Federal judge weighs contempt over Texas foster care system, but won't order federal takeover
A federal judge will weigh contempt fines over accusations that the state of Texas has failed to improve its foster care system after court mandates, but she won't yet order a partial federal takeover of the state's child welfare agency.
Lawyers for the state and current and former foster kids rested their cases in Dallas federal court Wednesday afternoon after three days of a witness testimony. The state rested after less than an hour Wednesday.
Plaintiffs sued the state 12 years ago arguing Texas’ child welfare system doesn't properly investigate outcries of abuse by disabled children, that it gives caseworkers too-high caseloads and that it doesn't properly manage the amount and types of psychotropic medications foster children take, among other allegations.
"We got no evidence of good faith ... we got no evidence of a desire to improve," said lead plaintiff attorney Paul Yetter in closing arguments.
Defense attorneys with Gibson Dunn, led by Allyson Ho and Prerak Shah, argue the state’s foster care system is properly overseeing children’s mental health drug prescriptions, and that Texas has complied with Judge Janis Jack's orders to improve its investigations.
Jack has heard testimony since Monday to determine whether Texas should be fined for contempt or be subject to a receivership, which would allow partial federal takeover of the state’s foster care system. Caseworkers have testified their caseloads for children without placement in licensed foster homes — also known as CWOP — continue to stack up and weigh on their performance, mental health and the wellbeing of the children they watch. They said that's worsened by poor conditions in group homes.
Alleged poor oversight of foster children’s use of psychotropic meds — medicine used to treat psychiatric disorders — was the topic of Wednesday’s testimony from medical experts. Psychiatrist Christopher Bellonci testified there's already uncertainty in medical research about how safe it is for children to take two or more psychotropic medications at a time.
Bellonci said that's why the Department of Family and Protective Services' parameters for psychotropic medication use are necessary — state agencies must continually monitor a child's response to medication. Red flags include a child taking too much medicine, or taking certain medicine too young, he said.
But a March 2023 report by Judge Janis Jack's federal court monitors showed out of 161 case files, about 47% of those children were prescribed four or more psychotropic medications. Only 28% of those children actually had their prescriptions reviewed as part of DFPS parameters.
"I frankly didn't understand why that was happening," Bellonci said.
Former foster child Jackie Juarez testified earlier in the week she was prescribed several psychotropics and Benadryl, which she said made her so sleepy she couldn't stay awake in school.
Medical records show "Child C," who had intellectual disabilities, was taking about 12 pills, some multiple times a day, and her records were signed by the group home staff member who was accused of raping her.
Bellonci said he sees evidence Juarez and other kids may be overmedicated, sometimes with the wrong medicine entirely, which “raises tons of concern,” especially when plaintiffs’ lawyers said those prescriptions weren't reviewed.
“We know how to do this, and it’s not being done,” Bellonci said.
Ryan Van Ramshorst, who oversees Medicaid and CHIP Services for the Health and Human Services Commission, was the state’s only witness. He testified the psychotropic medication review process is operating as it should in conjunction with Superior HealthPlan and Star Health, the managed care program for Texas foster children.
He also said the amount of foster children in the state’s care on four or more psychotropic medications has dropped from 6% in 2004 to 2.9% in 2021 — about 1,300 of the 45,870 kids in foster care that year, according to data on the DFPS website.
There were 38,294 foster children in the state’s care last year. About 47,000 are under Star Health as of April. That number includes some former foster care children and teens between 18 and 21.
People who work closely with foster children such as residential providers can request reviews of a child’s prescription themselves, according to Superior policy. Reviews can also be triggered by health screening, automated claims data or a court request.
But plaintiffs’ attorney Paul Yetter questioned why it seemed so few foster care providers made those requests — data showed providers did not make any PMUR requests for children in the first six months of fiscal year 2022.
“Sir, I think this is an opportunity for additional training and improvement,” Van Ramshorst responded.
Through their own request, plaintiffs’ attorneys also received state data that showed 203 children who were taking four or more psychotropic drugs hadn’t been reviewed as of the summer of 2023. A subsequent review of 56 of those children showed 29 of them might benefit from taking less psychotropic medications — but Yetter pointed out nothing had yet been done.
He pressed Van Ramshorst on whether the state’s parameters on psychotropic drugs were in place to keep children safe.
“The parameters are in place to support safe and effective prescription of psychotropic medications to foster children,” Van Ramshorst said.
Yetter and Jack weren’t satisfied with the answer. Jack at times seemed irritated with Van Ramshorst responses, asking if he felt any responsibility to the children of Texas as a state employee.
“I’m committed to ensure the health and safety of children enrolled in Medicaid,” he responded.
Jack didn't give any indication of a timeline for her ruling but said it would be narrow. She also won't order receivership but will carry the plaintiffs' motion to order it forward.
Jack told the court she was sorry the lawsuit had gotten to this point and hoped for better from the state.
"It doesn't hurt to go over and above, not just the minimum standard," she said.
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