Courts are violating ICWA in South Dakota

Courts are violating ICWA in South Dakota
By Dana Hanna
In a recent column in the Native Sun News, Regina Brave wrote about the history and importance of the federal Indian Child Welfare Act (ICWA) and asked about the current status of the lawsuit that was filed in federal court in which the Oglala Sioux Tribe and other plaintiffs claimed that state authorities were violating the ICWA rights of Indian families in state courts. Along with lead counsel Stephen Pevar of the American Civil Liberties Union (ACLU) and Rachel Goodman of the ACLU office in New York, I am one of the attorneys representing the Indian plaintiffs in that lawsuit. I am writing to thank Regina Brave for drawing further public attention to this very important issue and to answer her question about the current status of that federal lawsuit. Earlier this year, the Oglala and Rosebud Sioux Tribes and three Indian mothers filed a lawsuit in federal court in Rapid City on behalf of all parents of minor Indian children in Pennington County. That lawsuit, Oglala Sioux Tribe v. Van Hunnik, charges that the South Dakota Department of Social Services (DSS), the Pennington County State’s Attorney’s Office, and the presiding judge and other judges in the Seventh Judicial Circuit routinely violate the constitutional and ICWA rights of Indian parents in child abuse and neglect cases. In a nutshell, the Indian plaintiffs charge that state court judges, assisted by DSS and state prosecutors, routinely order Indian children into long term foster care placements, based on allegations of neglect or abuse, without giving their parents any kind of fair and meaningful hearing. The Indian plaintiffs are seeking an order from the United States District Court that would prohibit state court judges, DSS and the State’s Attorney’s office from placing Indian children in foster homes unless they first give Indian children, parents and Tribes the fair hearing that is their right under ICWA. In this lawsuit, the Indian plaintiffs’ legal argument is really quite simple and straightforward: Any state system that removes Indian children from their parents and places them in long term foster care through a judicial proceeding in which only the State is allowed to present evidence, but Indian parents are not allowed to present evidence, is a system that is fundamentally unfair, fundamentally unconstitutional and fundamentally racist. The lawsuit focuses on the first judicial hearing that takes place in all child abuse and neglect cases–the 48 hour temporary custody hearing. State law requires that parents be given a hearing before a judge within 48 hours after an emergency removal of their children from their home. Under ICWA and state statutes, the purpose of that hearing is to have the judge consider evidence so that he or she can make an objective determination as to whether giving physical custody of the children to DSS is necessary to protect the children from abuse or neglect. Under ICWA, at any hearing in which the State seeks to place an Indian child in a temporary foster care placement, the parents of an Indian child have a right to challenge the State in an evidentiary hearing and they have the right to have an attorney in that hearing. Our lawsuit claims–and we can prove–that over the past four years, state court judges, prosecutors and social workers have routinely denied those fundamental federal rights to Indian parents in Pennington County. In the 48 hour temporary custody hearings, judges will hear no sworn testimony from any witness; only the State is allowed to present evidence, which consists of police reports and affidavits by DSS caseworkers; and the Indian parents are never given, or even informed of, their right under ICWA to be represented by a court-appointed lawyer in the 48 hour hearing. Although the State is allowed to present evidence of neglect in the form of written reports and affidavits, the Seventh Circuit courts do not allow the parents to give sworn testimony or to present any evidence in those hearings. Our lawsuit charges that for the past 4 years, the judges of the Seventh Judicial Circuit have routinely ordered Indian children into long term foster care in 48 hour hearings in which Indian parents have virtually no rights to contest the State’s petition to take their children. So where are we now? Soon after the Oglala Sioux Tribe and the other plaintiffs filed this lawsuit, the state defendants, represented by private counsel and the Attorney General of the State of South Dakota, filed motions asking the court to dismiss the lawsuit, arguing that Indian parents have no rights under ICWA at the 48 hour temporary custody hearing. In our view, such an interpretation of ICWA is absurd: it defeats the very purpose of ICWA and leaves tribal children to the tender mercies of the State child welfare system. Five months ago, the Indian plaintiffs submitted briefs opposing the State defendants’ motions to dismiss. We have recently been informed that we can reasonably expect a decision by the court on the motions to dismiss in the very near future. If the federal court rules in our favor, that decision will not end the case, but we expect that it will decide many of the important questions of law that are at the heart of our case. We hope to get a decision within the next few weeks that will be a major step forward in changing the way Indian parents, children and Tribes are treated in child abuse and neglect cases in the state courts of South Dakota. Dana Hanna is an attorney with the Hanna Law Office, P.C. in Rapid City. A former Attorney General for the Rosebud Sioux Tribe, his practice focuses on Indian law, federal civil rights, and criminal law.

 From:  http://www.indianz.com/News/2013/012072.asp

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Medicating Children: A “Whistleblower’s” Lawsuit Raises a Novel Legal Question

 Published on Psychology Today (http://www.psychologytoday.com)

 Medicating Children: A “Whistleblower’s” Lawsuit Raises a Novel Legal Question

By Robert Whitaker

Created Jun 2 2010 - 12:08pm

In the past few years, a number of pharmaceutical companies have admitted to federal charges that they illegally marketed psychiatric medications for non-approved uses, with the companies paying large sums to settle the cases. Now, a legal complaint filed by the Law Project for Psychiatric Rights in an Alaskan federal court is raising a related question. When healthcare providers bill Medicaid for prescriptions of psychiatric drugs to children for non-approved uses, are they committing Medicaid fraud?
The case, United States ex-rel Law Project for Psychiatric Rights v. Matsutani, was unsealed earlier this year, and legal papers were recently filed that have brought this novel question -- which obviously has profound implications for the prescribing of psychiatric medications to poor children and adolescents -- into sharp focus.
The Law Project for Psychiatric Rights (PsychRights), which is headed by Alaskan attorney James Gottstein, filed its whistleblower complaint in April 2009. Known as a qui tam lawsuit, PsychRights sued on behalf of the federal government under the False Claims Act, which allows private individuals to pursue legal complaints against individuals or companies that are allegedly defrauding the government. In December, the federal government declined to join PsychRights in the case.
PsychRights named Alaskan state officials, hospitals, mental health agencies, psychiatrists, and pharmacies as defendants. In its complaint, PsychRights argues that the federal government has agreed to provide Medicaid reimbursement only for those outpatient drugs that are prescribed for an FDA-approved use or for a use supported by a medical compendium (such as the DRUGDEX Information System.) PsychRights maintains that the defendants defrauded the federal government when they billed Medicaid (or the federal Children's Health Insurance Program) for outpatient drugs that didn't meet this standard.
As part of its complaint, PsychRights identified 16 commonly prescribed psychiatric medications that have no "medically accepted indication" for youth under 18 years old, and it also identified the limited number of "medically accepted indications" that exist for 32 other psychiatric drugs. PsychRights compiled this list of "approved" uses by methodically going through the drug compendiums, and it serves as the evidential heart of the complaint, for it reveals that psychiatric medications are regularly prescribed to poor children for non-approved uses. PsychRights is asking the federal court to stop this practice (which it argues is harmful), and to pay hefty financial penalties for the fraudulent claims made to date.
In early April, the defendants petitioned the court to dismiss the complaint, arguing that it was "fatally flawed" for a number of reasons, including several technical ones. For example, the defendants maintain that PsychRights has not "disclosed" private information that is required of "whistleblowers" in qui tam suits. But the defendants also argued --and this goes to the core legal issue of interest to healthcare providers -- that PsychRights has misinterpreted the applicable Medicaid law. Medicaid is a joint state-federal program, with each state establishing a Medicaid plan that must be approved by the federal government, and the defendants argue that a state may in fact choose to provide Medicaid reimbursement for outpatient drugs that are not FDA approved or "medically indicated" by drug compendia. The defendants argue that Alaska implicitly made that choice in regard to off-label use of psychiatric medications in children, and thus no fraud was committed.
The U.S. District Court in Alaska will likely take months to rule on the defendants' motions to dismiss the complaints. If the court rules on the central issue, it will help define whether Medicaid law supports off-label, non-compendia-approved use of psychiatric medications in children, or deems this commonplace practice to be medically unjustified.

http://www.psychologytoday.com/blog/mad-in-america/201006/medicating-children-whistleblower-s-lawsuit-raises-novel-legal-question

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What is a Consent Decree?

 From: http://legal-dictionary.thefreedictionary.com/Consent+Decree

A settlement of a lawsuit or criminal case in which a person or company agrees to take specific actions without admitting fault or guilt for the situation that led to the lawsuit.
A consent decree is a settlement that is contained in a court order. The court orders injunctive relief against the defendant and agrees to maintain jurisdiction over the case to ensure that the settlement is followed. (Injunctive relief is a remedy imposed by a court in which a party is instructed to do or not do something. Failure to obey the order may lead the court to find the party in Contempt and to impose other penalties.) Plaintiffs in lawsuits generally prefer consent decrees because they have the power of the court behind the agreements; defendants who wish to avoid publicity also tend to prefer such agreements because they limit the exposure of damaging details. Critics of consent decrees argue that federal district courts assert too much power over the defendant. They also contend that federal courts have imposed conditions on state and local governments in Civil Rights Cases that usurp the power of the states...

... Certain types of lawsuits require a court to issue a consent decree. In Class Action settlements, Rule 23 of the Federal Rules of Procedure mandates that a federal district court must determine whether a proposed settlement is fair, adequate, and reasonable before approving it. Under the Antitrust Procedures and Penalties Act (the Tunney Act), 15 U.S.C.A. § 16(b)-(h), the court must review proposed consent decrees in antitrust suits filed by the Justice Department. The statute directs the court to review certain items, including whether the decree advances the public interest.

From:  http://www.cwla.org/advocacy/consentdecrees.pdf

Alaska: No record of any past or current settlements or consent decrees. (Child Welfare)



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