Jack Woodcock is a lawyer who has filed a federal class-action lawsuit against the state of Maine alleging that children in foster care are being given psychotropic drugs without proper safeguards and oversight. Ben McCanna/Staff Photographer

Children’s rights advocates have filed a federal lawsuit against the state of Maine on behalf of children in foster care who they allege are being given psychotropic drugs without proper safeguards and oversight.

The lawsuit, filed Wednesday in U.S. District Court in Portland, was brought by the national advocacy group Children’s Rights, Berstein, Shur, Sawyer & Nelson law firm and Maine Equal Justice, who are representing six foster child plaintiffs identified only by their first names and last initials. Named as defendants are Jeanne Lambrew, commissioner of the Maine Department of Health and Human Services, and Todd Landry, director of the Officer of Child and Family Services.

The plaintiffs are seeking class action status for the suit.

The 71-page complaint alleges that Maine children, some as young as 5, are being directly harmed by the drugs while others are being put at substantial risk of harm. It also says the state has acknowledged for nearly a decade that problems exist.

“Despite having known for years of the risks associated with these medications and the large numbers of children in Maine foster care who are prescribed such medications, to this day, OCFS continues to fall short of its responsibility for protecting children from harm,” the complaint reads.

A DHHS spokeswoman criticized the suit and its backers for not working with the state to address any concerns beforehand and said the claims undermine meaningful reforms that have been ongoing since Gov. Janet Mills took office.

“This lawsuit led by an interest group out of New York is not about protecting Maine children,” DHHS spokeswoman Jackie Farwell said in a statement. “If Children’s Rights, Inc. cared about the welfare of these six children or others, it would have reported these allegations to Maine DHHS through the appropriate established channels, allowing us to immediately investigate and take appropriate action if needed. Instead, they chose to sit on this information over the course of more than a year, disregarding the alleged harm that they now claim in this lawsuit.”

Most children who end up in foster care have been taken from homes where they were abused or neglected and suffered one or more adverse childhood experiences that can lead to behavioral challenges and more. Each child undergoes a medical evaluation, which often leads to prescribing of drugs.

But psychotropic medications, including antidepressants like Zoloft or Xanax, stimulants like Ritalin or Adderall, antipsychotics such as Seroquel and other mood-altering drugs, carry risks, especially for children. More specifically, experts caution against giving too many medications at one time, prescribing doses that are too high or starting medications at too young an age.

The complaint details the use of medications on the child plaintiffs:

Bryan C., now 7, was born exposed to drugs and was in a serious car accident at age 5 caused by his mother, who was driving while intoxicated. He has been prescribed four different medications while in state care, all at high dosages for a child his age and size, the suit alleges. Just weeks after beginning a new drug, he began to express suicidal ideations and threats. At school, he repeatedly banged his head against the wall. After starting another medication, he gained 25 pounds and developed severe fatigue and difficulty focusing, which has disrupted his learning and development.

“In Bryan C.’s own words, his ‘brain doesn’t work,’ ” the complaint reads.

Further, the suit alleges that Bryan C.’s health record is poorly maintained “such that Bryan C.’s caretakers, clinicians, advocates, and even Defendants’ caseworkers do not have ready access to his prior and current medication regimes at any given time.”

Another plaintiff, Henry B., has been taking a host of medications but neither he nor his caregivers have been apprised of the risks or been told of any alternatives, the complaint alleges. In 2.5 years, the boy has had five different state caseworkers but has never received a portable record of health information pertaining to his mental health and psychotropic medications.

“OCFS has so poorly maintained his mental health records that it is unclear, for instance, what Henry B.’s mental health diagnoses even are,” the suit contends.

A third plaintiff, Trent W., 8, entered state custody in January 2020 after being removed from his home due to extreme neglect. He spent more than a month in hotels with OCFS or with respite foster families because there was no immediate placement available. During a physician’s visit at that time, he was diagnosed with attention deficit/hyperactivity disorder and prescribed medication. That diagnosis later turned out to be wrong, according to the complaint.

“However, upon being placed into state custody in January 2020 until November 2020, Trent W. was prescribed, and took, a stimulant psychotropic medication aimed at treating the condition he did not have, ADHD,” the complaint says.

The suit calls for the state to keep better records, to strengthen its informed consent policy to allow patients and guardians to assess benefits and risks of taking certain drugs, and to allow for secondary review to guard against dangerous prescription practices.

“For too long, Maine’s most vulnerable children have been subjected to powerful drugs with little state accountability or oversight,” Marissa C. Nardi, senior staff attorney at Children’s Rights, said in a statement. “It is high time the state creates meaningful guardrails to protect the health and well-being of children in foster care. We hope that this lawsuit will generate significant attention to these issues and ultimately help the children of Maine.”

Added Jack Woodcock, a lawyer with Bernstein, Shur, Sawyer & Nelson: “Maine’s abject failure to oversee and closely monitor the use of these powerful drugs is a systemic violation of children’s constitutional right to be free from harm while in state custody.”

Farwell, at DHHS, said prescribed psychotropic medications “are an important tool for treating behavioral health disorders and relieve symptoms resulting from abuse, neglect or separation.” But she also said the use of such drugs has decreased under the Mills administration as a part of broader child welfare reforms. For the third quarter of 2020, she said, just 20 percent of children in foster care were prescribed psychotropic medications.

“We are disappointed that this organization never reached out to the Department during the course of their year-plus investigation. Had they done so, we would have been able to assess and address the concerns identified,” Farwell said. “Regardless, we continue our work to protect the health and safety of Maine children. Maine DHHS strives to collaborate with all individuals involved in child welfare cases to respond to concerns and meet the needs of children and families.”

Another lawsuit was filed this week in New Hampshire by Children’s Rights and local legal organizations over the state’s treatment of youth in foster care, although that complaint deals more with over-institutionalization of teens than the use of psychotropic drugs.

New Hampshire Gov. Chris Sununu, when asked about the suit, also sharply criticized Children’s Rights as a special interest group that “preys on child protection programs across the country,” according to the Concord Monitor. He also defended recent reforms to his state’s child welfare system.

As of Dec. 1, Maine had 2,316 children in foster care, according to figures from DHHS. That’s an increase of 24 percent from the 1,861 foster children just two years earlier. That spike can be attributed in part to the sustained opioid crisis and increased awareness following the high-profile deaths of two children who were investigated by DHHS for suspected abuse but not removed from their living situations – 4-year-old Kendall Chick in December 2017, and 10-year-old Marissa Kennedy three months later.

Meanwhile, there has been a continual shortage of foster families in Maine as well as policy differences among officials about whether to place abused or neglected children with family members or in foster homes.

As with other problems within Maine’s child protection system, the concerns over prescribing medications span several administrations.

“For about a decade, Maine’s Department of Health and Human Services and Office of Child and Family Services have openly acknowledged the serious risks associated with psychotropic medication administered to foster children as well as their duty to maintain robust protections to protect Maine foster children against these dangers,” the complaint states. “Unfortunately, however, Maine has never created an adequate system to protect foster children in its care.”

Maine was criticized in 2018 by the U.S. Department of Health and Human Services’ inspector general for having an inadequate system of oversight and management of psychotropic medications for foster children. An investigation found that the percentage of foster children in Maine who were prescribed psychotropic medications, 33 percent, ranked fifth highest among all states and was well above the national average of 22 percent. Of those, approximately 30 percent, or about 350 children, did not receive a basic treatment plan or regular reviews of their medications.

“The big takeaway here is there are safeguards – particularly treatment plans and prescription monitoring – that are lacking,” Ann Maxwell, assistant inspector general with the federal DHHS, said in 2018. “Without these safeguards, children are at a greater risk of two potential outcomes: not getting the medication they need to cope with illnesses such as ADHD, depression or anxiety … and they are also at risk of getting prescribed drugs that they do not need. And these powerful drugs can have serious side effects.”

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