U.S. District Judge Nanette Laughrey ruled this week that a class-action lawsuit over Missouri’s use of psychotropic medications for youth in foster care can continue. The decision moves forward a case that could potentially set some precedent on an issue that heated up in the earlier half of the decade and has taken a back burner lately: the mental health rights and treatment of vulnerable children.
M.B. v Corsi alleges that the state’s Children’s Division (CD) has failed to keep accurate medical records for foster youth, and lacks any review or safeguard protocol to consider the risks involved in certain prescriptions or the rights of children to decline their administration.
“There are clearly plausible allegations that Defendants … actually knew of the serious risk of harm,” Laughrey said in her ruling against the state’s motion to dismiss the case. “Yet they have not adopted any systematic administrative review because Defendants can’t find the medical records of the children.”
The poor record-keeping and monitoring system, she ruled, “plausibly allege a deliberate indifference claim.”
The lawsuit was filed last June by nonprofit litigator Children’s Rights along with the National Center for Youth Law. M.B., the teenager who is representative of the class in this case, lives in residential care and at one time was prescribed six different psychotropic medications at once. Two siblings in the case were prescribed psychotropics as toddlers.
The use of psychotropic drugs with youth in foster care became a national issue in the 2000s, as pharmaceutical companies began to market the powerful drugs for use on children. In 2010, 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.
A year later, 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.
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.
In 2014, 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.
The idea, in a nutshell, was 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. That would be 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.
The same year, Democrats on the Senate Finance Committee vowed to “play offense” on regulating psychotropic medications in foster care.
Plenty of class-action suits against child welfare agencies have involved mental health services for children, including the ongoing case in Arizona, Katie A v Bonta in California, and R.C. v Fuller in Alabama. But if the plaintiffs in M.B. v Corsi prevail, or settle, it will be the first court-ordered intervention specifically about the safe use of psychotropic medications.
This is the second lawsuit filed against Missouri by Children’s Rights. The 2005 E.C. v Sherman case began with a Missouri law that would have ended subsidies for families adopting youth from foster care, and led to a permanent ban on the subsidy provisions of the law.
A separate Children’s Rights lawsuit, G.L. v Sherman, filed in 1977 against Jackson County, Missouri, exposed horrific foster homes where children were placed and not monitored. The case was finally closed in 2006.