AUSTIN, Texas – Foster parents pushing for the passage of Senate Bill 1407 testified alongside former foster kids Tuesday in a health and human services committee.The bill would give foster families more decision making power instead of CPS."I honestly ended up giving up when I was in foster care and I decided I wasn’t going to have friends," said Reyna Rutan who aged out of foster care.
December 14, 2006
Today, I am releasing this Texas Health Care Claims Study – Special Report on Foster Children.
Children are our most precious resource and the foster children of Texas need special attention because the state has taken either temporary or permanent guardianship of them in effect making the state and all of its citizens their parent.
This report reveals shocking evidence of the system’s failure regarding the care provided to our foster children. In addition, it raises many red flags pointing to areas of potential fraud and abuse that I am referring to the Office of Inspector General at the Health and Human Services
Commission to investigate. In a separate report, Review and Analysis of The Medicaid and Public Assistance Fraud Oversight Task Force, I am recommending the Office of Inspector General report directly to the Governor and become an independent office.
I am making 48 recommendations to the Medicaid and Public Assistance Fraud Oversight Task Force in this report.
For example, I am urging the Office of Inspector General to fully investigate potential fraud and abuse identified in this report.
The Department of Family and Protective Services should hire a physician to serve as a fulltime medical director responsible for health care for Texas’ foster children.
In April 2004, I recommended DFPS create a “medical passport” for each foster child, which would follow each child as they move from one placement to another. I again call upon DFPS to immediately implement this long-overdue recommendation that would dramatically improve health care for our forgotten children—which could be done by using a simple paper copy system until an electronic version is available.
The medical director should be responsible for ensuring that a foster child’s medical passport be received by the foster child’s caregiver within 48 hours of being placed in a foster home or facility.
HHSC should require prior authorization for prescriptions to address the dispensing of non-FDA approved psychotropic medications for children.
DFPS and the Department of State Health Services should seek lower-cost, less restrictive alternatives to psychiatric hospitalization and immediately develop rules for the psychiatric hospitalization of foster children.
The medical director and the Department of State Health Services should evaluate the case files of all medically fragile foster children and develop best practices for care.
DFPS in coordination with HHSC and the Department of State Health Services should study complementary treatments to psychotropic medications—such as therapy, diet, exercise, therapeutic activities and mentor programs. The Office of Inspector General at HHSC and the State Auditor should review the quality of the physical environments in which foster children live and make recommendations to improve standards for living conditions.
My first investigation into the Texas foster care system in 2004—Forgotten Children—documented the tragic failure of the system. Part of the report focused on psychotropic medications and care prescribed to our foster children. The findings caused me deep concern and led to my decision in November 2004, to look into this aspect of the system more closely.
Out of concern for the foster children of the state of Texas and pursuant to my statutory obligation to review Medicaid claims for fraud under the Government Code Section §403.028, I reviewed the Medicaid claims of foster children in fi scal 2004 in depth. I am disappointed to report that the findings confirmed the conclusions of the Forgotten Children report.
Given the distressing findings contained in this report, I hope that the state will not delay in adopting recommendations, which have been crafted to help mend this broken system. My hope is that the state leadership and the health and human service agencies will work to make things better for our state’s most vulnerable children. This report is available on the Texas Comptroller’s Web site at www.window.state.tx.us.
Texas is great, but we can do better. We have to—for the sake of our children.
Carole Keeton Strayhorn
Chairman, Medicaid and Public Assistance Fraud Oversight Task Force
Initiated in 2004 by Comptroller Carole Keeton Strayhorn in a report called “Forgotten Children” investigations started into the overmedication of foster children in Texas.
Reporting date: 2004-04-01
Authorities involved: Department of Family and Protective Services
Case File Report Date
What GAO Found
To implement the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act), many states GAO surveyed (which included the District of Columbia and Puerto Rico) reported requiring caseworkers to employ multiple practices to improve outcomes for children in foster care; however, states continue to face challenges that can undermine progress. Among the practices that the Department of Health and Human Services (HHS) and others suggested states use, survey respondents reported requiring caseworkers to use group decision-making to maintain family connections, consult with schools, and facilitate adult connections for older youth. At the same time, a majority of surveyed states reported facing challenges, especially related to foster placements (see fig. below).
Major Challenges Reported by States in GAO Survey Regarding Foster Placements
Note: Responses do not sum to 52 if states selected “do not know/not applicable” or did not respond.
Further, the Fostering Connections Act made additional children eligible for federal adoption assistance payments thereby potentially freeing up state funds previously used for this purpose. Although states are required to spend any resulting savings on child welfare services, only 21 states reported calculating these savings for fiscal year 2012, and 20 states reported difficulties performing the calculations. HHS has not provided states guidance in this area, and without it states may continue to struggle with the calculations, leading to potential lost program funding.
HHS approved states’ plans to implement the Fostering Connections Act; however, the agency has not yet monitored states’ actions. HHS regulations specify that states must undergo a complete review of child welfare programs every 5 years, yet HHS’s last review cycle began in 2007—using a tool developed before the act was passed. Internal control standards emphasize using timely data for effective monitoring, but data collected by HHS do not reflect the act’s provisions. In March 2014, HHS announced plans to begin a review cycle in fiscal year 2015, but details about how it would address changes from the act were unavailable. Without adequate monitoring or updated data, HHS lacks information about the implementation of the act and the effectiveness of states’ actions.
Andrea Koehler, The Forgotten Children of the Foster Care System: Making a Case for the Professional Judgment Standard, 44 Golden Gate U. L. Rev. 221 (2014).
“They are everybody’s children, and nobody’s children. They are the forgotten children in the . . . foster care system.”1
Each year, thousands of children are separated from their families and placed into foster care.2 While under the not-so-careful watch of the state, many suffer further abuse and neglect.3 In some cases, child welfare employees are so derelict in their duties that they are unaware children are being harmed. Thus, maltreatment goes undetected. Despite egregious failures to protect the children in its care, the state often suffers no repercussions.
One reason for this travesty is that the “deliberate indifference” liability standard4 applied by most courts sets a low bar for the government’s duty to protect foster children.5 For example, when a caseworker repeatedly fails to perform mandated visits, home studies, and other duties, and, as a result, is unaware that a foster child is being maltreated, the caseworker’s conduct may not be considered sufficiently “conscience shocking”6 for the court to impose liability.7
On the other hand, if courts were to adopt the “professional judgment” liability standard,8 such a pattern of omissions on the part of a caseworker would likely result in a finding of liability and allow the foster child to obtain redress. The following hypothetical9 illustrates the unjust implications of applying the deliberate indifference standard to cases of foster care maltreatment, rather than applying the more appropriate professional judgment standard.
With the dramatic increase during the past 2 decades in atypical antipsychotic medication prescriptions for youth, the majority of states have put Medicaid prior authorization policies in place for this patient population, new research suggests.
Dr Julie Zito
Investigators at the University of Maryland, in Baltimore, examined Medicaid data from all 50 US states and the District of Columbia between June 2013 and August 2014 and found that 31 states currently have some type of prior authorization policy for prescribing these medications in children and/or teens and that many of these policies were implemented within the past 5 years.
Of these 31 states, 15 use a peer-review process involving a psychiatrist or other physician specialist, whereas the remaining 16 states use automated systems or manual reviews.
Principal investigator Julie M. Zito, PhD, told Medscape Medical News that she found the most interesting information was with regard to how many states attempt to monitor through the use of peer-review processes.
The Investigative Fund
Antipsychotics are the top-selling class of drugs in the United States, with sales of $14.6 billion in 2009 alone. Their use in children and adolescents in the United States is increasingly prevalent — and children in foster care are among the most likely to be medicated.
A recent 16-state study from Rutgers University on the use of antipsychotics in children and adolescents covered by Medicaid found that foster children received antipsychotic medications at a rate almost nine times that of other children covered by Medicaid.
The high expenditure on antipsychotics and other psychotropic drugs by the government has triggered a Government Accountability Office investigation into their use in foster care.
A segment on tonight’s episode of Need to Know, produced by myself, Sarah Fitzpatrick, and Shoshana Guy, investigates the use and potential overuse of these medications on foster children, with a special look at the State of Texas.
The program follows a 12-year-old in the process of being adopted. He was diagnosed with bipolar disorder by the age of five. Just up to a few months ago, he was on five different psychotropic drugs, including antipsychotic Zyprexa. Yet now that he’s with his adoptive father, he’s been reduced to taking just one drug, for Attention Deficit Hiperactivity Disorder.
Our segment explores the question: why such a radical change?
The Need to Know segment airs tonight [aired January 2011] at 8:30 on WNET in New York; check local listings for the broadcast in your area.
The project received support from The Nation Institute’s Investigative Fund, as well as the New York Chapter of the National Academy of Television Arts and Sciences and the Stabile Center for Investigative Reporting.
You can also read the article here.