A federal class-action lawsuit filed against the Maryland Department of Human Services and its Social Services Administration has focused attention on the widespread practice of prescribing powerful psychotropic drugs to children in foster care, often with little medical oversight.
The suit alleges that up to 34% of Maryland foster children are prescribed psychotropic, or psychiatric, medications, with more than half taking multiple psychiatric drugs at a time. (Nationally, 8% of Medicaid-eligible children not in foster care receive psychotropic drugs, according to the complaint.)
Moreover, the suit maintains, over 72% of Maryland foster children taking psychotropic medications do not have a documented psychiatric diagnosis – which, according to the complaint, suggests the drugs are administered as a form of “chemical restraint” or, at a minimum, indicates inadequate medical record-keeping.
“There is a lack of safeguards to make sure these medicines are helping these children instead of harming them,” said Claire Glasspiegel, senior staff attorney with Children’s Rights, a New York-based nonprofit that filed the suit in January along with the ACLU of Maryland, Disability Rights Maryland and Morgan, Lewis & Bockius’ Washington, D.C., office.
The lawsuit, which relies on data from the Maryland Department of Human Services’ public reports to the legislature, was brought on behalf of three individual plaintiffs and all children under 18 who are or will be prescribed psychiatric medication while in Maryland foster care. The suit covers all jurisdictions in Maryland except Baltimore City, which has its own federal consent decree covering foster care.
The plaintiffs and putative class seek systemic injunctive relief and no individualized money damages, according to the complaint.
Advocates say foster children are generally traumatized and are prescribed psychiatric drugs to make them more tractable. Samantha Bartosz, deputy litigation director for Children’s Rights, said foster parents in particular can feel burdened by the children in their care.
“Foster parents will say, ‘If it’s going to be like this, I don’t know if I can handle it,’” Bartosz said, adding that caseworkers who seek to satisfy a foster parent – and avoid having to find a new home for the child — will consent to medications that can act “like straitjackets.”
Psychotropic medications include antipsychotics, antidepressants and mood stabilizers, among others. Side effects can include seizures, suicidal thinking and behavior, irreversible movement disorders, cardiovascular and respiratory problems, weight gain, diabetes and metabolic abnormalities and unexpected death, according to the complaint, which adds that most psychotropic drugs have not been approved by the U.S. Food and Drug Administration for use in children.
“These are really, really strong meds, and a lot of these kids don’t even have a diagnosis,” said Shanta Trivedi, faculty director of the Sayra and Neil Meyerhoff Center for Families, Children and the Courts at the University of Baltimore School of Law, who studies and writes about child welfare but is not involved in the case. “It’s crazy to me that the state is doing this under the guise of child protection.”
A 2021 DHS report to the legislature about the state’s child welfare system showed a significant gap between the number of psychiatric diagnoses and the number of foster children taking psychotropic medications. Of 4,560 children in foster care on June 30, 2021, only 132, or 2.9%, had received a psychiatric diagnosis, according to the report.
However, the report also noted that, at the same time, 634 children were prescribed “any psychotropic drug.” The other psychotropic categories listed in the DHS report were antidepressants, prescribed to 264 children, ADHD medication (441), antipsychotics (309) and mood stabilizers (97). In addition, 331 children were reportedly taking multiple drugs.
Glasspiegel said the glaring disparity between the number of psychiatric diagnoses and the number of children taking psychotropic medications was concerning.
“It could suggest that medicines are being prescribed without a diagnosis or that medical record-keeping is not up to snuff,” she said.
The Department of Human Services did not respond to a request for an explanation of, or a statement about, the discrepancy in its report.
Inadequate record-keeping is one of three main failures in oversight asserted in the complaint. DHS and SSA are also alleged to be deficient in obtaining informed consent from a parent or guardian before a psychiatric medication is given, and in obtaining a secondary review from a child psychiatrist when a combination of drugs or a higher-than-usual dosage raises a red flag.
The complaint also alleges a racial disparity in the prescription of psychotropic drugs. In Anne Arundel County, Black children made up 43% of the foster care population but accounted for almost 69% of the foster children prescribed psychotropic medications, the complaint stated. The situation was similar in Baltimore County, where Black children comprised 44% of the foster care population but represented more than 58% of foster children prescribed psychotropic drugs, according to the complaint.
U.S. District Judge Theodore Chuang on March 14 issued a stay and referred the case to a magistrate judge for mediation.