M.B. By His Next Friend Ericka Eggemeyer v. Steve Corsi in His Official Capacity of the Mo. Dep't of Soc. Servs.
| Decision Date | 08 January 2018 |
| Docket Number | No. 2:17-cv-04102-NKL,2:17-cv-04102-NKL |
| Parties | M.B. by his next friend Ericka Eggemeyer; E.S. by her next friend A.S.; Z.S. by her next friend S.H.; K.C. by her next friend Kris Dadant; A.H. by her next friend Kealey Williams, for themselves and those similarly situated, Plaintiffs, v. Steve Corsi in his official capacity as Acting Director of the Missouri Department of Social Services; Tim Decker, in his official capacity as Director of the Children's Division of the Missouri Department of Social Services, Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Plaintiffs, children in foster care, claim that Defendants, the Acting Director of the Missouri Department of Social Services and the Director of the Children's Division of the Missouri Department of Social Services ("CD"), have failed to implement a system of safeguards and oversight with respect to the administration of psychotropic drugs to Plaintiffs. These drugs leave the children vulnerable to various serious adverse effects, including hallucinations, self-harm and suicidal thoughts, and such life-shortening illnesses as type 2 diabetes, and therefore should be administered only when necessary. However, according to Plaintiffs, psychotropic drugs often are administered not with the best interests of a child in mind, but instead, unnecessarily and inappropriately, sometimes simply to make the children less troublesome. CD itself has acknowledged that "[t]he use of multiple medications (psychotropic or otherwise) creates the potential for serious drug interactions." It also is aware that the lack of a reasonable system of oversight and monitoring of the administration of psychotropic medications to children in its custody poses a substantial and ongoing risk of harm to the children. Yet, according to the Plaintiffs, Defendants have failed to address this substantial and ongoing risk of harm to children in foster care.
Plaintiffs allege that the state fails in three specific regards to ensure that psychotropic medications are appropriately and safely administered and adequately monitored. First, Defendants fail to maintain, and to furnish to caregivers and prescribing physicians, up-to-date medical records detailing each child's physical and mental health history, including current and prior medications and observed adverse effects—information necessary to ensure that the prescribing physicians and caretakers are fully informed and that treatment is well-coordinated. Second, Defendants fail to ensure informed consent to the administration of psychotropic medication to each child in foster care, both at the outset and as treatment continues. Finally, Defendants fail to ensure that high-risk prescriptions of psychotropic medications, such as multiple drugs from the same class, too high a dosage, or drugs given to very young children, are promptly identified and presented to an independent, qualified child psychiatrist for secondary review. As a result of the administration of psychotropic medication without adequate safeguards or oversight, Plaintiffs have suffered or are at grave risk of suffering "substantial and often irreversible harm to their physical, emotional, and/or mental health."
Plaintiffs bring this action on behalf of themselves and of a putative class of children who are or will be placed in the custody of the state of Missouri due to abuse or neglect by their parents, guardians, or other legal custodians. Plaintiffs bring claims for (i) violation of their substantive due process rights under the Fourteenth Amendment to the U.S. Constitution; (ii)violation of their procedural due process rights, specifically, deprivation, without due process, of the right to be free from the unnecessary and inappropriate administration of psychotropic medication; and (iii) violation of rights under the Federal Adoption Assistance and Child Welfare Act. Plaintiffs seek only declaratory and injunctive relief.
Defendants move to dismiss this action for failure to state a claim. For the reasons discussed below, the motion is granted in part and denied in part.
When the state removes children into foster care, it assumes an affirmative duty to act in loco parentis to keep those children safe. Yet, according to the plaintiffs, children in Missouri's foster care custody are exposed to a grave risk of severe physical and psychological harm because the state fails to oversee the administration of psychotropic drugs to them.
Psychotropic drugs are powerful medications that directly affect the central nervous system. They are particularly potent when administered to children. Children administered psychotropic medications are at particularly serious risk of long-lasting adverse effects. They are more vulnerable to psychosis, seizures, irreversible movement disorders, suicidal thoughts, aggression, weight gain, organ damage, and other life-threatening conditions.
Children given two subclasses of psychotropic drugs, antipsychotics and antidepressants, are particularly vulnerable. For example, children administered antipsychotic drugs are three times as likely as other children to develop type 2 diabetes.
The full risk posed to children by psychotropic drugs is not yet even fully understood. As the Administration of Children and Families ("ACF"), the office within the U.S. Department of Health and Human Services charged with administering the federal Title IV-E foster care program, has noted, Doc. 22, ¶ 80.
Risks to children are compounded when children are subject to "outlier" prescribing practices—receiving too many psychotropic drugs or too high a dosage, or receiving drugs at too young an age (commonly described as "too many, and too much, too young"). The number of adverse effects increases with the number of medications being used. On average, those taking two psychotropic drugs report 17% more adverse effects, and those taking three or more, 38% more adverse effects, than those taking one. Suicidality and the urge to harm oneself increase with increasing numbers of medication. Increased appetite, sleepiness/fatigue, and tics and tremors are 200 to 300% more prevalent among children taking three or more medications than among those taking one drug alone.
The ACF has noted that outlier practices "may signal that factors other than clinical need are impacting the prescription of psychotropic medications." Id., ¶ 86. Indeed, for many, if not most, of the affected children, psychotropic drugs are administered to treat a diagnosis that the drugs were never designed to address.
The longer a child is on a given psychotropic medication, the greater the number of adverse effects. Some psychotropic medications, including some antipsychotics and SSRI antidepressants, even come with "black box" warning labels, indicating "their use requiresparticular attention and caution regarding potentially dangerous or life threatening side effects." Id., ¶ 83. Thus, due to the serious risks associated with psychotropic drugs, they should be administered to children only when necessary, and safely, and accordingly it is critical that children being administered these drugs are closely monitored.
More than a decade ago, a study including data from Missouri and 16 other states found that the rate of use of antipsychotics (one of the most powerful classes of psychotropic drugs) was 12.37% for children in foster care, compared with 1.4% for children receiving Medicaid who were not in foster care. The study further found that one in five children was prescribed two different antipsychotics, and at least one in ten children was prescribed four or more psychotropic medications. The Missouri Initiative for Children in Foster Care, looking at data from 2011, showed that 28% of children in state foster care were on psychotropic medication. 20% of those children were subject to an outlier prescription (too much, and too many, too young), including 6.65% who were prescribed five or more psychotropic medications at once and 3.03% who were prescribed two or more antipsychotics at once. A January 2015 Missourian article reported MOHealthNet data from 2012 showing that more than 30% of Missouri's foster children were prescribed at least one psychotropic medication. It was further reported based on this data that children as young as two years old (like plaintiff Z.S.) had been prescribed an antipsychotic drug. In addition, at least 20% of Missouri's foster youth were taking an average of two or more psychotropic medications, with some foster children prescribed as many as seven psychotropic medications at one time.
Children in foster care are at increased risk of being improperly or unnecessarily administered psychotropic drugs. Often, those who care for foster children do not have detailedknowledge of their trauma background, mental health needs, or medical history. Unlike biological parents, the foster caregivers must rely on a child's health records to know her history and needs. At the same time, frequent changes in placement often are accompanied by changes in a foster child's health care provider and cause disruptions in the child's health care. Thus, the sharing of accurate and complete medical information with both the child's foster parent and physician is critical to the child's health and safety. Yet, all too often, it does not occur. Moreover, the state has no system in place to avoid subjecting children to "outlier"—too much, and too many, too young—prescriptions.
M.B. Plaintiff M.B., a fourteen-year old boy, has been administered up to...
To continue reading
Request your trial