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The exterior of Children's Hospital Colorado in Aurora, photographed on Oct. 18, 2019. (John Ingold, The Colorado Sun)

Colorado has lapsed on its obligation to provide mental health care for needy children, leaving them to cycle in and out of emergency rooms instead of receiving appropriate long-term care, according to a federal class-action lawsuit filed against the state Medicaid program. 

The lawsuit so far includes three anonymous plaintiffs, all teenagers who have for months or years been checked into hospital emergency rooms and psychiatric facilities but then refused step-down residential treatment because no beds are available.

The case is similar to major lawsuits filed in other states, including Illinois, which was forced to revamp its mental health system for children in a 2018 settlement.

“Colorado needs a comprehensive mental health plan of care for these children, and there are significant gaps and missing links that need to be rectified,” said Robert Farley, the attorney handling the Colorado case who also successfully sued Illinois. “These children have legal rights to get the necessary services.” 

The three plaintiffs, identified only as A.A, B.B. and C.C., should have received intensive mental health services in their communities — an entitlement under federal law for children on Medicaid government insurance, according to the lawsuit filed Friday that seeks class-action status to represent other children who have not received needed treatment. The children have been unfairly “institutionalized,” it alleges. 

One is a 13-year-old Northglenn boy who has been hospitalized at Children’s Hospital Colorado since March because the state has refused to pay for a less-restrictive residential treatment center. The teen, who has reactive attachment disorder and other mental health issues, remains hospitalized due to the lack of other options, according to the lawsuit. 

Another is a 16-year-old Castle Rock girl who has been in the emergency department at Children’s Hospital hospital since July 31. The state has been unable to find a long-term residential program, despite looking out of state, according to the lawsuit. The teen, who is suicidal and has post-traumatic stress disorder and reactive attachment disorder, has been admitted to an emergency room 17 times because of her mental health struggles. 

The child, who has busted open her head by banging it on the wall and tied sheets around her neck, has had to rely on emergency treatment while in crisis instead of receiving long-term care that would improve her mental health, according to the lawsuit.

The third plaintiff is a 13-year-old Aurora girl diagnosed with major depression and an anxiety disorder who has been hospitalized three times. She’s living at home but needs to go to a residential treatment center, which the state has not provided, according to the lawsuit. 

Under federal law, children who qualify for Medicaid are entitled to receive medically necessary mental health services through a program called “Early and Periodic Screening, Diagnostic and Treatment Service.” The goal of the lawsuit, which names Colorado Department of Health Care Policy and Financing Executive Director Kim Bimestefer, is to force Colorado to build a better spectrum of care so that children have more options other than emergency hospitalization, Farley said in an interview with The Colorado Sun.

The state Department of Health Care Policy and Financing declined to comment, noting that it is against department policy to discuss pending litigation.

The lawsuit comes at a pivotal time for Colorado, where suicide is the leading cause of death for young people and Children’s Hospital Colorado recently sent up a flare for legislative help because its emergency room is crowded with suicidal and depressed kids and teens. 

About 2,300 children received intensive community-based services through the state Medicaid department’s Children’s Extensive Support Waiver program, but in order to qualify, children must have an intellectual or developmental disability. Similarly, 163 children received services through the state’s Children’s Residential Program, but to qualify, children had to have a diagnosed intellectual disability. The system is discriminatory, Farley alleged, when only certain children can qualify for residential care. 

Farley initiated the lawsuit after receiving various calls for help from families in Colorado, he said. The Illinois lawsuit, filed in 2011 and settled in 2018, was the impetus behind new programs going into place in 2022 in that state, including a uniform mental health assessment for children receiving Medicaid. Children in Illinois will be assigned a mental health care coordinator, who will work with a handful of kids and teens at a time to make sure they receive proper care.

“You just can’t flip a switch overnight and create a mental health system for children,” Farley said, explaining that any changes ahead for Colorado are likely to take years. 

In many states, mental health treatment for children is so inadequate that families get to the point that the only safe place they can find for their child is a psychiatric hospital, he said. Each time their child is stabilized and released, the options for step-down programs, such as day treatment or residential centers, are “slim to none,” Farley said, so the child goes home until the next emergency rush to a psychiatric facility. 

The situation gets so dire that some families eventually refuse to take their children home, which results in the hospital calling child welfare authorities. Under the custody of the child protection division, children receive placement in a residential treatment facility. 

“It gets to the point where families become desperate,” Farley said. “They don’t see hope. They don’t see progress. They get to the point where we have to do something.” 

Farley said he knows many kids, not just his 16-year-old Colorado client, who have had more than a dozen visits to the emergency room for psychiatric problems. “That’s not an unusual situation,” he said. “It’s not just somebody falling through the cracks. If you’ve had to go to the emergency room 17 times, something is not working.” 

In some cases, children are adopted from the foster care system and have severe mental disorders related to early childhood trauma, Farley said. Their adoptive parents struggle to get them help, despite having Medicaid coverage. 

Residential programs, which cost about $700 or even $900 per day, have been shrinking in Colorado, leaving families and the state to seek beds out of state. Colorado needs to boost its  options along the mental health treatment spectrum, including better in-home programs and community programs with the aim of keeping kids out of residential centers and hospitals, Farley said. 

In May, Children’s Hospital Colorado declared a “pediatric mental health state of emergency” and said its emergency rooms were overwhelmed by children in psychiatric crisis. Mental health emergency room visits were up 90% in April compared with April 2019 and the hospital reported seeing three or four kids each week who had just attempted suicide. 

It’s unclear whether Colorado’s latest plans to improve mental health for children will factor into the case. 

A year ago, Gov. Jared Polis announced a plan to create a centralized office for mental health — called the Behavioral Health Administration — to replace the splintered system that includes 75 programs spread across three state agencies. 

The state’s suicide prevention office is part of the Colorado Department of Public Health and Environment, yet crisis services — including 24-hour, walk-in services for mental health — are overseen by the Colorado Department of Human Services. Substance abuse programs are housed within the human services department, but many are funded by state Health Care Policy and Financing.

The change was the recommendation of a 27-member task force of mental health experts and local government officials. The lawsuit names only the department of Health Care Policy and Financing, which houses the Medicaid department. 

California and Massachusetts were also ordered to enhance their mental health programs after lawsuits like the one that spurred change in Illinois. The Illinois settlement impacted an estimated 30,000 children and hundreds of millions of dollars in new services. 

Jennifer Brown writes about mental health, the child welfare system, the disability community and homelessness for The Colorado Sun. As a former Montana 4-H kid, she also loves writing about agriculture and ranching. Brown previously...