National advocacy group Children’s Rights is suing two more states over their mental healthcare services for youth — Iowa, for allegedly denying services to Medicaid-eligible children, and Maryland for apparent overuse of psychotropic medication with youth in foster care.
The Iowa class action lawsuit, brought in collaboration with Disability Rights Iowa, the National Health Law Program, and Ropes & Gray, LLP, centers on the lack of accessible community-based mental health care — “despite receiving substantial federal Medicaid funding for that very purpose.” By failing to provide these services, the advocates say, they put struggling children at risk of being separated from their families and placed in residential treatment centers.
The advocates argue that Iowa is required per its Medicaid funding to provide intensive in-home therapeutic services and crisis response services among others, but is failing to do so.
“Children under the care of the state of Iowa through Medicaid services are being unfairly treated and unnecessarily isolated from their families and other children,” Catherine Johnson, executive director at Disability Rights Iowa, said in a press release, adding that children’s mental health often deteriorates even further when they are placed in institutions.
This scenario allegedly played out painfully with one named plaintiff in the case, a 15-year-old boy who waited more than four years for services, despite the recommendations of a physician, multiple mental health diagnoses and continued efforts by his mother to get him help. Without access to the services, the advocates say, the boy’s health deteriorated so drastically that he wound up in a psychiatric hospital for children for five months.
The Iowa lawsuit bears similarities to other cases Children’s Rights and local disability advocates have brought against other states in recent months. In December, a suit was filed against North Carolina for “segregating” youth with mental and behavioral health diagnoses into institutions.
In Maryland, Children’s Rights along with Disability Rights Maryland, the ACLU of Maryland and Morgan, Lewis & Bockius LLP, have filed suit on behalf of foster children who are prescribed psychotropic medications. The lawsuit covers all of Maryland except for Baltimore City, which is excluded due to a separate, ongoing case.
The suit contends that roughly a third of all foster youth in the state are prescribed at least one such drug, compared with just 8% of Medicaid-covered children not in foster care. More than half are taking two or more psychotropics at a time. In many counties, this practice disproportionately impacts Black children, who are overrepresented in foster care.
Alarmingly, nearly 75% of the Maryland foster youth taking these serious drugs do not have a diagnosis warranting the prescription, according to the lawsuit.
“Despite the well-known and well-documented risks of harm and inappropriate prescribing practices, the use of psychotropic drugs is rampant in Maryland’s foster care system as a result of the state’s ongoing oversight failures,” Megan Berger, assistant managing attorney for Disability Rights Maryland, said in a virtual press conference.
Plaintiffs’ lawyers allege three key failures by the state’s Department of Human Services and Social Services Administration: failure to maintain accurate medical records for foster youth and inform caregivers of their medical needs; an inadequate informed consent process that results in youth being prescribed medications without their caregivers’ approval; and failure to ensure second opinions for “outlier” prescriptions — like drugs being prescribed for off-label uses or multiple prescriptions for one patient, youth psychiatrist Christopher Bellonci explained during the press conference.
These failures, the lawsuit claims, violate children’s constitutional due process rights as well as federal protections in the Adoption Assistance and Child Welfare Act of 1980.
Children’s Rights recently set the stage for a possible outcome of such a case. They filed a similar suit in Missouri in 2018 and reached a settlement on it the following year. The Missouri case also focused on a lack of informed consent and secondary review processes.
The settlement in that case required training for child welfare workers and foster parents on the use and impacts of psychotropic drugs, and an improved system for keeping and sharing medical records.
It further required informed consent from birth parents, unless their rights had been terminated, and a formal mental health diagnosis for any prescription. The state agreed to establish a secondary review process to periodically check up on psychotropic prescriptions, and each youth taking the drugs was to have a monitoring check-up every three months, and also be provided non-pharmacological treatment.
“The fact that Missouri will be implementing a systemic solution to the problem… will send a clear message to other states with the same problem to take action and provide a road map for how credibly to fix broken systems,” Samantha Bartosz, deputy director of litigation at Children’s Rights, said at the time.
During the press conference, the advocates called on the incoming Gov. Wes Moore and his new team — which includes Rafael López, who led the federal Administration on Children, Youth and Families (ACYF) during the Obama years — to rectify the long-standing violations. During López’s tenure, the Obama administration proposed a $750 million plan to address the issue of overuse of psychotropics in foster care, though the plan never came to pass. Incidentally, the newly confirmed commissioner for ACYF, Rebecca Jones Gaston, led the child welfare division of Maryland’s Department of Human Resources from 2016 to 2019.
Bellonci, a senior Policy advisor for the Baker Center for Children, advocated in the press conference for the federal government to take a stronger role in addressing the issue.
“Part of the challenge is that the federal government does not require states to report in any systematic way the psychotropic medication utilization by their state or county child welfare system,” Bellonci said. “It is a critical need.” Because the federal government heavily funds state child welfare agencies, it has the authority to set this requirement.
Maryland is hardly the only state in the nation struggling to properly track the use of mental health drugs among youth in foster care. Last year, a federal audit by the Office of the Inspector General for Health and Human Services slammed Indiana’s child welfare agency for shoddy oversight: In nearly 95% of the 115 cases the office reviewed, it could not find certain documentation required under state policy.
In a recent op-ed for The Imprint, Dr. Martin Irwin, a clinical professor of child and adolescent psychiatry at New York University Grossman School of Medicine, said in most states the informed consent process for psychiatric medications is broken.
“The consent forms that parents or guardians are asked to sign do not contain sufficient information about benefits, risks or alternatives to allow them to make a true informed decision about the psychiatric care of their children,” Irwin wrote. “The lack of parental advocacy is one of the many causes of overmedication in foster children.”