Court deems just, necessary, and

proper to protect Plaintiffs from further harm while in Defendants’ custody

and care.

DATED: November 16, 2018

s/ Larry R. Rute Larry R. Rute KS Bar ID No. 8105 KS District Bar No. 08105 Benet Magnuson TX Bar ID No. 24070203 KANSAS APPLESEED CENTER FOR LAW & JUSTICE, INC. 211 East 8th Street, Suite D Lawrence, KS 66044 P: (785) 856-0917 larry@adrmediate.com bmagnuson@kansasappleseed.org

Loretta Burns-Bucklew LAW OFFICE OF LORETTA BURNS-BUCKLEW MI Bar ID No. 32053 401 West 89th Street Kansas City, MO 64114 P: (816) 384-1198 loribblawkc@gmail.com

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Case 2:18-cv-02617-JWL-GEB Document 1 Filed 11/16/18 Page 68 of 68
Leecia Welch CA Bar ID No. 208741 Freya Pitts CA Bar ID No. 295878 NATIONAL CENTER FOR YOUTH LAW 405 14th Street, 15th Floor Oakland, CA 94612 P: (510) 835-8098 F: (510) 835-8099 lwelch@youthlaw.org fpitts@youthlaw.org
Ira Lustbader NY Bar ID No. 2516946 Marissa C. Nardi NY Bar ID No. 5173265 Jonathan M. King NY Bar ID No. 5119847 Stephen A. Dixon LA Bar ID No. 18185 CHILDREN’S RIGHTS, INC. 88 Pine Street, 8th Floor New York, NY 10005 P: (212) 683-2210 F: (212) 683-4015 ilustbader@childrensrights.org mnardi@childrensrights.org jking@childrensrights.org sdixon@childrensrights.org
Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS KANSAS CITY DIVISION

M.B. and S.E. through their next friend Katharyn McIntyre, V.A. through his next friend Kathryn Ashburn, M.J. through his next friend Ed Bigus, R.R. through her next friend Ed Bigus, R.M. through his next friend Allan Hazlett, C.A. through his next friend Allan Hazlett, E.B. through his next friend Allan Hazlett, J.P. through her next friend Allan Hazlett, Z.Z. through her next friend Ashley Thorne, B.B. through her next friend Ashley Thorne, and M.A. through his next friend Ashley Thorne, for themselves and those similarly situated,
Plaintiffs,
v.
Laura Kelly in her official capacity as Kansas Governor, Laura Howard in her official capacity as Kansas Department for Children and Families Secretary, Dr. Lee A. Norman in his official capacity as Kansas Department of Health and Environment Secretary, and Laura Howard in her official capacity as Kansas Department for Aging and Disability Services Secretary,
Defendants.

) ) ) ) ) ) Case No. 18-CV-2617-JWL-GEB ) ) FIRST AMENDED COMPLAINT—
CLASS ACTION ) ) ) ) ) ) ) )

FIRST AMENDED COMPLAINT I. INTRODUCTION
1. In September of 2018, the media reported the alleged rape of a thirteen-year-old girl sleeping in a child welfare agency office in Johnson County, Kansas. The story of this child – staying overnight in an office because Kansas’ broken system lacked any housing for her – exemplified a long known danger. Kansas’ child welfare system is, and has been for at least a decade, systematically failing to protect the safety and well-being of vulnerable children and youth

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in foster care in the custody of the Kansas Department for Children and Families (DCF). This action addresses two fundamental systemic failures creating this danger.
2. First, Defendants – state officials responsible for the operation of the statewide foster care system in Kansas – maintain the dangerous practice of subjecting children in foster care to extreme housing disruption, also known as churning. Children in DCF custody needlessly move from placement to placement more than fifteen or twenty times, and some children even move more than fifty or one hundred times. Alarmingly, DCF frequently subjects children to “night-tonight” or short-term placements. In a repetitive, destabilizing cycle, children are regularly forced to sleep for a night or several nights anywhere a bed, couch, office conference room, shelter or hospital can be found. For days, weeks, or even months at time, they spend their nights in these short-term placements and their days in agency offices waiting to find out where they will sleep next, only to repeat the same cycle again. DCF’s practice of extreme housing disruption inherently deprives children of basic shelter and effectively renders them homeless while in state custody.
3. According to DCF data, as of June 2018, there were 7,687 children in DCF custody. Between April and September of 2018 alone, 1,459 of the children in care were forced to sleep in one-night placements. This figure, while alarming, fails to fully capture the scope of the harm children in DCF custody face. It reflects neither children churning through multiple night-to-night placements nor those housed in short-term transient placements for up to a week or a month at a time.
4. The Named Plaintiff children in this action have been moved anywhere from ten to over one hundred times while in DCF custody. Much of that churning has occurred in just the past one to two years. Given the fluid nature of the foster care population, Defendants constantly expose
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different children to extreme housing disruption, as a child with just one or two placements today can become the child with ten, twenty, or more placements in the near future.
5. The practice of churning in Kansas causes and presents a risk of emotional, psychological, developmental and neurological harm. Research literature and studies show that churning causes and worsens both attachment and behavioral disorders. Research literature and studies also demonstrate that churning causes direct physical harm to children’s normal brain development; a child’s brain, central nervous system, and endocrine system are directly harmed by the practice.
6. Second, Defendants fail to provide children in DCF custody with mental health and behavioral health screening, diagnostic services, and treatment, including trauma-related screening and diagnostic services. The failure to provide mental health services mandated by the federal Medicaid statute causes, and risks causing, profound emotional and psychological harm to children in foster care. All children entering foster care in Kansas have suffered the known trauma of removal from their homes, and thousands of children in DCF custody have identified mental health needs and disorders at any given time. Yet, known shortages, delays, and waitlists for mental health services and treatment, including administrative barriers to prompt and sustained service delivery, continue to result in children being deprived of the mental health care they require.
7. The fundamental problems of churning and mental health service delivery failures are deeply interconnected. In Kansas, churning often delays or disrupts mental health screens, diagnostic services, and treatment, and the trauma of churning itself causes harm and makes the need for prompt mental health services even more urgent. This in turn contributes to more instability because foster families are frequently unable and unprepared to meet children’s unidentified and/or untreated mental health needs. For instance, while in foster care, ten-year-old
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Named Plaintiff C.A. has been moved among foster homes, group homes, and agency offices more than seventy times. In 2018, he endured a three-month string of continuous night-to-night placements. Treatment for C.A.’s attention deficit disorder (ADD) and post-traumatic stress disorder (PTSD), both diagnosed while C.A. has been in DCF custody, has been disrupted in significant part because he has been moved around so often.
8. Named Plaintiffs and their Next Friends bring this federal civil rights class action pursuant to FED. R. CIV. P. 23(a) and (b)(2), as well as 42 U.S.C. § 1983, on behalf of themselves and a statewide general class of children who are or will be placed in foster care in the protective custody of DCF, and a subclass of children who have identified mental health treatment needs.
9. Defendants include Kansas Governor Laura Kelly, Kansas DCF Secretary Laura Howard, Kansas Department of Health and Environment (“KDHE”) Secretary Dr. Lee A. Norman, and Kansas Department for Aging and Disability Services (“KDADS”) Secretary Laura Howard, all sued in their official capacities.
10. Plaintiffs seek solely declarative and injunctive relief compelling Defendants to remedy known dangerous practices and specific structural deficiencies in the Kansas foster care system. Plaintiffs further seek to end violations of their federal rights under the Fourteenth Amendment to the U.S. Constitution, and under the Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT”) provisions of the federal Medicaid Act, and the resulting harms, and risks of harm, to foster children in DCF custody.
II. JURISDICTION & VENUE 11. This class action for declaratory and injunctive relief is brought pursuant to 42 U.S.C. § 1983 to redress the ongoing deprivation of rights guaranteed by the United States Constitution and federal statutory law.
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12. Jurisdiction is proper in this Court pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). Plaintiffs’ claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201 and 2202 and Rules 57 and 65 of the Federal Rules of Civil Procedure.
13. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events and omissions giving rise to the claims herein occurred in this district and because Defendants maintain offices in this district.
III. PARTIES A. THE NAMED PLAINTIFFS AND NEXT FRIENDS1 M.B. and S.E.
14. M.B. and S.E. are brothers, aged eight and nine, respectively, who are currently in foster care in DCF custody. M.B. and S.E. have both been in DCF custody for over a year. Pursuant to FED. R. CIV. P. 17(c)(2), M.B. and S.E.’s case is brought by their adult Next Friend, Katharyn McIntyre, who resides in Leavenworth County, Kansas. Ms. McIntyre is sufficiently familiar with the facts of M.B. and S.E.’s situation and is dedicated to fairly and adequately representing M.B. and S.E.’s interests in this litigation.
15. M.B. and S.E. first entered DCF custody together in Doniphan County in March 2018, when they were six and seven years old, respectively.
16. Prior to entering DCF custody, S.E. was diagnosed with attention deficit hyperactivity disorder (ADHD), and received medication for this condition.
17. Upon entering DCF custody, M.B. and S.E. were immediately separated from their older sister. Defendants subjected M.B. and S.E. to extreme housing disruption, including nightto-night placements for nearly a week.
1 The Court has previously granted permission to use pseudonyms for the Named Plaintiffs in the original Complaint (Doc. 25). Plaintiffs concurrently seek permission to use pseudonyms for the four new Named Plaintiffs.
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18. M.B. and S.E. did not receive any diagnostic services to assess the trauma they suffered in connection with their removal.
19. For a period of approximately three months in 2018, DCF placed M.B. and S.E. together in Ms. McIntyre’s home. While in this home, M.B. began exhibiting behavioral health issues. Ms. McIntyre requested mental health assessment and treatment for M.B. multiple times. Despite these requests, DCF failed to provide either M.B. or S.E. with the mental health treatment they required. M.B.’s mental health continued to deteriorate, and he required hospitalization twice during this four-month period.
20. Despite their clear need for mental and behavioral health services, DCF continued to fail to provide adequate mental health services for M.B. and S.E. Without these necessary supports, that foster home was unable to continue caring for them. DCF then separated M.B. and S.E. from each other, again subjecting them to a period of extreme housing disruption, including night-to-night placements. After leaving Ms. McIntyre’s home, S.E.’s mental health deteriorated and he required hospitalization.
21. Upon information and belief, DCF is still separating M.B. and S.E. from each other, and their mental health treatment has been inconsistent, disrupted and inadequate. DCF has moved both M.B. and S.E. at least fifteen times.
22. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate M.B. and S.E.’s substantive due process and federal statutory rights. Defendants have failed to protect M.B. and S.E. from harm and risk of harm by subjecting them to extreme housing disruption, including repeated night-to-night placements, and by failing to provide for their mental health screening, diagnostic, and/or treatment needs. M.B. and S.E.
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continue to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices. V.A.
23. V.A. is a seventeen-year-old boy currently in foster care in DCF custody. V.A. has been in DCF custody for more than a year. Pursuant to FED. R. CIV. P. 17(c)(2), V.A.’s case is brought by his adult Next Friend, Kathryn Ashburn, who resides in Franklin County, Kansas. Ms. Ashburn is sufficiently familiar with the facts of V.A.’s situation and is dedicated to fairly and adequately representing V.A.’s interests in this litigation.
24. Upon information and belief, V.A. first entered DCF custody in May 2018 in Franklin County.
25. DCF has already subjected V.A. to extreme housing disruption and moved him among different placements over ten times in the first six months that V.A. was in custody. His placements have included over a week of night-to-night placements, two group homes, and a foster home. Although V.A. is originally from Franklin County, DCF has already moved him to Miami County, Sedgwick County, and Wyandotte County. He is presently in a foster home in Shawnee County.
26. Upon information and belief, V.A. still does not have a stable placement. Since entering DCF custody, V.A. has not received any diagnostic services to assess the trauma he suffered in connection with his removal. Additionally, V.A. has not received any mental health or behavioral health screening, diagnostic services, or treatment.
27. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate V.A.’s substantive due process and federal statutory rights. Defendants have failed to protect V.A. from harm and risk of harm by subjecting him to extreme
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housing disruption, including repeated night-to-night placements, and by failing to provide for his mental health screening, diagnostic and/or treatment needs. V.A. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices. M.J.
28. M.J. is a seventeen-year-old boy currently in DCF custody in foster care. M.J. has been in DCF custody for ten years. Pursuant to FED. R. CIV. P. 17(c)(2), M.J.’s case is brought by his adult Next Friend, Ed Bigus, who resides in Miami County, Kansas. Mr. Bigus is sufficiently familiar with the facts of M.J.’s situation and is dedicated to fairly and adequately representing M.J.’s interests in this litigation.
29. M.J. first entered DCF custody ten years ago in Johnson County, Kansas, when he was seven years old.
30. M.J. has intense mental health needs, for which he has been prescribed medications. He is currently housed at a youth residential facility.
31. DCF has subjected M.J. to extreme housing disruption and has moved him more than eighty times among different placements, including group homes, shelters, psychiatric residential treatment facilities (“PRTFs”), and multiple night-to-night placements. For the past five years, M.J. has been repeatedly housed in night-to-night placements, sometimes for weeks at a time. When subjected to night-to-night placements, M.J. would be forced to stay in KVC offices during the day.
32. Despite his clear need for stability and consistent mental health services, DCF has continued to subject M.J. to extreme housing disruption, worsening M.J.’s mental and emotional health.
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33. DCF has also failed to provide M.J. with mental health services for prolonged periods of time, especially after he has been discharged from residential facilities or moved to different parts of the state. Any mental health services he has received have been inconsistent, disrupted, and inadequate.
34. The churning DCF has imposed on M.J. has disrupted his access to education. During his numerous night-to-night placements, M.J. was not attending school at all.
35. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate M.J.’s substantive due process and federal statutory rights. Defendants have failed to protect M.J. from harm and risk of harm by subjecting him to extreme housing disruption, including repeated night-to-night placements, and by failing to provide for his mental health screening, diagnostic, and/or treatment and service needs. M.J. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices. R.R.
36. R.R. is a seventeen-year-old girl currently in DCF custody in foster care. R.R. has been in DCF custody for nearly three years. Pursuant to FED. R. CIV. P. 17(c)(2), R.R.’s case is brought by her adult Next Friend, Ed Bigus, who resides in Miami County, Kansas. Mr. Bigus is sufficiently familiar with the facts of R.R.’s situation and is dedicated to fairly and adequately representing R.R.’s interests in this litigation.
37. R.R. first entered DCF custody in November 2016 in Johnson County, Kansas, when she was fourteen years old. She entered care following a physical altercation with her mother and after periods of housing instability.
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38. DCF has subjected R.R. to extreme housing disruption and has moved her among different placements over 100 times. R.R.’s placements have included foster homes, acute hospitalizations, PRTF placements, shelters, night-to-night and short-term placements, and overnights at the KVC Olathe office. R.R. has also spent considerable time at the KVC office during the day when in night-to-night or short-term placements. While in DCF custody, R.R. has received inconsistent mental health services due to her frequent placement moves.
39. During her first ten months in DCF custody (through September 2017), R.R. was placed in more than thirty night-to-night and short-term placements and KVC office stays. None of these placements lasted longer than two months, and many were just for a few nights or less. She was shuttled back and forth between open beds in the cities of Shawnee, Overland Park, Belaire, Wichita, Olathe, Lawrence, Topeka, Kansas City, Pittsburg, Spring Hill, Lenexa, and Gardner.
40. In September 2017, R.R. was placed at the Wheatland Hospital for ten days. Upon information and belief, the reason she remained at the hospital was not due to a health need, but rather because there was an available bed and KVC was unable to find her another place to stay.
41. From Wheatland Hospital, R.R. was placed at the KVC Wheatland Shelter. At the time of placement, however, R.R. was the only female resident in a male-only unit of this shelter. During her stay at the Wheatland Shelter, then-fifteen-year-old R.R. was subjected to unprotected sexual intercourse with a male peer to which she lacked the capacity to consent. This incident occurred at night when R.R. and some of the other residents were left unattended in the TV room of the shelter, referred to as the “Zen Den.” Subsequently, R.R. was placed in the acute mental health unit of KVC Wheatland for about two months.
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42. R.R. was moved from Wheatland Shelter at the demand of her guardian ad litem. Rather than being provided with an appropriate placement, R.R. was again subjected to another prolonged period of housing deprivation. For two and half months following her traumatizing experience at Wheatland Shelter, R.R. was shuttled to a series of night-to-night placements in and around Johnson County. During this time, R.R. spent most days at the KVC Olathe office.
43. Over the years, R.R. has been diagnosed with a long list of mental health and intellectual development disorders, including post-traumatic stress disorder (PTSD), ADHD, conduct disorder, Asperger’s syndrome, Mood Disorder, Disruptive Mood Dysregulation Disorder, Intellectual Disability, and many others. She has been placed on the following medications simultaneously: Lexapro, Topomax, Concerta, Oxybutynin, Fanapt, Melatonin, Levothroid, and Metformin. In May 2018, KVC staff noted concerns about how many medications R.R. was taking. It is unclear what steps, if any, were taken to address these concerns.
44. Despite her clear need for stability and consistent mental health services, DCF has repeatedly subjected R.R. to extreme housing disruption, worsening her mental and emotional health.
45. The churning DCF has imposed on R.R has caused her to frequently change schools. During some of her night-to-night, short-term, and KVC office placements, she has not attended school at all.
46. R.R. remains at risk of not having a stable placement. She also is not receiving intensive mental health services to meet her identified mental health treatment needs. Any mental health services she has received have been inconsistent, disrupted and/or inadequate.
47. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate R.R.’s substantive due process and federal statutory rights.
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Defendants have failed to protect R.R. from harm and risk of harm by subjecting her to extreme housing disruption, including repeated night-to-night and short-term placements, and by failing to provide for her mental health screening, diagnostic, and/or treatment needs. R.R. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
R.M. 48. R.M. is a fourteen-year-old boy currently in DCF custody in foster care. R.M. has
been in DCF custody for seven years. Pursuant to FED. R. CIV. P. 17(c)(2), R.M.’s case is brought by his adult Next Friend, Allan Hazlett, who resides in Shawnee County, Kansas. Mr. Hazlett is sufficiently familiar with the facts of R.M.’s situation and is dedicated to fairly and adequately representing R.M.’s interests in this litigation.
49. R.M. first entered DCF custody in 2012 in Shawnee County, Kansas, when he was six years old. He remained in foster care for three years until 2015 when he became eligible for adoption.
50. R.M. was moved out of state for a possible adoption with a relative in Iowa. However, DCF failed to take the necessary steps to finalize the adoption. As a result, the placement disrupted and R.M. returned to Kansas.
51. When he returned to DCF custody, R.M was placed in a PRTF. In or around 2016, R.M. was diagnosed with attention deficit disorder (ADD), oppositional defiant disorder (ODD), PTSD, and a mood disorder, for which he was prescribed psychotropic medications and requires counseling and/or psychotherapy.
52. DCF has subjected R.M. to extreme housing disruption and has moved him among different placements over 130 times since he has been in DCF custody. R.M.’s placements have
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included foster homes, group homes, and other facilities, as well as multiple night-to-night and short-term placements. While in DCF custody, R.M. has received inconsistent mental health services. In 2016, at eleven years old, R.M. was so desperate for a stable loving home that he ran away from his DCF placement for several days.
53. Despite his clear need for stability and consistent mental health services, DCF has continued to subject R.M. to extreme housing disruption, worsening R.M.’s mental and emotional health. Since 2016, R.M. has been hospitalized for mental health related issues on three separate occasions.
54. The churning DCF has imposed on R.M. has caused him to frequently change schools. During some of his night-to-night and short-term placements, he has not attended school at all. Despite being a competent student, the constant disruption has caused R.M. to fall behind in his education.
55. R.M. still does not have a stable placement. He also is not receiving mental health services, including counseling and/or psychotherapy, to meet his identified mental health treatment needs. Any mental health services he has received have been inconsistent, disrupted and inadequate.
56. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate R.M.’s substantive due process and federal statutory rights. Defendants have failed to protect R.M. from harm and risk of harm by subjecting him to extreme housing disruption, including repeated night-to-night and short-term placements, and by failing to provide for his mental health screening, diagnostic, and/or treatment needs. R.M. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
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C.A. 57. C.A. is an eleven-year-old boy currently in DCF custody in foster care. C.A. has
been in DCF custody for seven years. Pursuant to FED. R. CIV. P. 17(c)(2), C.A.’s case is brought by his adult Next Friend, Allan Hazlett, who resides in Shawnee County, Kansas. Mr. Hazlett is sufficiently familiar with the facts of C.A.’s situation and is dedicated to fairly and adequately representing C.A.’s interests in this litigation.
58. C.A. first entered DCF custody in 2012 in Shawnee County, Kansas, when he was four years old. C.A. entered DCF custody with his sister. However, C.A. was soon separated from his sister when she was placed with her biological father.
59. DCF has subjected C.A. to extreme housing disruption and has moved C.A. among different placements over seventy times since he has been in DCF custody. C.A.’s placements have included foster homes and group homes, as well as multiple night-to-night and short-term placements. DCF has forced C.A. to sleep overnight at child welfare offices on multiple occasions. From approximately March through May of 2018, DCF subjected C.A. to a near continuous threemonth string of night-to-night placements in different settings. During this time, ten-year-old C.A. never knew where he would sleep each night.
60. While in DCF custody, C.A. has been diagnosed with ADD and PTSD. He has been prescribed psychotropic medications for ADD and requires counseling and/or psychotherapy. He has an individual education plan (IEP) at school for behavioral health issues relating to his mental health conditions. The churning DCF has imposed on C.A. has caused him to frequently change schools, and during some of his night-to-night and short-term placements he has not attended school at all.
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61. C.A. remains at risk of not having a stable placement. He is also not receiving mental health services, including counseling and/or psychotherapy, to meet his identified mental health treatment needs. Any services he has received have been inconsistent, disrupted and inadequate.
62. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate C.A.’s substantive due process and federal statutory rights. Defendants have failed to protect C.A. from harm and risk of harm by subjecting him to extreme housing disruption, including repeated night-to-night and short-term placements, and by failing to provide for his mental health screening, diagnostic, and/or treatment needs. C.A. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices. E.B.
63. E.B. is a seven-year-old boy currently in DCF custody in foster care. E.B. has been in DCF custody for five years. Pursuant to FED. R. CIV. P. 17(c)(2), E.B.’s case is brought by his adult Next Friend, Allan Hazlett, who resides in Shawnee County, Kansas. Mr. Hazlett is sufficiently familiar with the facts of E.B.’s situation and is dedicated to fairly and adequately representing E.B.’s interests in this litigation.
64. E.B. first entered DCF custody in Topeka in Shawnee County, Kansas, when he was almost two years old. His custody matter was subsequently transferred to Lyndon, Osage County, Kansas, where it remains. He entered custody along with a newborn sibling due to parental drug use, parental mental health concerns, and failure of his parent to adequately participate in mental health services.
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65. E.B. was in a stable foster care placement for four and one-half years until he was removed from his foster home in April 2018.
66. Since April 2018, DCF has subjected E.B. to extreme housing disruption and has moved him among different placements over thirty-five times, and he has not been allowed back to his long-term placement. E.B.’s placements have included foster homes, mental health hospitalizations, and other facilities, as well as multiple night-to-night and short-term placements. On many occasions, E.B. has stayed in the KVC offices during the day while bouncing between one-night stays.
67. Since his removal from his long-term foster care placement, E.B. has experienced outbursts, fear of abandonment, and aggression. He has been diagnosed with ADHD and a mood disorder, for which he receives intermittent medication management.
68. While in DCF custody, E.B. has received inconsistent mental health services. Since removal from his long-term placement, E.B. has seen seven different providers, including three inpatient hospitalizations, each at a different facility due to constant placement changes.
69. The disruption E.B. has experienced in his life has caused behaviors that lead to further disruptions from foster care placements. But despite E.B.’s clear need for stability and consistent mental health services, he has not received necessary mental health services, and DCF has continued to subject E.B. to extreme housing disruption, worsening E.B.’s mental and emotional health.
70. The churning DCF has imposed on E.B. has caused him to change schools. 71. E.B. still does not have a stable placement. He also is not receiving mental health services, including counseling and/or psychotherapy, to meet his identified mental health treatment needs. Any mental health services he has received have been inadequate as they have not addressed
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the trauma of being removed from the only home and family he has any real memory of. Since removal from his long-term placement, E.B. has not been allowed to see or even speak with this placement.
72. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate E.B.’s substantive due process and federal statutory rights. Defendants have failed to protect E.B. from harm and risk of harm by subjecting him to extreme housing disruption, including repeated night-to-night and short-term placements, and by failing to provide for his mental health screening, diagnostic, and/or treatment needs. E.B. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
J.P. 73. J.P. is a ten-year-old girl currently in DCF custody in foster care. J.P. has been in
DCF custody for three years. Pursuant to FED. R. CIV. P. 17(c)(2), J.P.’s case is brought by her adult Next Friend, Allan Hazlett, who resides in Shawnee County, Kansas. Mr. Hazlett is sufficiently familiar with the facts of J.P.’s situation and is dedicated to fairly and adequately representing J.P.’s interests in this litigation.
74. J.P. first entered DCF custody in 2016 in Shawnee County, Kansas, when she was seven years old. She was placed in police protective custody due to her mother threatening to commit suicide and kill J.P. and her infant brother.
75. Since being placed in foster care in August 2016, now ten-year-old J.P. has been in twenty-one different placements, including three different psychiatric hospitals. J.P.’s foster care placements have generally disrupted quickly due to the lack of supportive services, and she has never lived more than six months in any single home.
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76. J.P. has been diagnosed with a range of mental health issues, including adjustment disorder, unspecified trauma and stressor related disorder, and unspecified attention-deficit/ hyperactivity disorder. J.P. frequently displays behaviors stemming from worry, nervousness, trauma or fear. She has difficulties with anger and anger management.
77. DCF has subjected J.P. to extreme housing disruption and has moved her among different placements over twenty-one times since she has been in DCF custody. J.P.’s placements have included foster homes and residential treatment facilities, as well as multiple night-to-night and short-term placements.
78. The churning DCF has imposed on J.P. has caused her to change schools frequently. During some of her night-to-night and short-term placements, she has not attended school at all.
79. While in DCF custody, J.P. has received inconsistent mental health services. J.P. has been discharged from a PRTF into a foster home without needed medication or mental health services in place and has been subjected to a rotating door of therapists. Any progress J.P. made during her stays at the PRTF facilities was subsequently lost when her services did not continue past discharge.
80. For example, in October 2018, J.P. was discharged from Pathways PRTF and provided a three-day supply of psychotropic medication and a prescription for a refill. Her medications included: Adderall, Concerta, Melatonin, two types of Clonidine, and Zoloft. Despite repeated calls from J.P.’s foster parent, the case worker did not refill these prescriptions or provide them to the caregiver for over a week. As a result of the abrupt discontinuation of her psychotropic medications, J.P. became agitated, aggressive and hypervigilant. She was unable to sleep and was up all night on several occasions. Her foster parent made repeated efforts to contact the case management team in order to secure the medications, to no avail.
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81. Any mental health services J.P. has received have been inconsistent, disrupted and inadequate. J.P.’s therapists have changed repeatedly. Each of the four times J.P. has been moved to a new city, she has needed a new therapy referral and a new therapist, resulting in disruptions in treatment. She also has been paired with a new therapist at each PRTF facility. Understandably, it takes J.P. time to trust a new therapist enough to talk. At about the time she learns to trust her therapist enough to start to process her trauma with them, she is moved to a new home and services are again disrupted.
82. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate J.P.’s substantive due process and federal statutory rights. Defendants have failed to protect J.P. from harm and risk of harm by subjecting her to extreme housing disruption, including repeated night-to-night and short-term placements, and by failing to provide for her mental health screening, diagnostic, and/or treatment needs. J.P. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
Z.Z. 83. Z.Z. is a twelve-year-old girl currently in DCF custody in foster care. Z.Z. has been
in DCF custody for six years. Pursuant to FED. R. CIV. P. 17(c)(2), Z.Z.’s case is brought by her adult Next Friend, Ashley Thorne, who resides in Sedgwick County, Kansas. Ms. Thorne is sufficiently familiar with the facts of Z.Z.’s situation and is dedicated to fairly and adequately representing Z.Z.’s interests in this litigation.
84. Z.Z. entered DCF custody in 2012 in Butler County, Kansas, when she was five years old. Z.Z. was initially placed with an elderly foster mother. Due to the foster mother’s health, she was unable to adequately care for Z.Z., and Z.Z. was moved from this home.
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85. After her initial placement disrupted, Z.Z. started to exhibit behavioral health problems. DCF placed Z.Z. in a PRTF in Topeka, across the state from her home community.
86. While Z.Z. was living in the PRTF for several months, her mental health began to improve, but, upon information and belief, her treatment was artificially cut short. Despite Z.Z.’s continued need for mental health treatment, she left the PRTF prematurely and without access to any “step down” placements to meet her ongoing treatment needs. Instead, Z.Z. was moved from the PRTF to a string of night-to-night and short-term placements, including being forced to sleep overnight in child welfare offices.
87. DCF has subjected Z.Z. to extreme housing disruption and has moved Z.Z. among different foster homes, group homes, and other facilities over twenty-five times since she has been in DCF custody. Z.Z.’s placements have included multiple night-to-night and short-term placements.
88. After a desperate and tragic episode where she placed her own life and her foster mother’s life at risk, Z.Z. languished for months on a waiting list for a second PRTF placement. She did not receive a diagnostic brain scan or alternative treatment despite an identified need and requests for this treatment.
89. Even while Z.Z. was on the PRTF waiting list due to her identified need for mental health services, DCF continued to subject her to continued extreme housing disruption. Z.Z. was moved among ten different placements between May 2017 and June 2018.
90. Z.Z. still does not have a stable placement. She has not received mental health services, including counseling and/or psychotherapy, that are necessary to meet her identified mental health treatment needs. Any services she has received have been inconsistent, disrupted and inadequate.
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91. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate Z.Z.’s substantive due process and federal statutory rights. Defendants have failed to protect Z.Z. from harm and risk of harm by subjecting her to extreme housing disruption, including repeated night-to-night placements, and by failing to provide for her mental health screening, diagnostic, and/or treatment needs. Z.Z. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.

B.B. 92.

B.B. is a seventeen-year-old girl currently in DCF custody in foster care. B.B. has

been in DCF custody for five years. Pursuant to FED. R. CIV. P. 17(c)(2), B.B.’s case is brought by

her adult Next Friend, Ashley Thorne, who resides in Sedgwick County, Kansas. Ms. Thorne is

sufficiently familiar with the facts of B.B.’s situation and is dedicated to fairly and adequately

representing B.B.’s interests in this litigation.

93. B.B. first entered DCF custody in 2013 in Butler County. B.B. was adopted shortly

after she entered DCF custody, but the adoption disrupted and she returned to DCF custody. B.B.’s

mental health and behavior deteriorated after the adoption disrupted.

94. DCF has subjected B.B. to extreme housing disruption and has moved B.B. among

different placements numerous times since she has been in DCF custody. B.B.’s placements have

included foster homes, group homes, and other facilities, as well as multiple night-to-night and

short-term placements. B.B. has been placed in a PRTF several times. She has also been placed in

juvenile justice facilities.

95. B.B. still does not have a stable placement. She also is not receiving mental health

services, including counseling and/or psychotherapy, to meet her identified mental health

treatment needs. Any services she has received have been inconsistent, disrupted and inadequate.

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Upon information and belief, for at least several months in 2018, DCF subjected B.B. to a string of night-to-night and short-term placements, and B.B. has run away from them on multiple occasions.
96. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate B.B.’s substantive due process and federal statutory rights. Defendants have failed to protect B.B. from harm and risk of harm by subjecting her to extreme housing disruption, including repeated night-to-night placements, and by failing to provide for her mental health screening, diagnostic, and/or treatment needs. B.B. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices. M.A.
97. M.A. is a twelve-year-old boy currently in DCF custody in foster care. M.A. has been in DCF custody for six years. Pursuant to FED. R. CIV. P. 17(c)(2), M.A.’s case is brought by his adult Next Friend, Ashley Thorne, who resides in Sedgwick County, Kansas. Ms. Thorne is sufficiently familiar with the facts of M.A.’s situation and is dedicated to fairly and adequately representing M.A.’s interests in this litigation.
98. M.A. first entered DCF custody in 2012 in Sedgwick County, Kansas, when he was six years old. He entered care with his four siblings due to lack of supervision, domestic violence and truancy.
99. DCF has subjected M.A. to extreme housing disruption and has moved him among different placements at least sixty-two times from January 2017 to the present. His total number of placements in DCF custody goes well beyond that. M.A.’s placements have included foster homes, PRTF facilities, hospitalizations, and night-to-night and short-term placements. While in
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DCF custody, M.A. has received inconsistent mental health services due to his frequent placement moves.
100. M.A. has been diagnosed with ADHD, ODD, Disruptive mood regulation disorder, and anxiety.
101. Despite his clear need for stability and consistent mental health services, DCF has continued to subject M.A. to extreme housing disruption, worsening M.A.’s mental and emotional health. Since March 2019, M.A. has been in at least sixteen placements.
102. M.A.’s lack of stability and consistent mental health services has negatively impacted his education. Currently, he has been tested at a third grade reading level.
103. M.A. has not been receiving intensive mental health services to meet his identified mental health treatment and developmental needs. Currently, DCF is working to obtain a community developmental disabilities organization waiver to provide needed services for M.A., but, to date, that waiver has not been obtained. Any mental health services he has received have been inconsistent, disrupted and inadequate.
104. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate M.A.’s substantive due process and federal statutory rights. Defendants have failed to protect M.A. from harm and risk of harm by subjecting him to extreme housing disruption, including repeated night-to-night and short-term placements, and by failing to provide for his mental health screening, diagnostic, and/or treatment needs. M.A. continues to be at risk of harm as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
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B. DEFENDANTS 105. Laura Kelly, Governor of Kansas, is sued in her official capacity. Under Article I,
Section 3 of the Kansas Constitution, the governor holds supreme executive power and is responsible for the enforcement of the laws of the state. She is therefore responsible for ensuring all Kansas executive agencies comply with all applicable laws. Governor Kelly has the authority to issue executive reorganization orders “transferring, abolishing, consolidating or coordinating the whole or any part of any [executive] state agency, or the functions thereof” and to significantly reshape the functions and coordination of defendant agencies DCF, KDHE, and KDADS. Governor Kelly is also responsible for appointing, and has the power to remove, the Secretaries of DCF, KDHE, and KDADS. The governor has used her executive authority to manage the work of defendant agencies DCF, KDHE, and KDADS, including child welfare and Medicaid. Governor Kelly’s office is located in this District.
106. Laura Howard, Secretary of DCF, is sued in her official capacity. DCF serves as the executive agency responsible for the safety and well-being of children in need of care. DCF is the agency with overall direct non-delegable custodial responsibility for investigating allegations of abuse and neglect, placing children in foster care in placements that meet their needs, ensuring children’s safety and well-being, and ensuring that children in foster care receive appropriate mental health screening and treatment. Secretary Howard has “the power and duty to determine the general policies relating to all forms of social welfare which are administered or supervised by the secretary and to adopt the rules and regulations therefor.” Secretary Howard is responsible for developing and administering or supervising program activities including the care and protection of children in need of care. Secretary Howard is ultimately responsible for ensuring that DCF finds
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suitable homes for children in need of care and supervises those children in such homes. Secretary Howard maintains her principal office in this District.
107. Dr. Lee A. Norman, Secretary of KDHE, is sued in his official capacity. KDHE is the single state Medicaid agency pursuant to 42 U.S.C. § 1396a(a)(5). KDHE is the executive agency responsible for financial management and contract oversight of Kansas’ Medicaid program, KanCare. Secretary Norman is responsible for ensuring that Kansas’ Medicaid and mental health services are administered in a manner consistent with federal and state law. Secretary Norman maintains his principal office in this District.
108. Laura Howard, Secretary of KDADS, is sued in her official capacity. KDADS is the executive agency responsible for operating hospitals and institutions in Kansas and for administering Medicaid waiver programs for disability services, mental health, and substance abuse. KDADS is also responsible by statute and holds the authority and responsibility to coordinate and provide mental health services in Kansas. KDADS also oversees the Home and Community Based Services (HCBS) program in Kansas. Secretary Howard is responsible for ensuring that Kansas’ Medicaid and mental health services are administered in a manner consistent with federal and state law. Secretary Howard maintains her principal office in this District.
IV. CLASS ACTION ALLEGATIONS 109. Plaintiffs M.B., S.E., V.A., M.J., R.R., R.M., C.A., E.B., J.P., Z.Z., B.B., and M.A. bring this action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated children.
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General Class 110. All Plaintiffs seek to represent a statewide General Class defined as all children who are now, or in the future will be, in the protective custody of DCF pursuant to KAN. STAT. ANN. § 38-2242(c)(1). 111. The General Class is sufficiently numerous to make joinder of all members impracticable. According to DCF data, as of September 2018, there were 7,530 children in DCF’s protective custody in foster care. Upon information and belief, a similar number of children are currently in DCF’s protective custody in foster care. 112. The questions of fact and law raised by the Named Plaintiffs’ claims are common to and typical of members of the General Class whom they seek to represent. Each Named Plaintiff and putative General Class member relies on Defendants for their safety and well-being, and has been subjected to significant harms, and/or risks of harm, as a result of the known dangers and structural deficiencies alleged in this Complaint. 113. Defendants have acted or failed to act on grounds generally applicable to all members of the General Class, necessitating class-wide declaratory and injunctive relief. Plaintiffs’ counsel know of no conflicts between or among members of the General Class. 114. The common questions of fact shared by the Named Plaintiffs and the members of the General Class they seek to represent include: (1) whether Defendants have a pattern, custom, policy, and/or practice of extreme housing disruption, exposing the General Class to psychological, emotional, and physical harm and/or an ongoing immediate risk of such harm; and (2) whether Defendants have a pattern, custom, policy, and/or practice of failing to provide children in foster care with required screening and diagnostic services, including trauma-related screening and diagnostic services.
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115. The common questions of law shared by the Named Plaintiffs and members of the General Class they seek to represent include: (1) whether Defendants’ pattern, custom, policy, and/or practice of extreme housing disruption, and the structural deficiencies contributing to that known danger, subject the General Class to continuing risk of deprivation of their substantive due process rights conferred by the Fourteenth Amendment to the United States Constitution; and (2) whether Defendants’ pattern, custom, policy and/or practice of failing to provide the General Class with screening and diagnostic services, including trauma-related screening and diagnostic services, violates their rights under the EPSDT provisions of the Medicaid Act.
116. The Named Plaintiffs will fairly and adequately represent the interests of the General Class they seek to represent.
117. Defendants’ patterns, customs, policies and/or practices harm and/or present an ongoing imminent risk of harm to all members of the General Class. Accordingly, final injunctive and declaratory relief is appropriate for the class as a whole.
Mental Health Treatment Subclass 118. Plaintiffs M.B., S.E., M.J., R.R., R.M., C.A., E.B., J.P., Z.Z., B.B., and M.A. seek to represent a Mental Health Treatment Subclass of all children in the General Class who have or will have an identified mental health or behavioral health treatment need pursuant to the EPSDT provisions of the Medicaid Act, 42 U.S.C. §§ 1396a(a)(10)(A)(i)(I), 1396a(a)(43)(C), 1396d(a)(4)(B), and 1396d(r). Children with identified mental health or behavioral health treatment needs include: children eligible for the Serious Emotional Disturbance (“SED”) Waiver Program; children prescribed psychotropic medications; and/or children who have received a DSM-III, DSM-IV, or DSM-5 diagnosis.
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119. The Mental Health Treatment Subclass is sufficiently numerous to make joinder impracticable. According to Kansas data reported to the federal government in 2016, there were over 3,000 children identified as emotionally disturbed in out of home care at any point during federal fiscal year 2016. Upon information and belief, a similar number of children in foster care in DCF protective custody are currently identified as having a serious emotional disturbance.
120. The questions of fact and law raised by the Named Plaintiffs’ claims are common to and typical of members of the Mental Health Treatment Subclass they seek to represent. Each Named Plaintiff and putative Mental Health Treatment Subclass member relies on Defendants for his or her safety and well-being, and has been subjected to known harms, and risks of harm, as a result of the known patterns, customs, policies, practices, and structural deficiencies alleged in this Complaint.
121. Defendants have acted or refused to act on grounds generally applicable to all members of the Mental Health Treatment Subclass, necessitating class-wide declaratory and injunctive relief. Plaintiffs’ counsel know of no conflicts between or among members of the Mental Health Treatment Subclass.
122. The common question of fact shared by the Named Plaintiffs and the members of the Mental Health Treatment Subclass they seek to represent is whether Defendants have a pattern, custom, policy and/or practice of failing to provide children in DCF foster care custody with access to timely medically necessary mental and behavioral health treatment, as required by law.
123. The common question of law shared by the Named Plaintiffs and the members of the Mental Health Treatment Subclass they seek to represent is whether Defendants’ patterns, customs, policies and/or practices, noted above, violate the rights of children in the Mental Health Treatment Subclass under the EPSDT provisions of the Medicaid Act.
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124. The Named Plaintiffs will fairly and adequately protect the interests of the Mental Health Treatment Subclass they seek to represent.
125. Defendants’ patterns, customs, policies and/or practices harm and/or present an ongoing imminent risk of harm to all members of the Mental Health Treatment Subclass. Accordingly, final injunctive and declaratory relief is appropriate for the subclass as a whole.
Next Friends 126. Each Named Plaintiff appears by a Next Friend. Each Next Friend has sufficient familiarity with the facts of the respective Named Plaintiff and is dedicated to fairly and adequately representing that Named Plaintiff’s interests in this litigation. Each Next Friend is also dedicated to representing the best interests of the putative General Class and/or Mental Health Treatment Subclass they seek to represent.
Plaintiffs’ Representatives 127. Plaintiffs, the General Class, and the Mental Health Treatment Subclass are represented by: a. Attorneys from Kansas Appleseed Center for Law & Justice, Inc., a nonprofit,
nonpartisan advocacy organization dedicated to vulnerable and excluded Kansans, who investigate social, economic, and political injustice in Kansas and work toward systemic solutions, and who serve as a voice for the public at large and for individuals and groups who are without effective legal representation; b. Loretta Burns-Bucklew, J.D., Child Welfare Law Specialist, an attorney in Kansas City, Missouri, who has experience in complex federal child welfare class actions and impact litigation, the individual representation of children in child welfare proceedings, and the child welfare service delivery structure in Missouri and Kansas;
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c. Attorneys from the National Center for Youth Law, a national nonprofit organization specializing in representing children and adolescents in child welfare, mental health, education, and juvenile justice reform class actions and impact litigation;
d. Attorneys from Children’s Rights, a national nonprofit organization, who have experience in complex federal class actions in child welfare, mental health, education, and juvenile justice; and
e. Attorneys from DLA Piper (US) LLP, a global law firm with lawyers located in more than 40 countries, who have experience in complex litigation, including class actions and litigation in federal court.
128. These attorneys and organizations have investigated all claims in this action and committed sufficient resources to represent the General Class and the Mental Health Treatment Subclass.
129. Plaintiffs’ counsel are well-suited to fairly and adequately represent the interests of the General Class and the Mental Health Treatment Subclass.
V. FACTUAL ALLEGATIONS A. Foster Care Housing and Mental Health Delivery and Oversight Structure in Kansas
Kansas’ Foster Care Delivery and Oversight Structure 130. Kansas began the process of privatizing its child welfare system in 1996. Kansas DCF continued to investigate allegations of abuse and neglect, but awarded contracts to three nonprofits covering five regions of the state to assist in the provision of foster care services, including placements and the delivery of mental health and behavioral health services. 131. Kansas’ most recent foster care contracts started on July 1, 2013. Currently, Kansas contracts with two lead agencies, KVC Behavioral HealthCare Kansas (“KVC”) and St. Francis
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Community Services (“SFCS”), to provide family preservation, foster care, adoptive, and reintegration services throughout the state. KVC provides services to children in the East and Kansas City regions and SFCS provides services to children in the West and Wichita regions. These two lead agencies subcontract with a variety of other placement and service providers and agencies.
132. When children enter foster care, they are placed in DCF’s protective custody pursuant to KAN. STAT. ANN. § 38-2242(c)(1). DCF engages contractors and subcontractors to perform some functions, but it always retains the direct legal duty and responsibility for the safety and well-being of children in foster care. As stated in a July 2016 audit, DCF “has a primary role in recommending whether a child should be removed from their home,” remains responsible for placement, and has the authority to place children. Additionally, DCF is responsible for licensing foster homes.
Kansas’ Children’s Mental Health Delivery and Oversight Structure 133. Medicaid is a cooperative federal and state funded program authorized and regulated pursuant to Title XIX of the Social Security Act, providing for medically necessary health and mental health care for low-income children and families, among others. State participation is voluntary, but states including Kansas that choose to accept federal funding and participate in Medicaid must adhere to its statutory and regulatory requirements. 42 U.S.C. § 1396 et seq. States receive federal matching funds for their own programs in the form of reimbursements by the federal government for a portion of the cost of providing Medicaid benefits. 134. As a participant in the Medicaid program, Kansas must provide all Medicaideligible children and youth under the age of twenty-one with EPSDT screenings that include “a comprehensive health and developmental history (including assessment of both physical and
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mental health development).” 42 U.S.C. § 1396d(r)(1)(B). Periodic screening must occur at regular age intervals as laid out on a periodicity schedule. 42 U.S.C. § 1396d(r)(1)(A)(i). Kansas adopted the Bright Futures periodicity schedule, which requires a psychosocial/behavioral health assessment at every periodic screening.
135. In addition, Kansas must provide EPSDT screening at other intervals indicated as medically necessary to determine the existence of certain physical or mental illnesses or conditions. 42 U.S.C. § 1396d(r)(1)(A)(ii). For children entering foster care, all of whom have known exposure to trauma, such medically necessary screening includes screening to assess their trauma-related needs.
136. Kansas must also provide and arrange for such other health care, diagnostic services, treatment, and other measures necessary to correct or ameliorate a psychiatric, behavioral, or emotional condition discovered by the screening services. 42 U.S.C. § 1396d(r)(5). For children entering foster care, such diagnostic and treatment services must address their known trauma history and any trauma-related treatment needs. Among the intensive home and community-based treatment services that Kansas is obligated to provide are: home health care services, 42 U.S.C. § 1396d(a)(7), recommended medical and remedial services, 42 U.S.C. § 1396d(a)(13), case management services, 42 U.S.C. §§ 1396d(a)(19), 1396n(g), and personal care services, 42 U.S.C. § 1396d(a)(24).
137. All children in DCF protective custody in foster care are entitled to Medicaid services, including these mandated EPDST screenings, diagnostic services and treatment. Such medical assistance, including EPSDT services, must be provided with reasonable promptness. 42 U.S.C. §§ 1396a(a)(8), 1396d(a)(4)(B).
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138. States, including Kansas, may adopt managed care models for required services, contract with other entities concerning the delivery of services, and arrange services through provider networks. Nonetheless, all the states, including Kansas, remain responsible for ensuring compliance with all relevant Medicaid requirements, including the mandates of the EPSDT program. 42 U.S.C. §§ 1396a(a)(5), 1396a(a)(43), 1396u-2. States, including Kansas, must ensure that the managed care entity has the capacity to offer the full range of necessary and appropriate preventative and primary services for all enrolled beneficiaries. 42 U.S.C. § 1396u-2(b)(5).
139. All Defendants share responsibility for delivering mental health and behavioral health services to children in foster care in Kansas. KDHE and KDADS jointly administer KanCare, which is the program through which Kansas has administered Medicaid since 2013. KDHE maintains financial management and contract oversight of the KanCare program, while KDADS administers Medicaid waiver programs for disability services, mental health, and substance abuse, while also operating state hospitals and institutions. KanCare provides services to consumers through three health plans, Sunflower Health Plan, United Healthcare Community Plan of Kansas, and Aetna Better Health of Kansas (which replaced Amerigroup Kansas, effective in January 2019). Each of these entities is responsible for coordinating all care, including preventive services, screenings, diagnostic services, and ongoing treatment, for its members. DCF, as the agency charged with the protection of children in need of care (including all foster children in DCF custody), has a legal responsibility to protect children’s well-being by ensuring that they have access to and are provided with the mental and behavioral health services they need, and that these services are provided with reasonable promptness.
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B. Defendants’ Known Practice of Extreme Placement Instability, Including “Night-toNight” Placements, Harms Children and Imposes an Unreasonable Risk of Harm. 140. Defendants have a known dangerous policy, custom, pattern or practice of
subjecting children in foster care to extreme housing disruption, also known as churning. It is not uncommon for children in DCF custody to move between placements more than fifteen or twenty times, and even more than thirty, forty, or fifty times. This practice also includes a “high frequency of one-night placements,” also known as short-term and “night-to-night” placements, in which children are forced to sleep for a night or a short-term period anywhere a bed, couch, office conference room, shelter or hospital bed can be found. The next morning, children are collected at an agency office to wait for their next placement, in a loop that can repeat for days, weeks or even months at a time. For example, when Named Plaintiff R.R. was subjected to night-to-night and short-term placements, DCF and/or a placement or service provider under contract with DCF dropped her off at a foster home in the late afternoon or early evening. After a one-night or perhaps several-night stay, she was picked up again, restarting the cycle. DCF has subjected R.R. to nightto-night placements for weeks or months at a time. More than once, DCF has forced R.R. to sleep overnight in a child welfare agency office.
The Practice of Placement Instability Has Steadily Worsened to its Current Crisis. 141. The known practice of churning in the Kansas foster care system dates back almost
twenty years. Since 2001, the Federal Children’s Bureau, part of the Administration of Children Youth and Families in the Department of Health and Human Services, has reviewed state child and family services programs through the Child and Family Services Reviews (“CFSR”). These reviews determine whether such programs are in substantial conformity with federal requirements for federal funding purposes.
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142. Kansas has significantly failed to meet the National Standard for “stability of foster care placements” in all three rounds of the CFSR, going back to 2001. In the first round of the CFSR in 2001, the national standard for “stability of foster care placements” was established at 86.7% or more of “children who entered foster care during a twelve-month-period that had two or fewer placements,” but Kansas’ percentage was only 64.2%. In the second round of the CFSR in 2007, the national standard for placement stability was a composite score of three measures together totaling 101.5 or higher, but Kansas’ composite score was only 77.5. In the third round of the CFSR in 2015, the measure was a maximum of 4.12 moves per 1,000 days in foster care for all children who enter care in a twelve-month period, but Kansas’ performance was 5.28 moves.
143. Housing instability for Kansas children in foster care has continued to escalate after the third round of the CFSR. In State Fiscal Year (“SFY”) 2016, Kansas’ Observed Performance for placement instability increased to 6.6 moves per 1,000 days in foster care, and in SFY 2017 it climbed to 7.1. Even worse, data for SFY 2018 was reported at 8.9 moves per 1000 days, more than double the federal CFSR standard and a thirty percent increase in instability from 2016. Kansas’ most recent data report to the federal government on the actual frequency and number of moves of foster children, completed in 2016, reveals that 696 children had experienced more than ten placements; of those, 247 children experienced more than twenty placements, and 105 children experienced more than thirty placements. This 2016 data does not account for the thirty percent increase in the average number of moves experienced by children entering DCF foster care from 2016 to 2018. Accordingly, upon information and belief, the current number of moves actually experienced by large numbers of foster children is significantly higher.
144. The current housing disruption crisis in Kansas’ foster care system is reflected in the experiences of the Named Plaintiffs. DCF has moved each of these children anywhere from
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ten to over one hundred times while in DCF custody, with much of that extreme movement occurring in the last one to two years. For example, Named Plaintiff V.A. entered DCF custody in 2018 and has already been moved more than ten times. DCF has moved Plaintiff R.M. between different placements over 130 times.
The Current Crisis of “Night-to-Night” Placements in Kansas 145. A Report of the Child Welfare System Task Force to the State Legislature in January 2018, identified “increasing numbers of children and youth who are forced to sleep overnight in child placement agency offices because there is nowhere else for them to go after being removed from their homes.” The Task Force specifically referred to both “one-night placements” and “overnight stays in contractor offices.” Such placements may be literally for one night or may occur for several nights at a time. Whether the overnight setting is an office, foster home, or facility, it is part of the same ongoing dangerous practice and cycle. Instead of providing optimal or even appropriately matched housing to meet children’s needs, Defendants often have nowhere to house a foster child in DCF custody. As a result, children spend their days at contractor agency offices, and then are either forced to sleep in the office or dropped off in the evening at any foster home or facility willing to provide a bed just for the night. The same process then repeats over and over again. 146. Kansas’ Child Welfare System Task Force received testimony in April 2018 that many foster children “without permanent placement do not know from night-to-night where they will be staying. They are literally packing a suitcase and moving every morning,” and “they frequently have no idea where they will be sleeping that night.” This practice amounts to an inherent deprivation of shelter and is de facto homelessness.
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147. According to testimony by then DCF Secretary Gina Meier-Hummel to the Child Welfare System Task Force, SFCS, one of the two DCF lead contractor agencies in Kansas, subjected 764 children to one-night placements from April to September of 2018. In the same testimony, Ms. Meier-Hummel stated that during that same period, KVC, the other lead DCF contractor agency, subjected 695 children to one-night placements. Thus, combined, according to DCF data, 1,459 children were forced to sleep in one-night placements just from April to September of 2018. This data does not identify children who were subjected to multiple night-tonight placements or include all children sent to “short-term” transient placements where they stayed more than one night.
148. The “night-to-night” practice is not limited to children just removed from their homes or older teens; the practice also affects children who have already been in DCF custody for months or years, and children of varying ages. For example, eleven-year-old Named Plaintiff Z.Z., who first entered DCF custody in 2012, was moved at least ten times in 2017 and 2018 alone.
149. Additionally, the “night-to-night” practice is not limited to a day or even a few days; it is sometimes forced on children for weeks or even months at a time, resulting in an almost incomprehensible level of chaos and instability and literally dozens of placement moves in a short period of time. For example, ten-year-old Named Plaintiff C.A. was subjected to three months of near continuous night-to-night placements in 2018.
150. The “night-to-night” crisis has even expanded to state-sanctioned “couch surfing,” whereby DCF contractors pay a foster parent additional funds to house a child for one night on their couch or to add a child to an already full bedroom. Inadequate sleeping space for children in foster care in DCF custody was noted in a January 2016 audit report, which found that “during a 15-month period, DCF granted 98% of the approximately 1,100 requests by child placing agencies
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to waive the capacity or sleeping space requirements.” The report “saw no evidence of DCF scrutiny or review of the requests that were approved.” Further, the report noted that “[f]our of the 12 foster homes in our targeted review did not have sufficient sleeping space.” In one example, one home had ten children (regulations allowed for six), including seven foster children, and “five of the foster children shared a room with only 25 square feet per child—well below the state’s minimum requirement.”
151. Additionally, upon information and belief, since 2017, DCF has no longer required provider agencies to even request an exception to placement regulations when a foster home is at full capacity, as long as the child does not return to the home multiple times in a seven-day period. Accordingly, for this category of transient placements, DCF fails to consider or track any capacity conditions. For example, in information provided to the Child Welfare Task Force, KVC stated that it “did not request or require any exceptions for one-night placements during FY17.” Similarly, SFCS indicated only one capacity exception in FY 2017.
152. Additionally, upon information and belief, DCF’s private contractors pay a premium to homes that will take a “night-to-night” drop-off at late hours of the night, such as after 9:00 PM.
153. Whether or not they actually sleep there, children may also stay in contractor offices for extended periods without DCF oversight. DCF’s contracts with its private providers do not stipulate how long children can be in contractors’ offices. According to a May 2017 news article, a DCF official stated that DCF “doesn’t require private contractors to report [] data” on “overnight [or] long-term stays at [contractor] facilities.” Reflecting how routine the pattern of office stays has become, the DCF official stated: “[c]hildren . . . waiting to be placed with a foster family . . . spend most of their time in rooms equipped with couches, televisions, toys and games.”
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Extreme Housing Disruption in Kansas Harms Children and Places Children at Risk of Emotional, Psychological and Physical Harm.
154. According to a February 2018 Task Force update, one of the two lead contractor agencies, KVC, explained that “if [a] youth is in a short-term placement overnight, the youth is in the office with staff during the day. We have anywhere from 30-50 kids in our offices daily, which makes it difficult for workers to complete their daily tasks, and has caused several severely unsafe scenarios.” Also in February of 2018, according to a news article, then DCF Secretary MeierHummel stated that the use of “night-to-night” placements in agency offices is “not an acceptable practice.”
155. However, the “severely unsafe scenarios” referenced in the DCF report in February of 2018 were not corrected. In September of 2018, the media reported that authorities charged an older youth with raping a thirteen-year old girl in foster care in DCF custody at an Olathe child welfare office where they were both forced to sleep overnight. According to a news report, the sexual assault was reported in May of 2018. The news report quoted the Johnson County District Attorney as stating: “This is not an isolated incident involving criminal conduct at the KVC offices involving children.”
156. The risk that children subjected to extreme housing disruption will be harmed in their placements is not limited to children housed in agency offices. The chaos of an ever-changing transient population moving among different placements, overcrowded homes beyond their capacity, and the lack of monitoring and oversight by DCF exposes children to a risk of harm in their placements. As set forth in Section V.D. of this Complaint, DCF maintains the practice of subjecting caseworkers to excessive caseloads and turnover, resulting in the failure of caseworkers to visit children in DCF custody as required. Caseworkers simply cannot identify dangers to
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children’s safety or well-being in placements they do not visit. This danger is greatly heightened when children are exposed to churning.
157. Kansas’ churning crisis also disrupts children’s educational stability and contributes to poor educational outcomes. A 2016 audit found that the majority of Kansas foster children in out of home placements – over 85% – do not attend their school of origin, violating a federal standard.
158. When youth bounce from placement to placement, they often bounce from school to school, too. DCF is aware of the problems associated with frequent school changes. For instance, it reported in 2015 that former Kansas foster youth complain of “the difficulty in keeping up with school when placement changes occur.” More recently, in 2018, a Kansas educator testified to the Child Welfare System Task Force that the “growing segment of [] children in the custody of DCF and/or their contractors . . . that have no permanent placement . . . frequently have no idea where they will be sleeping that night, only that it will likely be in a different and more distant town from where they are asked to attend school.” Further, “due to frequent placement changes, these children do not have the educational stability required for successful learning,” and “are not ready to learn at the level of performance expected of them and their typically-developing peers.” As a result, they are “much more likely to receive special education services,” and are “significantly behind academically and exhibit high social, emotional, and behavioral needs that require extensive interventions.”
159. The churning crisis in Kansas not only disrupts children’s education but also precludes access to education itself. Kansas foster children do not consistently attend school while subjected to churning. Children shuffled among numerous placements are often picked up by caseworkers in the morning and dropped off at an office, rather than being dropped off at school.
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Inexplicably, school-age children often sit around an office during the day instead of sitting in a classroom. According to testimony to the Child Welfare Task Force in 2018, “[i]n some circumstances, DCF and/or their contractors who have physical custody of these children, wait days or weeks before enrolling them in school.” For instance, “a student had been spending their days at the contractor’s office for two weeks, and was only enrolled after [an educator] sought them out and alerted the county truancy officer.” A KVC official stated in a 2017 news article that “[i]f you have a child that’s grade school aged, they should be in school [] during the day and not in the office,” yet she acknowledged that children may remain in offices for more than twentyfour-hour periods. The article reported that “according to a Facebook forum devoted to foster and adoptive parents, it isn’t uncommon for children, especially those who frequently ‘bounce’ in and out of homes, to miss days or weeks of school.” For example, Named Plaintiffs M.J., R.R., R.M., C.A., and J.P. all missed school during periods of night-to-night placements.
160. The educational instability tied to churning contributes to poor educational outcomes for Kansas foster youth. DCF self-reported in 2016 that 58.2% of Kansas youth in outof-home placements for at least a year do not progress to the next grade level, which violates a federal standard.
161. Faced with churning, some Kansas foster youth turn to escaping the system itself in the hopes of a better life: they run away. For instance, Named Plaintiff R.M., who has been moved more than 130 times since he entered DCF custody in 2012, tried to run away at the age of eleven in 2016.
162. According to DCF data, as of June 2017, seventy-eight foster youth were runaways. As of February 2018, DCF data showed an average of eighty-five foster children on “runaway” status each month since July 2017. As of August 31, 2018, DCF reported that there were sixty-
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three missing or runaway youth, and in October 2018, DCF reported that “the number of youth who have run away from placement continues to fluctuate daily.” Additionally, DCF’s oversight and tracking of youth is inadequate, such that when foster youth do run away, DCF sometimes fails to even notice.
163. Additionally, the risk of children becoming victims of sex trafficking is prevalent among vulnerable foster youth generally, and is a known risk for foster youth subjected to churning in Kansas. A February 2018 news article referred to Kansas as a “known . . . crossroads for human trafficking.” Dr. Karen Countryman-Roswurm, Executive Director of the Center for Combating Human Trafficking at Wichita State University, explained in a February 2018 news article that the Kansas foster care to human trafficking pipeline is well-known. She noted that foster youth experience trauma that places them at a greater risk of trafficking; and “the [foster] system [] exacerbates a disconnect between children and a community, putting them further in jeopardy.” Dr. Countryman-Roswurm further stated that the risk of trafficking is “of particular concern when there were 71 foster care children in Kansas who have run away[.]”
164. According to a 2018 news article, DCF reported that it conducted 285 assessments on possible survivors of trafficking since 2014. But, as the Kansas Attorney General’s Office stated in the same article, concrete data on trafficking “is elusive” because of the crime’s underground nature.
165. Kansas’ extreme housing disruption crisis further threatens children’s health by systematically denying them access to mental health care. For example, the very nature of churning creates barriers to actually receiving mental health treatment. Many of the Named Plaintiffs experienced delay or disruption in their mental health treatment, including counseling and/or psychotherapy, as a result of the extreme housing disruption that they suffered in DCF custody.
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The short-term nature of placements makes it difficult for a child’s temporary placement even to obtain and schedule an appointment with a mental health care provider for the child. The frequency of placement changes makes it difficult for children to attend appointments and receive consistent care. According to an April 2017 audit of DCF, eight of eleven children’s files in a random sampling indicated “mental health services . . . were delayed or infrequent,” and tellingly, one child with “extreme, trauma-related emotional and behavioral issues” was denied treatment because Defendants’ frequent placement moves caused her providers to “doubt[] that she would be able to make progress before [she] moved again [emphasis added].”
166. In addition to the above dangers created by extreme housing disruption, churning itself is widely recognized as inherently detrimental to children in the child welfare system. As Lori Ross, President and CEO of Kansas City’s FosterAdopt Connect, explained in a May 2017 news article, removal from one’s home is traumatic for any child, especially for those who have been repeatedly removed from homes, and long-term use of temporary placements simply adds to the burden. She stated that “[w]hat this does is create more trauma for the child,” whereby “each time they need to move, they hear in their head, ‘You’re not part of this family, you’re not valuable, you’re being moved like an animal, not a human.’”
167. On the issue of whether frequent moves cause trauma for children, then DCF Secretary Meier-Hummel stated in a media interview on October 31, 2018: “absolutely trauma [is] associated with that. I mean you know if [] you are unsure about where you are sleeping, if you are unsure about what where you’re going to go to school, if you’re concerned about having to move the next day, I mean all of those things create uncertainty and, and then ultimately lead to, you know, mental health issues and perhaps bad outcomes for kids. So we certainly yeah have to do better than that[.]”
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168. It is widely recognized that churning causes both immediate and long-term emotional, psychological, physical developmental and neurological harm.2 Studies show that
extreme housing disruption negatively affects a child’s ability to form secure attachments, or enduring emotional bonds, with caregivers.3 These attachment disorders are connected to
behavioral and mental health problems and contribute to foster children’s disproportionately high risk for poor developmental, social, emotional, behavioral, cognitive, and mental health outcomes.4
169. Specifically, children who experience extreme housing disruption are at an
increased risk of mood disorders, such as depression, anxiety disorders, and behavior problems, such as substance use and disruptive behavior disorders.5 Studies show that children with multiple
placements experience a sixty-three percent increase in behavior problems compared to children who achieved any stability in foster care. 6 Churning may also compound other problems, including aggression, low self-image, and academic under-achievement.7
170. In addition to causing emotional and psychological harm, extreme housing
disruption causes physical harm to children’s normal brain development as well as their central
nervous and endocrine systems. It is a well-accepted principle that childhood experiences can
affect brain development. For children in foster care, multiple moves and a “lack of predictability”
2 Rae R. Newton et al., Children and Youth in Foster Care: Disentangling the Relationship Between Problem Behaviors and Number of Placements, 24 CHILD ABUSE & NEGLECT 1363, 1363-4, 1371-3 (2000). 3 Sonya J. Leathers, Foster Children’s Behavioral Disturbances and Detachment from Caregivers and Community Institutions, 24 CHILDREN AND YOUTH SERVICES REVIEW 239, 259 (2002); Yvonne A. Unrau et al., Former Foster Youth Remember Multiple Placement Moves: A Journey of Loss and Hope, 30 CHILDREN AND YOUTH SERVICES REVIEW 1256, 1261 (2008). 4 B.J. Harden, Safety and Stability for Foster Children: A Developmental Perspective, 14 FUTURE CHILD 31, 32-3, 38-9 (2004). 5 David M. Rubin, The Impact Of Placement Stability on Behavioral Well-being For Children in Foster Care, 119 PEDIATRICS 336, 341-42 (2007); Newton, supra note 1; Joseph P. Ryan & Mark F. Testa, Child Maltreatment and Juvenile Delinquency: Investigating the Role Of Placement and Placement Instability, 27 CHILDREN AND YOUTH SERVICES REVIEW 227, 230, 244-5 (2005). 6 Rubin, supra note 4, at 337, 341. 7 Harden, supra note 3, at 38-39; Newton, supra note 1.
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are “chronic adverse experiences” early in life. These experiences can “fundamentally and permanently alter the functioning of key neural systems involved in learning, memory, and selfregulation and the complex networks of neuronal connectivity among these systems.”8 This is especially true for young children whose brains are at an intense stage of development.9 For these children, extreme housing disruption has been associated with executive functioning deficits,10 which are connected to serious conditions including: Post Traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, disruptive behavior disorders, and substance abuse.11
171. Extreme housing disruption has also been associated with harm to children’s central stress response system, the hypothalamic-pituitary-adrenal (HPA) axis, which involves both the central nervous system and the endocrine system.12 The HPA axis plays a major role in regulating an individual’s response to stressful events.13 Disruption of HPA axis activity has been linked to anxiety disorders, affective disorders, and disruptive behavior disorders.14
172. Published national practice standards also acknowledge the extreme trauma imposed by instability in foster care. The Child Welfare League of America, Standards of Excellence provide that “[p]roactive efforts should continually promote stability and avoid disruptions in foster care, recognizing that a disruption can be another loss, rejection, and possible trauma for the child.” Consistently, the Council on Accreditation’s Standards for Public Agencies notes that “[s]ignificant research has demonstrated the correlation between placement instability
8 Philip A. Fisher et al., A Translational Neuroscience Perspective on the Importance Of Reducing Placement Instability Among Foster Children, 92 CHILD WELFARE 9, 11 (2015). 9 Id. 10 Erin E. Lewis, The Effect Of Placement Instability on Adopted Children’s Inhibitory Control Abilities and Oppositional Behavior, 43 DEVELOPMENTAL PSYCHOLOGY 1415, 1415-6, 1422-3 (2007). 11 Fisher, supra note 7, at 9, 7. 12 Philip A. Fisher, Mitigating HPA Axis Dysregulation Associated With Placement Changes in Foster Care, 36 PSYCHONEUROENDOCRINOLOGY 531, 532 (2011). 13 Id. 14 Id. at 540.
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and negative child outcomes including poor academic performance and social and emotional difficulties. Regardless of a child’s prior history of maltreatment or behavioral challenges, these negative outcomes increase following placement disruptions.” C. Defendants’ Failure to Provide Mandated Mental Health Screenings, Diagnostic
Services, and Treatment Harms Children and Imposes an Unreasonable Risk of Harm. 173. Under federal law, Defendants must provide regular health screenings for foster
children in DCF protective custody, including a “comprehensive” assessment of each child’s mental health development as required under the EPSDT provisions of the Medicaid Act. See 42 U.S.C. § 1396d(r)(1)(A)-(B). Kansas has adopted the Bright Futures periodicity schedule as its standard for pediatric preventive services. This periodicity schedule, developed by the American Academy of Pediatrics, calls for a psychosocial/behavioral assessment at every screening interval from infancy through to age twenty-one, and an annual screening for depression beginning at age twelve.
174. In addition to these periodic screenings, Defendants must provide screenings at other intervals indicated as medically necessary to determine the existence of certain physical and mental illnesses and conditions. See 42 U.S.C. § 1396d(r)(1)(A)-(B). Categorically, all children entering foster care are exposed to multiple forms of trauma stemming from their removal from their homes and the abuse, neglect, or abandonment that precipitated their removal. Accordingly, upon entry to the foster care system, they are entitled to screening and diagnostic services that assess their known trauma-related histories and needs. Trauma-related screening must also be repeated periodically thereafter.
175. The state must also provide “other necessary health care, diagnostic services, treatment, and other measures . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services . . . .” 42 U.S.C. § 1396d(r)(5).
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176. The state is responsible for providing or arranging for medical assistance, including screening, diagnostic services, and treatment, in a reasonably prompt manner. See 42 U.S.C. § 1396a(a)(8), (10), (43)(B), (C); 42 U.S.C. § 1396d(a)(4)(B); 42 C.F.R. § 435.930(a).
177. DCF is responsible for the well-being of all children in foster care, and therefore for providing timely screening, diagnostic services, and treatment for their mental health and behavioral health needs. KDHE is the designated single state Medicaid agency pursuant to 42 U.S.C. § 1396a(a)(5), and is therefore responsible for the financial management and contract oversight of Kansas’ Medicaid program, KanCare. KDADS has responsibility for operating hospitals and institutions and administers Medicaid waiver programs for disability services, mental health, and substance abuse in Kansas. Together, Defendants all share the legal responsibility for ensuring that Kansas complies with the EPSDT requirements of the Medicaid Act.
178. Despite these legal obligations, Defendants maintain a known dangerous pattern, policy, custom, or practice of failing to provide these mental health screenings, diagnostic services, and treatment to children in foster care in Kansas. Defendants’ failure to implement a system that appropriately screens, diagnoses, and treats children in foster care with mental health needs, including mental health needs related to trauma, causes deterioration of their physical, mental, and behavioral health and compromises children’s health, safety, and well-being. In exposing children to these risks, Defendants abdicate their responsibility to serve children in foster care.
Defendants Fail to Provide Required Initial and Periodic Screening and Trauma-Informed Diagnostic Services.
179. Although children in foster care in Kansas are entitled to periodic screening for their mental and behavioral health needs, including trauma-related needs, no comprehensive or coordinated system exists to ensure that these screens happen in practice. Indeed, while KanCare’s EPSDT form requires providers to complete a developmental screening tool, and refers providers
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to relevant resources, there is no similar prompt with respect to mental health screening. Instead, the form simply calls for the screener’s “emotional observations.” There is no reference to traumarelated screening. With no structure in place to ensure that necessary screening takes place, Defendants frequently fail to promptly and appropriately screen children for mental and behavioral health needs.
180. Specifically, Defendants fail to evaluate children’s trauma-related needs upon their entry into DCF custody. All children entering Kansas’ foster care system have necessarily experienced traumatic events, in that they were removed from their home and family, and that they were placed in state custody due to the state’s own finding of abuse, neglect, or abandonment. The research literature and national standards establish the undisputable known trauma of removal and of abuse or neglect.15 Indeed, the literature describes “common features” of children in foster care as including “the psychological and neurobiological effects associated with disrupted attachment to biological parents; the specific traumatic experiences (e.g., neglect and/or abuse) that necessitated placement; the emotional disruption of the placement; [and] the need to adjust to a foster care environment.”16
181. Additionally, medical research conclusively establishes that trauma, including the trauma that all children in DCF custody have experienced due to removal and from child abuse or neglect, carries a high risk of physical, developmental, and emotional harm, including by causing
15 Children’s Bureau, U.S. Dept. of Health & Human Servs., In-Home Services in Child Welfare 2 (2014), available at https://www.childwelfare.gov/pubPDFs/inhome_services.pdf; Robert Racusin et al., Psychosocial Treatment of Children in Foster Care: A Review, 41(2) CMTY. MENTAL HEALTH J. 199 (2005); Child Welfare League of America, Standards of Excellence for Family Foster Care Services § 2.37, updated 2017. 16 Racusin, supra note 14, at 200.
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or exacerbating mental and behavioral health problems and disorders.17 Up to eighty percent of children in foster care enter with significant mental health needs.18
182. Because every child entering DCF custody has experienced known trauma, and that
trauma is known to carry an extremely high risk of needing mental health treatment, all children
entering DCF custody require trauma-related screening and diagnostic services upon entry to the foster care system, in addition to their ongoing periodic trauma-informed screenings.19 These
trauma-informed screening and diagnostic services are essential to effectively identify children in
need of trauma-related treatment and to provide that treatment promptly.
183. However, upon information and belief, Defendants fail to categorically provide all
children in DCF custody either (1) an initial trauma screen and diagnostic services upon entry into
DCF custody or (2) regular, ongoing, trauma-informed mental and behavioral health screenings
while in DCF custody. A report of the Mental Health Task Force to the State Legislature in January
2018 confirmed that mental health care in Kansas is not consistently trauma-informed, and
recommended that the state “promote the education of trauma-informed practices” and “develop
trauma-based behavioral health services for parents whose children are in the custody of [DCF] or
at risk of entering custody.”
17 See, e.g., Victor G. Carrion et al., Can Traumatic Stress Alter the Brain? Understanding the Implications of Early Trauma on Brain Development and Learning, 51 J. ADOLESC. HEALTH S23-S28 (2012); Alexandra Cook, et al., Complex Trauma in Children and Adolescents, 35 PSYCHIATRIC ANNALS 390, 392 (2005); Effects of Complex Trauma, Nat’l Child Traumatic Stress Network, https://www.nctsn.org/what-is-child-trauma/trauma-types/complextrauma/effects (last visited Nov. 14, 2018); Sheryl Kataoka et al., Responding to Students with PTSD in Schools, 21 CHILD & ADOLESCENT PSYCHIATRIC CLINICS N. AM. 119 (2012); Bessel A. Van der Kolk, Psychological Trauma 18, 96–98 (American Psychiatric Association Publishing) (2003); Ray Wolpow et al., The Heart of Learning and Teaching: Compassion, Resiliency, and Academic Success 11 (2016), available at http://www.k12.wa.us/compassionateschools/pubdocs/TheHeartofLearningandTeaching.pdf. 18 Moira Szilagyi, et al., Health Care Issues for Children and Adolescents in Foster Care and Kinship Care, 136 PEDIATRICS 1142, 1146 (2015), available at http://pediatrics.aappublications.org/content/pediatrics/early/2015/09/22/peds.2015-2656.full.pdf. 19 See Children’s Bureau, U.S. Dep’t of Health and Human Servs., Developing a Trauma-Informed Child Welfare System 7 (2015), available at https://www.childwelfare.gov/pubPDFs/trauma_informed.pdf.
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184. Without these required screens and diagnostic services, Defendants have no way to timely identify youth with mental and behavioral health needs, and consequently no way to ensure that such children receive prompt treatment.
185. When Defendants do provide mental and behavioral health screenings, these services often come too late. Notwithstanding Defendants’ legal obligation to promptly provide required screening and diagnostic services, in Kansas, screening and diagnostic services are routinely delayed until a child receives a stable or permanent placement. This means that children who are held in temporary placements, sometimes for weeks or months, are denied access to the mental health screening and diagnostic services – and, consequently, the mental health treatment – they desperately need. Defendants’ churning practice creates an impenetrable barrier to promptly accessing services mandated under the Medicaid Act.
186. Underscoring Defendants’ systemic failure to meet their obligations under the Medicaid Act, according to the April 2017 state audit, DCF has not even developed the processes or maintained the data necessary to track whether children have or have not received their mandated screens and diagnostic services.
Defendants Fail to Provide Required Mental Health and Behavioral Health Treatment. 187. When foster children are identified as having mental and behavioral health needs,
they often do not receive medically necessary mental and behavioral health treatment. And, as indicated in an April 2017 audit, when mental and behavioral health services are provided, they are often “delayed or infrequent.” These systemic failures are due to several factors: a shortage of mental health services, the churning problem, and/or administrative barriers.
188. The Mental Health Task Force recognized in a January 2018 report that “providing crisis intervention and prevention services to children in a natural setting such as school, home, or
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community is necessary to effectively treat children and promote healthy development.” Yet that same report found “the range of [community-based] options available was limited, restricting the continuum of care.”
189. Additionally, a DCF audit in April 2017 found an insufficient range of services as well as inadequate coordination and communication between case managers, support staff, and foster parents blocking access to these community-based mental health services. Transportation issues, for instance, impede the delivery of mental health services. The January 2018 Kansas Child Welfare System Task Force Report explained that “[w]hile DCF and the contractors are to be credited for being aware of the services that are available, caseload, funding, and transportation issues are keeping the full amount of services needed from being delivered.”
190. In addition, there is often insufficient system capacity to meet the mental health needs of children in foster care. This lack of capacity results in long wait times for services. A representative of DCF contractor SFCS noted in 2015 that it “experienced longer waiting time to engage services in the communities for behavioral health needs,” particularly for youth with intellectual and developmental disabilities and/or serious emotional disturbance, “leaving children, youth and families to struggle keeping all parties safe.”
191. A representative of DCF contractor SFCS further stated in October of 2017 that the lack of a standardized protocol governing “the undefined term ‘medical necessity’ sometimes results in denying mental health treatment to a child.”
192. For children with more acute mental health needs, Defendants often fail to maintain an adequate number of available beds in Psychiatric Residential Treatment Facilities (“PRTFs”). In fact, Defendants decreased their capacity of PRTF beds by 65% between 2011 and the end of 2017; as a result, children wait weeks or months for a needed placement and medically necessary
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inpatient mental health treatment. As of February 1, 2018, for example, SFCS and KVC together had a total of twenty-four children who had met the criteria for a PRTF but were placed on a waitlist. The Children’s Continuum of Care (“CCC”) Task Force acknowledged in December 2017 that there should be an “[i]ncrease in PRTF bed capacity,” with waitlists “shorten[ed] or eradicate[d],” and recommended that “KDADS conduct data and trend analysis on PRTF bed utilization and waiting lists to determine the need” and plan “[t]he number of additional beds.” Describing the challenges it faced in 2015, a SFCS representative stated that “[i]t is extremely unfortunate to be in a position to not have access to the services needed for the children and youth we serve.” Without an increase in capacity, challenges in accessing higher levels of care will continue.
193. As the CCC Task Force recognized in 2017, while awaiting PRTF placement, children often bounced from one foster care provider to another, including through night-to-night placements. The Task Force further noted that, while they are waiting, untreated and without a stable placement, children’s symptoms can escalate, progressing from non-emergent to acute and requiring hospitalization. Additionally, according to the same CCC Task Force report, when a PRTF or hospital bed cannot be accessed, a child may even be kept in a juvenile justice facility for delinquent youth.
194. At the same time, as noted in the minutes of a Mental Health Medication Advisory Committee meeting in August of 2017, Defendants fail to provide appropriate alternative options to PRTFs, particularly for children with serious emotional, developmental, and/or intellectual needs. In some cases, as stated in an October 2017 report, PRTFs reject children whose behavioral issues they deem too severe. Upon information and belief, no other placements exist to meet the needs of these children in DCF custody.
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195. In other cases, upon information and belief, children whose needs could be met in a therapeutic foster home or other foster home with readily available mental health service supports are sometimes placed or kept in PRTFs because no such housing exists. This results both in the inappropriate placement in PRTFs of youth whose needs could be met in a less restrictive setting and in additional strain on PRTF capacity.
196. As acknowledged in a January 2018 Mental Health Task Force report and the CCC Task Force report of December 2017, when youth are placed in PRTFs, some are pushed out too soon, having received incomplete or inadequate treatment and without appropriate step-down services to support them in their transition. For example, Named Plaintiff Z.Z. was placed in a PRTF but her stay was artificially cut short, and without any appropriate step-down placements, Z.Z. was subjected to a string of night-night placements upon her discharge from the PRTF.
197. Further, as noted in the January 2018 Mental Health Task Force Report, very few PRTF locations offer case management, therapy, family education and support, and other aftercare services in the immediate community. The failure to properly support youth transitioning from PRTFs compromises their mental health and creates a cycle that sends children into temporary, unstable placements when foster parents are unwilling or unable to care for children with unmet mental health needs, or back to a PRTF, impeding the individual children’s treatment and exacerbating the systemic shortage of beds.
198. Even youth with less intensive mental health needs experience systemic barriers to accessing the mental and behavioral health treatment they need. Upon information and belief, children in foster care in Kansas often must wait to begin treatment until they are in a stable or non-temporary placement, meaning that their access to care is often denied when they need it the most – shortly after they are separated from their families, or when they are experiencing a period
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of extended disruption and instability through multiple short-term placements and night-to-night stays.
199. For example, a legislative audit described a child “with extreme, trauma-related emotional and behavioral issues [who] inconsistently received the therapy she needed because her issues caused her to move to new foster homes frequently.” According to contractor staff, “community mental health providers declined to provide her therapy during her short-term placements because they doubted she would be able to make progress before the child moved again. Additionally, she experienced gaps in treatment during each transition between placements, as it took time for providers to send referrals for her, transfer her records, and get her intake sessions scheduled.”
200. In addition, upon information and belief, Defendants’ practice of repeatedly moving children among placements across the state often disrupts any mental health care that has begun, and interferes with children’s ongoing relationships with their mental health care providers. DCF has acknowledged that “[w]ith placement and school instability, the challenge for case managers is referring to, securing and implementing wrap-around treatment services in a timely manner. For instance, a placement move to a new CMHC catchment area will mean starting the referral process for mental health services over again.” Even if individual children are able to continue relationships with their mental health care providers, due to unmanageable caseloads, often no one is available to transport a child to an appointment; this creates yet another barrier between children and the mental health treatment that they need.
201. For instance, ten-year-old Named Plaintiff C.A. was diagnosed with PTSD and ADD while in DCF custody, yet C.A. has been moved more than seventy times, significantly disrupting necessary mental health treatment.
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202. Additionally, instead of ensuring necessary and legally mandated appropriate treatment of foster children’s mental and behavioral health needs, Kansas often relies on the overuse of psychotropic medications. These medications are powerful drugs such as antipsychotics and antidepressants that act on the central nervous system and can affect cognition, emotions, and behavior. Although the use of psychotropic medications should always be paired with evidencebased and systemically monitored psychosocial interventions, children in foster care in Kansas are routinely prescribed psychotropic medications by non-specialists in order to manage behavior.
203. Not only does churning disrupt mental health treatment, but the failure to provide necessary mental health treatment to children in foster care exacerbates Kansas’ pervasive problems with extreme housing disruption, because untreated mental health needs may lead to additional placement disruptions.20 DCF describes “the challenge with caring for the children on the wait list [for services], first and foremost, [as] stability in placement.” Foster parents may not be equipped to respond to a child’s untreated mental health needs, and may feel that they cannot keep the child and others safe with the behaviors they are displaying. As a result, the child’s placement may change, often repeatedly. In a recurring cycle, this in turn can lead to further mental health challenges including mood difficulties, aggression, low self-image, and attachment issues.21
20 Shannon Dorsey, et al., Children, Youth, and Family News, Am. Psychological Ass’n (2012), Trauma-Focused Cognitive Behavioral Therapy with Youth in Foster Care: The Impact of Caregiver Engagement, available at https://www.apa.org/pi/families/resources/newsletter/2012/01/winter.pdf. 21 David M. Rubin, Amanda O’Reilly, R., Xianqun Luan, & A. Russel Localio, The Impact of Placement Stability on Behavioral Well-Being for Children in Foster Care, 119 PEDIATRICS 336, 336, 341-43 (2007); Rae R. Newton, Alan J. Litrownik & John A. Landsverk, Children and Youth in Foster Care: Disentangling the Relationship Between Problem Behaviors and Number of Placements, 24 CHILD ABUSE AND NEGLECT 1363, at 1363-64, 1371-73 (2000); Joseph P. Ryan & Mark F. Testa, Child Maltreatment and Juvenile Delinquency: Investigating the Role of Placement and Placement Instability, 27 CHILDREN AND YOUTH SERVICES REVIEW 227, 230, 244-45 (2005).
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204. Research also shows that untreated mental health conditions can cause children to run away from their foster care placements, leaving them vulnerable to homelessness, trafficking, and involvement in the juvenile justice system.22
205. Defendants are aware that they are failing to meet the mental health needs of children in foster care in Kansas. For example, Kansas’ own Mental Health and Continuum of Care Task Forces have explicitly identified problems including the need for trauma-informed care, limited array of available services, inadequate PRTF capacity, and unacceptably long waitlists. Meanwhile, DCF’s foster care contractors report that service interventions are needed in the area of mental health, noting, for example, particular challenges with accessing higher levels of care when children need them, excessive wait times to receive services, and high usage of medication for foster youth.
206. As a KVC representative stated in October of 2017, “[t]he greatest area for improvement in the foster care system is that more effective interventions are needed in the mental health area.”
207. Despite such information and notice and despite the relevant legal mandates, Defendants have failed to take adequate actions to correct these broad failings and to provide or arrange for the screenings, diagnostic services, and treatment that children in foster care in Kansas need. These failures are harming the children in their care and imposing an unreasonable risk of ongoing harm.
22 Theodore P. Cross, et al., Why Do Children Experience Multiple Placement Changes in Foster Care? Content Analysis on Reasons for Instability, 7 JOURNAL OF PUBLIC CHILD WELFARE 39, 48, 53 (2013).
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D. Three Additional Structural Failures Cross Over, Contribute To, and Exacerbate the Churning and Mental Health Services Failures.
208. Three additional structural failures cross over the two fundamental problems addressed in this Complaint, and contribute to and exacerbate the harms and dangers of extreme housing deprivation and the denial of mental health screenings, diagnostic services, and treatment: (1) excessive workloads, turnover and inadequate monitoring of children and their caregivers by frontline case workers; (2) the failure to directly oversee private providers; and (3) the failure to track and maintain accurate and timely data.
Defendants’ Practice of Excessive Caseworker Caseloads, Turnover and Inadequate Monitoring
209. DCF maintains a known policy, custom, pattern or practice of excessive workloads of its frontline case manager workforce, which impedes caseworkers’ ability to monitor the safety and well-being of the foster children assigned to them, and their ability to provide basic support to foster parents. The excessive workloads and high turnover of caseworkers significantly contribute to and exacerbate the harms and risks of harm to children alleged in this Complaint.
210. Former DCF Secretary Meier-Hummel agrees that Kansas caseworkers’ ability to accomplish their jobs when forced to juggle so many cases is “an issue for sure.” While she was the DCF Secretary, she stated on October 31, 2018, that “[i]f we don’t have an adequate workforce and they’re asked to do too much, [that] is when children’s safety is compromised.”
211. Once in foster care in DCF’s protective custody, by definition, children are highly vulnerable and without adequate family protection. Once they enter the State’s custody, caseworkers (provided under contract with the two lead provider agencies, KVC and SFCS), are responsible for ensuring their safety and well-being. As noted in the April 2017 Performance Audit Report, “case management staff develop and oversee children’s case plans, refer children for
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physical and mental health services, supervise visits between parents and children, write court reports and testify in court proceedings.” Consistently, caseworkers are required to complete initial and ongoing assessments of children and their families; develop and implement case plans; facilitate and coordinate visits with children and their caregivers; prepare children for placement moves; provide intervention in crisis situations; support resource families to maintain placements; assess ongoing case plan goals and permanency options; and maintain written documentation in the child’s and family’s case record.
212. To perform these essential functions, as noted in a state audit report in April 2017, “[i]t is important [that] case management staff have reasonable caseloads, so they can provide each child the quality of services and individual attention they need.” Professional standards, as promulgated by the Child Welfare League of America, recommend that foster care caseworkers have workloads that range from twelve to fifteen children per caseworker in order to fulfill their responsibilities. Standards of the Council on Accreditation recommend that caseworkers have workloads between eight and fifteen children, depending on the level of need of the children.
213. An April 2017 state audit report found that, in Kansas, “[c]ase managers’ maximum caseloads frequently exceeded 30 cases during fiscal years 2014-2016.” Subsequent reports reveal that workloads have continued to increase. A media report in November 2017 found that caseworkers responsible for as many as forty-three and fifty-seven children found it impossible to complete each monthly visit as well as case plans, court hearings and meetings with families. That same month, a local magistrate judge explained to the Child Welfare System Task Force that “[c]aseworkers are carrying enormous caseloads that prevent the attention these kids require.” In February 2018, a news report found that “[c]aseworkers who have quit the agency and its subcontractor KVC have complained of caseloads of up to seventy at a time.”
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214. Numerous press articles describe caseworker turnover, low morale, and all the harm caused to children in DCF care. A March 2017 news article reported that “DCF has cut its social worker positions by 20 percent, despite an additional 33 percent increase in children entering the system during the past five years. Experienced social workers have left in droves.” A July 2018 news article reported that DCF still had seventy-six vacant child protection positions in June of 2018.
215. Additionally, the data likely under-reports the actual caseloads of foster care caseworkers assigned to children. For example, according to the April 2017 state audit, caseworker supervisors, against practice standards, often carry caseloads of children on top of their own supervisory workloads, skewing caseload data.
216. With frequently excessive workloads, the caseworkers often do not have time to perform essential tasks to protect children’s safety and well-being, such as visit with children in their placements, ensure children are adjusting in new placements, ensure children are attending mental health appointments, facilitate follow-up behavioral health services, coordinate visits between children and their parents and siblings, and attend to other issues that may threaten the well-being of a child. As the January 2018 Report of the Child Welfare System taskforce found, “[e]xcessive caseloads and limited funding affect timely response for needed services.” Similarly, that same report notes that “mental health services are especially needed” and that “caseload[] issues . . . are keeping the full amount of services needed from being delivered.”
217. Excessive workloads also prevent caseworkers from providing basic support to foster parents. For example, a July 2016 legislative audit report showed that only thirteen percent of a sample of Kansas foster families had confirmed and completed documented visits from the caseworker assigned to support the foster family. In another example, as noted in the April 2017
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legislative audit report, “DCF’s case review for the federal CFSR, our targeted file review, and our stakeholder survey all indicated poor communication and coordination between licensed case managers, support staff, and foster parents sometimes prevented children from receiving services they needed.” Similarly, in a 2018 Report to the Child Welfare Task Force, “[t]he working group heard and received testimony on lags in communication or misinformation between DCF and stakeholders that negatively affected persons and service providers such as foster parents, grandparents, attorneys and clinicians, to name a few.”
218. According to DCF data, in 2016, 26% of the children who were in foster care for all 12 months had three or more case managers. Upon information and belief, children continue to experience turnover among assigned caseworkers today. Frequent changes in caseworkers, combined with their high workloads, further inhibit caseworkers’ ability to do their job monitoring the safety and well-being of foster children and to support foster parents.
219. Given the critical role caseworkers play in ensuring the safety and well-being of foster children in DCF’s protective custody – including visiting children, maximizing placement stability, supporting foster parents, and coordinating the delivery of mental health services – the high caseloads and turnover of caseworkers significantly contribute to and worsen the practice of extreme housing disruption and the denial of mental health screens, diagnostic services, and treatment.
Defendants Fail to Adequately Oversee Private Contract Providers. 220. As an April 2017 state audit report stated, DCF is “ultimately responsible for the state’s foster care system” even though Kansas has privatized most of the day-to-day operations. “The foster care contracts and state law specify the department has ultimate responsibility for the well-being of children, the quality of the services, and the overall success of the foster care
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system.” DCF’s lead contractors, KVC and SFCS, provide case management, placement and service coordination for Kansas foster children statewide.
221. DCF contracts with KVC and SFCS to provide case management services, which include the obligation to “develop and oversee progress on case plans for children in foster care and their families.” KVC and SFCS subcontract with child placing agencies to provide placements for foster children in DCF custody. “Child placing agencies recruit and sponsor foster homes. They help the case management contractors find a placement for children placed in DCF custody. Child placing agencies also assist homes with licensing and are charged with regularly visiting foster families.” KVC and SFCS monitor children in those placements, and are responsible for “directing clients to appropriate services (such as family preservation and mental health services).”
222. In fiscal year 2016, “about $154 million was paid [by DCF] to foster care contractors to provide placement (reintegration, foster care, and adoption) and case management services.”
223. DCF’s contracts with KVC for “Reintegration/Foster Care/Adoption Services” provide for a “monthly prospective base rate for term July 1, 2017 through June 30, 2018 [of] $810,000.00 per month” for the Kansas City Region and “$920,500.00 per month” for the East Region. The contracts further provide for a “monthly prospective case rate [of] $1,342.00 per out of home placement per month” for the Kansas City Region and “$1,558.00 per out of home placement per month” for the East Region. DCF’s current contract with KVC extends through at least September 2019.
224. DCF’s contracts with SFCS for “Reintegration/Foster Care/Adoption Services” provide for a “monthly prospective base rate for term July 1, 2017 through June 30, 2018 [of] $898,860.00 per month” for the West Region and “$725,000.00 per month” for the Wichita
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Region. The contracts further provide for a “monthly prospective case rate [of] $1,726.00 per out of home placement per month” for the West Region and “$1,666.00 per out of home placement per month” for the Wichita Region. DCF’s current contract with SFCS extends at least September 2019.
225. As an April 2017 state audit makes clear, DCF “must actively oversee the contractors and evaluate their performance. That oversight includes ensuring children are placed in appropriate settings, children’s physical and mental health needs are addressed, and permanency is secured for them in a timely manner.”
226. DCF maintains a structural deficiency of a known, dangerous policy, custom, pattern or practice of failing to oversee private contract providers adequately, which significantly contributes to and exacerbates the dangers of churning and failing to ensure children receive mental health screening, diagnostic services, and treatment alleged in this Complaint.
227. An April 2017 state audit report found that “DCF did not collect and maintain the data it needed to effectively oversee the case management contractors.” For example, DCF requires contractors to “place each child in the foster home nearest his or her removal home that provided the best fit, as well as to ensure each child received the physical and mental health screenings, assessments, and referrals he or she needed. However, DCF did not develop the processes or maintain the data necessary to ensure these things happened for all children.”
228. DCF’s contracts with KVC and SFCS provide that, if KVC or SFCS “fails to provide all of the goods and services under [the contract] as amended, then DCF may proceed to institute such corrective action as it deems reasonably appropriate to ensure the requirements of the contract are met.”
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229. The contracts further state that if KVC or SFCS fails to provide the required goods and services, “DCF may assess a penalty based on DCF internal audit recommendations, in addition to any damages it may incur as a result of . . . non-performance, including the need to obtain such goods and services for children and families outside the scope of the contract.”
230. The contracts also require that, subsequent to the close of the fiscal year, KVC and SFCS “shall provide to DCF any and all documentation requested by DCF” for the purposes of conducting an annual audit. Under the contracts, “audits performed by DCF may include audits of contract performance, i.e., compliance with terms and conditions of the contract with DCF including accomplishment of federal and state outcomes related to children and families.”
231. Additionally, “[t]he foster care contracts allow DCF to request and approve a performance improvement plan when a contractor does not meet federal outcome requirements or when [DCF] identifies problems through any of its oversight processes.” DCF “may assess financial penalties if a contractor fails to meet its goals for two consecutive quarters, and may terminate the contract if the contractor fails to meet them by the end of the state fiscal year in which the plan was implemented.”
232. According to the April 2017 state audit report, “DCF has not been aggressive in addressing the problems it identified with its contractors.” The report further noted that “DCF has only required two performance improvement plans since 1997 . . . despite the fact the contractors did not meet federal outcome benchmarks in several years,” including federal requirements related to timeliness and stability and including known failures to ensure the provision of mental and behavioral health services.
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233. DCF has directly failed to monitor and oversee its contractors in order to remedy the known problems of churning and the failure to provide mental health screening, diagnostic services, and treatment to Plaintiffs and members of the General Class and Mental Health Subclass.
234. DCF has failed to pursue effective remedies from its contractors, including specific corrective actions, financial penalties resulting in measurable improvement, or contract termination in response to these known dangers. DCF has effectively ignored these specific foster care system dangers.
235. In the wake of the alleged rape of a thirteen-year-old girl at KVC’s Olathe office, where she was forced to sleep in a conference room overnight in May 2018, a September 19, 2018 news article reported that since Kansas privatized its child welfare system in the mid-1990s, DCF has only penalized a contractor financially once.
236. DCF has failed and continues to fail to directly monitor and oversee the financial and programmatic operations and outcomes of KVC, SFCS, and the other private organizations that contract to provide housing and other services to children in DCF’s care. This failure significantly contributes to and exacerbates the harms and risks of harm to children alleged in this Complaint.
Defendants’ Failure to Accurately Track, Monitor, and Share Data 237. Defendants’ known failure to accurately track, monitor, and share current data is a structural deficiency that cuts across the systemic problems with placement stability; mental health care; workloads, monitoring, and visits; and contract oversight. As result, data failures significantly contribute to and exacerbate the harms and risks of harm to children alleged in this Complaint. As DCF stated in an October 2018 update to the Child Welfare System Task Force, “[o]ur current system was built 30 years ago, prior to the internet, and it [is] on a mainframe
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system. Current IT staff are unable to fix issues that arise within our system because it is so outdated. The current system is a barrier to our staff, and ultimately, puts children in danger.”
238. Data failures contribute to churning. As identified in the Report of the Child Welfare System Task Force to the 2018 Kansas Legislature in January 2018, “[a]n antiquated set of various computer systems within the DCF prevents communication between computers within DCF, as well as between DCF and the two child welfare system contractors[,]” KVC and SFCS. As found in the Legislative Post Audit Performance Audit Report in April 2017, “DCF could not monitor if children were placed in appropriate homes, in part because it did not collect integrated information about foster homes.” Moreover, “[t]he case management contractors [KVC and SFCS] may not have had information about all potential foster homes when making placement decisions.”
239. Additionally, “DCF did not have a complete dataset it could easily access to show where all children in their custody had been placed.” Moreover, “DCF’s data on licensed foster homes was outdated and missing important information about the number of open beds” available to place children.
240. Data failures also contribute to problems of ensuring mental health and behavioral health screenings, diagnostic services, and treatment. For example, an April 2017 audit found that case management contractors failed to consistently document children’s mental health needs and services in their files and instead relied heavily on verbal communication.
241. In addition, data failures also contribute to problems of monitoring monthly visits. As a July 2016 Audit Report found: “For 114 cases (59%), because of poor documentation, [auditors of DCF from the Legislative Division of Post Audit] could not tell whether some monthly visits happened or [they] questioned the quality of the visit.” The Report further stated: “Poor documentation makes it difficult for DCF and case management contractors to monitor child
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placing agencies and ensure the safety of the children in foster care.” It explained that “case management staff may not always be completing or documenting required monthly visits, which puts children at risk of harm while in DCF care.”
242. Finally, data failures contribute to inadequate contract monitoring. As the April 2017 Audit Report found, “DCF’s monitoring processes did not capture important managementlevel information.” The Report “showed the department [DCF] expected the contractors to ensure children were placed in appropriate homes and their well-being, but did not maintain data to monitor whether this occurred.” Additionally, “DCF could not monitor if children were placed in appropriate homes, in part because it did not collect integrated information [or data] about foster homes.”
VI. CAUSES OF ACTION FIRST CAUSE OF ACTION Substantive Due Process Under the Fourteenth Amendment [Brought by All Named Plaintiffs and the General Class Against Governor Kelly and DCF
Secretary Howard] 243. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein. 244. The state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to protect a child from harm and to keep a child reasonably free from harm and risks of harm when it takes that child into foster care custody. 245. The foregoing actions and inactions of Defendants Kelly and Howard, in their official capacities, who directly and indirectly control and are responsible for the policies of DCF, constitute a failure to meet their affirmative duty to protect from harm and keep reasonably free from harm and risk of harm all Named Plaintiffs and General Class members. These failures are a
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substantial factor leading to, and proximate cause of, the violation of the constitutionally-protected liberty interests of the Plaintiffs.
246. The foregoing actions and inactions of Defendants Kelly and Howard, in their official capacities, constitute a pattern, custom, policy and/or practice that are contrary to law and any reasonable professional standards, are substantial departures from accepted professional judgment, and are in deliberate indifference to known harms and imminent risk of known harms and to Plaintiffs’ and the General Class’s constitutionally protected rights and liberty interests, such that Defendants were plainly placed on notice and chose to ignore the dangers in a manner that shocks the conscience.
247. As a result of Defendants Kelly and Howard’s actions and inactions, Plaintiffs have been harmed or are at continuing and imminent risk of harm and have been deprived of their substantive due process rights guaranteed by the Fourteenth Amendment, including but not limited to the right to be reasonably free from harm while in state custody.
SECOND CAUSE OF ACTION Medicaid Act
[Brought by All Named Plaintiffs and the General Class Against All Defendants]
248. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
249. Defendants have failed to promptly provide or otherwise arrange for Plaintiffs and the members of the General Class to receive, upon entry to foster care, early and periodic screening and diagnostic services that would determine the existence of trauma-related physical or mental illnesses or conditions, in violation of 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(A), 1396a(a)(43)(B), (C), 1396d(a)(4)(B), 1396d(a)(13), 1396d(r)(1), and 1396d(r)(5).
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250. The foregoing actions and inactions of Defendants, in their official capacity, constitute a pattern, custom, policy and/or practice that deprives Named Plaintiffs and the General Class of the enforceable rights conferred on them by the EPSDT provisions of the federal Medicaid Act to promptly receive trauma-related early and periodic screening and diagnostic services upon entry to foster care.
THIRD CAUSE OF ACTION Medicaid Act
[Brought by All Named Plaintiffs and the General Class Against All Defendants]
251. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
252. Defendants have failed to promptly provide or otherwise arrange for Plaintiffs and the members of the General Class to receive early and periodic mental and behavioral health screening that would determine the existence of physical or mental illnesses or conditions, including trauma-related illnesses or conditions, in violation of 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(A), 1396a(a)(43)(B), (C), 1396d(a)(4)(B), and 1396d(r)(1).
253. The foregoing actions and inactions of Defendants, in their official capacity, constitute a pattern, custom, policy and/or practice that deprives Named Plaintiffs and the General Class of the enforceable rights conferred on them by the EPSDT provisions of the federal Medicaid Act to promptly receive ongoing early and periodic mental and behavioral health screening, including trauma-related screening.
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FOURTH CAUSE OF ACTION Medicaid Act
[Brought by Named Plaintiffs M.B., S.E., M.J., R.R., R.M., C.A., E.B., J.P., Z.Z., B.B., and M.A. and the Mental Health Treatment Subclass Against All Defendants]
254. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint as if fully set forth herein.
255. Defendants have failed to provide or otherwise arrange for Plaintiffs and the members of the Mental Health Treatment Subclass to promptly receive medically necessary behavioral and mental health services, including intensive, community, and home-based mental health services, that would correct or ameliorate their mental health illnesses or conditions, in violation of 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(A), 1396a(a)(43)(C), 1396d(a)(4)(B), and 1396d(r)(5).
256. The foregoing actions and inactions of Defendants, in their official capacity, constitute a pattern, custom, policy and/or practice that deprive Named Plaintiffs M.B., S.E., M.J., R.R., R.M., C.A., E.B., J.P., Z.Z., B.B., and M.A. and the Mental Health Treatment Subclass of the enforceable rights conferred on them by the EPSDT provisions of the federal Medicaid Act to medically necessary mental and behavioral health treatment.
VII. PRAYER FOR RELIEF 257. WHEREFORE, Plaintiffs respectfully request that the Court:
a. Assert jurisdiction over this action; b. Order that Plaintiffs may maintain this action as a class action pursuant to
Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure; c. Declare unconstitutional and unlawful pursuant to Rule 57 of the Federal
Rules of Civil Procedure:
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i. Defendants Kelly and Howard’s violation of Named Plaintiffs’ and the General Class’s substantive due process rights to be free from harm and unreasonable risk of harm under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution;
ii. Defendants’ violation of Named Plaintiffs’ and the General Class’s rights under 42 U.S.C. §§ 1396a(a)(8), 1396a(a)(10)(A), 1396a(a)(43)(B), (C), 1396d(a)(4)(B), 1396d(a)(13), 1396d(r)(1), and 1396d(r)(5);
iii. Defendants’ violation of Named Plaintiffs’ and the Mental Health Treatment Subclass’s rights under 42 U.S.C. §§ 1396a(a)8, 1396a(a)(10)(A), 1396a(a)(43)(C), 1396d(a)(4)(B), and 1396d(r)(5).
d. Preliminarily and permanently enjoin Defendants from subjecting Plaintiffs to practices that violate their rights and order appropriately tailored remedies directed at Defendants to ensure Defendants’ future compliance with their obligations to Plaintiffs, including, but not limited to, the following:
RELIEF REQUESTED FOR GENERAL CLASS: i. Enter a permanent injunction requiring that Defendants (1) end the practice of subjecting children to extreme housing disruption, including short-term and night-to-night placements, (2) conduct an expert workload study to determine the workload(s) necessary to conduct required visits and monitoring of foster children, coordinate mental health services for children, and support foster parents; (3) implement staff hiring and retention strategies to maintain the workload(s) identified by the workload study; (4) design and implement a plan to 70

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provide direct oversight over the contracts with DCF’s private providers concerning placement stability and delivery of mental health services; (5) create a single, cross-system, web-based, integrated case management and data reporting system which can be used by DCF, KDHE and KDADS to efficiently and effectively collect and share information concerning children and their placement and treatment needs, placement availability and matching, and mental health service needs and providers; (6) provide, upon entry to foster care, initial trauma-related screening and diagnostic services to all children in foster care in DCF custody; and (7) provide early and periodic mental and behavioral health screening, including periodic trauma-related screening, to all children in foster care in DCF custody. RELIEF REQUESTED FOR MENTAL HEALTH TREATMENT SUBCLASS: ii. Enter a permanent injunction requiring that Defendants establish and implement trauma-informed practices to ensure that all members of the Mental Health Treatment Subclass receive access to the medically necessary mental health treatment services to which they are entitled under the EPSDT provisions of the federal Medicaid Act by taking steps including, but not limited to: (1) conducting a current network adequacy study to identify specific shortages in the number and array of mental health treatment services for children in DCF custody, including providers of such treatment services and facilities such as PRTFs; and (2) filling any identified gaps in the network adequacy study.
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FURTHER RELIEF REQUESTED:

iii. The provisions of the Court order entered pursuant to Federal Rule of

Civil Procedure 65(d) shall be monitored by a neutral expert monitor

appointed by the Court. In addition, the Court shall have continuing

jurisdiction to oversee compliance with that Order;

e. Award to Plaintiffs the reasonable costs and expenses incurred in the

prosecution of this action, including reasonable attorneys’ fees and costs,

pursuant to 28 U.S.C. § 1920 and 42 U.S.C. § 1988, and Federal Rules of

Civil Procedure 23(e) and (h); and

f. Grant such other equitable relief as the Court deems just, necessary, and

proper to protect Plaintiffs from further harm while in Defendants’ custody

and care.

DATED: September 6, 2019

Respectfully submitted,

KANSAS APPLESEED CENTER FOR LAW AND JUSTICE, INC.

_/s/ Teresa A. Woody______________________ Teresa A. Woody KS Bar ID 16949 KS District Bar No. 16949 Larry R. Rute KS Bar ID No. 8105 KS District Bar No. 08105 211 East 8th Street, Suite D Lawrence, KS 66044 P: (785) 856-0917 twoody@kansasappleseed.org larry@adrmediate.com

LAW OFFICE OF LORETTA BURNSBUCKLEW Loretta Burns-Bucklew

72

Case 2:18-cv-02617-JWL-GEB Document 63 Filed 09/06/19 Page 73 of 75
MO Bar ID No. 32053 KS District Bar No. 78800 401 West 89th Street Kansas City, MO 64114 P: (816) 384-1198 loribblawkc@gmail.com
NATIONAL CENTER FOR YOUTH LAW Leecia Welch (admitted pro hac vice) CA Bar ID No. 208741 Poonam Juneja (admitted pro hac vice) CA Bar ID No. 300848 Freya Pitts (admitted pro hac vice) CA Bar ID No. 295878 405 14th Street, 15th Floor Oakland, CA 94612 P: (510) 835-8098 F: (510) 835-8099 lwelch@youthlaw.org pjuneja@youthlaw.org fpitts@youthlaw.org
CHILDREN’S RIGHTS, INC. Ira Lustbader (admitted pro hac vice) NY Bar ID No. 2516946 Marissa C. Nardi (admitted pro hac vice) NY Bar ID No. 5173265 Jonathan M. King (admitted pro hac vice) NY Bar ID No. 5119847 Stephen A. Dixon (admitted pro hac vice) LA Bar ID No. 18185 88 Pine Street, 8th Floor New York, NY 10005 P: (212) 683-2210 F: (212) 683-4015 ilustbader@childrensrights.org mnardi@childrensrights.org jking@childrensrights.org sdixon@childrensrights.org
DLA PIPER LLP (US) David S. Sager (admitted pro hac vice) NJ Bar ID No. 007361992 William J. Diggs (admitted pro hac vice) NJ Bar ID No. 013392010 51 John F. Kennedy Parkway, Suite 120
73

Case 2:18-cv-02617-JWL-GEB Document 63 Filed 09/06/19 Page 74 of 75 Short Hills, NJ 07078 P: (973) 520-2570 F: (973) 215-2604 david.sager@dlapiper.com william.diggs@dlapiper.com ATTORNEYS FOR PLAINTIFFS
74

Case 2:18-cv-02617-JWL-GEB Document 63 Filed 09/06/19 Page 75 of 75 CERTIFICATE OF SERVICE
I hereby certify that on September 6, 2019, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to counsel for all Defendants.
/s/ Teresa A. Woody Attorney for Plaintiffs
1

 
 IN THE UNITED STATES DISTRICT COURT DISTRICT OF KANSAS

M.B. and S.E., through their next friend KATHARYN MCINTYRE, et al.,

Plaintiffs,

Case No. 18-CV-02617-DDC-GEB

V.

LAURA HOWARD, et al.,

Defendants.

SETTLEMENT AGREEMENT
This Settlement Agreement has been executed on the dates set forth below but made effective as of the Date of Final Approval, by and between Plaintiffs M.B. and S.E. through their next friend Katharyn McIntyre, R.M. through his next friend Allan Hazlett, C.A. through his next friend Allan Hazlett, E.B. through his next friend Allan Hazlett, J.P. through her next friend Allan Hazlett, Z.Z. through her next friend Ashley Thome, and M.A. through his next friend Ashley Thome, for themselves and those similarly situated, by and through Plaintiffs' Counsel (collectively "Plaintiffs"), and Defendants Laura Howard, in her official capacity as Kansas Department for Children and Families ("DCF") Secretary, Laura Howard, in her official capacity as Kansas Department of Aging and Disability Services ("KDADS") Secretary, and Dr. Lee A. Norman, in his official capacity as Kansas Department of Health and Environment ("KDHE") Secretary, by and through Defendants' Counsel (collectively "Defendants"; Plaintiffs and Defendants collectively the "Parties"). This Settlement Agreement is conditioned on approval by the United States District Court for the District of Kansas in this action, as required by Rule 23 of the Federal Rules of Civil Procedure.
RECITALS
WHEREAS, Plaintiffs filed this action ("the Litigation") (ECF 1 and 63) alleging ongoing federal statutory and constitutional violations and seeking prospective declarative and injunctive relief concerning the Kansas Child Welfare System; and
WHEREAS, Defendants deny any violations of federal law in the Litigation; and
WHEREAS, since she was appointed, DCF Secretary Howard has made improvement in the Kansas foster care program a top priority; and

WHEREAS, this Agreement was approved by the Kansas State Finance Council on July 8, 2020;
WHEREAS, the Parties wish to amicably resolve this action in a way that addresses the concerns identified in the Litigation and benefits the children and families served by the Kansas Child Welfare System.
NOW, THEREFORE, in consideration of the execution of this Settlement Agreement and the mutual recitals and promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Paiiies agree as follows:
SECTION 1: DEFINITIONS AND PRINCIPLES
Part I: Definitions
1.1 "CFSR" shall mean the Child and Family Services Review Round 3.
1.2 "Class" shall mean the class, authorized by the terms of this Settlement Agreement and approved by the Comi, to be certified under Fed. R. Civ. P. 23(a) and (b)(2) and defined as: all children who are now, or in the future will be, in the protective custody of DCF pursuant to Kan. Stat. Ann.§ 38-2242(c)(l).
1.3 "Class Counsel" shall mean attorneys of record for Plaintiffs in the Litigation.
1.4 "Class Counsel Fees and Expenses" shall mean reasonable fees and expenses of Class Counsel in an amount determined to be reasonable by the Court. The Court shall retain jurisdiction to make this determination. Defendants stipulate that Class Counsel is entitled to Class Counsel Fees and Expenses but reserve the right to dispute the appropriate amount.
1.5 "Crisis Intervention Services" shall mean in-person on-site or virtual face-to-face mental health services provided to a person who is experiencing a behavioral health crisis, designed to interrupt and/or ameliorate a crisis experience. These services include a preliminary assessment, which may be conducted over the phone to determine the appropriate level of intervention, immediate crisis resolution and de-escalation, crisis intervention and stabilization services, and timely referral and linkage to appropriate community services to avoid more restrictive levels of treatment, based on the individualized needs of the person experiencing the behavioral health crisis.
1.6 "Contract" or "Grant" shall mean any agreement between Defendant(s) and licensed private providers to provide foster care placements or services, including mental and behavioral health services, to Class Members. This definition includes any agreement or arrangement under which funding is provided in exchange for the provision of foster care placements or services, regardless of its form.
1.7 "Contractor" or "Grantee" shall mean a licensed private provider with whom Defendant(s) contract or otherwise arrange to provide foster care placements or services, including mental and behavioral health services, to Class Members. This definition applies to such a
2

provider regardless of the form of the agreement or arrangement under which funding is provided in exchange for the provision of foster care placements or services.
1.8 The "Date of Final Approval" shall mean the date upon which the Judgment and Order is entered by the Court.
1.9 "Defendants" shall mean the defendants in the Litigation (Laura Howard, in her official capacity as Secretary of DCF and KDADS, and Dr. Lee A. Norman, in his official capacity as Secretary of KDHE) and each such agency, and their officers, agents, and elected or appointed officials, past, present, and future.
1.10 "Extraordinary Circumstances" shall mean an immediate or imminent cns1s whereby measures must be taken to protect the safety and security of the child. A lack of safe and/or appropriate placement options does not constitute Extraordinary Circumstances.
1.11 "Initial Mental Health and Trauma Screen" shall mean the Child and Adolescent Functional Assessment Scale (attached hereto as Attachment 1 and available at www2.fasoutcomes.com), the Preschool and Early Childhood Functional Assessment Scale (attached hereto as Attachment 2 and also available at www2.fasoutcomes.com), the Child and Adolescent Needs and Strengths tool (attached hereto as Attachment 3 and available at praedfoundation.org), or their functional equivalents as agreed by the Parties.
1.12 "Judgment and Order" shall mean the Order of the United States District Court for the District of Kansas finally approving the Settlement Agreement.
1.13 The "Litigation" shall mean MB. and S.E. through their next ji-iend Katharyn McIntyre, et al., v. Laura Howard, in her official capacity as Kansas DCF Secretary, et al., Case No. 18-CV-2617-DDC-GEB, pending in the United States District Court for the District of Kansas, Kansas City Division.
1.14 "Mediator" shall mean the following individual: Karen Baynes-Dunning.
1.15 "Neutral" shall mean the following individual: Judith Meltzer and the Center for the Study of Social Policy.
1.16 "Notice of Settlement" shall mean the notice to the Class in the form approved by the Court in this Litigation in an order granting Preliminary Approval of the Settlement Agreement, setting forth the nature and terms of the Settlement Agreement, the schedule and manner for filing any submissions in objection to or in favor of the Settlement Agreement and/or requests to be heard at the final fairness hearing, and the date, time, location and purpose of a final fairness hearing, and notifying the Class of Class Counsel's request for an award of Class Counsel Fees and Expenses.
1.17 "Night-to-Night Placement" shall mean a one calendar day placement that is not the same residence address for consecutive days.
1.18 "Placement Move" shall mean a change in foster care placement setting, as defined by the Adoption and Foster Care Analysis and Reporting System (AFCARS).
3

1.19 "Plaintiff Class" or "Class Members" shall mean each member of the Class certified by the Court.
1.20 "Preliminary Approval of the Settlement Agreement" shall mean an Order from the Court granting preliminary approval of the Settlement Agreement; approving the form, manner and timeframe for the publication of the Notice of Settlement (at Defendants' expense); setting forth the schedule and manner for filing any submissions in objection to or in favor of the Settlement Agreement and any requests to be heard at the final fairness hearing, and the Parties' response to any such submissions; the timing and process for Plaintiffs to file a motion for Class Counsel Fees and Expenses for work up through the Date of Final Approval (including opposition and reply briefs); and the date, time, location and purpose of a final fairness hearing.
1.21 A "Qualified Mental Health Professional" shall mean a physician or psychologist, a licensed masters level psychologist, a licensed clinical psychotherapist, a licensed marriage and family therapist, a licensed clinical marriage and family therapist, a licensed professional counselor, a licensed clinical professional counselor, a licensed specialist social worker or a licensed master social worker, or a registered nurse who has a specialty in psychiatric nursing.
1.22 "Released Claims" shall mean all claims for declarative and injunctive relief and causes of action asserted in the Amended Complaint arising or accruing against the Defendants on or before the Date of Final Approval, relating to the Plaintiff Class, activities involving the Plaintiff Class, and any duties, actions or inactions of the Defendants with respect thereto, which were asserted in the Litigation.
1.23 "Respite" shall mean the assumption of daily caregiving responsibilities on a temporary basis, designated as approved twenty-four (24) hour-a-day family-based care, to provide parents or other caregivers with temporary relief from their responsibilities to a child. Such temporary care shall not be considered a Placement Move if it is requested by the child's current parent/caregiver, and the foster child returns to the same placement upon completion of the Respite care. The Parties intend this definition to support placement stability and to avoid and deter serial, repeated Respite placements over a short time period.
1.24 "Short-Term Placement" shall mean a placement duration of fourteen ( 14) calendar days or fewer.
1.25 "Subcontract" shall mean any agreement between a Contractor or Grantee and another licensed private provider to provide foster care placements or services, including mental and behavioral health services, to Class Members. This definition includes any agreement or arrangement under which funding is provided in exchange for the provision of foster care placements or services, regardless of its form.
1.26 "Subcontractor" shall mean a licensed private provider with whom a Contractor or Grantee contracts or otherwise arranges to provide foster care placements or services, including mental and behavioral health services, to Class Members. This definition applies to such a provider regardless of the form of the agreement or arrangement under which funding is provided in exchange for the provision of foster care placements or services.
4

1.27 "Substantial Compliance" shall mean performance with respect to each of the enforceable obligations set forth in this Settlement Agreement in Section 2, that is sufficient to conclude that the specific obligation has been achieved. The Parties reserve the right to argue whether performance with respect to any specific obligation meets this standard.
1.28 The "Kansas Department for Children and Families" is referred to herein as "DCF."
1.29 The "Kansas Department for Aging and Disability Services" is referred to herein as "KDADS."
1.30 The "Kansas Department of Health and Environment" is referred to herein as "KDHE."
Part II: Principles
1.31 The Agreement shall be governed by the following principles:
1.31.1 Providing community-based preventive and rehabilitative services, to safely avoid and prevent removal and out of home care if possible.
1.31.2 Providing the opportunity for all Class Members to grow up in a safe, nurturing family, preferably their own biological family or with kin.
1.31.3 Promoting and supporting biological family, kin, sibling, and community connections for Class Members.
1.31.4 Ensuring that all aspects of the child welfare system that serve Class Members are trauma-informed.
1.31.5 Recognizing the state's ultimate legal custodial responsibility for the safety and well-being of Class Members.
1.31.6 Promoting the least restrictive, most family-like, most connected and community-based setting possible to meet the needs of Class Members.
1.31.7 Promoting stability for Class Members, including in placements and in educational settings.
1.31.8 Ensuring that Class Members' physical, mental, and emotional needs are identified and met.
SECTION 2: PERFORMANCE GOALS
Part I: Accountability, Reporting and Implementation
2.1 With input from Plaintiffs and the Neutral, Defendants shall implement the following:
5

2.1.1 Contract Oversight and Accountability. Within thirty (30) days of entry of the Court's Judgment and Order, Defendants will amend provider grants for foster care case management to include a set of immediate mandates, with the Outcomes and Practice Improvements in Section 2, Parts II and III herein incorporated into the grant agreements. The requirements will address performance-based metrics and applicability ofDCF discretionary corrective action for nonperformance or inadequate performance. DCF shall reasonably exercise discretion in taking corrective action.
2.1.2. Community Accountability Structure. Within six (6) months of the entry of the Court's Judgment and Order, Defendants with input from Plaintiffs shall develop an independent advisory group to inform action planning and program improvement and to assist in implementation of this Settlement Agreement. The advisory group shall remain in place until the final termination of this Settlement Agreement. The structure shall include a statewide cross section of stakeholders and may include representation from existing advisory or planning groups for child welfare collaboration including family partners and youth with experience in care.
At least one-third of this group shall be stakeholders who are foster care providers, relative care providers, parents, or youth who are experiencing or have experienced alternative placements within their families. No more than 20% of the members of this group shall be employees of the state of Kansas. At least 50% of the professional members of this group shall be professionals directly working with and providing services to families, or direct supervisors of professionals directly working with and providing services to families.
If this advisory group makes written recommendations to Defendants, Defendants shall respond in writing to this group within thirty (30) days, commenting upon the recommendations and advising as to whether the recommendations will be accepted in whole or in part or will not be accepted.
2.1.3. Reporting. In addition to the reporting requirements specified elsewhere herein, Defendants shall: (a) track and report for each twelve (12) month period, aligned with the four (4) one-year periods specified in Section 2.6, and every twelve (12) months thereafter until settlement termination, validated by the Neutral, all Class Members placed in a jail, correctional facility, detention facility, or other juvenile justice system placement, and the duration of time Class Members were or have been placed in such placements; and (b) track and report for each twelve (12) month period, aligned with the four (4) one-year periods specified in Section 2.6, and every twelve (12) months thereafter until settlement termination, validated by the Neutral, caseloads of all placement caseworkers and placement caseworker supervisors.
Part II: Practice Improvements
6

2.2 Defendants shall achieve Substantial Compliance with the following Practice Improvements in Section 2.5 by no later than October 31, 2021. The period of measurement for Substantial Compliance shall be from November 1, 2020 through October 31, 2021.
2.3 The Neutral shall review Defendants' performance data and information produced pursuant to Section 3.4 and shall validate that information as necessary to neutrally report on performance under each, consistent with the terms of this Settlement Agreement. Defendants shall track and report timely, reliable, and valid data concerning the Practice Improvements outlined in this Section, in a manner and format determined with input from the Neutral and Plaintiffs.
2.4 Once a Practice Improvement is achieved based on agreement of the Parties or validation by the Neutral, Defendants must maintain Substantial Compliance for one successive twelve (12) month period. Once Defendants have maintained Substantial Compliance for one successive twelve (12) month period for any of the Practice Improvements, all reporting and monitoring of that Practice Improvement will cease and that Practice Improvement is no longer enforceable under this Settlement Agreement.
2.5 Practice Improvements.
2.5.1 Practice Improvement 1: DCF shall end the practice of utilizing any of the following to temporarily house or otherwise maintain Class Members overnight: (a) any public or private provider agency offices or annexes absent Extraordinary Circumstances; or (b) any non-child welfare housing or temporary accommodations, including but not limited to: (i) hotels or motels, (ii) other commercial non-foster care establishments, (iii) cars, (iv) retail establishments, and (v) unlicensed homes of DCF's or its Contractors', Grantees', or Subcontractors' employees.
2.5.2 Practice Improvement 2: DCF shall ensure that no placement exceeds its licensed capacity without an approved exception pursuant to DCF's "Policy: Exception Requests for Foster Homes, 6/20/18, Rev. 10/21/2019" (attached hereto as Attachment 4).
2.5.3 Practice Improvement 3: Defendants shall not delay authorization and provision of medically necessary mental health treatment services until placement stability is achieved or otherwise link access to medically necessary mental health treatment services with placement stability.
2.5.4 Practice Improvement 4: Defendants shall ensure that Crisis Intervention Services are available to Class Members statewide.
2.5.5 Practice Improvement 5: With the exception of (a) emergency care or placements if appropriately time-limited and utilized in true emergency situations and (b) placements deemed appropriate using Item 4 of the Round 3 CFSR Onsite Review Instrument and Instructions (Jan. 2016) (attached hereto as Attachment 5), DCF shall end the practice of Night-to-Night Placements of Class Members by the end of Period 1 and end the practice of Short-Term Placements of Class Members by the end of Period 3, as those periods are specified in Sections 2.6 and 2.9. The
7

lack of safe and appropriate placement options cannot justify the use of emergency or Respite care. All Placement Moves, regardless of the reason, must be separately tracked and recorded.
Part III: Outcomes
2.6 Defendants shall be in Substantial Compliance with the following Outcomes in Section 2.9, which will be phased in over three (3) or four (4) one-year periods as specified in Section 2.9, commencing January 1, 2021, January 1, 2022, January 1, 2023, and, if applicable, January 1, 2024. DCF is alternatively entitled to accelerate the due date on any of the Outcomes in a manner and format set forth and approved by the Neutral.
2.7 The Neutral shall review Defendants' performance data and information produced pursuant to Section 3.4 and shall validate that information as necessary to neutrally report on performance under each, consistent with the terms of this Settlement Agreement. Defendants shall track and report timely, reliable, and valid data concerning the Outcomes outlined in this section, in a manner and format determined with input from the Neutral and Plaintiffs.
2.8 Once a Final Outcome target is achieved based on agreement of the Parties or validation by the Neutral, Defendants must maintain Substantial Compliance for one successive twelve (12) month period. Once Defendants have maintained Substantial Compliance for one successive (12) month period for any of the Outcomes, all reporting and monitoring of that Outcome will cease and that Outcome is no longer enforceable under this Settlement Agreement.
2.9 Outcomes.
2.9.1 Outcome 1: As independently validated by the Neutral, all Class Members entering DCF custody in a twelve (12) month period shall have a rate of Placement Moves that does not exceed the specified number of moves per 1,000 days in care during their current episode. The rate shall be determined using the definitions and measurements utilized by the CFSR Round 3 Statewide Data Indicator for Placement Stability and its Syntax Revisions (attached hereto as Attachment 6).
Period 1 - 7 moves per 1,000 days in care Period 2 - 6 moves per 1,000 days in care Period 3 - 5 moves per 1,000 days in care Period 4 - Final Outcome - 4.44 moves per 1,000 days in care
2.9.2 Outcome 2: At least the following percentages of a statistically significant, representative, random sample of all Class Members in DCF custody during a twelve (12) month period shall have had their mental and behavioral health needs addressed, calculated utilizing the definitions and measurements in Item 18 of the CFSR Onsite Review Instrument and Instructions (Jan. 2016) (attached hereto as Attachment 5). The sample shall be to a 90% confidence interval with a 5% margin of error. The sample selection process and review protocol shall be approved by the Neutral. The results shall be independently validated by the Neutral who will review up to 50% of the cases in the sample.
8

Period 1 - 80% Period 2 - 85% Period 3 - Final Outcome - 90%
2.9.3 Outcome 3: At least the following percentages of a statistically significant, representative, random sample of all Class Members in DCF custody during a twelve (12) month period shall be in a placement setting that at the time of the review is stable, utilizing the definitions and measurements in Item 4 of CFSR Onsite Review Instrument and Instructions (Jan. 2016) (attached hereto as Attachment 5). The sample shall be to a 90% confidence interval with a 5% margin of error. The sample selection process and review protocol shall be approved by the Neutral. The results shall be independently validated by the Neutral with the Neutral reviewing up to 50% of the cases in the sample.
Period 1 - 80% Period 2 - 85% Period 3 - Final Outcome - 90%
2.9.4 Outcome 4: At least the following percentages of all Class Members in DCF custody at any point during the twelve (12) month reporting period shall have one (1) or fewer Placement Moves in the twelve (12) months immediately preceding the last date of that reporting period. Moves shall be determined using the definitions and measurements utilized by the CFSR Round 3 Statewide Data Indicator for Placement Stability and its Syntax Revisions. This measure shall include all children in the Class at any point during the twelve (12) month reporting period, whether or not they were still in the Class at the end of the reporting period. The measure shall be the number of Placement Moves in the twelve (12) months immediately preceding the last date of the reporting period, i.e., only moves occurring during the reporting period will be considered for this measure.
Period 1 - 75% Period 2 - 80% Period 3 - 85% Period 4 - Final Outcome - 90%
2.9.5 Outcome 5: At least the following percentages of a statistically significant, representative, random sample of all Class Members entering DCF custody during a twelve (12) month period shall have received a timely Initial Mental Health and Trauma Screen within thirty (30) days upon each entry into the foster care system. The Initial Mental Health and Trauma Screen shall be performed by a person who has been trained to reliably administer the Screen, and who is either a Qualified Mental Health Professional or a professional who holds a bachelor's degree in the field of human services or a related field, including but not limited to the following: Community Counseling, Human Development, Child and Family Development, Applied Family and Youth Studies, Public Health,
9

Health Sciences, Trauma Studies, Sociology/Social Services, Substance Abuse/Addictions, Education/Early Childhood, or Psychology. The sample shall be to a 90% confidence interval with a 5% margin of error. The sample selection process and review protocol shall be approved by the Neutral. The results shall be independently validated by the Neutral with the Neutral reviewing up to 50% of the cases in the sample.
Period 1 - 80% Period 2 - 85% Period 3 - Final Outcome - 90%
SECTION 3: SUBSTANTIAL COMPLIANCE AND TERMINATION
3.1 Neutral. The Parties agree that the Neutral will be Judith Meltzer and the Center for the Study of Social Policy or, ifs/he is unable or unwilling to serve, the Parties agree to choose a mutually agreeable alternative Neutral, and if they are unable to agree on the Neutral to invoke the Dispute Resolution process in Section 4. Neither Party shall have supervisory authority over the Neutral. Defendants shall engage the Neutral at Defendants' expense. Defendants will ensure the Neutral has access to the information and data and staff necessary to perform the responsibilities assigned to the Neutral in this Agreement, including direct remote access to Defendants' data systems. The Parties shall have access to all info1mation utilized by the Neutral consistent with the terms of this Settlement Agreement. The Neutral shall be bound by the Protective Order governing this action, and all confidential information obtained by the Neutral shall be maintained as such by the Neutral consistent with federal and state law, and shall be returned to Defendants or destroyed upon final exit and termination of jurisdiction over this Settlement Agreement. The Neutral may retain child welfare professionals solely for the purposes of satisfying his/her responsibilities under this Settlement Agreement. Any child welfare professionals retained under this provision shall review and sign the Protective Order in this action.
3.2 The Neutral shall be permitted to communicate separately ex parte with all Parties and the Court.
3.3 The Neutral shall convene a confidential meeting of the Parties to discuss progress and performance at least quarterly during the first twelve (12) months following the Judgment and Order and then at least semiannually thereafter.
3.4 The Neutral shall produce reports to the Parties validating Defendants' performance on the obligations in Section 2 of this Settlement Agreement. Within sixty (60) days of any obligation in Section 2 of this Settlement Agreement coming due, Defendants shall provide to the Neutral all data and other information necessary for the Neutral to validate performance and produce a report to the Parties on performance. The Neutral's report validating Defendants' performance shall be produced to the Parties as soon as practicable.
3.5 The Neutral shall have continuing access to all data and other information necessary to validate performance on any outstanding obligation in Section 2 of this Settlement Agreement.
10

3.6 Subsequent to ent1y of the Judgment and Order, the Neutral shall provide the Parties with consolidated public perfo1mance reports on all outstanding obligations in Section 2 of this Settlement Agreement. These public reports shall be provided on approximately an annual basis or more frequently as the Neutral may determine is efficient.
3.7 For any and all reports issued by the Neutral, the Neutral shall first provide the Parties with a draft report with an opportunity to allow the Parties to provide comments to the Neutral, which comments the Neutral must review and consider prior to finalizing the report.
3.8 If Defendants believe their performance on any obligation in Section 2, Parts II and III, of this Settlement Agreement warrants achievement, dismissal and termination from the Court's jurisdiction under this Settlement Agreement, the Parties shall first negotiate for fourteen (14) days to see ifthere is agreement to dismissal and termination with respect to the provision. If there is agreement, the Parties shall promptly and jointly file a proposed Order dismissing and terminating the provision from the Settlement Agreement. If there is no agreement, unless the Parties consent to extend negotiations, Defendants may trigger the Dispute Resolution process in Section 4.
3.9 With respect to each obligation in Section 2, Parts II and III, of this Settlement Agreement, if Defendants believe they have achieved Substantial Compliance with a "hit" or a "hold," Defendants may invoke Section 3.8.
3.10 Defendants may accelerate the due date for any of the Outcomes if Defendants believe they have achieved the final target for that Outcome. If Defendants choose to accelerate the due date of the final target for any Outcome, the Neutral shall review and validate the performance for the most recent twelve (12) month period prior to Defendants' assertion of accelerated achievement of the Outcome. Once the Neutral reports on validated performance for the accelerated final Outcome, and Defendants have achieved both the required "hit" and successive twelve (12) month "hold" period, Defendants may invoke Section 3.8.
3.11 The additional successive twelve (12) month "hold" period only applies to the Practice Improvements and final target Outcomes, not the interim targets.
3 .12 Once Defendants have achieved both the "hit" and the "hold" for a Practice Improvement or a final target Outcome - either as agreed upon by the Parties or as determined by the Court - that Practice Improvement or Outcome is no longer enforceable under this Settlement Agreement.
3.13 Once Defendants have achieved termination and dismissal of all of Section 2, Parts II and III, of this Settlement Agreement, Defendants' obligations under this entire Settlement Agreement shall end, and the Parties will file a pleading with the Court requesting that the Court's continuing jurisdiction in the Litigation should be terminated.
SECTION 4: DISPUTE RESOLUTION
4.1 Mediator. The Parties agree that the Mediator will be Karen Baynes-Dunning or, ifs/he is unable or unwilling to serve, the Parties agree to choose a mutually agreeable alternative Mediator, and if they are unable to agree, the Neutral shall select the Mediator. Neither Party shall
11

have supervisory authority over the Mediator. The Parties shall engage the Mediator at Defendants' expense. The Parties shall have access to all information utilized by the Mediator consistent with the terms of this Settlement Agreement. The Mediator shall be bound by the Protective Order governing this action, and all confidential information obtained by the Mediator shall be maintained as such by the Mediator consistent with federal and state law, and shall be returned to Defendants or destroyed upon final exit and termination of jurisdiction over this Settlement Agreement.
4.2 Plaintiffs or Defendants shall invoke the provisions of this Dispute Resolution Section 4 with respect to any disputes pertaining to Substantial Compliance, exit, or any assertion of noncompliance under this Settlement Agreement by delivering written Notice of the dispute(s) or assertions of violation to the other Party and to the Mediator.
4.3 The Notice of dispute shall be accompanied by any written argument and any request for remedies.
4.4 The Parties shall proceed with a confidential mediation process, which shall include the engagement of the Mediator over a sixty (60) day period to arrive at a mutually agreed resolution of the dispute. The time period for confidential mediation may be extended on the consent of the Parties. The Neutral may participate in the confidential mediation process if the Parties agree. If the issue is not resolved within sixty (60) days or as extended on the consent of the Parties, the Party raising the dispute may bring a motion to the Court for enforcement and remedies under applicable federal law.
4.5 The Parties agree that any disputes brought to the Court pertaining to Substantial Compliance, exit, or any assertion of noncompliance, shall only be based on the information contained within the Neutral' s validated reports, unless otherwise directed by the Court. The Court may call the Neutral as a witness. The Neutral shall not provide any legal opinions in any report or testimony.
4.6 The Court shall have and shall retain jurisdiction over any enforcement.
4.7 Class Counsel may bypass the sections above and seek immediate relief in Court if they clearly demonstrate that Defendant(s)' action or inaction in material contravention of this Settlement Agreement caused or is likely to cause an immediate and substantial risk of harm to Class Members and there is no time for negotiations. The Court shall have and shall retain jurisdiction over any enforcement under this section.
SECTION 5: COURT APPROVAL AND DISMISSAL
5.1 As soon as practical after the execution of this Settlement Agreement, the Parties shall file a joint or unopposed motion seeking Preliminary Approval of the Settlement Agreement.
5.2 After the Order of Preliminary Approval is granted, and as instructed by the Court, in advance of the final fairness hearing the Parties shall submit a joint or unopposed motion for a Judgment and Order granting final approval of the Settlement Agreement. The Parties agree that the proposed Judgment and Order shall:
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5 .2.1

Grant final approval of the Settlement Agreement, without modification of its terms in any respect, unless the Parties have agreed to any modifications, as fair, reasonable, and adequate to the Plaintiff Class as provided in Federal Rule of Civil Procedure 23, and find that the Settlement Agreement resulted from extensive arm's length, good faith negotiations between the Parties through experienced counsel, with the assistance of an independent mediator and subject-matter expert.

5.2.2

Dismiss the Litigation with prejudice, pursuant to Federal Rule of Civil Procedure 41 (a)(2), after compliance with Federal Rule of Civil Procedure 23(e). The Order of dismissal will also comply with the requirements of Federal Rule of Civil Procedure 65(d)(l ), and the Court will expressly incorporate the actual terms of this Settlement Agreement and make the Parties' compliance with the terms of this Settlement Agreement part of that dismissal order.

5.2.3 Find that each Class Member shall be deemed to have released the Released Claims against the Defendants.

5.2.4 Bar all Class Members from prosecuting, commencing, or continuing any of the Released Claims against the Defendants.

5.2.5 Include a finding that by agreeing to settle the Litigation, Defendants do not admit, and specifically deny, any and all liability in the Litigation.

5.2.6 Incorporate the entirety of the express terms of the Settlement Agreement and provide that the Court has and shall retain jurisdiction over its Judgment and Order for the purposes stated herein.

5.3 The proposed Judgment and Order may also propose that the Court rule on a motion for Class Counsel Fees and Expenses for work through the Date of Final Approval, or the Parties may propose that such motion be resolved in a separate Order.

SECTION 6: MISCELLANEOUS

6.1 This Settlement Agreement shall be interpreted under applicable federal law.

6.2 This Settlement Agreement may be executed in counterparts.

6.3 All provisions in this Settlement Agreement are separately and independently enforceable, as set forth herein. Unless otherwise specifically stated in this Settlement Agreement all provisions shall apply to all Class Members.

6.4 If the Court does not grant final approval of the Settlement Agreement as set forth herein, it shall become null and void.

13

6.5 The obligations of Defendants set forth in this Settlement Agreement are binding whether they are performed, delivered, implemented or managed directly by the Defendant(s)' employees or by provider agencies under Contract, Grant, or Subcontract.
6.6 This Settlement Agreement shall be binding and enforceable against the Parties. For as long as the Settlement Agreement remains in effect, all provisions will be applicable to DCF, KDHE, KDADS, and their successors, and upon any changes to the current organizational structure of DCF, KDHE, or KDADS, will apply with full force and effect to any subsequent agency or agencies with any of the responsibilities of the current DCF, KDHE, and KDADS.
6.7 Each of the Parties to this Settlement Agreement shall use their best efforts to cause the Settlement Agreement to be given final approval.
6.8 This Settlement Agreement and its Attachments constitute the entire agreement between the Parties and no representations, warranties, or inducements have been made to any party concerning this Settlement Agreement other than the representations, warranties, and covenants contained in this Settlement Agreement. No amendment to this Settlement Agreement prior to the final Judgment and Order is effective unless in writing and signed by the Parties and approved by the Court. Subsequent to the final Judgment and Order, any modification of the Settlement Agreement or the final Judgment and Order shall be governed by federal law.
6.9 The Parties and their counsel have mutually contributed to the preparation of this Settlement Agreement. Accordingly, no provision shall be construed against any Party on the grounds that one of the Parties or their counsel drafted the provision.
6.10 The Settlement Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Parties.
6.11 Plaintiffs agree not to seek judicial relief for isolated, technical, or de minimis violations of this Agreement, or for violations relating solely to an individual child. Nothing in this Agreement is intended to prevent any state court with jurisdiction over an individual Class Member's case from issuing specific rulings in such an individual case.
6.12 The operative Stipulated Confidentiality and Protective Order ordered by the Court on February 8, 2019 (ECF 26) shall remain in full force and effect until the Court issues an Order granting final termination of jurisdiction over and exit from the Settlement Agreement and the final Judgment and Order. Any and all communications concerning the negotiation of the Settlement Agreement, including, but not limited to, its content or any details conveyed to or by either Party or the mediator during its negotiation, shall be confidential. However, nothing in this Settlement Agreement shall prohibit or restrict any Party or their representatives from publicly communicating the fact that the Parties are or have been engaged in communications regarding settlement without revealing specific details. The Parties acknowledge that the terms of the Settlement Agreement will be made public upon the filing of the settlement with the Court and that the Parties may comment on specific terms of the Settlement Agreement following its approval by the State Finance Council.
6.13 The Parties anticipate that the Settlement Agreement may be modified, upon the consent of the Parties and approval of the Court, in an ongoing effort to accelerate the successful
14

achievement of its obligations and final termination of jurisdiction over the Settlement and the final Judgment and Order.
6.14 The Parties recognize that nothing in this Settlement Agreement obligates the Legislature to appropriate funds in connection with the implementation of this Settlement Agreement or to establish any new programs. Defendants shall make all reasonable efforts to provide funding and other resources necessary to implement and achieve the obligations under the Settlement Agreement, including making requests for State funds or seeking federal/special fund authorization. Defendants' failure to provide and/or Defendants' efforts to provide such adequate funding and resources will not excuse, or limit remedies to address, the failure to implement or achieve any of the obligations set forth in the Settlement Agreement.
6.15 The undersigned each represents that he or she is fully authorized to execute this Settlement Agreement on behalf of the settling party for which he or she signs.
IN WITNESS WHEREOF, the Parties hereto have executed this Settlement Agreement in several counterpart originals on the date set forth opposite their names.
15

SIGNATUREPAGE
WHEREFORE, !he Pm-tieSh$to signify Lieir agreementto this SettlementAgreement andlo eHtheCt:1:mi:eist"ejnby signingwhereindicatedbelow.

FORANDON BEHALFOFPLAINTIFFS:

Dated:_::~~~

_j~

...:_:'_2-C _

d.

T resaA. Woody l.m,y R. Rute l<ans.as Appleseed 211 E. 8'' l>'.tSte U t awrence, RS 66-044 twoodv@kansasaopjesea.ojJg l~drmcdjate,com
Loren2E. Buro.s.Buck.l.ew 40l IV.89" Street K,msasCity, MO64114· lodbb!~~
LeeciaWdch PoonamJtmeja Freya Pitts
Nut.iv~ C-c:t:(C'1kor Youth L,.,,w
1212Broadway,Suite 600 Ook.landC, A 94612 Jwdch@youthluw.org pjuneia@vouthlaw.om lninsf@youthlaowr.g
l.olLustbader Meris"' C. Nardi Jonathan M. King StephenA. Dixon C~.i!dren'sRign.'s,lne.
88 PineStrcc~ s"F' loor
New Yori<, NY !0005
ilusthad.er@childre1i5rights.org mnnrdl(a}cQildre-ns.,orrigeh. ts

16

j king@childrensrights.org sdixon@childrensrights.org
Joshua Kane DLA Piper LLP (US) 1251 Avenue of the Americas New York, NY 10020-1104 joshua.kane@dlapiper.com

FOR AND ON BEHALF OF DEFENDANTS:
KANSAS DEPARTMENT FOR CHILDREN AND FAMILIES
By: ~ ~ 1-h,-wc~
Title: Secretaiy Laura Howard
Dated: July 8, 2020

KANSAS DEPARTMENT OF AGING AND DISABILITY SERVICES
By: cf~~ 1~w~
Title: Secretary Laura Howard
Dated: July 8, 2020

d ~ ~ KANSAS DEPARTMENT OF HEAL TH AND ENVIRONMENT

By :

Cf.

:9

Title: Secretaiy Dr. Lee A. Norman

Dated: July 8, 2020

COUNSEL FOR DEFENDANTS:

17

Jean Paul Bradshaw II Brian Fries Grant A. Harse Reid K. Day 2345 Grand Boulevard, Suite 2200 Kansas City, Missouri 64108 Telephone: (816) 292-2000 Telecopier: (816) 292-2001 j eanpaul. bradshaw@lathropgpm.com brian.fries@lathropgpm.com grant.harse@lathropgpm.com reid.day@lathropgpm.com Carrie E. Josserand 10851 Mastin Boulevard Building 82, Suite 1000 Overland Park, Kansas 66210-1669 Telephone: (913) 451-5100 Telecopier: (913) 451-0875 canie. josserand@lathropgpm.com
{k,t.i>J~ Corliss Scroggins Lawson General Counsel Kansas Depa1iment for Children and Families 555 S Kansas Avenue Topeka KS 66603 Corliss .lawson@ks.gov
18

 
 Case 2:18-cv-02617-DDC-GEB Document 140 Filed 09/09/20 Page 1 of 10

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

M.B. and S.E. through their next friend Katharyn McIntyre, R.M. through his next friend Allan Hazlett, C.A. through his next friend Allan Hazlett, E.B. through his next friend Allan Hazlett, J.P. through her next friend Allan Hazlett, Z.Z. through her next friend Ashley Thorne, and M.A. through his next friend Ashley Thorne, for themselves and those similarly situated,
Plaintiffs,
v.
Laura Howard in her official capacity as Kansas Department for Children and Families Secretary, Dr. Lee A. Norman in his official capacity as Kansas Department of Health and Environment Secretary, and Laura Howard in her official capacity as Kansas Department for Aging and Disability Services Secretary,
Defendants.

) ) ) ) ) ) Case No. 18-2617-DDC-GEB ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER CERTIFYING SETTLEMENT CLASS, GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, SETTING HEARING, AND
APPROVING FORM AND MANNER OF CLASS NOTICE
This matter comes before the court on plaintiffs’ Unopposed Motion for Certification of Settlement Class, Preliminary Approval of Class Action Settlement, and Approval of Form and Manner of Class Notice and Memorandum of Law in Support (the “Unopposed Motion”) (Doc. 139). Plaintiffs request the court: (a) grant conditional certification of the Class for settlement purposes; (b) appoint Class Counsel; (c) grant preliminary approval of the parties’ Settlement Agreement; (d) authorize and approve the form and manner of a Notice of Proposed Class

Case 2:18-cv-02617-DDC-GEB Document 140 Filed 09/09/20 Page 2 of 10
Action Settlement to be sent to Class members and their representatives; (e) set the deadline for written submissions by persons who are Class members, or legal representatives of Class members, who wish to be heard in favor of or in objection to the Settlement Agreement; (f) set deadlines for briefing on plaintiffs’ Request for Attorneys’ Fees and Costs; and (g) set the date for a fairness hearing in accordance with Federal Rule of Civil Procedure 23(e).
The court has reviewed the Unopposed Motion, the Settlement Agreement (Doc. 139-1), the Notice of Proposed Class Action Settlement (Doc. 139-2), the Proposed Order, and all other exhibits attached to plaintiffs’ motion. Having done so, the court GRANTS the Unopposed Motion and ORDERS as follows:
1. The parties have executed the Settlement Agreement in order to settle and resolve this action on a class-wide basis, subject to the final approval of the court.
2. The terms of the Settlement Agreement are approved preliminarily under Fed. R. Civ. P. 23(e)(2) finding that it is “fair, reasonable, and adequate.” The Tenth Circuit has specified four factors that a district court must consider when assessing whether a proposed settlement is “fair, reasonable, and adequate”:
(1) whether the proposed settlement was fairly and honestly negotiated; (2) whether serious questions of law and fact exist, placing the ultimate outcome
of the litigation in doubt; (3) whether the value of an immediate recovery outweighs the mere possibility
of future relief after protracted and expensive litigation; and (4) the judgment of the parties that the settlement is fair and reasonable. Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002). Because preliminary approval is just the first step of the approval process, courts apply a “less stringent” standard than that at final approval. Freebird, Inc. v. Merit Energy Co., No. 10-1154-KHV, 2012 WL 6085135, at *5 (D. Kan. Dec. 6, 2012). “[D]istrict courts have developed a jurisprudence whereby they undertake some review of the settlement at preliminary approval,
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Case 2:18-cv-02617-DDC-GEB Document 140 Filed 09/09/20 Page 3 of 10
but perhaps just enough to ensure that sending notice to the class is not a complete waste of time.” 4 Williams & Rubenstein, Newberg on Class Actions § 13:10 (Stu ed. 2013). “The general rule [is] that a court [will] grant preliminary approval where the proposed settlement [is] neither illegal nor collusive and is within the range of possible approval.” Id. (citation and internal quotation marks omitted). “While the [c]ourt will consider [the Tenth Circuit’s] factors in depth at the final approval hearing, they are a useful guide at the preliminary approval stage as well.” In re Motor Fuel Temperature Sales Practices Litig., 286 F.R.D. 488, 502–03 (D. Kan. 2012).
After analyzing the Tenth Circuit’s factors under the relaxed standard that applies at the preliminary approval stage, the court finds that all four factors favor approving the settlement proposed here. See Rutter & Wilbanks Corp., 314 F.3d at 1188. The court preliminarily approves the Settlement Agreement as fair, reasonable, and adequate for the Class as defined in the Settlement Agreement and set forth below, subject to further consideration at the Final Approval Hearing.
3. Accordingly, for the purpose of a settlement in accordance with the Settlement Agreement and upon review of the Unopposed Motion, this court hereby certifies the following Class for settlement purposes:
All children who are now, or in the future will be, in the protective custody of the Department for Children and Families pursuant to Kan. Stat. Ann. § 38-2242(c)(1). 4. Under the Settlement Agreement and for the purposes of settlement only, the court finds preliminarily that: a. The Class is so numerous that joinder of all members is impracticable;
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Case 2:18-cv-02617-DDC-GEB Document 140 Filed 09/09/20 Page 4 of 10
b. There are questions of law and fact common to the Class; c. The claims of the Named Plaintiffs are typical of those of members of the Class; d. The Named Plaintiffs and Plaintiffs’ Counsel will fairly and adequately represent and protect the interests of the members of the Class; and e. Final injunctive relief is appropriate respecting the Class as a whole. 5. For purposes of this preliminary approval, and for all matters relating to the Settlement Agreement, until further order of the court, the court appoints the captioned Named Plaintiffs as Representatives of the Class, and appoints Teresa A. Woody and Larry Rute and Kansas Appleseed Center for Law and Justice, Inc.; Loretta Burns-Bucklew of the Law Office of Loretta Burns-Bucklew; Leecia Welch, Poonam Juneja, and Freya Pitts, and the National Center for Youth Law; Ira Lustbader and Marissa C. Nardi, and Children’s Rights, Inc.; and Caryn Schechtman, Jeffrey Rotenberg, and Joshua Kane, and DLA Piper LLP as Class Counsel. 6. By this Order, the court hereby exercises subject matter and personal jurisdiction over the claims and the parties for the purposes of evaluating the final certification of the Class and the fairness and adequacy of the Settlement Agreement. 7. The Notice of Proposed Class Action Settlement (the “Notice”) is approved. 8. The following Notice Plan is approved: On or before October 9, 2020, Defendants shall, at their sole expense, take the following steps to notify Class members and their legal representatives of the proposed Settlement Agreement: a. Defendants shall prominently post a copy of this order and the Notice on the Department for Children and Families (“DCF”) website, the Kansas Department of Health and Environment (“KDHE”) website, and the Kansas Department for Aging and Disability
4

Case 2:18-cv-02617-DDC-GEB Document 140 Filed 09/09/20 Page 5 of 10
Services (“KDADS”) website, and shall maintain said postings until January 22, 2021. b. Defendants shall transmit a copy of the Notice, and may transmit one or
more accompanying letters signed by authorized representatives of DCF, KDHE, or KDADS and approved for content by Class Counsel (where appropriate, Defendants shall request in any letter that recipients share information with Class members in their care, leaving it to recipients to determine what communications are warranted in light of a child’s age, a child’s development, or other circumstances) to the persons and locations listed below.
i. Defendants will email a copy of the Notice, along with a link to the Settlement Agreement, to all KDHE staff in the Office of the Secretary and in the Division of Health Care Finance, and to all KDADS staff in the Aging and Disability Community Services and Programs and Behavioral Health Services Commissions.
ii. Defendants will post the Notice in a conspicuous place in the DCF, KDHE, and KDADS main offices, the DCF regional offices, and each DCF county office.
iii. Defendants will send via email (or U.S. Mail if only a mailing address is available) the Notice and any accompanying letter to the Kansas Office of Judicial Administration and request that it send the Notice and the accompanying letter to all attorneys approved to serve as Guardians ad Litem for children in DCF custody.
iv. Defendants will send via email (or U.S. Mail, if only a mailing address is available) the Notice and any accompanying letter to
5

Case 2:18-cv-02617-DDC-GEB Document 140 Filed 09/09/20 Page 6 of 10
each grantee or contractor providing Foster Care Case Management services to Class members. Defendants will direct their grantees and contractors to provide a copy of the Notice and any accompanying letter to all of their case management staff and to post a copy of the Notice in their offices in a conspicuous place. v. Defendants will direct their grantees to send via email (or U.S. Mail, if only a mailing address is available) the Notice and any accompanying letter to the last known email (or mailing) address for the parent(s) of each Class member for whom parental rights have not been terminated, and to the last known email (or mailing) address of any relative placement of any Class member. For purposes of this order, the last known e-mail address or mailing address refers to the address in the records of DCF’s grantees. vi. Defendants will send via email (or U.S. Mail, if only a mailing address is available) the Notice and any accompanying letter to the current email (or mailing) address of record of all placement providers (including, at a minimum, foster care and pre-adoptive caregivers) for children in DCF custody. This includes family homes or group facilities of any kind. vii. Defendants will send via email (or U.S. Mail, if only a mailing address is available) the Notice and any accompanying letter to
6

Case 2:18-cv-02617-DDC-GEB Document 140 Filed 09/09/20 Page 7 of 10
the current email (or mailing) address of record of all children in an independent or transitional living arrangement or currently enrolled in the Independent Living program. c. For the following, Defendants will send via email (or U.S. Mail, if only a mailing address is available) the Notice, ask that the Notice be disseminated to their staff or members and posted in locations most likely to be seen by Class Members and/or their legal representatives, and ask that the information remain posted until January 22, 2021: i. The Presiding Judge of each Kansas District Court, or if the Judicial District has a Family or Juvenile Court, the Presiding Judge of the Juvenile or Family Court; ii. The office of the Chief Juvenile Officer for each Kansas Judicial District; iii. Each congregate care placement, group home, residential counseling center, residential treatment center, and child placing agency utilized by Defendants; iv. The Guardian Ad Litem Support Center of Kansas Legal Services; v. Each office of Kansas Court Appointed Special Advocates (CASA), to the extent formal offices exist in each Judicial District; vi. The Kansas CASA Association; vii. The following organizations that serve foster parents and families or families of children with disabilities or special health care needs
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Case 2:18-cv-02617-DDC-GEB Document 140 Filed 09/09/20 Page 8 of 10
within Kansas: FosterAdopt Connect, Kansas Foster & Adoptive Parent Association, Children’s Alliance, Christian Family Services of the Midwest, Kansas Family Advisory Network, Kansas African American Foster Care/Adoption Coalition, and Families Together, Inc.; viii. The Kansas Bar Association; and ix. The Children’s Subcommittee of the Governor’s Behavioral Health Services Planning Council. d. Defendants will file with the court, on or before November 6, 2020, an affidavit certifying compliance with the notice requirements of this order. 9. The Notice Plan’s methodologies (a) protect the interests of the Named Plaintiffs, the Class, and Defendants; (b) are the best notices practicable under the circumstances; and (c) are reasonably calculated to apprise the Class of the proposed Settlement Agreement. In addition, the court finds that the notice methodologies are reasonable and constitute due, adequate, and sufficient notice to all persons entitled to receive notice of the proposed Settlement and meet all applicable requirements of law, including, but not limited to, Federal Rule of Civil Procedure 23 and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. 10. The parties may make non-material changes to the Notice Plan, so long as Class Counsel and Defendants’ counsel agree and one of the parties notifies the court of the change before the Final Approval Hearing. Neither inserting dates nor, correcting typographical or grammatical errors shall constitute a change to the Notice Plan. 11. Nothing in this Order requires Defendants to respond or provide legal advice to any member of the Class, any guardian ad litem or advocate, or any other person or entity in
8

Case 2:18-cv-02617-DDC-GEB Document 140 Filed 09/09/20 Page 9 of 10

connection with the Settlement Agreement. Defendants may refer any outside inquiries or

questions about the Settlement Agreement to Class Counsel or a Class member’s guardian ad

litem.

12. The Motion for Final Approval of the Settlement and plaintiffs’ Motion for

Attorneys’ Fees and Costs shall be filed on or by November 30, 2020. Defendants’ Opposition to

plaintiffs’ Motion for Attorneys’ Fees and Costs, if any, shall be filed on or by December 14,

2020. Plaintiffs’ Reply in Support of their Motion for Attorneys’ Fees and Costs, if any, shall be

filed on or by December 21, 2020.

13. A hearing shall be held in Courtroom 476 at the Robert J. Dole Federal

Courthouse, 500 State Avenue, Kansas City, KS 66101 at 9:00 A.M. on January 22, 2021. At

the Final Approval Hearing, the court shall consider the fairness, reasonableness, and adequacy of

the Settlement; the entry of any final Order or Judgment with respect to the Class; plaintiffs’

Motion for Attorneys’ Fees and Costs; and any other related matters.

14. Objections, support, or comments by Class members, or their legal representatives,

regarding the proposed Settlement Agreement will be considered if submitted by U.S. Mail or

email on or before December 7, 2020 to either of the following:

a.

Kansas Appleseed Center for Law and Justice, Inc., Attention: Teresa A.

Woody, 211 East 8th Street, Suite D, Lawrence, KS 66044,

twoody@kansasappleseed.org; or

b.

National Center for Youth Law, Attention: Leecia Welch, 1212 Broadway,

Suite 600, Oakland, CA 94612, lwelch@youthlaw.org.

15. Class members, or their legal representatives, who wish to be heard orally in support of or in opposition to the proposed Settlement Agreement at the Final Approval Hearing

9

Case 2:18-cv-02617-DDC-GEB Document 140 Filed 09/09/20 Page 10 of 10
must submit with their objections, support, or comments, as described in Paragraph 14 above, a written notification of their desire to appear personally and briefly indicate (if in opposition to the settlement) the nature of the opposition on or before December 7, 2020.
16. Unless otherwise ordered by the court, no objection to or other comment concerning the Settlement shall be heard unless timely filed in accordance with the guidelines specified above.
17. Class Counsel will provide counsel for Defendants a copy of any objections, support, or comments received from Class members, their legal representatives, or any other person, entity, or interested party regarding the proposed Settlement Agreement and any information received in relation to Paragraph 15 within five days of receipt.
18. Class Counsel will submit to the court all written submissions received from Class members, their legal representatives, or other interested parties, along with any written responses from Class Counsel to such submissions, on or before December 14, 2020.
19. Class Counsel and counsel for Defendants must be prepared at the Final Approval Hearing to respond to objections filed by Class members, or their legal representatives, and to provide other information, as appropriate, bearing on why the Settlement Agreement should be approved.
IT IS SO ORDERED. Dated this 9th day of September, 2020, at Kansas City, Kansas.
s/ Daniel D. Crabtree_____ Daniel D. Crabtree United States District Judge
10

 
 Case 2:18-cv-02617-DDC-GEB Document 79 Filed 10/25/19 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT DISTRICT OF KANSAS

KATHARYN MCINTYRE, et al.,

Plaintiffs, vs.

Case No. 18-CV-02617-JWL-GEB

LAURA KELLY, et al.,

Defendants.

DEFENDANT’S MOTION TO DISMISS DEFENDANT GOVERNOR LAURA KELLY

Defendant, Laura Kelly in her official capacity as Kansas Governor, by and through

counsel and pursuant to Fed. R. Civ. P. 12(b)(1), hereby moves this Court for an Order dismissing

all claims filed against her in the above-captioned case for the reason that such claims are barred

by the Eleventh Amendment to the United States Constitution. In furtherance of this Motion,

Defendant Laura Kelly respectfully refers the Court to the contemporaneously filed Memorandum

in Support of Motion to Dismiss Defendant Governor Laura Kelly.

Respectfully Submitted,

LATHROP GAGE LLP

By: /s/ Jean Paul Bradshaw II Jean Paul Bradshaw, KS Fed. #70010 Brian Fries, KS #15889 Grant A. Harse, KS #24666 Reid K. Day, KS #28319 2345 Grand Boulevard, Suite 2200 Kansas City, Missouri 64108 Telephone: (816) 292-2000 Telecopier: (816) 292-2001 jbradshaw@lathropgage.com bfries@lathropgage.com gharse@lathropgage.com rday@lathropgage.com

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Case 2:18-cv-02617-DDC-GEB Document 79 Filed 10/25/19 Page 2 of 2
Carrie E. Josserand, KS #18893 LATHROP GAGE LLP 10851 Mastin Boulevard Building 82, Suite 1000 Overland Park, Kansas 66210-1669 Telephone: (913) 451-5100 Telecopier: (913) 451-0875 cjosserand@lathropgage.com Attorneys for All Defendants
CERTIFICATE OF SERVICE The undersigned hereby certifies that on October 25, 2019, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to counsel of record.
/s/ Jean Paul Bradshaw II Jean Paul Bradshaw, an Attorney for All Defendants
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 Case 2:18-cv-02617-DDC-GEB Document 118 Filed 06/03/20 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

KATHARYN MCINTYRE, et al., Plaintiffs,
v. LAURA KELLY, et al.,
Defendants.

Case No. 18-2617-DDC-GEB

MEMORANDUM AND ORDER This matter comes before the court on defendant Governor Laura Kelly’s Motion to Dismiss (Doc. 79). Plaintiffs sued defendant in her official capacity as Governor of the State of Kansas. She moves for dismissal under Federal Rule of Civil Procedure 12(b)(1), claiming that the court lacks jurisdiction over the claims asserted against her. Plaintiffs have responded (Doc. 96) and Governor Kelly has replied (Doc. 102). For reasons explained below, the court grants Governor Kelly’s Motion to Dismiss. I. Background The court takes the following facts from plaintiffs’ Amended Complaint (Doc. 63) and it views them, as it must, in the light most favorable to plaintiffs. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (explaining that the court must “accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the [plaintiff]” (citation and internal quotation marks omitted)). Four representatives bring this proposed class action seeking injunctive relief on behalf of twelve named minor plaintiffs and other children currently in the Kansas foster care system. Plaintiffs seek “injunctive relief compelling [d]efendants to remedy known dangerous practices

Case 2:18-cv-02617-DDC-GEB Document 118 Filed 06/03/20 Page 2 of 14
and specific structural deficiencies in the Kansas foster care system” and “end violations of their federal rights . . . .” Doc. 63 at 4 (Am. Compl. ¶ 10).
Plaintiffs assert official capacity claims against four officials for the state of Kansas: (1) Laura Kelly in her capacity as Governor of the State of Kansas; (2) Laura Howard, in her capacity as Secretary of the Kansas Department for Children and Families (“DCF”); (3) Laura Howard, in her capacity as Secretary of the Kansas Department for Aging and Disability Services (“KDADS”); and (4) Dr. Lee Norman, in his capacity as Secretary of the Kansas Department of Health and Environment (“KDHE”). The Amended Complaint asserts four causes of action against these officials, including: (a) a substantive due process claim against Governor Kelly and DCF Secretary Howard, alleging they failed to meet their duty to protect plaintiffs; and (b) three distinct claims under specified provisions of the Medicaid Act (42 U.S.C. §§ 1396a(a), 1396d(a), and 1396d(r)), alleging all four defendants failed to provide appropriate physical and mental health screenings and services.
Paragraph 105 of the Amended Complaint sets out Governor Kelly’s alleged role in the putative violations:
Laura Kelly, Governor of Kansas, is sued in her official capacity. Under Article I, Section 3 of the Kansas Constitution, the governor holds supreme executive power and is responsible for the enforcement of the laws of the state. She is therefore responsible for ensuring all Kansas executive agencies comply with all applicable laws. Governor Kelly has the authority to issue executive reorganization orders “transferring, abolishing, consolidating or coordinating the whole or any part of any [executive] state agency, or the function thereof” and to significantly reshape the functions and coordination of defendant agencies DCF, KDHE, and KDADS. Governor Kelly is also responsible for appointing, and has the power to remove, the Secretaries of DCF, KDHE, and KDADS. The governor has used her executive authority to manage the work of defendant agencies DCF, KDHE, and KDADS, including child welfare and Medicaid. Governor Kelly’s office is located in this District. Doc. 63 at 24 (Am. Compl. ¶ 105).
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Only Governor Kelly has moved for dismissal. Docs. 79 & 80. Her motion argues that she is immune from suit under the Eleventh Amendment, an immunity that if applicable, purportedly deprives the court of subject matter jurisdiction. Id.
II. Legal Standard “Federal courts are courts of limited jurisdiction and, as such, must have a statutory basis
to exercise jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citation omitted). Federal district courts have original jurisdiction over all civil actions arising under the constitution, laws, or treaties of the United States or where there is diversity of citizenship. 28 U.S.C. § 1331; 28 U.S.C. § 1332. “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (citation omitted). Since federal courts are ones with limited jurisdiction, there is a presumption against jurisdiction and the party invoking jurisdiction bears the burden to prove it exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
Generally, a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) takes one of two forms: a facial attack or a factual attack. Holt v. United States, 46 F.3d 1000, 1002–03 (10th Cir. 1995). “First, a facial attack on the complaint’s allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.” Id. at 1002 (citing Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). “Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends.” Id. at 1003 (citations omitted). “When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the
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truthfulness of the complaint’s factual allegations.” Id. (citations omitted). Instead, “[a] court has wide discretion to allow affidavits, other documents, and [to conduct] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. (citations omitted); see also Los Alamos Study Grp. v. U.S. Dep’t of Energy, 692 F.3d 1057, 1063–64 (10th Cir. 2012); Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324–25 (10th Cir. 2002) (describing how a court may allow evidence outside the pleadings when a “Rule 12(b)(1) motion challenges the facts upon which subject matter jurisdiction depends”).
III. Discussion Governor Kelly bases her motion here on Eleventh Amendment sovereign immunity.
Doc. 80 at 1–9. As explained in more detail below, Governor Kelly contends sovereign immunity shields her from liability on the Amended Complaint’s claims because it has not alleged any facts showing an exception to the state’s sovereign immunity applies. So, Governor Kelly argues, the court must dismiss the claims against her for lack of subject matter jurisdiction. Id. at 9. Plaintiffs respond, contending their claims against Governor Kelly fall within the exception recognized in Ex parte Young because she has “the authority and duty to oversee the foster care system,” and has “demonstrated [her] willingness to exercise that authority.” Doc. 96 at 7. Plaintiffs characterize Governor Kelly’s motion as a factual attack on the court’s subject matter jurisdiction and attach 19 exhibits with their Response. Id. at 13–16; Docs. 97–97-19. Governor Kelly disagrees. She contends her motion asserts a facial attack. Doc. 102 at 3–5.
Because the court’s decision whether to consider plaintiffs’ additional materials turns on whether Governor Kelly’s challenge is a facial or factual attack, the court turns to that question first. In part A, below, the court concludes that Governor Kelly’s challenge presents a facial challenge. That outcome precludes the court from considering plaintiffs’ supplementary
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materials. In part B, the court turns to Governor Kelly’s arguments based on Eleventh Amendment sovereign immunity.
A. Facial or Factual Challenge? Governor Kelly’s motion did not specify whether her motion presented a facial or factual attack on subject matter jurisdiction. Plaintiffs took on the issue, however, and they characterize Governor Kelly’s arguments as “factual assertions” that “plainly go beyond the factual assertions in the Amended Complaint . . . .” Doc. 96 at 15. Although plaintiffs concede Governor Kelly’s motion “presents no factual evidentiary materials,” plaintiffs nevertheless assert that Governor Kelly challenges plaintiffs’ allegations that she (1) manages or runs certain programs, (2) threatened or expressed intention to enforce certain laws, (3) enforces Kansas laws that control foster care programs, and (4) expressed an intention to enforce the Kansas foster care laws. Id. at 14–15. Plaintiffs thus contend that Governor Kelly’s motion challenges the veracity of the facts alleged in the Amended Complaint and thus, the court may consider the additional evidence plaintiffs submitted with their Response. Id. at 13. Governor Kelly’s Reply weighs in on this issue. She disagrees. The Governor contends that her motion merely questions the sufficiency of the Amended Complaint’s jurisdictional allegations. Governor Kelly argues her motion “is premised on [p]laintiffs’ failure to articulate . . . any particular statutory or other legal duty that the Kansas Governor holds in enforcing the statutes that govern the management of the Kansas foster care system.” Doc. 102 at 3 (citing Doc. 80 at 4; Doc. 63 at 24 (Am. Compl. ¶ 105)). Governor Kelly asserts her arguments “simply summarize the statutory authority that places the administration and control of the Kansas foster care system in the hands of the Agency Secretaries,” i.e., she controverts plaintiffs’ legal conclusions about her enforcement power but does not challenge the facts
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plaintiffs have alleged. Id. at 5 (citing Doc. 80 at 8–9). At bottom, Governor Kelly argues, she has not asserted extraneous facts or challenged any of plaintiffs’ alleged facts and thus, her motion presents a facial attack on the sufficiency of the Amended Complaint’s jurisdictional allegations.
The court agrees with Governor Kelly. Plaintiffs’ characterization of Governor Kelly’s motion as a factual attack confuses legal conclusions with well-pleaded facts. For instance, the Amended Complaint alleges that Governor Kelly is “responsible for ensuring all Kansas executive agencies comply with all applicable laws.” Doc. 63 at 24 (Am. Compl. ¶ 105). Similarly, the Amended Complaint asserts Governor Kelly “has the authority” to issue certain executive orders, and “is responsible” for appointing agency secretaries. Id. But these are “bare legal assertions” stated “without any supporting factual allegations . . . .” Peterson v. Martinez, 707 F.3d 1197, 1206 (10th Cir. 2013). Governor Kelly’s challenge of the legal conclusions in plaintiffs’ Amended Complaint, does not take on the facts alleged in that pleading.
But it’s a closer question whether plaintiffs’ allegation that Governor Kelly “has used her executive authority to manage the work” of various agencies alleges a fact or, instead, simply recites a legal conclusion. Doc. 63 at 24 (Am. Compl. ¶ 105). Plaintiffs contend that Governor Kelly’s motion made “factual assertions” about this allegation, which “demonstrate[s] that a factual question exists about Governor Kelly’s involvement . . . .” Doc. 96 at 14–15 (citation and internal quotation marks omitted). In reply, Governor Kelly maintains that her motion asserts “matter-of-fact [legal] conclusions that mirror the language in [] Ex [p]arte Young and the decisions that have followed” it. Doc. 102 at 5 (citations omitted). The court agrees with the Governor’s argument. The court need not presume the truth of “‘a legal conclusion couched as a factual allegation.’” Peterson, 707 F.3d at 1206 (quoting Papasan v. Allain, 478 U.S. 265, 286
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(1986)). And here, the Amended Complaint provides no factual support for its conclusory allegation that Governor Kelly “has used her executive authority to manage” various executive agencies in Kansas. Doc. 63 at 24 (Am. Compl. ¶ 105). So, the court rejects plaintiffs’ contention that Governor Kelly’s challenge of subject matter jurisdiction consists of a factual challenge.
Because Governor Kelly’s motion presents a facial attack, the court applies “the same standards under Rule 12(b)(1) that apply to a Rule 12(b)(6) motion to dismiss . . . .” Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1227 n.1 (10th Cir. 2010). Under this well-known standard, the court considers the factual allegations in the Amended Complaint and accepts them as true. Carter v. Daniels, 91 F. App’x 83, 85 (10th Cir. 2004) (noting that “‘[w]hen ruling on a Rule 12(b)(6) motion, the district court must examine only the plaintiff’s complaint” and “determine if the complaint alone is sufficient to state a claim; the district court cannot review matters outside of the complaint.’” (quoting Jackson v. Integra Inc., 952 F.2d 1260, 1261 (10th Cir. 1991))). In contrast, where the Amended Complaint’s assertions consist of legal conclusions, no presumption of truth attaches. See GFF Corp. v. Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1385 (10th Cir. 1997) (explaining that the court need not accept “legal conclusions” as true). Finally, the court disregards the evidentiary materials attached to plaintiffs’ Response. The court evaluates Governor Kelly’s motion based solely on the factual allegations in the Amended Complaint.
B. Eleventh Amendment Immunity Governor Kelly argues the allegations in the Amended Complaint are not sufficient to overcome Eleventh Amendment Immunity for the official capacity claims against her. The Eleventh Amendment provides: “The Judicial power of the United States shall not be construed
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to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Eleventh Amendment grants immunity that “accord[s] states the respect owed them as joint sovereigns,” “applies to any action brought against a state in federal court, including suits initiated by a state’s own citizens,” and “applies regardless of whether a plaintiff seeks declaratory or injunctive relief, or money damages.” Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d 1250, 1252 (10th Cir. 2007) (citations omitted). “The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). While plaintiffs have not sued the State of Kansas, sovereign immunity also “extends to [suits against] arms of the state and to state officials who are sued . . . in their official capacity.” Turner v. Nat’l Council of State Bds. of Nursing, Inc., 561 F. App’x 661, 665 (10th Cir. 2014) (citing Peterson, 707 F.3d at 1205).
As the Circuit repeatedly has explained, there are three exceptions to Eleventh Amendment sovereign immunity:
First, a state may consent to suit in federal court. Second, Congress may abrogate a state’s sovereign immunity by appropriate legislation when it acts under Section 5 of the Fourteenth Amendment. Finally, under Ex parte Young, 209 U.S. 123, (1908), a plaintiff may bring suit against individual state officers acting in their official capacities if the complaint alleges an ongoing violation of federal law and the plaintiff seeks prospective relief. Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (citations omitted). Here, plaintiffs rely solely on the third exception to Eleventh Amendment immunity—the Ex parte Young exception. Plaintiffs assert this exception applies because they are seeking prospective declaratory and injunctive relief against Governor Kelly. Governor Kelly does not dispute that plaintiffs’ claims challenge ongoing violations of federal law and seek prospective,
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injunctive relief. Doc. 80 at 1–2. The court thus examines plaintiffs’ arguments solely under the Ex parte Young exception.
Ex parte Young held that “the Eleventh Amendment generally will not operate to bar suits so long as they (i) seek only declaratory and injunctive relief rather than monetary damages for alleged violations of federal law, and (ii) are aimed against state officers acting in their official capacities, rather than against the State itself.” Hill v. Kemp, 478 F.3d 1236, 1255–56 (10th Cir. 2007) (citing Ex parte Young, 209 U.S. at 159–60). To determine whether “the Ex parte Young doctrine avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry’ into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (citation omitted). This inquiry does “not include an analysis of the merits of the claim.” Id. at 637. When confronted with such a challenge, plaintiffs must show (1) an ongoing violation of federal law and (2) that they seek prospective relief only, not a judgment against state officers “declaring that they violated federal law in the past.” Johns v. Stewart, 57 F.3d 1544, 1552–53 (10th Cir. 1995).1
For the Ex parte Young exception to apply, the state officer must have “‘some connection with enforcement of the act.’” Chamber of Commerce of U.S. v. Edmondson, 594 F.3d 742, 760 (10th Cir. 2010) (quoting Ex parte Young, 209 U.S. at 157). Specifically, plaintiffs “must

1

To the extent plaintiffs’ claims seek a remedy for past violations of plaintiff’s federal rights,

plaintiff’s claims are barred because the Ex parte Young exception doesn’t exempt those claims from

Eleventh Amendment immunity. Johns, 57 F.3d at 1552–53 (“The Eleventh Amendment ‘does not

permit judgments against state officers declaring that they violated federal law in the past.’” (quoting P.R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993))); see also Doc. 63 at 67

(“First Cause of Action,” alleging that Governor Kelly’s “actions and inactions” have deprived plaintiffs

“of their substantive due process rights guaranteed by the Fourteenth Amendment” and plaintiffs “have

been harmed or are at continuing and imminent risk of harm”), 70 (seeking court’s declaration that

Governor Kelly’s past actions are unconstitutional (emphasis added)).

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adequately allege the individual official’s duty to enforce the statute in question and a demonstrated willingness to do so.” Barrett v. Univ. of N.M. Bd. of Regents, 562 F. App’x 692, 694 (10th Cir. 2014); see also Edmondson, 594 F.3d at 760. The court thus considers whether plaintiffs adequately have alleged that Governor Kelly has a duty to enforce the laws in question. See Edmondson, 594 F.3d at 760 (evaluating whether defendant had “a particular duty to enforce” a statute and “a demonstrated willingness to exercise that duty” (citations and internal quotation marks omitted)).
Governor Kelly contends plaintiffs have failed to allege that she has a duty to enforce the statutes in question or otherwise oversee the Kansas foster care program. She asserts that the allegations in the Amended Complaint rely solely on the Kansas Governor’s “‘supreme executive power.’” Doc. 80 at 4 (quoting Doc. 63 at 24 (Compl. ¶ 105)). And, because “a governor’s general executive duties are insufficient to fall within the exceptions to sovereign immunity,” Governor Kelly argues the court must dismiss her from this lawsuit. Id. at 4–5 (citing Day v. Sebelius, 376 F. Supp. 2d 1022, 1031 (D. Kan. 2005)). Governor Kelly also contends she lacks the “unilateral[]” authority to reorganize executive agencies and cannot use her power to “control or usurp a Secretary’s duties and responsibilities.” Id. at 5. Thus, Governor Kelly argues, she lacks the requisite “direct enforcement power” necessary to invoke the Ex parte Young exception to sovereign immunity. Id. at 6.
Plaintiffs respond, contending Governor Kelly “has a particular duty to enforce the conduct at issue and to oversee the programs at issue” here. Doc. 96 at 19. In support, plaintiffs assert the Kansas Constitution explicitly vests the Kansas Governor with “supreme executive power” over Kansas. Id.
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Our court considered a similar issue in Day v. Sebelius. 376 F. Supp. 2d at 1031. In that case, District Judge Richard Rogers held that the Kansas Governor’s “general enforcement power” under the Kansas Constitution “is not sufficient to establish the connection to [a] statute required to meet the Ex parte Young exception to Eleventh Amendment Immunity.” Id. (citing Women’s Emergency Network v. Bush, 323 F.3d 937, 949–50 (11th Cir. 2003)). Absent a statute conferring enforcement power on the Governor, the court held the Governor was entitled to Eleventh Amendment Immunity. Id.
Plaintiffs try to distinguish Day, arguing that Governor Kelly “is closely involved in the enforcement and oversight of the Kansas foster care system.” Doc. 96 at 20. While plaintiffs’ brief makes many references to Governor Kelly’s involvement in the Kansas foster care system, they never rely on facts alleged by their Amended Complaint. E.g., id. at 21 (arguing Governor Kelly repeatedly has involved herself in matters related to foster care and Medicaid and relying on Docs. 97-6, 97-11, 97-15, & 97-16). Because Governor Kelly makes a facial attack on the court’s jurisdiction, the court cannot consider alleged facts taken from outside the Amended Complaint. Carter, 91 F. App’x at 85 (noting that the court “must determine if the complaint alone is sufficient to state a claim” and “cannot review matters outside of the complaint” (citation and internal quotation marks omitted)). So, for purposes of deciding the current question, the court disregards plaintiffs’ references to materials outside the Amended Complaint.
Plaintiffs also argue Governor Kelly’s duty here is conferred by a Kansas statute that requires the DCF Secretary to “‘advise the governor and the legislature on all social welfare matters covered in this act.’” Doc. 96 at 21 (quoting Kan. Stat. Ann. § 39-708c(c)). But this connection is tenuous on its best day. The cited statute generally describes the various duties assigned to the DCF Secretary. Kan. Stat. Ann. § 39-708c(a)–(y). Yet plaintiffs never direct the
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court to a similar statute assigning enforcement obligations to Governor Kelly. Instead, plaintiffs rely on the general executive duties assigned to the Kansas governor by the Kansas Constitution. Doc. 96 at 19. This general enforcement power is not enough to satisfy the Ex parte Young exception. And absent a “particular duty to enforce” the Kansas statutes applicable to the foster care system, plaintiffs’ claims against Governor Kelly fall “outside the scope of the Ex parte Young exception.” Edmondson, 594 F.3d at 760.
Considering the Amended Complaint’s allegations, the court concludes the Amended Complaint has not alleged sufficient facts that, if true, could support a finding that Governor Kelly possesses the requisite duty to enforce the statutes and policies placed in issue by the Amended Complaint.2 And, thus, the court concludes that the Eleventh Amendment shields Governor Kelly from the claims asserted in the Amended Complaint.
IV. Conclusion For the reasons explained in this Order, the court concludes Eleventh Amendment
immunity protects Governor Kelly from suit on the claims asserted by the Amended Complaint.

2

Plaintiffs’ Response goes on to discuss Governor Kelly’s purported willingness to exercise her

enforcement duties. Doc. 96 at 23–24. But the court need not—indeed, it cannot—consider these

arguments for two reasons. First, plaintiffs’ arguments about defendant’s willingness to exercise

enforcement rely exclusively on materials outside the Amended Complaint. Carter, 91 F. App’x at 85

(noting that the “court cannot review matters outside of the complaint” on a motion to dismiss). Second,

the court is not convinced that, standing alone, an official’s willingness to act is sufficient to fall within Ex

parte Young’s narrow exception. Kitchen v. Herbert, 755 F.3d 1193, 1202–03 (10th Cir. 2014)

(concluding defendants demonstrated a willingness to exercise a duty only after concluding defendants

were “statutorily charged” with enforcement duties); Peterson, 707 F.3d at 1207 (concluding claims

didn’t fall within Ex parte Young exception because defendant had no particular duty to enforce the

statute at issue, and acknowledging that a defendant could be connected to a statute’s enforcement via

“[a] state law, an administrative delegation, or demonstrated practice of enforcing a provision,” but noting

“when a state law explicitly empowers one set of officials to enforce its terms, a plaintiff cannot sue a

different official absent some evidence that the defendant is connected to the enforcement of the

challenged law”); Edmondson, 594 F.3d at 760 (concluding Ex parte Young exception didn’t apply

because plaintiff had failed to show defendant had a duty to enforce a statute without considering whether

defendant had “demonstrated a willingness to exercise” a duty (citation and internal quotation marks

omitted)).

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The court thus grants Governor Kelly’s Motion to Dismiss (Doc. 79) under Fed. R. Civ. P. 12(b)(1) because it lacks subject matter jurisdiction over those claims.
A final note is in order. In the fortieth footnote of their Response to Governor Kelly’s motion, plaintiffs asked for leave to amend their Amended Complaint if the court “treats [d]efendant’s motion as a facial challenge” decided “solely on the allegations in the Amended Complaint . . . .” Doc. 96 at 15 n.40. To be sure, the court sometimes allows a party facing a Rule 12(b) motion to neutralize the motion by filing a motion to amend the challenged complaint in a way that will obviate the motion. Courts typically are more receptive to this kind of response to a motion made under Rule 12(b)(6) because dismissal under that rule often qualifies as a ruling on the merits. See Lomax v. Ortiz-Marquez, 754 F. App’x 756, 759 n.2 (10th Cir. 2018) (“Unless otherwise stated, dismissals under Rule 12(b)(6) are with prejudice.” (citing Slocum v. Corp. Express U.S. Inc., 446 F. App’x 957, 960 (10th Cir. 2011) (further citation omitted))).
In contrast, granting a Rule 12(b)(1) motion, like the one made here, simply produces a dismissal without prejudice. Strozier v. Potter, 71 F. App’x 802, 804 (10th Cir. 2003) (“A district court’s dismissal for lack of subject matter jurisdiction should be without prejudice.” (citations omitted)). If plaintiffs sincerely believe they can plead a claim against Governor Kelly that qualifies for Ex parte Young’s narrow exception, they can file a properly supported Rule 15 motion to amend their existing Amended Complaint. But the court is unwilling to provide that opportunity based on a vague, unsupported, and stray request assigned to the Response’s final stages. See Barrett v. Univ. of N.M., 562 F. App’x 692, 694–95 (10th Cir. 2014) (affirming district court’s decision to deny request to amend asserted in opposition papers and noting, a
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Case 2:18-cv-02617-DDC-GEB Document 118 Filed 06/03/20 Page 14 of 14 “formal motion to amend, accompanied by a purported amended complaint, gives the [trial] judge an opportunity to consider whether the new complaint can pass muster”).
IT IS THEREFORE ORDERED BY THE COURT THAT defendant Laura Kelly’s Motion to Dismiss (Doc. 79) is granted.
IT IS SO ORDERED. Dated this 3rd day of June, 2020, at Kansas City, Kansas.
s/ Daniel D. Crabtree Daniel D. Crabtree United States District Judge
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 Case 2:18-cv-02617-DDC-GEB Document 132 Filed 07/08/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS KANSAS CITY DIVISION

M.B. and S.E. through their next friend Katharyn McIntyre, V.A. through his next friend Kathryn Ashburn, M.J. through his next friend Ed Bigus, R.R. through her next friend Ed Bigus, R.M. through his next friend Allan Hazlett, C.A. through his next friend Allan Hazlett, E.B. through his next friend Allan Hazlett, J.P. through her next friend Allan Hazlett, Z.Z. through her next friend Ashley Thorne, B.B. through her next friend Ashley Thorne, and M.A. through his next friend Ashley Thorne, for themselves and those similarly situated,
Plaintiffs,
v.
Laura Howard in her official capacity as Kansas Department for Children and Families Secretary, Dr. Lee A. Norman in his official capacity as Kansas Department of Health and Environment Secretary, and Laura Howard in her official capacity as Kansas Department for Aging and Disability Services Secretary,
Defendants.

) ) ) ) ) ) Case No. 2:18-cv-02617-DDC-GEB ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

JOINT STIPULATION OF PARTIAL DISMISSAL, OF NAMED PLAINTIFFS V.A., M.J., R.R., AND B.B.
Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), the parties hereby stipulate and agree to the dismissal of the claims of Plaintiffs V.A., M.J., R.R., and B.B. as Named Plaintiffs. The claims of these Named Plaintiffs are being dismissed because they have recently

Case 2:18-cv-02617-DDC-GEB Document 132 Filed 07/08/20 Page 2 of 4

turned eighteen years old. These Named Plaintiffs’ initials shall be removed from the case caption.
The parties further stipulate and agree that Kathryn Ashburn is dismissed as Next Friend appearing on behalf of V.A.; Ed Bigus is dismissed as Next Friend appearing on behalf of M.J. and R.R.; and Ashley Thorne is dismissed only in her role as Next Friend appearing on behalf of B.B. Ms. Thorne shall continue to serve as a Next Friend for Named Plaintiffs Z.Z. and M.A., and Ms. Ashburn and Mr. Bigus shall be removed from the case caption.

Dated: July 8, 2020

Respectfully submitted,
KANSAS APPLESEED CENTER FOR LAW AND JUSTICE, INC.
/s/ Teresa A. Woody Teresa A. Woody KS Bar ID 16949 Larry R. Rute KS Bar ID No. 8105 211 East 8th Street, Suite D Lawrence, KS 66044 P: (785) 856-0917 twoody@kansasappleseed.org larry@adrmediate.com
LAW OFFICE OF LORETTA BURNSBUCKLEW Loretta Burns-Bucklew MO Bar ID No. 32053 KS District Bar No. 78800 401 West 89th Street Kansas City, MO 64114 P: (816) 384-1198 loribblawkc@gmail.com
NATIONAL CENTER FOR YOUTH LAW Leecia Welch (admitted pro hac vice) CA Bar ID No. 208741

Case 2:18-cv-02617-DDC-GEB Document 132 Filed 07/08/20 Page 3 of 4
Poonam Juneja (admitted pro hac vice) CA Bar ID No. 300848 Freya Pitts (admitted pro hac vice) CA Bar ID No. 295878 1212 Broadway, Suite 600 Oakland, CA 94612 P: (510) 835-8098 F: (510) 835-8099 lwelch@youthlaw.org pjuneja@youthlaw.org fpitts@youthlaw.org
CHILDREN’S RIGHTS, INC. Ira Lustbader (admitted pro hac vice) NY Bar ID No. 2516946 Marissa C. Nardi (admitted pro hac vice) NY Bar ID No. 5173265 Jonathan M. King (admitted pro hac vice) NY Bar ID No. 5119847 Stephen A. Dixon (admitted pro hac vice) LA Bar ID No. 18185 88 Pine Street, 8th Floor New York, NY 10005 P: (212) 683-2210 F: (212) 683-4015 ilustbader@childrensrights.org mnardi@childrensrights.org jking@childrensrights.org sdixon@childrensrights.org
DLA PIPER LLP (US) Joshua Kane (admitted pro hac vice) NY Bar ID No. 4973400 1251 Avenue of the Americas New York, NY 10020 P: (212) 335-4561 F: (917) 778-8561 joshua.kane@dlapiper.com
ATTORNEYS FOR PLAINTIFFS
/s/ Jean Paul Bradshaw II LATHROP GPM LLP Jean Paul Bradshaw II (#70010) Brian C. Fries (#15889)

Case 2:18-cv-02617-DDC-GEB Document 132 Filed 07/08/20 Page 4 of 4

Grant A. Harse (#24666) Reid K. Day (#28319) 2345 Grand Blvd., Ste. 2200 Kansas City, MO 64108 Telephone: 816.292.2000 Facsimile: 816.292.2001 jeanpaul.bradshaw@lathropgpm.com brian.fries@lathropgpm.com grant.harse@lathropgpm.com reid.day@lathropgpm.com
And: Carrie E. Josserand (#18893) 10851 Mastin Blvd., Suite 1000 Overland Park, KS 66210 Telephone: 913.451.5100 Facsimile: 913.451.0875 carrie.josserand@lathropgpm.com
ATTORNEYS FOR DEFENDANTS HOWARD AND NORMAN
Corliss Scroggins Lawson, SC# 27096 555 S. Kansas Ave., 6th Floor General Counsel’s Office Topeka, Kansas 66603 Telephone: (785) 296-3967 FAX: (785) 296-4960 Corliss.Lawson@ks.gov
ATTORNEY FOR DEFENDANT HOWARD

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing was filed electronically with the Clerk of the Court on July 8, 2020, to be served by the operation of the Court’s CM/ECF electronic filing system upon all parties.

DATED: July 8, 2020

/s/ Teresa A. Woody Teresa A. Woody Attorney for Plaintiffs