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M.B. v. Corsi

United States District Court, W.D. Missouri, Central Division

January 8, 2018

M.B. by his next friend Ericka Eggemeyer; E.S. by her next friend A.S.; Z.S. by her next friend S.H.; K.C. by her next friend Kris Dadant; A.H. by her next friend Kealey Williams, for themselves and those similarly situated, Plaintiffs,
v.
Steve Corsi in his official capacity as Acting Director of the Missouri Department of Social Services; Tim Decker, in his official capacity as Director of the Children's Division of the Missouri Department of Social Services, Defendants.

          ORDER

          NANETTE K. LAUGHREY, United States District Judge

         Plaintiffs, children in foster care, claim that Defendants, the Acting Director of the Missouri Department of Social Services and the Director of the Children's Division of the Missouri Department of Social Services (“CD”), have failed to implement a system of safeguards and oversight with respect to the administration of psychotropic drugs to Plaintiffs. These drugs leave the children vulnerable to various serious adverse effects, including hallucinations, self-harm and suicidal thoughts, and such life-shortening illnesses as type 2 diabetes, and therefore should be administered only when necessary. However, according to Plaintiffs, psychotropic drugs often are administered not with the best interests of a child in mind, but instead, unnecessarily and inappropriately, sometimes simply to make the children less troublesome. CD itself has acknowledged that “[t]he use of multiple medications (psychotropic or otherwise) creates the potential for serious drug interactions.” It also is aware that the lack of a reasonable system of oversight and monitoring of the administration of psychotropic medications to children in its custody poses a substantial and ongoing risk of harm to the children. Yet, according to the Plaintiffs, Defendants have failed to address this substantial and ongoing risk of harm to children in foster care.

         Plaintiffs allege that the state fails in three specific regards to ensure that psychotropic medications are appropriately and safely administered and adequately monitored. First, Defendants fail to maintain, and to furnish to caregivers and prescribing physicians, up-to-date medical records detailing each child's physical and mental health history, including current and prior medications and observed adverse effects-information necessary to ensure that the prescribing physicians and caretakers are fully informed and that treatment is well-coordinated. Second, Defendants fail to ensure informed consent to the administration of psychotropic medication to each child in foster care, both at the outset and as treatment continues. Finally, Defendants fail to ensure that high-risk prescriptions of psychotropic medications, such as multiple drugs from the same class, too high a dosage, or drugs given to very young children, are promptly identified and presented to an independent, qualified child psychiatrist for secondary review. As a result of the administration of psychotropic medication without adequate safeguards or oversight, Plaintiffs have suffered or are at grave risk of suffering “substantial and often irreversible harm to their physical, emotional, and/or mental health.” Plaintiffs bring this action on behalf of themselves and of a putative class of children who are or will be placed in the custody of the state of Missouri due to abuse or neglect by their parents, guardians, or other legal custodians. Plaintiffs bring claims for (i) violation of their substantive due process rights under the Fourteenth Amendment to the U.S. Constitution; (ii) violation of their procedural due process rights, specifically, deprivation, without due process, of the right to be free from the unnecessary and inappropriate administration of psychotropic medication; and (iii) violation of rights under the Federal Adoption Assistance and Child Welfare Act. Plaintiffs seek only declaratory and injunctive relief.

         Defendants move to dismiss this action for failure to state a claim. For the reasons discussed below, the motion is granted in part and denied in part.

         I. THE ALLEGED FACTS[1]

         When the state removes children into foster care, it assumes an affirmative duty to act in loco parentis to keep those children safe. Yet, according to the plaintiffs, children in Missouri's foster care custody are exposed to a grave risk of severe physical and psychological harm because the state fails to oversee the administration of psychotropic drugs to them.

         a. Psychotropic Drugs and Children

         Psychotropic drugs are powerful medications that directly affect the central nervous system. They are particularly potent when administered to children. Children administered psychotropic medications are at particularly serious risk of long-lasting adverse effects. They are more vulnerable to psychosis, seizures, irreversible movement disorders, suicidal thoughts, aggression, weight gain, organ damage, and other life-threatening conditions.

         Children given two subclasses of psychotropic drugs, antipsychotics and antidepressants, are particularly vulnerable. For example, children administered antipsychotic drugs are three times as likely as other children to develop type 2 diabetes.

         The full risk posed to children by psychotropic drugs is not yet even fully understood. As the Administration of Children and Families (“ACF”), the office within the U.S. Department of Health and Human Services charged with administering the federal Title IV-E foster care program, has noted, “research on the safe and appropriate pediatric use of psychotropic medications lags behind prescribing trends . . . . In the absence of such research, it is not possible to know all of the short- and long-term effects, both positive and negative, of psychotropic medications on young minds and bodies.” Doc. 22, ¶ 80.

         Risks to children are compounded when children are subject to “outlier” prescribing practices-receiving too many psychotropic drugs or too high a dosage, or receiving drugs at too young an age (commonly described as “too many, and too much, too young”). The number of adverse effects increases with the number of medications being used. On average, those taking two psychotropic drugs report 17% more adverse effects, and those taking three or more, 38% more adverse effects, than those taking one. Suicidality and the urge to harm oneself increase with increasing numbers of medication. Increased appetite, sleepiness/fatigue, and tics and tremors are 200 to 300% more prevalent among children taking three or more medications than among those taking one drug alone.

         The ACF has noted that outlier practices “may signal that factors other than clinical need are impacting the prescription of psychotropic medications.” Id., ¶ 86. Indeed, for many, if not most, of the affected children, psychotropic drugs are administered to treat a diagnosis that the drugs were never designed to address.

         The longer a child is on a given psychotropic medication, the greater the number of adverse effects. Some psychotropic medications, including some antipsychotics and SSRI antidepressants, even come with “black box” warning labels, indicating “their use requires particular attention and caution regarding potentially dangerous or life threatening side effects.” Id., ¶ 83. Thus, due to the serious risks associated with psychotropic drugs, they should be administered to children only when necessary, and safely, and accordingly it is critical that children being administered these drugs are closely monitored.

         b. Unique Risks for Children in Foster Care

         More than a decade ago, a study including data from Missouri and 16 other states found that the rate of use of antipsychotics (one of the most powerful classes of psychotropic drugs) was 12.37% for children in foster care, compared with 1.4% for children receiving Medicaid who were not in foster care. The study further found that one in five children was prescribed two different antipsychotics, and at least one in ten children was prescribed four or more psychotropic medications. The Missouri Initiative for Children in Foster Care, looking at data from 2011, showed that 28% of children in state foster care were on psychotropic medication. 20% of those children were subject to an outlier prescription (too much, and too many, too young), including 6.65% who were prescribed five or more psychotropic medications at once and 3.03% who were prescribed two or more antipsychotics at once. A January 2015 Missourian article reported MOHealthNet data from 2012 showing that more than 30% of Missouri's foster children were prescribed at least one psychotropic medication. It was further reported based on this data that children as young as two years old (like plaintiff Z.S.) had been prescribed an antipsychotic drug. In addition, at least 20% of Missouri's foster youth were taking an average of two or more psychotropic medications, with some foster children prescribed as many as seven psychotropic medications at one time.

         Children in foster care are at increased risk of being improperly or unnecessarily administered psychotropic drugs. Often, those who care for foster children do not have detailed knowledge of their trauma background, mental health needs, or medical history. Unlike biological parents, the foster caregivers must rely on a child's health records to know her history and needs. At the same time, frequent changes in placement often are accompanied by changes in a foster child's health care provider and cause disruptions in the child's health care. Thus, the sharing of accurate and complete medical information with both the child's foster parent and physician is critical to the child's health and safety. Yet, all too often, it does not occur. Moreover, the state has no system in place to avoid subjecting children to “outlier”-too much, and too many, too young-prescriptions.

         c. The Plaintiffs

         M.B. Plaintiff M.B., a fourteen-year old boy, has been administered up to seven psychotropic drugs at once, including lithium and two atypical antipsychotics. Over the course of two-and-a-half years in CD custody, as he has been moved through eight different placements, his regimen of psychotropic medications has fluctuated, with medications being rapidly added or removed, and dosages changing. At times, M.B. was placed on a medication for a month, only to have it removed the next month, and drugs that had already been tried and discontinued were tried again. Yet, neither he nor any of his caregivers has been provided updated medical and mental health records, and Missouri has not maintained “a consistent informed consent process to ensure individual attention to his treatment” or “institute[d] an effective mechanism for reviewing dangerous prescription practices, ” placing him at further risk of harm. Id., ¶ 11. M.B. has exhibited several conditions known to be among the serious adverse effects of the psychotropic medications he has been administered, including hypothyroidism, hearing voices, and suicidal thoughts.

         E.S. and Z.S.

         Plaintiffs E.S. and Z.S., siblings aged three years and two years, respectively, already are being administered psychotropic medications, including “atypical antipsychotics.” They have been placed in multiple foster homes. One of their prescribed medications, Risperdal, has not been approved for children under the age of five years. Adverse reactions to that medication can include somnolence, increased appetite, fatigue, insomnia, sedation, Parkinsonism, feelings of muscular quivering and inability to remain seated, vomiting, cough, constipation, nasopharyngitis, drooling, runny nose, dry mouth, abdominal pain, dizziness, nausea, anxiety, headache, nasal congestion, inflammation of the mucus membrane, tremor, and rash.

         K.C. Plaintiff K.C., a twelve-year-old girl, has been placed on as many as five psychotropic medications at one time. Although she has been placed in several foster care situations, neither she nor any of her caregivers has been provided with comprehensive, up-to-date, and accurate medical and mental health records. Indeed, earlier this year, K.C.'s caregivers had three different understandings of what daily dose of a particular psychotropic medication she was to receive, and they had no medical records to resolve the confusion. The confusion may not even have come to light had a volunteer advocate not raised questions about it. Her physicians have not had access to complete medical records or history when prescribing her medications. CD also failed to ensure that proper informed consent was given when K.C. was placed on multiple psychotropic medications, despite the fact that the drugs require ongoing monitoring to permit adverse effects to be addressed promptly. At one residential facility, K.C. was reported on multiple occasions to be “visibly involuntarily shaking.” Id., ¶ 37. At that time, K.C. was taking the antipsychotic Abilify, the label for which warns, “Stop using . . . and call your doctor at once if you have . . . uncontrolled muscle movements.” Id., ¶ 38. Neither CD nor the staff at the private residential treatment center housing K.C. addressed the issue. In fact, the treatment center staff denied that K.C. had been shaking at all. Eventually, after the visitor who had noted the shaking repeatedly raised an alarm, K.C.'s Abilify dosage was cut in half. K.C. also has been prescribed Strattera, purportedly for Attention-Deficit Hyperactivity Disorder (“ADHD”), although at least one formal assessment and observation of K.C. indicated that she does not have ADHD. Strattera's label warns that “[c]ommon side effects in children and teenagers include upset stomach, a decreased appetite, nausea, or vomiting, dizziness, tiredness, and mood swings, ” and “Strattera increases the risk of suicidal thoughts or actions.” Id., ¶ 41. In response to K.C.'s high number and doses of psychotropic medications, concerned persons outside CD who have observed K.C. have for months sought an independent second opinion as to whether her psychotropic medication regimen is appropriate, but to no avail.

         In October 2016, K.C. suddenly began acting angry, aggressive, and violent, and repeatedly became involved in altercations. Staff at her facility placed her in physical holds numerous times-including once for an hour and forty-five minutes-to keep her from fighting. Around the time that her behavior changed in this fashion, K.C. had been newly administered the strong psychotropic drug Seroquel. Seroquel's label advises: “Call a healthcare professional right away if you or your family member has any of the following symptoms, especially if they are new, worse, or worry you: . . . acting aggressive, being angry, or violent. . . .” Id., ¶ 45. Seroquel is not FDA-approved for use by children. The drug's labeling notes that Seroquel nonetheless is prescribed to some children at least thirteen years old-but K.C. had reached twelve years of age only shortly before the introduction of Seroquel.

         CD and its private contractor failed to note the correlation between her behavior and the medication change. Once again, a volunteer visiting resource raised the issue. CD and the private contractor took no action. Eventually, the volunteer contacted the prescribing doctor, asking whether Seroquel should have been prescribed given that the child had not been diagnosed with bipolar disorder, and in light of her changed behavior. That night, the doctor made note of a bipolar disorder diagnosis in K.C.'s records.

         Eventually, K.C. ceased taking Seroquel, and her aggressive behavior ceased.

         K.C. is “sad or angry much of the time.” Id., ¶ 48. She has experienced rapid weight gain since being placed on psychotropic medications, including a gain of more than fifteen pounds over a three-month period. She also has experienced hallucinations since she commenced taking psychotropic drugs. Hallucinations are among the known adverse effects of two new medications being given to K.C.

         A.H. A.H., a twelve-year-old girl, has spent approximately six years in CD's custody. As a result of being placed in numerous different living situations, “knowledge of her medical and mental health history, in the absence of reliable recordkeeping practices, has become fragmented and dispersed between her assigned caseworker, foster caretakers, and health providers.” Id., ¶ 53. In or about November 2016, A.H. tried to physically harm herself and was hospitalized. At the psychiatric hospital, she was prescribed two pills of Latuda and two pills of Remeron each day. CD did not involve A.H.'s legal parents in the decision to administer these psychotropic medications to her. After she was discharged, A.H. moved into the home of a non-kinship foster parent for a few months, and then was moved to the home of a kinship resource. The non-kinship foster parent transferred A.H. to the kinship resource home, and provided A.H.'s medications wrapped only in tissue paper. The foster parent advised the kinship resource that A.H. was to take just one pill of Latuda and one pill of Remeron each day. The kinship resource parent received no medical records, no pill bottles, and no written instructions for administering the medication. Consequently, A.H. was given incorrect dosages of the psychotropic medications and experienced a severe reaction that resulted in her being hospitalized for six-days.

         II. DISCUSSION

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted). A claim is “plausible on its face” when the allegations allow the court to draw the reasonable inference that the defendants are liable for the misconduct alleged. Id. (citation omitted). There must be more than “a sheer possibility” that the defendants acted unlawfully. Id. (citation omitted).

         a. The Younger Abstention Doctrine

         Defendants argue that all of Plaintiff's claims are barred by the Younger abstention doctrine, which requires a federal court to abstain, on principles of comity and federalism, from exercising jurisdiction over certain actions seeking injunctive or declaratory relief. See Younger v. Harris, 401 U.S. 37, 41 & n.2 (1971).

         The general rule is that a federal court should not abstain merely because there is a state court action which concerns the same matter pending in the federal court. Sprint Commc'ns, Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013). The Supreme Court has ‚Äúcautioned . . . that federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant, and ...


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