Federal judge says Texas’ use of psychotropic drugs puts foster kids at serious risk

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U.S. District Judge Janis Graham Jack implored the state’s child welfare agency at a Wednesday court hearing to be quicker to take disciplinary action against residential facilities.

Her court watchdogs made site inspections at 14 residential facilities between December 2021 and December 2022. The inspections revealed a pattern in which staff mismanaged how medications are administered and several instances in which sexual abuse victims were placed in bedrooms with youth that have a history of sexual aggression.

The agency is opening investigations into several of the 14 facilities following the monitors’ report, but neither the Department of Family and Protective Services commissioner nor her staff could cite any disciplinary action that had been taken thus far.

“What I’m not understanding is why you all keep paying these places to do this to these children,” said Jack, cutting DFPS leadership off. “Are you so desperate for placements that you don’t take any action?”

Jack ruled in 2015 that Texas had violated the constitutional rights of foster children by putting them at an unreasonable risk of harm, saying that children “often age out of care more damaged than when they entered.”

In more than a dozen orders, Jack has pressed the state to move faster on investigations of abuse and neglect in foster homes, and to increase oversight of residential facilities that house children. Since issuing the remedial orders, the federal judge has twice held state officials in contempt of court — in November 2019 and September 2020. In 2019, she also fined the state $50,000 a day for three days. In recent court hearings, Jack has consistently threatened to levy fines.

According to court-appointed monitors’ reports, children were given prescriptions that violated the state’s guidelines for using psychotropic drugs for foster children. In several instances, medication was prescribed that is not recommended for children. And when children were prescribed four or more psychotropic drugs at the same time, a mandatory review of the children’s clinical status had not been completed in 28% of cases.

Psychotropic drugs are used to treat mental health disorders and include antidepressants, stimulants and mood stabilizers. This kind of medical intervention can be helpful for some kids, under proper supervision.

Paul Yetter, the lawyer representing children, requested that the state complete a review of the clinical status for all kids it has permanent custody of.

The court watchdogs also identified errors in medication logs, including failure to timely refill medications, missed doses, miscounted medications and failure to follow psychiatric orders. Kids were prescribed antipsychotic medications without monitoring of their glucose and lipid levels every six months, going against state guidelines.

And in several instances, staff members at residential treatment centers had been named as medical consenters, another violation of DFPS policies.

As part of the site inspections, the court monitors reviewed 161 files, representing less than 2% of the children. There are 9,072 children taking psychotropic medications for more than 60 days a year in Texas, according to the state records. Yetter said the findings of medical mismanagement “may very well be the tip of the iceberg.”

“Does this not set off alarm bells for you that we’re 10 years into this, 12 years into this process, and you all cannot monitor the psychotropic drugs?” Jack asked DFPS Commissioner Stephanie Muth, who took the post in January. “You don’t have the proper people consenting for the use of the drugs. The records are in shambles. The safeguards are not being enforced, your own safeguards.”

The state’s lawyers argued Wednesday that prescriptions of psychotropic drugs fall outside the scope of the court. The debate about what Jack can require has been kicked up to higher courts before, ending with the 5th U.S. Circuit Court of Appeals affirming an injunction in 2019.

Jack said the injunction barred unsafe placements, which can include the mismanagement of psychotropic drugs. But the state lawyers said the injunction covers only her remedial orders.

“I want the record to be clear that there is no remedial order that specifically addresses the use of psychotropic medications,” said Reynolds Brissenden, a lawyer representing the Health and Human Service Commission, the regulatory body for residential foster care facilities.

The court monitors also raised concerns about the intake of and investigations into reports of abuse, neglect and exploitation. The monitors reported a discrepancy in the information staff, witnesses and victims shared with DFPS investigators, and the summaries of the interviews in state records.

The monitors made 10 reports of abuse or neglect to the agency after their site inspections. In one instance at Silver Linings, a Houston residential treatment center, the investigator did not record the documentation the monitors provided. While DFPS did not reopen its investigation, HHSC issued five additional citations for standards violations after monitors shared new evidence

At Guiding Light, a residential treatment center in Bexar County, a 16-year-old child reported to the monitors that staff used physical restraint, leaving a bruise. During the investigation, none of the other children at the facility were interviewed.

“These things are just so inexcusable. It’s hard to understand,” Jack said. “I can’t say and neither can the monitors that you will find that there was abuse in these cases. The problem is they’re not adequately investigated.”

At the Wednesday hearing, Muth addressed an abrupt retirement letter, first reported by The Texas Tribune. In the letter, a director of special investigations raised concerns her division would be dissolved and said the agency had demonstrated a lack of respect for her team. The commissioner said she was not aware of the issues raised in the letter before the article came out, but that she has since initiated conversations with special investigators about their concerns.

Before the hearing came to close, the plaintiffs announced plans to file a motion for contempt ahead of the next hearing in June. The motion would be over the state’s use of psychotropic medications, as well as children not knowing how to report instances of neglect and children continuing to be placed in unlicensed facilities.

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