A Mental Health Checkup for Children at the Doctor’s Office: Lessons from the Medical-Legal Partnership Movement to Fulfill Medicaid’s Promise

Traumatic childhood events and the stress they cause can negatively affect health over a lifetime. For children with Medicaid coverage, visits to the doctor’s office present an opportunity to improve this trajectory. Medicaid’s Early Periodic Screening Diagnostic and Treatment (EPSDT) mandate requires that children receive more than a basic physical when they see a doctor for regular “well-child checks.” As part of a comprehensive look at their development, they should receive mental health check-ups that could identify childhood trauma, its impacts, and the interventions that could help improve health and mental health. Data suggests that many children do not receive these mandatory comprehensive screenings. Significant barriers to screening include lack of transportation for patients, low reimbursement rates for physicians that limit their ability to devote enough attention to screenings, and lack of access to mental health screening tools. Medical-legal partnerships (MLPs) provide a framework for addressing these challenges. MLPs bring together civil legal services lawyers with health providers to address social determinants of health. This article argues that the MLP movement provides a three-tiered paradigm for change for physicians and attorneys to improve the trajectory for children who have suffered trauma and address the gaps in Medicaid EPSDT mental health screening: (1) collaborative advocacy to improve patient health, (2) transformation of health and legal institutions, and (3) policy change

The Kids Are Not Alright: Leveraging Existing Health Law to Attack the Opioid Crisis Upstream

The opioid crisis is now a nationwide epidemic, ravaging both rural and urban communities. The public health and economic consequences are staggering; recent estimates suggest the epidemic has contracted the U.S. labor market by over one million jobs and cost the nation billions of dollars. To tackle the crisis, scholars and health policy initiatives have focused primarily on downstream solutions designed to help those who are already in the throes of addiction. For example, the major initiative announced by the U.S. Surgeon General promotes the dissemination of naloxone, which helps save lives during opioid overdoses. This Article argues that the urgency and gravity of the opioid crisis demand a very different approach. To stop the epidemic, interventions are needed long before people are on death’s doorstep. Rather, it must focus on upstream interventions that stop people from becoming addicted in the first place. To accomplish this, we should leverage an existing legal infrastructure that is already capable of such a preventive response. Although largely overlooked as a tool in tackling this epidemic, children’s Medicaid, known as the Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit, provides a mechanism to identify at-risk children and the treatment necessary to shift their life trajectories off of the road to addiction. This Article lays out a blueprint for the ways in which EPSDT, the largest provider of children’s health insurance in the country, facilitates best practices in substance abuse prevention through (1) regular mental health and substance abuse screening in the doctor’s office and (2) the provision of medically necessary treatment for children at risk for and engaged in opioid and other substance abuse. This upstream approach is consistent with Lifecourse Health Development theory, which emphasizes strategies that address risk factors and burgeoning health conditions in childhood before they become debilitating. Indeed, through the Medicaid statute and its legislative history, executive branch guidance, and judicial precedent, all three branches of the federal government have endorsed the power of Medicaid EPSDT to address health conditions early and preventively. This Article argues that this existing infrastructure should be leveraged so that at-risk children can access mental health and substance abuse services before a next generation falls victim to the greatest public health crisis of our time

Disrupting the Path from Childhood Trauma to Juvenile Justice: An Upstream Health and Justice Approach

A groundbreaking public health study funded by the U.S. Centers for Disease Control and Prevention (CDC) and the Kaiser Foundation found astoundingly high rates of childhood trauma, including experiences like abuse, neglect, parental substance abuse, mental illness, and incarceration. Hundreds of follow-up studies have revealed that multiple traumatic adverse childhood experiences (or “ACEs”) make it far more likely that a person will have poor mental health outcomes in adulthood, such as higher rates of depression, anxiety, suicide attempts, and substance abuse. Interestingly, the original ACE Study examined a largely middle-class adult population living in San Diego, but subsequent follow-up studies have examined the prevalence of ACEs and its impact on mental health in other populations, including among people involved in the juvenile and criminal justice systems. Unsurprisingly, individuals entangled in those systems are more likely to have experienced higher numbers of these traumatic events, despite a frequent lack of access to critical mental health treatment, including the treatment necessary to address past childhood trauma. The ACEs framework for understanding health and mental health outcomes resulting from childhood trauma has received a high level of attention recently following an in-depth, multi-part series on these issues by National Public Radio (NPR) and other media. Because the ACEs public health research shows us that events in childhood can cause “toxic stress” and have a lasting impact on the mental health of a child well into adulthood, this framework provides us with an opportunity to consider how to more effectively intervene to stop the pathway from ACEs to juvenile justice system involvement and address the related health, mental health, developmental, and legal needs of children and their families. Before a child becomes an adult facing a mental health crisis or incarceration, attorneys, doctors, and other professionals can collaborate to disrupt that fate. This Article argues for a more upstream approach to address mental health using a medical-legal collaboration, based on the experiences of the authors, a law professor and medical school professor who work together to try to improve outcomes for children who have experienced trauma and their families. In Part I, we begin by examining the groundbreaking ACE studies, exploring the toxic stress and health and mental health outcomes that are associated with high rates of ACEs in childhood. Next, in Part II, we analyze the research revealing high rates of trauma and ACEs among populations involved in the juvenile justice system. Finally, we conclude in Part III by arguing for a more upstream public health and justice approach. We examine a particular problem in the city of Albuquerque, the largest urban area in New Mexico: children who have a particular ACE right from birth in the form of substance abuse by a household member. These infants are born with prenatal drug exposure and many experience symptoms of withdrawal in their first weeks of life, often quickly followed by an accumulation of additional forms of early childhood trauma. We discuss an approach through which the authors work to address those issues and disrupt the path from that childhood trauma to poor outcomes and juvenile justice system involvement. This approach engages attorneys with doctors and other health and developmental professionals to address ACEs among young children ages zero to three and their siblings, parents, and other caregivers. We advocate for an early, holistic, multi-generational, multi-disciplinary public health and justice approach to address ACEs early and improve the trajectory for children who have experienced childhood trauma

Whos the Boss?: The Need for Thoughtful Identification of the Client(s) in Special Education Cases\u27

This Article explores the various models of representation used by attorneys in special education cases and advocates for thoughtful identification of the client or clients through a contextualized, individualized decision made collaboratively by the lawyer and client(s), with considerations of a panoply of factors. Part I attempts to unpack these models. While clear advantages exist with each of the models, the Article presents case examples and questions that illustrate some of the challenges that may be presented by each model. Part II includes a discussion of the factors that an attorney should consider in each case in determining the appropriate model of representation. These factors reveal the legal, ethical, and practical challenges in selecting a model of representation. The rights of parents, including their rights to make decisions on behalf of their children more generally and in relation to their childrens special education needs in particular, affect the decision to select a particular model of representation. Challenges related to identification of the \u27parent\u27 or educational decision-maker under the Individuals with Disabilities Education Act (IDEA) also play a role. Questions as to whether administrative hearing officers and courts view a minor child as having the capacity to bring an administrative due process complaint or civil action in a special education case should also factor into an attorney\u27s assessment, as should expectations regarding the attorney-client relationship by the child, parents, and other individuals, such as school officials. Other factors such as the characteristics, capacity and age of the child, potential conflicts of interest between the parent and child, and the implications for attorney client confidentiality should be considered in selecting a model of representation for each case. Similarly, involvement by the family in child welfare proceedings or by the youth in delinquency proceedings influences the model of representation that is used. This section includes an analysis of these factors and the roles they should play in an attorney\u27s evaluation of the appropriate model of representation in a particular case. In Part III, the Article provides several recommendations to facilitate the effective identification of the client or clients in a special education case. The Article recommends that attorneys, in partnership with their potential clients, thoughtfully identify the client or clients in a special education matter, clearly communicate the chosen model to all family members, and remain aware of any potential or existing conflicts among clients where joint representation is used. Finally, the Article emphasizes the importance of clear communication about the role of each person and ultimate loyalty to the identified client, but also advocates for the involvement and empowerment of both parent and child in the representation, wherever possible

Unmet Legal Needs as Health Injustice

In Part I, this Article examines the health justice framework through which laws are understood as determinants of health equity. In Part II, this Article argues that when unaddressed for low-income individuals, legal needs serve as social determinants of health. Applying the health justice framework, the Article examines the major domains of social determinants of health (“SDOH”) and identifies areas of law for which unmet legal needs contribute to poor health and health inequity. Specifically, it analyzes how the five major domains of SDOH of the Healthy People 2030 paradigm of the U.S. Department of Health and Human Services (“HHS”) implicate legal issues in the fundamental area of human need identified as critical for access to counsel by the ABA. This Part explores the exacerbation and urgency of these challenges created by the pandemic and examines racial inequities driven by structural racism that create a compounding burden of health disparities for people who are both low-income and people of color. In line with the health justice framework’s exploration of how law can be leveraged to mitigate inequities, Part II concludes by examining how legal representation can address fundamental legal needs that affect health, providing support for access to counsel in these areas. Finally, in Part III, this Article engages with potential critiques of an emphasis on individual legal representation as a downstream and overly individualistic approach to health justice. This Part addresses these critiques and argues that individual legal representation to enforce extant laws is required for health justice to address the immediate, health-harming legal issues affecting individuals from marginalized communities and improve their health and well-being. However, even though such individual legal advocacy is necessary, it is insufficient. Instead, legal representation should be used as a platform for advocacy in pursuit of structural change through law, policy, and systems reform. This Article proposes a multitiered, integrated clients-to-policy approach for lawyers to facilitate health justice to improve the health of individuals and pursue structural reform to address health equity up-stream

There\u27s No Place Like Home: Realizing the Vision of Community-Based Mental Health Treatment for Children

On the heels of the recession, the recent U.S. Census data reveals that the percentage of children living in poverty in the United States has grown to almost a quarter. Because children from low-income families are more likely to be exposed to high levels of stress, violence, abuse, overcrowding and other risk factors, they are far more likely to develop a mental health disorder--and to have their mental health needs go unmet. Rather than receive the necessary educational and mental health services, these children are often suspended and expelled, funneled through the school-to-prison pipeline\u27 into the juvenile and criminal justice systems, which are not equipped to meet their needs. This article analyzes legal regimes related to child welfare, juvenile justice, disability rights, healthcare, and special education, and argues that they are all explicitly structured to ensure that children with behavioral and emotional problems receive services and treatment in the community and remain out of institutional settings whenever possible. While most scholars, courts, attorneys, and systems view the needs of at-risk children through one particular lens, this article makes an important contribution through its holistic examination of the intersections among these multiple legal regimes. Despite the shared intentions of federal statutes, regulations, policies, and case law in all of these realms, local and state agencies fail to timely and effectively provide children with the mental health and educational services they require. Instead, child-serving agencies continue to institutionalize children from low-income families, and particularly children of color, in residential treatment facilities, to the detriment of those youth and at high cost to taxpayers. Having presented a synthesis of the intersections among these legal regimes, the article assesses the reasons for this disjunction between their shared goals and the reality that many children living in poverty are often unable to gain access to necessary community-based services. The compartmentalization of child-serving legal systems into isolated silos, the stigma surrounding mental illness, and the scarcity of children\u27s mental health providers all contribute to this disjunction. Drawing upon research from the fields of health policy, psychology, and social work, the article argues that coordination among public agencies and implementation of scientifically proven treatments in children\u27s mental healthcare, known as evidence-based practices, can achieve the shared vision of federal legal regimes that children with mental health disorders remain in their homes and communities, and achieve true inclusion, stability and mental health

Injustice is an Underlying Condition

Race, poverty, and zip code serve as critical determinants of a person\u27s health. Research showed the links between these factors and poor health and mortality before COVID-19, and they have only been amplified during this pandemic. People of color experience higher rates of asthma, heart disease, diabetes, and other chronic conditions. People of color who live in poverty are even more likely to suffer from poor health; they face a “double burden” of health disparities associated with both racial and socioeconomic marginalization. Neighborhoods with concentrated poverty and with residents who are primarily people of color have even faced a life expectancy decades shorter than higher income, predominantly white neighborhoods. Now, a virus that does not itself discriminate is disproportionately infecting and killing people of color across the nation. Biology cannot explain either the longstanding disparities that COVID has spotlighted or the new disparities that have been framed as the “color of COVID.” The common underlying condition? Injustice. The U.S. Centers for Disease Control and Prevention (“CDC”) and other health experts across the world recognize the powerful role that social determinants play in health. Social and economic conditions such as unemployment, housing instability, food insecurity, and unequal access to quality education, drive as much as 80% of a person\u27s health. These social determinants, and the racist legal structures that have furthered them, are at the root of the health disparities illuminated by COVID. A growing body of “health justice” scholarship explores the role of law and policy in eliminating unjust disparities. A health justice approach requires as a fundamental first step a structural understanding of health disparities and the ways that social determinants of health drive those inequities. This article examines two major social determinants of health that drove disparities pre-COVID and are exacerbating them now: food insecurity and housing instability. With the pandemic and resulting recession, hunger is growing rapidly in the U.S., with dangerous impacts on health, especially for children. As unemployment escalates, millions of Americans find themselves unable to pay rent and on the brink of eviction and homelessness, both of which are associated with poor health outcomes. Low-income Americans are confined to homes with substandard conditions like mold and rodents that drive asthma and other respiratory diseases, at a time when those illnesses can make people more susceptible to complications from COVID. Health justice scholars have called for major law and policy reforms to address disparities in these areas. However, existing legal rights in the areas of public benefits and housing law are under-enforced, with deleterious health effects. While we work towards a health justice revolution, this article argues for the full enforcement of laws already on the books to attack injustice and advance health. During the COVID recovery and beyond, justice is a requisite for a healthier nation

Medical-Legal Partnership as a Model for Access to Justice

The United States is plagued with a “justice gap” that leaves many Americans with unmet civil legal needs. Americans with low income do not receive the legal help they require for as many as 92% of their substantive civil legal problems. The justice gap requires many legal aid agencies to triage, becoming “emergency rooms” for clients with unmet legal needs. This national crisis calls for new innovations so that access to justice (A2J) can function more like primary care, promoting better use of resources and preventing legal crises that can cause long-lasting harm. Medical-Legal Partnerships (MLPs) embed lawyers in healthcare teams to address health-harming civil legal needs facing low-income patients. MLPs are community-based, integrating low-barrier legal services into healthcare settings and bringing free and accessible legal services right to the people who need them in familiar places. MLPs work interdisciplinarily, training nonlawyer partners to understand and screen for legal issues; provide legal information, resources, and referrals; and advocate around problems that are often intertwined with health and well-being. Moreover, MLPs operate preventively, providing A2J in advance of a legal crisis, and facilitate structural change through a “patients-to-policy” approach. MLP scholarship has uncovered the power of lawyers to address health-harming legal needs and identified A2J as a social determinant of health. Research shows the benefits of MLPs, including patient stress reduction, health improvements, and return on investment for hospitals and healthcare systems. The MLP literature argues for expansion of the MLP model as a healthcare innovation. Some scholars have focused on the lessons from the MLP movement for legal and medical education. For example, I have argued alongside co-authors that MLPs provide maxims for law school clinics to pursue health justice. As both a framework for health law scholarship and a movement, health justice focuses on the potential for law to dismantle subordination as a root cause of health inequities. Health justice builds the power of individuals and communities affected by health disparities “to create and sustain conditions that support health and justice.” Therefore, health justice is not just healthcare justice; it is also economic justice, racial justice, housing justice, and other forms of justice that necessitate access to legal resources to address unmet legal needs that drive health inequity. MLPs have been promoted as a unique and promising innovation in healthcare and health justice. This essay argues that they also represent an important innovation in A2J because they offer a model that is community-integrated, preventive, interdisciplinary, and transformative. MLPs embody principles that should drive broader A2J innovation to address our country’s justice gap

A Mental Health Checkup for Children at the Doctor\u27s Office: Lessons from the Medical-Legal Partnership Movement to Fulfill Medicaid\u27s Promise

Traumatic childhood events and the stress they cause can negatively affect health over a lifetime. For children with Medicaid coverage, visits to the doctor\u27s office present an opportunity to improve this trajectory. Medicaid\u27s Early Periodic Screening Diagnostic and Treatment (EPSDT) mandate requires that children receive more than a basic physical when they see a doctor for regular well-child checks