ACLU lawsuit misses the mark on systemic problems plaguing foster care, experts say

A lawsuit filed this week accused the two Maryland agencies operating the foster-care system with overusing psychotropic medications as a form of “chemical restraint” for some kids with severe behavioral health problems without providing adequate oversight. It was a move experts said could shine a light on the increasing reliance on drugs by an overwhelmed system lacking other options.

The federal class action lawsuit filed against the Maryland Department of Human Services and its Social Services Administration says over one-third of Maryland’s foster kids are prescribed at least one psychotropic medication. This category of drugs includes antidepressants, neuroleptics, and stimulants for ADHD, among others, which are used to treat behavioral health conditions. More than half of these kids take more than one such drug, the lawsuit states.

Dr. Louis Kraus, professor and division director of child and adolescent psychiatry at Rush University Medical Center in Chicago, said neuroleptic medications — the updated, professionally accepted term for a class of drugs referred to as antipsychotics in the lawsuit — must be used with caution in children and tend to be overused among foster children.

The drugs have sedative qualities and can cause side effects such as weight gain, diabetes, movement disorders and slowed cognition.

Foster children are more likely to “act out” and exhibit behavioral problems than other kids, Kraus said, due to a variety of factors such as past trauma, instability in their environment, and mental health issues such as ADHD, anxiety, or mood disorders. Neuroleptics are prescribed “off label” as a form of “behavioral control” for kids with disruptive behavioral disorders, he said, and this is the most common scenario in which overuse and misuse of the drugs can occur.

The lawsuit condemns off-label prescribing, though the American Medical Association supports the practice of prescribing a medication for a diagnosis for which it has not been FDA-approved in cases where it’s clinically indicated, meaning supported by research or used successfully in clinical practice.

Kraus said the tendency toward overuse of neuroleptics in foster children is less indicative of medical incompetency or lack of caring than it is the profound lack of other therapeutic options available. Though many foster kids benefit from medications to help manage their mental health issues, they are also in dire need of other interventions such as psychotherapy and school programs, he said, which are often in short supply.

Psychotropic medication is over-prescribed to foster children to compensate for a system that shortchanges them by failing to offer the wraparound care and support they need, Kraus said.

Judith Schagrin, a social worker who helped run the Baltimore County foster system for 35 years before she retired in 2018, also feels that foster kids are sometimes overmedicated, but similarly blames this on chronic and large-scale systemic failures.

“I understand the desperation when a child has trauma-related behaviors, you’ll do anything. When a kid is in [psychological] pain you want to give them medications. It may be the wrong approach,” she said. “But I know it doesn’t come from a place of not caring.”

Failures in oversight

The lawsuit by the American Civil Liberties Union, Disability Rights Maryland and Children’s Rights contends that 72% of foster children prescribed a psychotropic drug lack any psychiatric diagnosis, which “could suggest” that “drugs are not administered in response to a diagnosed mental health condition but instead … as a form of chemical restraint.”

The lawsuit does not elaborate on how children’s meds can be prescribed in the absence of a diagnosis. Kraus said the practice seems highly unlikely, given professional and procedural norms as well as operational constraints embedded in the health care system.

The majority of foster children have Medicaid insurance and their providers can’t bill for services without a diagnosis code. Other forms of insurance similarly require a diagnosis code in order to remit payment.

“These kids much more commonly have a laundry list of diagnoses,” Kraus said, given that foster children are far more likely to suffer from severe psychological trauma and resulting serious mental health and behavioral issues than kids in the general population.

More likely the diagnoses are missing from their file. The lawsuit acknowledges that the lack of diagnosis could be, “at minimum,” a failure of record-keeping.

Schagrin said although issues plaguing the system go beyond shoddy documentation, a lot could be solved with better coordination between services and implementation of electronic medical records instead of paper, systems commonly used in other health care settings.

Foster children often must change providers when they move to a different placement, Schagrin says, and their diagnosis and symptoms can evolve over time, necessitating medication changes. However, kids’ psychiatric records often do not follow them, which means a new provider must start from scratch without any patient history.

The lawsuit recounts an example of this, in which a new psychiatrist was forced to piece together a child’s current and past medication regimens “based on available pill bottles.”

Schagrin said under the current system, overburdened case workers must hunt down sometimes uncooperative guardians for permission to obtain records and physically put them in a file. Key information to guide treatment can easily be lost.

“Blaming doctors or blaming the case workers for missing documents is often unfair. It’s more complex than that,” Schagrin said.

Kraus said caring for foster kids is “complicated at best,” given their history and challenges. The “multitude of diagnoses” foster kids often have after going through a few different providers — some of which no longer apply as a child ages — only adds to the complexity, he said.

Schagrin says assigning nurses to manage the medical and behavioral health care needs of foster kids could help to improve coordination and ensure diagnoses and medications are tracked and appointments made and kept. Giving providers access to relevant history would help them make better decisions about medications and avoid over prescribing.

In addition to inadequate medical records, the lawsuit alleges other “failures of oversight” by the state. One of these is informed consent, which means providers go over risks and benefits and let patients ask questions. Consent is then supposed to be documented.

But kids are unable to consent to medication on their own, and caseworkers are usually designated to consent for them. The lawsuit argues that makes it unclear if the protocol is followed and there should be more effort to ensure foster kids understand.

The blurriness around consent translates to foster children in Maryland “routinely” taking medications “against their will,” according to the lawsuit.

Schagrin said she’s never seen meds forced on children.

Kraus said “it’s really tough” to get kids, and especially teenagers, to take medications against their will. They will typically spit them out, he said. Kids by nature also may be generally resistant to taking medications, even when needed. Failing to properly exercise and/or document informed consent may not equate to administering medications to children against their will.

Another failure in oversight alleged in the lawsuit is inadequate “secondary review.” This refers to a process in which an outside psychiatrist must evaluate and approve the use of certain drugs. The lawsuit asks the court to order the state to implement a system to flag prescribing practices outside the norm for review.

This is common in other states, Kraus said. Illinois, for example, requires providers to call a “consent hotline” staffed by psychiatrists when making a “significant change” to a child’s medications.

Kraus said secondary review provides a “check and balance” for the system, which the lawsuit contends has become a “rubber stamp” process in Maryland.

Secondary review likely would have flagged medications taken by one of the foster child plaintiffs in the lawsuit, Kraus said, referring to a 16-year-old boy identified by his initials, Y.A., who was taking two neuroleptics, an anti-convulsant, and a stimulant. Kraus said the consent line would “rarely” agree to use a neuroleptic and a stimulant at the same time because they can have polar effects.

Y.A. was diagnosed with ADHD and disruptive mood dysregulation disorder, which is “characterized by severe and recurrent temper outbursts that are grossly out of proportion in intensity or duration to the situation,” and a persistent angry or irritable mood, according to the American Psychiatric Association.

The youth was previously housed in a hotel, a practice roundly criticized for lack of meaningful supervision but sometimes used as temporary housing when other placements can’t be found. Y.A. was left to self-administer his meds, overdosed twice and was hospitalized twice. He was returned to the hotel between hospitalizations.

Kraus, who was not involved in Y.A.’s care, said this represents “incredibly poor judgement” on the part of the hospital, and the youth should have been kept there until another placement was found.

“Hoteling children makes me nuts. It’s so expensive and shows misplaced priorities,” Schagrin said.

Schagrin said she was told secondary review of medications was too expensive while working in Baltimore County, yet “we come up with the money to hotel children.”

‘You get what you pay for’

According to Shannon Hall, executive director of Community Behavioral Health Association of Maryland, the paucity of community-based services for foster kids such as mental health counseling stems from botched follow-though on a plan laid out by the Children’s Cabinet in 2008.

The plan aimed to prioritize children remaining in foster home placements by shutting down residential facilities and expanding community-based behavioral health services. The state did cut the number of group home and residential treatment facility beds for foster kids in half a few years ago, but the accompanying expansion of community-based services never materialized.

“What we have now is a system that has doesn’t have adequate capacity,” for either residential or community-based care, she said.

Medicaid recipients also routinely face significant barriers to accessing behavioral health services — most providers do not accept the government insurance for low-income individuals or have months- or even years-long waits.

Hall said her group supports a bill slated to be introduced in the current General Assembly session that proposes establishing a system of Certified Community Behavioral Health Clinics, federally sanctioned behavioral health services providers that offer crisis services, counseling, case management and psychiatric care 24 hours per day regardless of ability to pay.

Hall said that the state could tap federal funding for some of the significant cost.

“You get what you pay for and Maryland hasn’t adequately invested in a strong community behavioral health system,” Hall said. “What happens when we fail to make these investments are the stories that this lawsuit brings to the fore.”

Kraus agrees. Foster kids’ “tremendous need” for wraparound care means “if you don’t have all those other services, what you’re gonna see is the overuse of psychotropic medication,” he said.

sarah.true@thebaltimorebanner.com

More From The Banner

The developer of Harborplace bought 128 rowhomes in East Baltimore

One Baltimore County developer is pouring big money into local politics

Larry Lucchino, visionary behind Camden Yards construction, dies at 78

Dundalk was a steel town. When the Key Bridge fell, so did its legacy.