Suit over drugs for foster kids proceeds

ST. LOUIS -- A federal lawsuit alleging the Missouri Department of Social Services has failed foster children by prescribing psychotropic drugs and not providing proper oversight of the medications will be allowed to proceed, a federal judge ruled.

Attorneys for Children's Rights, the National Center for Youth Law and Saint Louis University School of Law Legal Clinics filed the lawsuit in June on behalf of several Missouri children currently or formerly in foster care. They are asking a federal district judge to order Missouri to implement systemic changes to reduce the potential overprescribing of the drugs.

U.S. District Judge Nanette K. Laughrey this past week preserved claims in the lawsuit alleging that the state violated foster children's due-process rights regarding medical records and prescription drug data, The Springfield News-Leader reported . She dismissed some claims related to informed consent procedures and possible violations of the Adoption Assistance and Child Welfare Act. A trial is scheduled for Jan. 14, 2019.

"There are clearly plausible allegations that (the Missouri officials) ... actually knew of the serious risk of harm," Laughrey wrote. "Yet they have not adopted any systematic administrative review because (Missouri) can't find the medical records of the children. But the absence of the medical records itself creates an unreasonable risk of harm and the Defendants are aware of that risk as well."

The lawsuit claims psychotropic drugs are often prescribed as "chemical straight-jackets" for some of Missouri's 13,000 foster care children with attention deficit hyperactivity disorder or conduct disorder, even though there are few or no federally approved uses for the drugs among children. The plaintiffs also contend little research has been done on how the drugs affect children's brains and the drugs could cause dangerous side effects, such as suicidal thoughts.

The lawsuit alleges that the state doesn't provide enough oversight of psychotropic medications and keeps shoddy medical records for children in foster care, making it difficult for foster parents to properly administer medications.

One of the plaintiffs is a 12-year-old girl who was allegedly given up to five drugs at once, and her caregivers "had three different understandings of what daily dose of a particular psychotropic medication she was to receive, and they had no medical records to resolve the confusion," Laughrey wrote. She began acting aggressively after a prescription change, but her caregivers didn't make the correlation between her behavior and the medication change, the judge wrote. After a volunteer contacted the girl's doctor, she was taken off the medication and her aggressive behavior ended, Laughrey said.

Attorney General Josh Hawley's office, which is representing the Department of Social Services, "will continue to work with DSS as the litigation moves forward," said his spokeswoman, Loree Anne Paradise.

Previously, lawyers in Hawley's office contended physicians provided untimely, "low-quality" records in response to state requests.

"These unsuccessful efforts are not the equivalent of criminal recklessness, particularly when the cause of failure was physician non-compliance," the state argued, and "attempts to twist these efforts into evidence of deliberate indifference strains common sense and raises the chilling possibility that state agencies should forego attempts to systematically improve for fear of constitutional liability should they not immediately succeed."