Maryland Foster Care System’s Inadequate Prescription Oversight System Is ‘Potentially Dangerous,’ Class Action Says

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A proposed class action alleges Maryland’s foster care system lacks adequate oversight into the administration of psychotropic medications to children in the custody of the state’s Department of Human Services (DHS).

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Hundreds of children in Maryland’s foster care system are prescribed one or more potentially dangerous psychotropic drugs due to several “systemic deficiencies” unaddressed for “at least a decade” by DHS Secretary Lourdes Padilla and Executive Director of the Maryland Social Services Administration (SSA) Denise Conway, the 49-page complaint says.

Per the suit, the “rampant” use of psychotropic drugs in the state’s foster care system is the result of the defendants’ failure to maintain “minimally-comprehensive and up-to-date” medical and mental health records for all children in their care. Consequently, the case argues, healthcare providers and caregivers lack the necessary information to make proper decisions surrounding children’s healthcare needs, a fact the defendants admitted in a 2020 report to the General Assembly.

Moreover, the defendants have failed to employ a sufficient process for informed consent, as children are often prescribed psychotropic medications with a parent or guardian present to provide their consent, the case alleges. The complaint also alleges the defendants have failed to operate a secondary review system in which “outlier” prescriptions can be flagged and reviewed by a child psychiatrist.

According to the lawsuit, as many as 34 percent of children in Maryland foster care are administered powerful psychotropic drugs, including anti-anxiety agents, antidepressants, mood stabilizers, stimulants, antipsychotics, and alpha agonists, that directly affect chemicals in the brain that help to regulate emotions and behavior. By comparison, only eight percent of Medicaid-eligible children within the U.S. are given these medications, the lawsuit shares.

Per the case, most psychotropic drugs have not been approved by the U.S. Food and Drug Administration (FDA) for pediatric use because their short- and long-term impacts on children are still relatively unknown, yet they are regularly administered to minors in the Maryland foster care system anyway. 

The lawsuit explains that children who take these medications are at a greater risk than adults of experiencing adverse physical and emotional side effects, which may include seizures; suicidal thinking and behavior; irreversible movement disorders; adverse cardiovascular and respiratory effects; severe liver disease; excessive weight gain or unexpected death.

According to the filing, many children in the foster care system have experienced significant levels of trauma and thus have serious mental health needs. Despite this, however, DHS data reports that 72 percent of children in Maryland foster care prescribed psychotropic drugs do not have a documented psychiatric diagnosis, the complaint says.

“While this could suggest that psychotropic drugs are not administered in response to a diagnosed mental health condition but instead are administered as a form of chemical restraint, at minimum it evidences inadequate medical record-keeping,” the case argues.

The lawsuit also charges that over 53 percent of children in the custody of Maryland DHS who take psychotropic drugs are administered multiple drugs at once, a “potentially dangerous practice known as polypharmacy.” The plaintiffs, three teenagers in Maryland foster care, report that they are all currently prescribed between three and four psychotropic drugs, the case says. One plaintiff says that in June 2021, he was given seven psychotropic drugs to take simultaneously. Each of the children say they have experienced various negative side effects due to their medications, including extreme weight gain, balance and coordination problems, dizziness, fatigue, stomach aches, headaches, agitation, mood swings and dry mouth.

According to the case, the defendants were required under federal law to develop “a plan for the ongoing oversight and coordination of health care services for any child in a foster care placement” that incorporates “an outline of . . . the oversight of prescription medicines, including protocols for the appropriate use and monitoring of psychotropic medications.”

To add insult to injury, public reports published by the Department of Health over the past decade show that defendants Padilla and Conway knew about the pervasive use of psychotropic medication among children in the state foster care system, as well as the risks involved with the pediatric use of such drugs, the suit alleges. 

“Nonetheless, Defendants presently permit hundreds of children in Maryland foster care to be administered one or more powerful psychotropic drugs without supplying sufficient oversight mechanisms to assure child safety, thereby knowingly exposing children in their care to serious risk of harm,” the complaint claims.

The lawsuit looks to represent all children under 18 years old who are or will be prescribed or administered one or more psychotropic medications while in Maryland foster care custody statewide, except for children in foster care custody in Baltimore City.

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