A lawsuit charging Missouri officials have failed to properly oversee the administration of psychotropic medications to children in foster care was certified Thursday as a class action.
Finding that they face “a substantial risk of serious harm,” U.S. District Judge Nanette K. Laughrey certified a class consisting of all children in the state’s foster care system who are receiving psychotropic drugs.
As of December, there were more than 13,500 children in Missouri’s foster care system. Twenty-three percent, or about 3,105, are being administered psychotropic drugs, according to Laughrey's ruling.
Samantha Bartosz, lead attorney for the plaintiffs, welcomed the ruling, which she said “sets us up to move toward trial on a claim on behalf of every child in foster care who was on psychotropic medications or will be.”
Bartosz said Missouri doesn't have a coherent policy “to assure that all the information and all the appropriate questions and answers are addressed before a child is administered these powerful drugs.”
The state, she said, “has not been able to get across the goal line on this and, frankly, has slow-walked it. And so hopefully, this lawsuit brings attention and brings energy so that urgent reforms can be made.”
The Missouri attorney general’s office, which is defending the lawsuit, declined to comment on Laughrey’s ruling. A spokeswoman instead forwarded the office’s legal filing opposing class certification.
The suit alleges that Missouri has failed to properly oversee and monitor the administration of psychotropic drugs to foster children, in violation of the Fourteenth Amendment's due process clause.
It seeks an order directing the state to keep better records, develop a stronger informed consent policy and put in place a system to ensure against overprescribing of psychotropic drugs.
“We’re not seeking money here,” Bartosz said. “We’re seeking an injunction that would require the state to build the oversight systems necessary to administer these drugs safely and appropriately.”
Psychotropic drugs include powerful antipsychotic medications. A U.S. Government Accountability Office report in 2011 found that children in foster care are prescribed antipsychotic drugs at twice to quadruple the rate of children not in foster care.
A 2014 investigation by the San Jose Mercury News found that psychotropic drugs were being dispensed without proper monitoring to children in California's foster case system. In the wake of the stories, California enacted laws to regulate the drugs' administration to foster children.
In her ruling, Laughrey noted that children receiving psychotropic drugs are more vulnerable to psychosis, seizures, suicidal thoughts, aggression, weight gain, organ damage and other, life-threatening conditions such as type 2 diabetes.
One of the plaintiffs in the case, identified as M.B., is described as a 14-year-old boy who has received more than six psychotropic drugs at once, including lithium and two antipsychotics. The suit alleges he has suffered side effects including hypothyroidism, hearing voices and suicidal thoughts.
Another plaintiff, K.C., is described as a 12-year-old girl who has been on as many as five medications at a time. At one residential facility, she was reported on multiple occasions to be “visibly involuntarily shaking.” Laughrey wrote that her Abilify dosage was cut in half only after a visitor sounded an alarm.
The suit, which was filed 13 months ago, contends the children’s division has failed to maintain medical records for children in its care. And it says the division doesn’t have informed consent policies designed to ensure that children receive psychotropic drugs only when it’s thought to be safe and necessary.
In arguing against certifying the case as a class action, the children's division said that it’s “poised” to make changes, including partnering with the University of Missouri’s Psychiatric Center and putting in place an electronic health record system with data on foster children.
Laughrey rejected that argument, noting none of the changes had been implemented yet and they were insufficient to defeat granting class-action status to plaintiffs “who are affected by the policies and practices currently in effect.”
The case is scheduled to go to trial before Laughrey next June.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies