Class Action Protects Maine Foster Youth from Dangerous Risks of Psychotropics
Rena Lu, Grants Intern - Impact Fund
Content Warning: suicidal ideation, self-harm
The following details were taken from the complaint in the class action lawsuit Bryan C. v. Lambrew.
At age five, Bryan C.* entered foster care in Maine. At age six, he had his first suicidal ideation. Bryan C. gained weight, experienced excessive fatigue, developed a tic, and expressed self-harm behaviors — all side effects of the litany of psychotropic medications he was administered while in foster care. In his own words, his “brain doesn’t work. [He] can’t feel [his] brain.”
Psychotropics, an umbrella term encompassing antidepressants, stimulants, antipsychotics, mood stabilizers, and anti-anxiety medications, are often prescribed to address mental health needs. Among Bryan C.’s prescriptions were Adderall, Zoloft, Vyvanse, and Clonidine; at times, he had been given up to four different psychotropics at once, culminating in the pronounced effects listed above.
Throughout Bryan C.’s time being prescribed medications, Maine failed to provide an appropriate informed consent process. The state also lagged in providing relevant parties with his complete and up-to-date medical records — so much so that there was a three-month period in which no caseworker had access to his medical records. To address these issues, Bryan C. eventually became one of six plaintiffs in the class action lawsuit Bryan C. v. Lambrew.
Unfortunately, Bryan C.’s story is just one of many across the United States. Children in foster care are more likely to be subject to the negative consequences of psychotropic medications. Nationwide, 33% of children in foster care receive at least one psychotropic medication. Up to 41% of those children are administered three or more medications in the same month. The full scope of psychotropics’ short-term and long-term effects on children is still unknown, although research shows they can lead to life-threatening conditions such as diabetes and even unexpected death.
Nationwide, 33% of children in foster care receive at least one psychotropic medication.
A Case Is Born
In 2018, the U.S. Department of Health and Human Services issued a report titled Treatment Planning and Medication Monitoring Were Lacking for Children in Foster Care Receiving Psychotropic Medication and identified five states, including Maine, with the highest rates of use of psychotropic medication. According to Madeleine Kinney, Senior Staff Attorney at Children’s Rights and one of the attorneys representing the class of children in Bryan C., the report formed one of the bases of the eventual lawsuit.
“We began an investigation — speaking with a number of community members in the state and experts, and reviewing data and publicly available information,” said Madeleine.
Children’s Rights filed the class action lawsuit in January 2021 alongside New England law firm Bernstein, Shur, Sawyer & Nelson and legal aid nonprofit Maine Equal Justice. The complaint identified three ongoing failures in Maine’s oversight over the administration of psychotropic drugs to children in foster care in Maine:
Poor maintenance and communication of medical records: Federal and state laws require child welfare agencies to maintain and promptly provide up-to-date medical records for each foster child from placement to placement. However, according to the complaint, instead of receiving the child’s accurate medical records, foster caregivers were often given incomplete records or no record at all.
Lack of meaningful informed consent: Best practices and guidelines reiterate the necessity of a robust informed consent process for psychotropic medications. At minimum, prescribers should provide complete information about psychotropic medication before consent is given. Maine’s Office of Child and Family Service’s (OCFS) then-current informed consent policy failed to cover all psychotropic medications; according to the complaint, for those it did cover, it was often misapplied or ignored.
Lack of a secondary review system: While several other states have established secondary review processes to ensure that children in foster care are not subject to unsafe psychotropic prescription practices, Maine had no such well-functioning system to protect the children in its foster care system. Read more about some of these common issues in a Social Justice Blog post by Children’s Rights, titled “Too Many, Too Much, and Too Young: Class Action Seeks To Protect Foster Kids From Dangerous Mistreatment With Psychotropic Drugs.”
“If the system isn’t functioning the way it’s supposed to, and the way it should on certain issues, then kids are at risk of harm or experiencing harm,” said Madeleine.
The class action sought to protect foster kids from dangerous mistreatment with psychotropic drugs.
At Last, Justice
In March of 2024, within three years of filing their initial complaint, the Plaintiffs and Defendants reached a settlement that is currently before the Court for approval.
“The goal is always to come to a place where both sides feel comfortable with the reforms that are going to be implemented,” said Madeleine about the settlement process. “One of the most important things is to really engage in careful, thorough, and reasoned negotiations with the defending state and agencies, and we are confident that we achieved that here.”
The settlement identifies three core sets of reforms to address the three main issues described above.
The first reform requires Maine to update the medical records of children in foster care in a timely manner and ensure that their key medical records move with the child to their foster placements. It also improves the timeliness of the communication of these records to relevant parties. When Bryan C. was admitted to a crisis stabilization unit for suicidal threats and aggression, the complaint alleges that there was a one-month period in which his clinicians did not have access to his psychotropic medication records. Since caseworkers will now be required to respond to requests from medical providers within seven business days, these reforms should help prevent the lag experienced by Bryan C.’s clinicians.
The second reform requires a meaningful informed consent process, including a consent form for the prescription of all psychotropic medications. The process includes the ability for youth age 14 or older to consent — or decline to consent — to a psychotropic medication after a detailed conversation with their prescriber about the medication. Seventeen-year-old Kendall P.*, another Plaintiff in the lawsuit, requested to stop taking her psychotropic prescriptions on multiple occasions but was ignored. Under this new policy, her consent would have been mandatory. Even when children are too young to provide informed consent on their own, this policy still requires that they are informed about the medication and given an opportunity to discuss it and express their concerns.
The last core reform achieved in the settlement establishes a clinical review team of medical professionals who will both prospectively and retrospectively evaluate psychotropic prescriptions. They will assess prescriptions’ necessity and appropriateness, serving as a check and balance on psychotropic prescribing practices.
These new practices contained in the agreed-upon settlement will create stronger protections for the roughly 2,500 foster youth in Maine. “The State has agreed to real reforms and committed to meaningful oversight to make sure it makes good on those promises,” said Jack Woodcock, an attorney with Bernstein Shur. “That is something to be applauded.”
Subject to the Court’s final approval of the settlement, foster youth in Maine have a better future.
What’s Next?
The proposed settlement in Bryan C. has been preliminarily approved by the Court and is now awaiting final approval. Once approved, Children’s Rights and Bernstein Shur will work with Maine’s Department of Health and Human Services and OCFS to ensure the reforms are fully implemented. Children’s Rights has also filed lawsuits on psychotropic medications in several other states, including ongoing litigation in Maryland seeking similar reforms.
Psychotropics can be a meaningful and effective treatment for children with mental health conditions when administered appropriately, but administering them without informed consent, proper oversight, or review can lead to serious, and sometimes life-threatening, consequences. The reforms achieved in the settlement in Maine are paramount for protecting foster youth. The work of Children’s Rights has ensured that children just like Bryan C. are free of unnecessary and harmful prescriptions and that their voices are heard.
Learn more: For those interested in learning more about ongoing issues in child welfare systems in the United States, Madeleine recommends checking out the books linked here. In addition, be sure to check out Children’s Rights’ blog post regarding their successful case in Missouri on this topic, litigated alongside the National Center for Youth Law. See also the important work being done on behalf of children by Impact Fund grantees such as the National Center for Youth Law, A Better Childhood, and Children’s Advocacy Institute.
* All foster children’s names in the lawsuit were changed to protect their identities. Photographs used are stock images.