Civil rights organizations and advocates representing three Maryland teens are challenging the state’s oversight of medical records for foster children receiving psychotropic drugs, according to a new federal lawsuit.
One in three Maryland foster children are being given psychotropic medications, often without a documented psychiatric diagnosis, according to the lawsuit filed Tuesday in the U.S. District Court for Maryland. This is compared to about 8% of Medicaid-eligible children nationwide who are not in foster care.
Attorneys for the ACLU of Maryland, Disability Rights Maryland and Children’s Rights allege the Maryland Department of Human Services and its Social Services Administration, the entity responsible for administering the state’s child welfare program, has failed to provide oversight mechanisms to ensure child safety, potentially exposing children in their care to serious harm.
Samantha Bartosz, deputy director of litigation at Children’s Rights, said the lawsuit is not meant to criticize psychotropic drugs as a whole or the medical practitioners who prescribe them. Rather, the suit seeks to hold accountable the state child welfare agency charged with oversight of the young people who are taking the medications.
“Foster care’s instability exacerbates the risks associated with use of psychotropic medications,” said Megan Berger, an attorney for Disability Rights Maryland during a news briefing Tuesday. “Children in foster care often don’t have a consistent, concerned adult to coordinate their mental health treatment, which can result in fractured and misinformed care split among multiple people.”
Katherine Morris, a spokesperson for the Department of Human Services, said the agency takes the “safety and wellbeing of youth in our care very seriously” and that it was “actively” reviewing the lawsuit.
“The gravity of this matter requires particular attention that cannot best be served with a reflexive response — it would be a disservice to our youth, the agency, and the public,” Morris said, adding the team needed “time to give this matter due diligence so that we provide the measure of detail and clarity that this lawsuit justly warrants.”
Morris added: “We will do right by the youth we serve.”
The suit criticizes the state for inadequate medical record-keeping and suggests the pharmaceuticals are being administered as a form of chemical restraint. DHS data cited in the suit states about 72.1% of children in Maryland foster care, not including Baltimore City, who are taking medications such as anti-anxiety agents, antidepressants, mood stabilizers, stimulants, antipsychotics and alpha agonist also lacked a documented psychiatric diagnosis.
The legal filing seeks class-action status to represent children under age 18 in Maryland’s foster care system who are prescribed one or more psychotropic medications. It would exclude children in Baltimore City, however, because the city is part of a long-standing federal consent decree dating back to a lawsuit filed in the 1980s.
Still, attorneys estimate in the complaint that “hundreds” of children in state foster care receive or will receive psychotropic medications. The suit describes a disproportionate impact on Black children, who are overrepresented in the foster care system and are allegedly prescribed psychotropic medications at disproportionately high rates in some counties.
Plaintiffs say the state’s actions violate children’s due-process rights under the Fourteenth Amendment, along with the Adoption Assistance and Child Welfare Act of 1980.
Attorneys cited research suggesting children taking one or more psychotropic drugs risk short- and long-term adverse effects, including seizures, movement disorders, suicidal thinking, and behavior or mood disruption.
More than half of the state’s children who are in foster care and receiving psychotropic drugs are taking multiple drugs at the same time, according to the complaint. That practice, called polypharmacy, can increase the likelihood of harmful side effects, the suit said.
The lawsuit also refers to a memo from federal authorities in 2012 to state agencies administering foster care programs, cautioning that “research on the safe and appropriate pediatric use of psychotropic medications lags behind prescribing trends. … In the absence of such research, it is not possible to know all of the short- and long-term effects, both positive and negative, of psychotropic medications on young minds and bodies.”
A 16-year-old Prince George’s County youth was hospitalized twice after he overdosed when left without supervision in a motel room with unlocked medications, the lawsuit states. He was prescribed at least four psychotropic drugs at once and has since experienced several side effects, including extreme weight gain, difficulty walking and problems controlling his hands and arms.
Another 16-year-old based in Baltimore County was prescribed five psychotropic drugs concurrently at times since entering state custody at age 7. The teen was moved 12 times since entering the system, hindering continuity in the oversight of his medications and in his medical providers, the suit states.
A third teen represented in the suit was taking as many as seven psychotropic drugs at one time while in state custody. When a psychiatrist treating the 14-year-old Howard County youth did not receive records of his current medication, the physician relied upon available pill bottles to piece together his prescription history, according to the suit.
The plaintiffs are asking the court to order Maryland to make improvements to its oversight system, including a more effective informed consent policy, mandatory training and a secondary review system that would require “red flag” prescriptions to get secondary approval by a doctor.
The advocates say they are bringing the suit in hope of attracting the attention of the newly-sworn Gov. Wes Moore and his administration.
“We hope to be able to form a relationship with the state where we can talk through this stuff and find a remedy, a reform plan that’s court-enforceable,” Bartosz said.
A similar federal complaint was filed in 2021 in Maine. The state was accused of failing to sufficiently oversee the drugs distributed to foster youth.
The Morning Sun
Missouri in 2019 settled a federal lawsuit alleging similar oversight failures and agreed to steps including creating more comprehensive medical records for children prescribed psychotropic medications, requiring a secondary review of some prescriptions and adding additional training for staff.
The Office of Inspector General for the U.S. Department of Health and Human Services found in 2018 that five states with some of the highest rates of psychotropic medications in foster care populations — Iowa, Maine, New Hampshire, North Dakota and Virginia — often didn’t properly monitor the medications that were prescribed.
More recently, last September, the same inspector general’s office found Indiana didn’t comply with requirements — lacking so-called “medical passports” to document health records for foster youth, along with required written reports and authorizations. The state said in response to the audit that it was creating a new child welfare information system.