Potential ‘Landmark’ Settlement Reached on Use of Psychotropic Drugs in Foster Care

Missouri has reached a settlement in a class-action lawsuit that litigants hope will set some precedent on a once-hot-button subject in child welfare: the use of psychotropic medication to treat youth in foster care.

“The Missouri case is the first federal class-action lawsuit in the country to focus solely on the common practice of administering powerful psychotropic medications to youth in foster care, often as a means of behavior control rather than to treat a diagnosed mental health disorder,” said Samantha Bartosz, deputy director of litigation strategy at Children’s Rights, which brought the lawsuit, M.B. v Corsi. “The fact that Missouri will be implementing a systemic solution to the problem … will send a clear message to other states with the same problem to take action and provide a road map for how credibly to fix broken systems.”

U.S. District Judge Nanette Laughrey originally OK’d the lawsuit in January of 2018, and granted class-action status to it six months later.

The suit originally focused on three youths:

  • A 14-year-old who has been administered more than six psychotropics in three years while moving placements eight times.
  • A 12-year-old who has been on “as many as five medications at one time.”
  • A 12-year-old who was administered an incorrect dosage of a psychotropic drug because caregivers were given the wrong information.

As a class action, the scope was widened to include more than 3,000 children in Missouri foster care who were prescribed psychotropic drugs.

“All too often, accurate and complete medical information is not shared with either foster parents or physicians,” the complaint filed against Missouri said. “Moreover, the state has no system in place to avoid subjecting children to ‘outlier’ – too much, and too many, too young – prescriptions.”

Psychotropic medications, including the very powerful slate of antipsychotic drugs, are prescribed to youth in foster care at a far higher rate than their peers. In 2011, the Government Accountability Office (GAO) published a report based on a review of five states finding that thousands of foster youth were prescribed psychotropics, with hundreds receiving five or more at a time. The report, assessing 2008 records of Medicaid-insured youth in the five states found that foster care youth were prescribed psychotropic medication at rates 2.7 to 4.5 times higher than non-foster children.

GAO recommended that the Department of Health and Human Services “consider endorsing guidance for states on best practices for overseeing psychotropic prescriptions for foster children,” which the agency did in 2012. Last year, GAO issued a new report saying more federal action was needed on the issue.

Missouri has now committed to building a better process under the settlement agreement, which Judge Laughrey has not yet approved. If she does, the Children’s Division (CD) at the Missouri Department of Social Services will establish a suite of protocols related to training, monitoring and record keeping.

All of CD’s case management staff will receive pre-service and ongoing training around the use of psychotropics, and the agency will have to create a training for foster parents as part of the preparation for licensure. Other stakeholders, such as guardians at litem or attorneys, will have access to webinar trainings on psychotropics.

Going forward, for a psychotropic to be prescribed, a child must have a documented mental health diagnosis identifiable in the Diagnostic and Statistical Manual of Mental Disorders, and informed consent must be obtained to administer the drug – birth parents must be given the opportunity to provide consent, unless their rights have been terminated by the court.

Any psychotropic prescription to a foster youth also triggers a requirement for monitoring appointments every three months, and perhaps most importantly, youths on these drugs will also have to be enrolled in some form of non-pharmacological treatment. The state will also establish a secondary review process, using qualified psychiatrists, to periodically check the validity of psychotropic prescriptions for foster youths.

The state also agrees to build a comprehensive new system for youth in care that tracks mental and physical health records, and can be used to share critical information with people involved in a child’s case. CD will also hire or assign at least one full-time staff member whose job is to oversee implementation and execution of its new process.

Foster care’s heavy reliance on psychiatric medications came front and center in 2010, when a 7-year-old Florida boy named Gabriel Myers committed suicide. Before he hanged himself in his foster home, Myers had been prescribed powerful drugs including Lexapro, Vyvanse and Symbyax.

In the waning years of the Obama administration, Democrats on the Senate Finance Committee vowed to “play offense” on regulating psychotropic medications in foster care.

“When you have one of these kids who is the victim of intense trauma, you’re not going to have the challenges just prescribed away,” said Sen. Ron Wyden (D-Ore.), at a press conference outside the Capitol Building. “You need services where the youngster gets personal attention. The reality is we have programs that get that right, we just don’t have enough of them.”

The same year, the Obama administration proposed a 10-year, $750 million plan that would combine federal child welfare resources and Medicaid funds to address over-prescription of psychotropic medications for children in foster care. That included a $250 million pot for the Administration for Children and Families (ACF) to build the capacity of some states to better screen, assess and refer foster youth for mental health services, followed by $500 million in Medicaid pay-for-performance incentives to those states as they got better at serving both foster youth and Medicaid-eligible children in general.

Nothing came of the proposal. Shortly after, the focus of federal child welfare policy, especially at Senate Finance, turned to preventing the use of foster care in more cases and limiting the use of non-family settings for foster youth – the two key pillars of what would become the Family First Prevention Services Act.

Bartosz said she is hopeful that the victory in M.B. v Corsi can put the issue back on the front burner.

The overuse and under-monitoring of psychotropics for youth in care “is altogether too commonplace across the country,” she said. If the settlement is approved, “the Missouri case will stand as a landmark precedent that inadequate oversight of the use of psychotropic medications falls within the scope of a foster child’s constitutional rights and can be remedied through court action.”

Note: This article was corrected to reflect the correct name of Samantha Bartosz of Children’s Rights.

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John Kelly
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John Kelly is editor-in-chief of The Chronicle of Social Change.