By Jessalyn Schwartz*
“Meds are not going to help a child with their problems. It is just going to sedate them and make them tired, make them forget it for a while, and then it comes back and it happens again.”1
By the time children and adolescents reach the foster care system, they have experienced myriad challenges which may cause compound mental health and behavioral issues. Accordingly, foster care youth often have trouble understanding their situations, managing their emotions, communicating their needs, and advocating for their own well-being. These children are being prescribed medications too often, too young, and far too much. Approximately thirty-seven percent of children in the foster care system take at least one psychotropic medication, with approximately twenty percent of these children taking two or more medications at any given time.2 In many states, the percentages are much higher and the use of medication increases with the age of the child.3
Causes include a lack of oversight by state agencies and a range of systemic problems such as breakdowns in the continuity of care, a shortage of adequately trained clinicians, scarcity of psychosocial alternative treatments and the failure of states to act uniformly. While it is true that these children are in need of assistance, the current practices within the system are often more harmful than helpful and an investment in appropriate remedies is crucial to ensure children’s welfare and safety. Specifically, systemic errors could be addressed by creating more uniform practices across the states in order to avoid overprescribing and other issues. While the number of clinicians may not be something that can be changed through reform, implementing best practices uniformly throughout the states, such as those created by the American Academy of Child and Adolescent Psychiatry (AACAP),4 may result in a decreased need for state-employed psychiatrists.
I. Dangers involved with the Prescription of Psychotropic Medications to Foster Care Youth
Psychotropic medications are prescribed to manage psychiatric or mental health issues and may include mood stabilizers, antidepressants, antipsychotics, and anti-anxiety medications, among others.5 As with many medications, psychotropics have risks and side effects, especially in children and adolescents. Certain antidepressants and antipsychotics may reduce the ability to experience emotions, contribute to weight gain and obesity, affect self-esteem and attitude, and may place users at risk for diabetes, heart disease, and eating disorders.6
One of the more alarming trends in youth psychotropic medication usage is that many drugs are being prescribed in combination, or concomitantly. This increases the likelihood of adverse reactions and long-term side effects, and may limit the prescriber’s ability to determine whether any individual medication is achieving the desired treatment goals.7 The rate of psychotropic drug use was nearly double among Medicaid-insured children as opposed to privately insured children.8 Of the children in foster care enrolled in Medicaid, more than forty percent received more than three psychotropic medications and over fifteen percent received at least four.9 In 2008, the Government Accountability Office (GAO) completed a study analyzing psychotropic prescriptions for children and adolescents covered by Medicaid in five states, both in and out of foster care.10 In Massachusetts, children and adolescents in foster care are nineteen times more likely to be placed on numerous medications than those not in foster care.11 The study believed that all five states’ psychotropic drug monitoring programs were lacking in comparison to AACAP best principle guidelines, and that psychotropic medications were being prescribed at dosages higher than the maximum levels recommended, with many of these drugs being more likely to pose potential health risks.12
Another danger with these medications is that very few are approved for use in patients of this age group, resulting in a high prevalence of “off-label usage.” Off-label usage is the prescribing of medications for the treatment of symptoms not originally approved by the Federal Drug Administration (FDA).13 More than seventy-five percent of psychotropic medication use in children and adolescents is regarded as being off-label, with about thirty-one percent of such medications being FDA-approved for use with this age group.14 Ke’onte Cook, the twelve year-old foster child quoted at the beginning of this piece, was prescribed twenty total medications at one point, with at least five taken at any given time, in dosages that exceeded the levels taken by most adults.15 He was given medications for bipolar disorder and seizures, although he had never been diagnosed with either condition and had never experienced a seizure.16
Off-label usage and concomitant prescribing are only some of the problems surrounding psychotropic medications and foster care youth. Systemic changes enforced by Federal and state oversight are necessary in order to begin to remedy the range of issues associated with psychiatric treatment of youth in foster care.
II. Potential Causes of Over-prescription
In recent years, the federal government has made legislative strides in an attempt to address some of the problems associated with psychiatric care of youth in the foster system. In 2008, The Fostering Connections to Success and Increasing Adoptions Act17 amended Title IV-B of the Social Security Act18 to develop plans for oversight and coordination of healthcare services.19 In 2011, The Child and Family Services Improvement and Innovation Act20 requirements for the health care oversight and coordination plan, calling for specific protocols relating to psychotropic medication usage.21 Despite these efforts, a lack of sufficient state oversight and other systemic problems still plague state foster care systems.
A. Lack of Appropriate State Oversight
States are responsible for administering their own foster care and Medicaid programs, and while overseen by the federal government, individual states are authorized to develop their own monitoring protocols.22 The aforementioned GAO study demonstrates that a lack of comprehensive state oversight may negatively impact children in state custody in numerous states chosen for their geographic diversity and the size of their foster care populations.23 While these results cannot be generalized to all states, it seems clear that federal endorsement and requirement of specific measures for state oversight, such as the AACAP best practice guidelines, would assist the states in developing proper, uniform protocols for improved governmental oversight. The Department of Health and Human Services (HHS) Administration on Children, Youth, and Families (ACYF) has begun this process by providing informational opportunities to state agencies prior to the June 30, 2012 state reporting deadlines under The Child and Family Services Improvement and Innovation Act.24 The ACYF has also collaborated with state mental health, substance abuse, and Medicaid agencies, holding a joint meeting in August 2012 to bring state leaders together and facilitate the development of improved oversight plans.25
Class action lawsuits in specific states have brought the failures of state foster care systems to the forefront of this debate. In April 2010, the children’s advocacy organization Children’s Rights brought suit against Massachusetts’ state welfare system. The complaint, known as Connor B. v. Patrick,26 alleged that the Department of Children and Families (DCF) failed to fulfill its legal duty to ensure the safety and well-being of children in state custody, including lacking a system to oversee the appropriate administration of psychiatric treatment to foster youth. In the same month, another class action suit was brought against the Department of Family Services (DFS) in Clark County, Nevada, alleging failures by DFS to provide necessary medical and mental health treatment to children in state care and detailing specific harms that have befallen children on psychotropic medications in state custody.27 In May 2012, the United States Court of Appeals for the Ninth Circuit affirmed dismissal of two counts in the complaint, and reversed and remanded five other counts for district court review.28 Connor B. was scheduled for trial on January 21, 2013.29 This author’s research has determined that there appears to have been no movement on the case since a motion was filed for a change of venue in November 2012.30 These lawsuits are just two examples of the impact of a lack of state oversight on children involved in foster care systems throughout the country.
Other Systemic Failures
In addition to the lack of state oversight, a range of systemic failures contribute to the problem of psychotropic medication use in foster care children. Namely, shortages of adequately trained clinicians and social workers, a lack of access to effective alternative treatments, failures to provide complete and consistent records to care providers, and issues surrounding consent to treatment and knowledge about medications prescribed, all play a role in this epidemic.
First and foremost, there is a stunning shortage of child and adolescent psychiatrists in the public sector to serve foster care youth. Recent data shows there are currently 7,000 child psychiatrists serving a population that requires about 30,000.31 The experts that are involved in the system may not be trained in effective interventions, and it is very difficult to recruit for outpatient public sector jobs due to funding and other aspects.32 This shortage of child mental health professionals, coupled with the “productivity model” practice psychiatrists often use, in which payment is based on number of patients seen, may also explain why children are put on medications without much evaluation or proper testing.33 Psychiatrists’ concerns surrounding liability if they do not medicate youth in certain at-risk situations, along with pressure from caseworkers and other stakeholders to medicate children, also play a role in the overmedication of foster care youth.34 Additionally, a lack of commitment, investment, research and training in effective and evidence-based psychosocial interventions when working with foster populations that may be effective in treating post-traumatic stress disorder, ADHD, depression, substance abuse and other behavioral disorders may explain an increased use of medication among foster care children.35
Another widespread problem is a breakdown in the continuity of care due to frequent placement changes, caseworker turnover, and a lack of clinical feedback about the child’s functioning and side effects from medication.36 Children are often not in one place long enough to participate in proper follow-up after being prescribed medications and the Health Insurance Portability and Accessibility Act of 1996 had the effect of tightening up confidentiality provisions, making it more difficult for mental health providers to get a child’s records in a timely way.37 States have attempted to remedy this problem by implementing regulations, such as Massachusetts’ “medical passport,” that requires DCF to “record pertinent and available medical/dental/mental health and developmental data about the child,” and provide it to every substitute care provider in each of the child’s placements.38 However, despite efforts of this type, it is still very difficult for information to follow a child throughout multiple placements.
A lack of knowledge surrounding psychotropic medications has a substantial impact on this issue as well. Foster care professionals, families, and the youth themselves are often ill-informed as to the reasons for being on medications, the possible side effects, and the dangers of concomitant use of multiple drugs.39 Child welfare professionals have indicated that they do not always know enough about psychotropic medications in order to be effective treatment partners with mental health providers.40 Ke’onte Cook reported feeling ignorant about the medications he was on and experiencing side effects that no one had discussed with him prior to being placed on a new medication.41 He felt as if he had to take the medications in order to be permitted to play with his toy or watch television.42 Upon review of many stories like Ke’onte’s, it is apparent that many children and foster care families do not possess adequate knowledge about the medications the children are on, but they feel they must continue to medicate them out of fear of the child being removed from the home.
The lack of knowledge problem also feeds into an issue of who is able to consent to mental health treatment for foster care youth. In some states, biological parents must consent, while in others, the child welfare administration, foster parents, or even physicians and staff of residential facilities must make the determination.43 Children may also reach the age of assent and be able to decide for themselves.44 Without the knowledge of what medications are for or how they may affect the child, many of these decision-makers are ill-equipped to make the safest and most informed choice.
These problems call for a variety of remedies, including a redefinition of provider rules, changes to consent laws, more data collection, and better screening, evaluation, and treatment planning mechanisms. Information must be kept and shared consistently, featuring communication between the healthcare provider, the child, the caregivers, caseworker, and other key stakeholders.45 Children and their caregivers should feel empowered to provide feedback and be confident that those charged with assisting youth in facing their mental health needs will make determinations that are in the child’s best interests. All of this would be better facilitated by greater and more organized oversight from the states and the federal government. One issue that may be the most difficult to address is that of having too few qualified clinicians, but by implementing other proposed changes, the need for treatment with psychotropic medication will hopefully decrease and the system will be able to succeed with the resources available.
* Northeastern University School of Law, Class of 2013.
1 The Financial and Societal Costs of Medicating America’s Foster Children: Hearing Before the Subcomm. on Fed. Fin. Mgmt., Gov’t Info., Fed. Servs., & Int’l Sec. of the Comm. on Homeland Sec. & Gov’t Affairs, 112th Cong. 11 (2012) [hereinafter Hearings] (statement of Ke’onte Cook, twelve year-old former foster child, McKinney, TX).
2 Bryan Samuels, Commissioner, Admin. on Children, Youth, and Families, Webinar on Psychotropic Medication Use among Children Known to Child Welfare (Jan. 9, 2011).
3 See JoAnne Solchany, PhD, Psychotropic Medication and Children in Foster Care: Tips for Advocates and Judges 14– 15 (Am. Bar Ass’n Ctr. On Children and the Law, 2011).
4 A Guide for Public Child Serving Agencies on Psychotropic Medications for Children and Adolescents, Am. Acad. of Child & Adolescent Psychiatry, Feb. 2012, available at http://www.aacap.org/AppThemes/AACAP/docs/Advocacy/policyresources/PsychopharminSOCFeb2012.pdf
5 Solchany, supra note 3, at 8.
6 Id. at 13, 21.
7 Hearings, supra note 1, at 17 (statement of Gregory D. Kutz, Dir. of Forensic Audits and Investigative Serv., U.S. Gov’t Accountability Office).
8 Psychotropic Medication Use in Children on Medicaid, First Focus, 1, Sept. 2008; quoting Martin et. al., Use of Psychotropic Drugs by Medicaid insured and Privately insured Children, Psychiatric Servs., Vol. 53, No. 12, 1508 (2003).
9 Zito, J.M. et. al., Psychotropic Medication Patterns Among Youth in Foster Care, Pediatrics, 121(1), Jan. 2008, 157-162.
10 Hearings, supra note 1, at 17.
11 Hearings, supra note 1, at 53.
13 Solchany, supra note 3, at 17.
14 Id. citing Naylor, M.W. et al. Psychotropic Medication Management of Youth in State Care: Consent Oversight and Policy Considerations, Child Welfare 86(5), 2007, 175-192.
15 Hearings, supra note 1, at 8–9.
16 Id. at 9.
17 H.R. 6893--110th Congress: Fostering Connections to Success and Increasing Adoptions Act of 2008 (2008), http://www.govtrack.us/congress/bills/110/hr6893.
18 42 U.S.C. §§ 601-87(2011).
19 Memorandum from the U.S. Dep't of Health & Human Servs., Admin. on Children, Youth, & Families [hereinafter ACYF], to State, Tribal & Territorial Agencies Administering or Supervising the Admin. of Titles IV-B & IV-E of the Social Security Act, Indian Tribes & Indian Tribal Org. (Apr. 11, 2012), available at http://www.nationalfostercare.org/uploads/8/7/9/7/8797896/im-oversightofpsychotropicsmedicationforchildreninfostercare-titleiv-bhealthcareoversight_coordinationplan-clean.pdf.
20 H.R. 2883--112th Congress: Child and Family Services Improvement and Innovation Act. (2011), http://www.govtrack.us/congress/bills/112/hr2883.
21 ACYF, supra note 19, at 2.
22 Hearings, supra note 1, at 5.
23 Id. at 53, 82–83.
24 ACYF, supra note 19, at 2 (states must report an outline of appropriate uses and monitoring of psychotropic medications and how screening-identified health needs will be monitored and treated).
25 Id. at 19.
26 See generally Complaint, Connor B. v. Patrick, filed Apr. 15, 2010 (D. Mass. 2010) (No. 3:10-CV-30073).
27 See generally Complaint, Henry A. v. Willden, filed Apr. 13, 2010 (D. Nev. 2010) (No. 2:10-CV-00528).
28 See generally Opinion, Henry A. V. Willden, filed May 4, 2012 (D. Nev. 2012) (No. 2:10-CV-00528).
29 Massachusetts Fails to Ensure the Safe Administration of Psychotropic Medications to Children in Foster Care, Children’s Rights (Oct. 3, 2012), http://www.childrensrights.org/news-events/press/massachusetts-fails-to-ensure-the-safe-administration-of-psychotropic-medications-to-children-in-foster-care/.
30 See generally Plaintiffs’ Opposition to Defendants’ Motion to Change Venue, Connor B. v. Patrick, filed Nov. 1, 2012 (D. Mass. 2012) (No. 3:10-CV-30073).
31 Hearings, supra note 1, at 160 (statement submitted by the Nat’l Alliance on Mental Illness).
32 Interview with Dr. Virginia Merritt, MD, Boston Juvenile Court Clinic, in Boston, (Oct. 9, 2012) (on file with author) [hereinafter Merritt].
33 J. Curtis McMillen et al., A Crisis of Credibility: Professionals’ Concerns about the Psychiatric Care Provided to Clients of the Child Welfare System, 34(3) Adm. Policy Ment. Health 203, 207–08.
34 Id. at 208—09.
35 Hearings, supra note 1, at 161.
36 McMillen, supra note 34, at 207, 209.
37 Merritt, supra note 33.
38 110 Mass. Code Regs. 7.124 (2008).
39 McMillen, supra note 34, at 206-08.
40 Id. at 208–09.
41 Hearings, supra note 1, at 8–9.
42 Id. at 8.
43 Solchany, supra note 3, at 18.
44 Id. at 19.
45 ACYF, supra note 19, at 16.