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Lawsuit Argues Maine Fails to Protect Children in Foster Care From Harm Due to Inadequate Oversight of the Use of Psychotropic Medication

Contacts: Children’s Rights: Camilla Jenkins cjenkins@childrensrights.org  917-971-1784; Bernstein Shur, Sawyer & Nelson: David Farmer dfarmer@bernsteinshur.com, 207-228-7275

(Portland, ME) – Today, advocates for children’s rights filed a federal complaint against the state of Maine on behalf of children in foster care who are being harmed and put at substantial risk of harm when administered psychotropic drugs without adequate safeguards in place. The class action was filed by national advocacy group, Children’s Rights, the New England-based law firm Bernstein, Shur, Sawyer & Nelson, P.A., and civil legal aid advocate Maine Equal Justice.

The complaint calls on the Maine Department of Health and Human Services (DHHS) and Office of Child and Family Services (OCFS) to remedy a longstanding gap between what the State believes to be important to keep children safe when using powerful psychotropic drugs, and what is actually happening.

Despite their open acknowledgment of the serious risks associated with the administration of psychotropic medications to foster children, as well as their legal duty to maintain robust safeguards to protect against these dangers, the State has not built the necessary structures and system to protect foster children. In 2018, Maine was criticized by the federal Department of Health and Human Services Office of Inspector General for maintaining a deficient system with respect to its oversight and management of psychotropic medications for foster children.

As a result of these failures, hundreds of preschoolers through teens in Maine’s foster care system remain at an unreasonable risk of serious harm with each passing day. They take heavy cocktails of psychotropic medications that can, and do, lead to serious, life-altering physical and psychological harms—without proper structures in place by DHHS and OCFS to identify and guard against these harms.

One of the plaintiff children named in the case is seven-year-old “Bryan C.”  He has been administered at least four different psychotropic medications concurrently while in state care, at high dosages for a child of his age and size.  As a result of Maine’s inadequate safeguards to monitor and manage these medications, Bryan C. has suffered a litany of harms and adverse effects.  A few weeks after beginning a new drug regime, he expressed his first of many suicidal ideations and threats.  At school, he would repeatedly bang his head against the wall.  His medications made him withdrawn, anxious, and irritable.  After starting one medication, Bryan C. gained approximately 25 pounds without any discernible benefit.  He was so tired that he often fell sound asleep on a couch in his classroom.  This fatigue, along with difficulty in focusing and a lack of mental clarity, has significantly disrupted his learning and development. In Bryan C.’s own words, his “brain doesn’t work.”

Foster children like Bryan C. are particularly vulnerable to the serious harms associated with psychotropic medications.  The U.S. Department of Health and Human Services Office of Inspector General has said that “[u]p to 80 percent of children in foster care enter State custody with significant mental health needs.”  Unlike children from intact families, children in foster care often do not have a consistent interested party to coordinate treatment planning or to provide continuous oversight of their mental health treatment.  The inappropriate use of psychotropic drugs among foster children can lead to serious side effects, including hallucinations, self-harm and suicidal thoughts, and chronic illnesses such as Type II diabetes.

The Complaint identifies the following gaps in the State’s practices:

  • Medical records: The State does not adequately maintain, update, and disseminate essential medical and mental health records for children in foster care, such that caregivers and providers are not sufficiently informed about psychotropic medications in order to sufficiently care for them.
  • Informed consent: The State does not require adherence to a sufficient informed consent policy that would require prescribers and adults, with genuine input from youth, to consider fully the benefits and risks of psychotropic medications before and after authorizing prescriptions, nor does it allow a meaningful opportunity for individuals to object.
  • Secondary review: The State does not adequately assure secondary review of psychotropic medication to safeguard children from outlier and other dangerous prescription practices.

“For too long, Maine’s most vulnerable children have been subjected to powerful drugs with little state accountability or oversight,” said Marissa C. Nardi, Senior Staff Attorney at Children’s Rights. “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.”

“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,” said Jack Woodcock, shareholder, Bernstein, Shur, Sawyer & Nelson. “We are proud to join with our partners at Children’s Rights and Maine Equal Justice in bringing this complaint, and help make life better for innocent children who would otherwise have no voice.”

“The use of medications without the proper oversight is exposing children in foster care to serious harm,” said Frank D’Alessandro, Litigation and Policy Director, Maine Equal Justice. “Children in foster care are some of the most vulnerable members of our society. They often need therapeutic counseling and mental health support in order to heal from the abuse and neglect they routinely experience. This may include the use of medications, but not without the proper protocols and oversights in place. The only resource available to these children is the State of Maine. That is why this case is so important.”

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ABOUT CHILDREN’S RIGHTS

Every day, children are harmed in America’s broken child welfare, juvenile justice, education, and healthcare systems. Through relentless strategic advocacy and legal action, we hold governments accountable for keeping kids safe and healthy. Children’s Rights, a national non-profit organization, has made a lasting impact for hundreds of thousands of vulnerable children. For more information, please visit www.childrensrights.org. 

ABOUT BERNSTEIN, SHUR, SAWYER & NELSON, P.A.

Founded in 1915, Bernstein Shur is a New England-based law firm advising clients across the U.S. and around the world. The firm’s 125+ award-winning attorneys and professionals provide practical and innovative counsel, and practice in more than 20 key areas across a variety of industries. Bernstein Shur is known for simplifying complex issues and winning through steadfast persistence. The firm is Maine’s exclusive member of Lex Mundi, the world’s leading network of independent law firms. Find out more at www.bernsteinshur.com.

ABOUT MAINE EQUAL JUSTICE

Maine Equal Justice is a nonprofit civil legal aid and economic justice organization working to increase economic security, opportunity, and equity for people in Maine.