Enhancing Mental Health Advocacy for Girls in the Juvenile Justice System

By Fiza Quraishi

Many girls in the juvenile justice system need mental health services. They are, in many cases, legally entitled to those services under programs like Medicaid or those established under the Individuals with Disabilities Education Act. Yet many girls in the juvenile justice system are denied access to services that could address and meet their unique and often urgent mental health needs. This article examines the plight of these girls; it also highlights ways in which advocates can help individual girls and, on a broader level, push for badly needed reforms. Special emphasis is placed on the importance of individualized, gender-specific interventions and of a collaborative and team-based “system of care” approach to providing mental health services to girls, who comprise the fastest growing population within the juvenile justice system. In all cases, understanding and enforcing existing legal entitlements to services is absolutely essential.

Gender Differences Within the Juvenile Justice System

Over the past several years, there has been an increased focus on girls in the juvenile justice system. Many of these girls have experienced trauma, abuse, and violence, and studies have shown that they are more likely than their male counterparts to develop mental health issues as a result. Girls are more likely to internalize traumatic experiences and to suffer from depression, mood disorders, anxiety, and post-traumatic stress disorder (PTSD). They are also more likely to attempt self-harm and commit suicide. Child abuse and neglect appear to be stronger predictors of delinquent behavior in girls than in boys.

Several studies have shown that girls in the juvenile justice system suffer from mental health problems at higher rates than boys. In a survey of inmates in California’s youth prisons, 65 percent of the girls studied had suffered from PTSD; that was six times the rate for boys. Eight-four percent of girls in Ohio’s juvenile justice system (versus 27 percent of boys) were found to have significant mental health needs. In Cook County, Illinois, a study of 1,829 justice-involved youth found that 74 percent of girls (versus 66 percent of boys) had been diagnosed with one or more mental disorders. According to the Ohio study, girls are “more likely than boys to report trying to harm themselves (54 percent versus 46 percent), thinking about committing suicide (52 percent versus 29 percent), and trying to commit suicide (46 percent versus 19 percent).”

The juvenile justice system treats girls differently than boys in terms of how long, why, and where they are detained. Girls are disproportionately detained and adjudicated for status offenses and technical violations of probation, and confined for their own safety and not because they pose a risk to the community. For example, girls who are victims of commercial sexual exploitation are often detained because of a lack of safe alternatives for them to stay in the community.

The practice of detaining girls for their own safety leads to longer incarceration times for girls. A study of delinquent youth in Oregon found that even though girls had fewer prior offenses, they spent an average of 131 days in detention compared to 72 days for boys.

Girls in the juvenile justice system are often placed in residential facilities because of the limited availability of gender-specific programming. These facilities tend to be farther away from the offender’s home than facilities where boys are detained. In California, girls are often placed out-of-county, whereas boys are more often housed in their home county because there are more placement options for them. Out-of-county placements make transition back into the community much more difficult; they also increase the burden on families to stay in contact with the youth.

Tips for Advocates: Accessing Appropriate Rather Than Available Services

To the extent possible, try to work as a team with the youth and his or her family, clinician/therapist, caregiver, and teachers, as well as anyone else who can serve as a support or resource for the family.

1. Focus on strengths and needs. What services work well? What can be improved?
   1. What services are currently being provided, and which are meeting (or not) the youth’s needs?
   2. What does the youth enjoy, care about, and/or do well? How can this information be used to develop more supports?
   3. What informal resources/supports (e.g., friends, relatives, faith based organizations) do the youth and caregiver already have?

2. Stay goals-oriented.
   1. What are the youth’s goals? Examples might include:
      1. To stabilize his or her living situation (or step down to a less restrictive setting).
      2. To graduate high school.
      3. To get involved in sports or other activities.
   2. What behaviors are impeding achievement of those goals? Examples:
      1. Inability to self-soothe, and lashing out.
      2. Running away.
      3. Engaging in promiscuous or other unsafe behavior.
      4. Engaging in self-harm.
   3. What does the youth and his or her family feel would help address some of these behaviors?

3. Work with the clinician to make recommendations that address the identified needs.
   1. Try to get the clinician to link the specific behavior to a needed service. More specificity means better services.
   2. Focus on what the youth needs, not on what is available in the community.

4. The clinician’s written recommendation triggers the EPSDT entitlement. If the youth is eligible instead for special education services, the recommendation enables the advocate to build a stronger case for services that should be included in an Individualized Education Plan (IEP).

Efforts at Reform

Although girls have unique mental health needs, there is a general lack of gender-responsive, individualized, and strengths-based services available to them. A consensus appears to be emerging that jurisdictions should develop and expand such services. This process has already begun. Many of the more successful reform efforts have focused on developing tools for collecting data and for assessing the needs of girls entering the juvenile justice system. Conducting needs assessments for girls can help stakeholders develop and offer specialized, gender-responsive treatment options that address the many gaps in services for justice-involved girls. A number of reform initiatives emphasize the training of judges, juvenile justice staff, and law enforcement staff to better understand girls’ needs and to change policies that have a harmful impact.

To be most effective, reform efforts should emphasize and foster collaboration and coordinated decision-making among state and local agencies. The juvenile justice system is rarely the only institution involved in making decisions about the lives of these girls and the kinds of mental health services they need. Most girls who end up in the juvenile justice system have already had contact with other systems that serve youth. They may have come into contact with the child welfare system or have been hospitalized for self-harming behavior. They also may be eligible for special education services.  Reform efforts should also emphasize assessment and data collection around mental health needs and services.

Moving Advocacy Forward

Despite these fledgling reform efforts, existing structures and systems still generally fail to address girls’ mental health needs. A large part of the problem is that the systems that serve youth—child welfare, mental health, and juvenile justice—have historically adopted a deficits-centered perspective. Youth and their families are rarely seen as part of the solution and are more often seen as part or the source of the problem. The default approach of the juvenile justice system has been to focus on where the youth has failed and what probation requirements she has not completed.

Similarly, the mental health system has long focused on deficits, diagnoses, pathologies, and problem behaviors. Services are typically delivered in a one-size-fits-all manner, consisting of medication management and individual and group therapy. Services are often not individualized, and when a youth does not engage with or respond positively to those services, she is often blamed and labeled as a difficult client who needs a higher level of care in a restrictive setting. One-size-fits-all services are particularly ineffective for girls, who as we have seen tend to have histories of trauma and abuse and who need services that are trauma-informed and that address the cycle of violence.

In this context, advocates can play an important role. They can help youth access more individualized, higher-quality services by using young people’s federal entitlements to adequate mental health care. Medicaid’s Early and Periodic Screening, Diagnostic and Treatment (EPSDT) program requires states to provide youth with any “necessary health care, diagnostic services, treatment and other measures . . . to correct or ameliorate defects and physical and mental illnesses and conditions." States are required to actively arrange for treatment, either by providing the service themselves or via referral to appropriate agencies, organizations, or individuals. “Necessary” services must be provided regardless of whether it’s included in a state’s Medicaid plan.

The determination that a service is medically necessary lies primarily with the youth's treating physician or other health care provider. States (or in California, counties), may challenge or refuse to provide a medically necessary service. While the state may review the physician's determination, it must defer to that physician’s treatment recommendation. By working with a youth’s physician to develop a treatment recommendation, advocates can get better services for their clients. The written recommendation triggers the EPSDT entitlement, and on that basis, an advocate can push to have the services provided.

The federal law governing special education, the Individuals with Disabilities Education Act (IDEA), requires that schools provide students with disabilities with a free and appropriate public education (FAPE). FAPE includes “related services,” which are any services, including mental health, that are necessary to help a student benefit from her special education program  Advocates who work to identify a youth’s strengths and needs and to collaborate with treating physicians can develop ways to incorporate gender-specific interventions into their client’s Individualized Education Plan, or IEP. Advocates should emphasize the fact that IDEA explicitly recognizes the need for individualized services.

Many girls in the juvenile justice system, given their experiences of trauma, their past involvement with the child welfare system, and their mental health needs, are likely eligible for EPSDT or special education services. Advocates can work with clinicians and clients to develop treatment plans that address the girls’ individual needs; they can also enforce any and all entitlements to those services.

The Impact of Katie A. v. Bonta

In December 2011, plaintiff’s counsel in the case of Katie A. v. Bonta reached a historic settlement agreement with the state of California. Katie A. provides for intensive home-based services and coordinated case management for children who are in foster care or who are at risk of removal from their families. These services will be provided through the Medi-Cal program and must be delivered in the community, with a focus on individualized needs and strengths.

Many girls who enter or are at risk of entering the juvenile justice system have prior child welfare involvement. As counties begin rolling out services mandated by Katie A., the ability of advocates to push for individualized, intensive community-based services by enforcing entitlements to care will be enhanced. Girls who were in foster care but “crossed over” into the juvenile justice system should be eligible for these services. To effectively meet the needs of all at-risk youth, local mental health and child welfare agencies should incorporate gender-responsive programming into the Katie A. services being developed and implemented at the county level.

Medicaid Services for Girls Awaiting Placement

Detention should never be used as a way to access mental health treatment, but the reality is that many youth, and many girls in particular, languish in detention without access to appropriate services. Getting services while in detention can ameliorate their condition, but many youth are denied services because their Medicaid is usually suspended while they are detained. If their Medicaid is inactive, they cannot access EPSDT services. Federal law prohibits Medicaid payments “with respect to care or services for any individual who is an inmate of a public institution.”  There are certain circumstances where an individual would not be considered an inmate, including if he or she “is in a public institution for a temporary period pending other arrangements appropriate to his needs.” Since a youth in detention awaiting placement elsewhere falls within this category, he or she should be eligible for Medicaid services.

Many states and jurisdictions, however, do not provide Medicaid coverage to detained youth awaiting placement. Guidance provided to states by the federal Centers for Medicare & Medicaid Services (CMS) was unclear, and did not take into account the legal status of children and the fact that the juvenile justice system is different from the criminal justice system for adults.

Girls can spend considerable time in detention awaiting placement in the limited number of programs that offer appropriate services. Without Medicaid coverage, they are unable to access EPSDT and other vital services. Advocates need to understand the law and to ensure that Medicaid services are provided to youth awaiting placement.

In California, most of the counties that do provide Medicaid services (called Medi-Cal in California) to detained youth awaiting placement do so for only one to two months. According to the state’s Medi-Cal eligibility guidelines, a juvenile “in a detention center due to care, protection, or in the best interest of the child is not an ‘inmate of a public institution’ if there is a specific plan for him/her that makes the stay temporary (one to two months). He/She may be eligible for Medi-Cal.”

Although California law does not specify what is considered a temporary detention stay, many counties cut off services after 60 days. Many youth, particularly girls awaiting placements in programs with limited available slots, may “temporarily” remain in detention for many months while they wait to be transferred. Federal law has no time limitation for Medicaid eligibility for youth in detention awaiting placement.

California recently cleared up the confusion over whether detained youth awaiting placement are entitled to Medi-Cal services. In September 2012, the state’s Department of Health Care Services (DHCS) released an All County Welfare Directors’ Letter stating that counties “must not limit the duration of Medi-Cal for eligible juveniles who are temporarily residing in a juvenile detention center due to care, protection, or in the best interest of the juvenile in accordance with 22 CCR Section 50273(c)(5).” Advocates can and should point to federal law, as well as DHCS’s own guidance when their California-based clients are denied Medi-Cal or EPSDT services while awaiting placement.

Conclusion

When justice-involved girls are denied the mental health services that they need and, in many cases, are entitled to, the consequences can be devastating. Further trauma and alienation may result, and the likelihood of poor outcomes and recidivism goes up. Returning girls with histories of sexual exploitation to the community without a network of supports and services dramatically increases the chances of further exploitation and abuse.

Current efforts to create a more gender-responsive juvenile justice system are a big step in the right direction. Reform initiatives should focus on creating community-based mental health services that are strengths- and needs-based as well as integrated within the larger system of care for female youth. Interagency collaboration and a team-based approach to identifying girls’ needs are essential to developing responsive, individualized services. In the meantime, there is much advocates can do to enforce existing rights to mental health services of girls whose needs too often go ignored and unaddressed.

NCYL staff attorney Fiza Quraishi works on projects related to the intersections between the child welfare, juvenile justice, and mental health systems.

1. Girls are primarily arrested for low-level, nonviolent offenses. Lynn Wu, Why Do We Need Gender- Responsive Assessments, Programs and Services for Justice-Involved Girls? (Prison Law Office, Berkeley, Calif.), June 2010, at 1.
2. Most recently, in October 2012, the Georgetown Center on Poverty, Inequality and Public Policy released a report entitled Improving the Juvenile Justice System for Girls: Lessons from the States, which provides an overview of the literature studying girls’ pathways into the juvenile justice system, examines three jurisdictions’ work to create more gender responsive systems, and makes policy recommendations for state and local reforms. Liz Watson & Peter Edelman, Improving the Juvenile Justice System for Girls: Lessons from the States (Georgetown Center on Poverty, Inequality and Public Policy, Washington, D.C), October 2012.
3. Trauma Among Girls in the Juvenile Justice System, Juvenile Justice Working Group (National Child Traumatic Stress Network), 2004, at 4.
4. Leah E. Daigle, Francis T. Cullen & John Paul Wright, Gender Differences in the Predictors of Juvenile Delinquency, Youth Violence and Juvenile Justice, Vol. 5, No. 3, July 2007, at 256-257; Wu, at 4.
5. Wu, at 2.
6. Id., at 4.
7. Id.
8. Id.
9. Id.
10. Id., at 2.
11. Id.
12. Gender Responsiveness and Equity in California’s Juvenile Justice System, Juvenile Justice Policy Brief Series (Berkeley Center for Criminal Justice, Berkeley, Calif.), August 2010, at 7.
13. Andrea Banton & Scott Timmerman, A Strengths Based Approach to Working with Youth and Families: A Review of Research (University of California, Davis, Center for Human Services), July 2011, at 1.
14. 42 U.S.C. § 1396d(r)(5).
15. 42 U.S.C. § 1396a(a)(43)(C); 42 U.S.C. § 1396d(r)(5).
16. S. Rep. No. 404, 89th Cong., 1St Sess., reprinted in 1965 U.S.C.C.A.N. 1943, 1986 ("the physician is to be the key figure in determining utilization of health services . . . it is the physician who is to decide upon admission to a hospital, order tests, drugs, and treatments[.]").
17. 20 U.S.C. § 1401(9); 34 Code of Fed. Regs § 300.17.
18. 34 Code of Fed. Regs § 300.34.
19. 42 U.S.C. § 1396d(a)(27)(A).
20. 42 Code of Fed. Regs. § 435.1010.
21. Letter from Alice Bussiere and Sue Burrell, Staff Attorneys, Youth Law Center, to Steven Rosenberg, President, Community Oriented Correctional Health Services (Jul. 17, 2009) (explaining that CMS’s statement that “[i]ndividuals (including juveniles) who are being held involuntarily in detention” are not eligible for Medicaid services does not take into account that juveniles cannot be released from a public institution without making appropriate arrangements for her safety and care and that the juvenile justice system is supposed to be rehabilitative, which requires treatment).
22. Medi-Cal Eligibility Procedures Manual, Article 6C(2)(e).
23. 22 Cal. Code Regs. Tit. 22, § 50273(c)(5) (2012).
24. All County Welfare Directors’ Letter 12-22 from California Department of Health Care Services (Sept. 4, 2012), at 2.