Thousands of kids in Missouri's foster care system are likely to benefit from a first-of-its-kind legal settlement under which state officials have agreed to strict limits on how and when kids can be given psychotropic drugs.
The settlement resolves a class action lawsuit charging that Missouri foster care officials failed to safeguard the conditions under which the powerful medications are dispensed. U.S. District Judge Nanette Laughrey gave preliminary approval to the agreement on Monday.
Evidence in the case showed that many foster children were given psychotropic drugs for diagnoses they weren’t designed to address. One of the plaintiffs, a 14-year-old boy identified as M.B., received more than six psychotropic drugs at once, according to the lawsuit. Another, a 12-year-old girl identified as K.C., was given as many as five psychotropic medications at a time.
“At one residential facility, K.C. was reported on multiple occasions to be ‘visibly, involuntarily shaking,’” Laughrey wrote last year when she certified the case as a class action.
“This is the first federal class action that we’re aware of that has really put marquee lights around the issue of how we use psychotropic medications in the foster environment,” said Samantha Bartosz, deputy director of litigation at New York-based Children’s Rights and lead counsel in the case.
“And that’s a very challenging environment because children move from home to home all too frequently and the facts of their medical and mental health histories get atomized and broken up. And so it creates challenges administering these drugs safely and for the right reason.”
Many kids in foster care suffer from the effects of trauma and abuse. But rather than therapy or mental health treatment, they’re often given powerful antipsychotic or other psychotropic drugs to control their behavior.
A 2011 U.S. Government Accountability Office report found that children in foster care are prescribed antipsychotic drugs at anywhere from twice to quadruple the rate of children who are not in foster care.
In 2014, the San Jose Mercury News published a series of stories finding widespread use of psychotropic drugs without proper evaluation or monitoring among the 63,000 children in California’s foster system.
More than 13,000 children are in Missouri’s foster care system. Nearly a quarter, or more than 3,100, were receiving psychotropic drugs as of a year ago, when Laughrey found that they faced “a substantial risk of harm.”
Laughrey noted that children receiving psychotropic drugs were more vulnerable to psychosis, seizures, suicidal thoughts, aggression, weight gain, organ damage and other, life-threatening conditions such as type 2 diabetes.
Terms of the Missouri settlement, which runs more than 100 pages, call for stricter medical record keeping and medication monitoring; stricter informed consent protocols; second opinions from child psychiatrists; and more rigorous staff training.
“This is a lengthy, detailed settlement agreement that will change the way the Department of Social Services and its Children’s Division handles psychotropic medicine for kids in foster care,” said John Ammann, who heads the litigation clinic at Saint Louis University School of Law, which was involved in the case.
“It provides great protection for kids who have severe problems, many of them behavioral and mental health issues. Remember, the kids in foster care – they’re there because of abuse and neglect.”
The lawsuit was filed in 2017 on behalf of five foster children by a consortium of groups. In addition to Children’s Rights and Saint Louis University law school, they included the National Center for Youth Law and the law firm of Morgan, Lewis & Bockius. The suit named the Missouri Department of Children’s Services and the agency’s Children’s Division as defendants.
A spokeswoman for the Missouri Department of Social Services said the agency does not comment on pending litigation. But Bartosz, of Children’s Rights, commended the state for its willingness to enter into the settlement agreement.
“I would not be fair if I didn’t say congratulations to the state in coming to the table,” she said.
“We’re hopeful that the outcome here will not only work positive change in the state of Missouri but that other states will see it, pay heed and begin to reform their own systems,” Bartosz added.
Laughrey on Monday set a Nov. 20 date for final approval of the settlement. Objections to the settlement must be filed by Oct. 23.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.