Plaintiffs say Kevin S. settlement remains unfulfilled; co-neutrals and arbiter set enforcement benchmarks

Plaintiffs in the Kevin S. litigation told the Legislative Health & Human Services Committee on July 24 that the state's child-welfare system continues to fall short of commitments in the 2020 settlement, and that a recently issued remedial order from the arbiter sets firm deadlines and monitoring steps to press the state into compliance.

Therese Yanin, director of the Native American Disability Law Center and a plaintiff attorney in the case, told the committee the settlement aimed to make the system trauma-responsive and to keep children "in the least restrictive environment. It's called a family. It's called our community. That's where kids need to be." She said the parties had agreed to a non-consent-decree settlement in March 2020 and to a dispute-resolution process that includes co-neutrals and, where necessary, arbitration.

Why it matters: Plaintiffs and their expert witnesses said systemic shortfalls ' in screening, placements and community-based services ' impede the state's ability to keep children safely with families. They emphasized that many children covered by the settlement are Native American and that Medicaid (now administered by the Health Care Authority) is central to delivering community behavioral-health services that can prevent institutional placements.

Findings plaintiffs described: Child-welfare clinicians and monitors have reported low completion rates for the two screening tools required under the agreement. Psychiatrist George Davis cited the state's own 2024 reporting and said the emergency screening meant to occur at an initial custody hearing had been performed on time in only about 1% of cases; the more comprehensive 45-day screening occurred on time in about 9% of eligible cases, he said. Disability Rights New Mexico attorney Jesse Clifton cited the state's February 2024 report indicating roughly 27% of youth received the initial CAT screen and 37% received the CANS assessment in that dataset; he warned the numbers and methods of counting still show widespread untimely assessments.

Advocates also presented data they said shows limited access to evidence-based community treatments: LFC and state reports cited during the hearing indicate only a few percent of children in custody accessed specified evidence-based practices (plaintiffs cited a 2.6% figure for access to a set of interventions in 2024). Plaintiffs said about 18% of children had experienced at least one placement considered inappropriate and that many congregate-care placements were made without documented medical-necessity determinations.

Co-neutrals, remediation and enforcement: The plaintiffs said the arbiter (who issued a remedial order this month) and the co-neutrals (national experts named in the settlement) now have a schedule of milestones and conferences to review the state's progress and to require corrective action. The remedial order requires, among other items, 24-hour notification to the co-neutrals of any child's death or other critical incidents and sets concrete deadlines for specified improvements.

Systemic causes and recommendations: George Davis told the committee the child-welfare system's issues trace to three foundational gaps: insufficient staffing, lack of family foster placements, and insufficient community-based behavioral-health services. "The absence of placements and the absence of services are oftentimes cited as the reason caseworkers cannot do their job and subsequently eventually quit," he said. Plaintiffs urged expanded access to evidence-based community treatments (high-fidelity wraparound, multisystemic therapy, functional family therapy, mobile crisis response, trauma-informed cognitive behavioral therapy and EMDR), better integration of CANS results into Medicaid care plans, and stronger, enforceable accountability from state leadership.

State and implementation-team presence: Committee members pressed for executive-level engagement and more direct authority for the office overseeing settlement implementation. Committee and plaintiffs urged that the state ensure the new Kevin S. implementation team has resources and authority to carry out the settlement and that the Health Care Authority and Medicaid contractor (Presbyterian) be held to contractual obligations to support timely services and continuity of care for children in custody.

Committee reaction and next steps: Legislators expressed frustration at long-standing problems and asked for better data, more rapid progress and assurance that the remedial order will produce measurable change. The plaintiffs said they expect scheduled conferences with the arbiter and continued monitoring by co-neutrals; committee members discussed sending formal requests to the governor and to agency leadership for direct engagement and resources to meet the remedial timelines.