Lawsuit alleges foster care children given psychiatric drugs without adequate oversight

Published on: January 17, 2023 1:10 PM EST|Updated on: January 17, 2023 8:53 PM EST

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A federal class action lawsuit filed Tuesday against the state of Maryland alleges that hundreds of foster care children are being prescribed psychiatric drugs without adequate medical oversight, putting them in danger of overdoses and serious side effects.

Of the one third of foster children prescribed psychotropic drugs, half are given more than one drug, despite some concerns within the medical community about the use of multiple such drugs by children, according to the complaint. Many of the drugs are “off label” and not yet approved by the U.S. Food and Drug Administration for children because the side effects aren’t yet known, the suit said.

The groups said they recognize that such medications have a role, but they are concerned psychiatric drugs are prescribed to foster children without doctors having a complete medical history and that there is no adult advocate acting as a parent might in questioning doctors at the time. In addition, the suit said the drugs are being used to chemically restrain foster children when their behavior is difficult to manage.

“These are urgent matters and there are real children and families behind the statistics,” said Megan Berger, assistant managing attorney at Disability Rights Maryland, which brought the suit along with the group Children’s Rights, the ACLU of Maryland and the law firm of Morgan, Lewis & Bockius LLP.

The suit was filed on the final full day of Republican Gov. Larry Hogan’s administration, and it alleges that for more than a decade the drugs have been administered without adequate care and oversight. Berger said the advocates hope the administration of Gov.-elect Wes Moore, a Democrat, will take on the issue and correct the problems.

In one case, for example, a 16-year-old boy housed by the state Department of Human Services in a motel without sufficient supervision overdosed on the four drugs he was prescribed, according to the lawsuit. He spent a week in the hospital before he was sent to another hotel, where he again overdosed and was hospitalized. He has experienced significant weight gain, difficulty controlling the movement of his hands and legs and trouble walking, as well as headaches and dizziness, according to the complaint filed in U.S. District Court for the District of Maryland.

The suit says the boy, who is identified only by the initials Y.A., is now in a residential treatment facility, and that his mother was informed of the medication changes only after the fact. He remains in the custody of the state.

State officials said Tuesday they would need more time to review the complaint.

“Given that the lawsuit was just filed today, and the department has not been formally served under the Federal Rules of Procedure, the department has not been provided an opportunity to review the formal complaint and is therefore unable to respond at this time,” said Paula Tolson, a spokeswoman for the Department of Human Services.

Much of the data in the lawsuit comes from public reports from the agency to the legislature.

The drugs that fall under the psychotropic umbrella include a broad array of medications — from sleep aids to antipsychotics that affect chemicals in the brain that control emotion and behavior. The risk to children in ingesting these drugs is high, and side effects can include seizures, liver failure, suicidal thoughts and sudden death.

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At least 72% of children in the state foster care system who are taking psychotropic drugs do not have a documented psychiatric diagnosis based on state records, the suit states. That suggests the drugs are being given to the foster children to chemically restrain them when their behavior is difficult to manage, the lawsuit alleges. It also contends there is inadequate medical record-keeping involved in the care of the children.

Foster children don’t have a guardian, parent or other adult to give an informed consent for the use of the medications, the suit says, and it claims that side effects are often not explained. In addition, the state rarely ensures that there’s a review or second opinion on the use of the drugs even when there are red flags about the effects on a child, the suit states. It alleges children often are having to take the medications against their will and don’t have an adult present to represent them during psychiatric follow-up appointments.

The suit names the Maryland Department of Human Services and the state Social Services Administration, which is housed within DHS. It covers all counties in the state, but not Baltimore City since it is covered through an ongoing, decades-old lawsuit.

In one case detailed in the lawsuit, another child, Y.B., lived in 12 different places — such as foster homes and institutions — in the decade he was in foster care. But his medical records weren’t always passed on when he left one place and went to the next, according to the complaint. A physician in one instance had to piece together information about his medications by looking at the bottles of medicines he had, the lawsuit said.

Multiple drugs are being given at young ages as well. DHS reported that, as of June 2021, nearly a third of children in foster care aged 5 to 11 who were taking psychotropic medications were taking more than one of these powerful drugs.

The lawsuit details one set of problems in a larger crisis in caring for children in the state who have severe behavioral health care needs. In a series of stories last year, The Baltimore Banner reported that children with behavioral and mental health issues have been stuck in emergency rooms for weeks and months because there is a lack of residential treatment facilities for them. Sometimes they cannot return to their biological or foster families unless an array of services are available to support the families, and those services are hard to get.

The groups also outline a racial disparity in who is being prescribed these drugs: In Baltimore County, for example, Black foster children account for about 44% of the foster care population, but constitute more than 58% of the youth in the foster care system who are prescribed psychotropic medications.

Samantha Bartosz, deputy director of litigation at Children’s Rights, said the groups suing the state are not alleging malpractice by doctors, nor are they saying the drugs should not be used. Instead, they are concerned at the lack of oversight. “We do not mean to make psychotropic drugs a dirty word,” she said. The drugs “are capable of doing some very good things.”

Children’s Rights is a national organization that has filed suits in other states over child welfare issues.

The plaintiffs — in this case, those representing the children — are seeking an immediate end to these practices and no individualized monetary damages, the complaint said.

When there are no foster homes available for them to go to, DSS has been sending teenagers to live in hotels and motels where they are being supervised by young adult “mentors” who in many cases sit in a hallway outside their rooms. Maryland Legal Aid attorneys have said that the teenagers are expected to give their medications to themselves, a situation the attorneys describe as dangerous.

“Our children are asked to have access to administer their own medications, many of them psychotropic, for their trauma, anxiety and depression,” said Amy Petkovsek, deputy chief counsel at Maryland Legal Aid, in an October 2022 interview. “Many of the reports I get are that on overnight duty, the mentors falls asleep — I’m not surprised or blaming them; they’re doing the best they can. It’s not an ideal situation.”

Baltimore Banner reporter Sarah True contributed to this article.