By Carolina Journal Staff

The head of North Carolina’s Department of Health and Human Services is urging a federal judge to dismiss a lawsuit targeting mental health services for foster children. DHHS Secretary Kody Kinsley filed paperwork Monday supporting dismissal.

Plaintiffs who filed a class-action suit in December complain about the state’s psychiatric residential treatment facilities. Critics compare the facilities to solitary prison confinement. They want the state to shift its focus away from the centers to provide more support services in the children’s home communities.

Kinsley, the named defendant in the suit, took over DHHS’ top job in January 2022.

“Within a month of his appointment, Secretary Kinsley reorganized the Department to create a new Division of Child and Family Well-Being, bringing together programs and staff operating across multiple department divisions to support the physical, behavioral and social needs of children,” according to a memorandum filed Monday in U.S. District Court. “In March 2022, the Child Welfare and Family Well-Being Transformation Team released a ‘Coordinated Action Plan for Better Outcomes’ focused on what it recognized as an ‘urgent crisis of the growing number of children with complex behavioral health needs who come into the care of child welfare services.’”

Kinsley cited “improving services for children with behavioral health needs in the foster care system” as one of his top priorities during a confirmation hearing in June 2022.

“It is a long-term, herculean effort, in which DHHS plays an important, but not solitary, role,” according to Kinsley’s lawyers.

“Before any of these efforts could bear fruit – indeed, before Secretary Kinsley had been in his position for even a year – Plaintiffs brought suit,” the memo continued. “Plaintiffs claim that DHHS has a ‘policy or practice’ of discriminating against foster children with mental health impairments; of ‘prioritizing or permitting’ placement of foster youth with severe behavioral and mental health needs in psychiatric residential treatment facilities; of ‘permitting shortages’ of community-based placements and services; and of failing to make ‘reasonable modifications’ to those policies and practices that would enable more foster children with behavioral health needs to be served in the community.”

“In other words, the Complaint alleges that the DHHS is failing to address the issues on which Secretary Kinsley, DHHS, and other stakeholders across the State have been working tirelessly over the last 14 months,” the secretary’s lawyers wrote.

Kinsley argued that the plaintiffs’ allegations under the Americans with Disabilities Act and Rehabilitation Act fail “to state a claim upon which relief can be granted.” He also argued that state courts already have ruled on whether it was necessary to place the named plaintiffs in the psychiatric treatment facilities.

“Finally, the only relief sought in the Complaint is systemic change: an increase in placement options and treatment services that will likely take years to fully fund and develop,” according to the memorandum. “The individual Named Plaintiffs have not asked for individual relief, and cannot demonstrate that the injury they have purportedly suffered would likely be redressed were the Court to grant that systemic relief. Accordingly, under fundamental precepts of federal court jurisdiction, they do not have standing.”

Kinsley’s lawyers also question the legal standing of two groups acting as plaintiffs: Disability Rights North Carolina and the N.C. State Conference of NAACP.

Plaintiffs will have an opportunity to respond to Kinsley’s motion before a federal court takes action.