In New Settlement, Maine Promises Foster System Accountability and Safety Through Oversight of Psychotropic Medication Administered to Children

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Bernstein Shur Office of Business Development, Marketing & Communications: media@bernsteinshur.com

Camilla Jenkins, Children’s Rights: (917) 971-1784, cjenkins@childrensrights.org


Portland, Maine – Child welfare advocates, the Maine Department of Health and Human Services (DHHS), and the Maine Office of Child and Family Services (OCFS) have reached a settlement agreement in Bryan C. v. Lambrew, a federal lawsuit that will create comprehensive oversight mechanisms and safeguards to ensure the safe administration of psychotropic medication to hundreds of children in the Maine foster system. 

National advocacy organization Children’s Rights filed the case in January 2021 alongside New England-based law firm Bernstein, Shur, Sawyer & Nelson, P.A., and civil legal aid organization Maine Equal Justice. They initiated this case on behalf of children in the Maine foster system, with a goal of holding the state accountable for adequately overseeing the administration of psychotropic medications to children in its care and safeguarding the mental and physical health of children. 

Psychotropic medications are drugs including antidepressants, antipsychotics, stimulants, mood stabilizers and anti-anxiety medications. Children administered these powerful medications face a heightened risk of physical and emotional harm. These harms may include seizures, psychosis, suicidal thoughts, self-harm, weight gain, excessive fatigue, aggression, involuntary movements, diabetes, cardiovascular events and organ damage.

As many as 500 children in the Maine foster system have been prescribed or administered at least 1 psychotropic medication. More than 1 in 4 children in the U.S. child welfare system are prescribed these medications and are at a high risk of experiencing negative side effects that can last a lifetime. Children in the foster system nationwide continue to face serious risks from psychotropic drugs without adequate safeguards.

After over a year and a half of mediation before the Honorable John C. Nivison, the Parties have agreed to a set of critical reforms that the State will implement under the supervision of an Implementation Reviewer, who will track their progress. These reforms revolve around the three main issues identified in the initial complaint:

  1. medical records: the development and dissemination of a new portable health record that moves with the child from system placement to placement and is routinely updated with critical medical, mental health and behavioral health information to ensure that all decision-makers have access to current and accurate health information when considering a prescription for psychotropic medication, and that caregivers have access to key information when administering the medication;
  2. informed consent: the creation of a new informed consent process by designated adults and youth age 14 and older to enable meaningful informed decision-making considering the risks and benefits of psychotropic prescriptions prior to receiving the medication, including the creation of a fulsome informed consent form, processes to be employed in the event of a dispute or emergency, and training on psychotropic medication for Department staff, resource parents, and others such as legal parents and Guardians ad Litem; and
  3. secondary review: the creation of a psychiatric clinical review team to conduct secondary reviews both before and after the administration of psychotropic medications to children to identify and address outlier prescription practices, provide recommendations and consultation on psychotropic medication, and provide second opinions upon request.

“We are thrilled that Maine officials have stepped up and collaborated closely with us in developing these groundbreaking reforms, holding itself accountable for the children in its care,” said Marissa C. Nardi, Lead Counsel at Children’s Rights. “These reforms will help hundreds of children and their representatives make truly informed decisions about potent psychotropic medications, with a heightened ability to access information they need to make those decisions, and with ample checks and balances on the system to avoid children falling through the cracks. Significantly, this settlement empowers our older youth clients with a voice and a choice. This is meaningful progress that we’re proud to be a part of.”

“This settlement agreement will put in place real and meaningful reforms to better the safety and well-being of children and youth, who deserve nothing less from the system responsible for their care,” said Jack Woodcock, an attorney with Bernstein Shur. “After over eighteen months of negotiations, we are delighted that we were able to reach an agreement with the State which will help protect children in Maine’s foster care system who are prescribed psychotropic medication. The State has agreed to real reforms and committed to meaningful oversight to make sure it makes good on those promises. That is something to be applauded.”   

Today the Parties have filed a joint motion seeking preliminary approval by the Court of this landmark class action settlement agreement setting forth these crucial reforms. The Court will consider comments from class members and interested parties as well as hold a public hearing before determining if the class action settlement should receive final approval by the Court.  More information on the settlement can be found here.

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ABOUT CHILDREN’S RIGHTS

Children’s Rights is a national advocacy organization dedicated to improving the lives of children living in or impacted by America’s child welfare, juvenile legal, immigration, education, and healthcare systems. The organization uses civil rights impact litigation, advocacy and policy expertise and public education to hold governments accountable for keeping kids safe and healthy. For more information, please visit childrensrights.org.

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