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 witness testimony. The state rested after less than an hour of direct examination Wednesday.
Plaintiffs sued the state 12 years ago arguing Texas鈥� 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鈥檚 foster care system is properly overseeing children鈥檚 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鈥檚 foster care system. their caseloads for children without placement in licensed foster homes 鈥� also known as CWOP 鈥� 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鈥檚 use of psychotropic meds 鈥� medicine used to treat psychiatric disorders 鈥� was the topic of Wednesday鈥檚 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 are necessary 鈥� 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 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 鈥渞aises tons of concern,鈥� especially when plaintiffs鈥� lawyers said those prescriptions weren't reviewed.
鈥淲e know how to do this, and it鈥檚 not being done,鈥� Bellonci said.
Ryan Van Ramshorst, who oversees Medicaid and CHIP Services for the Health and Human Services Commission, was the state鈥檚 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鈥檚 care on four or more psychotropic medications has dropped from 6% in 2004 to 2.9% in 2021 鈥� 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鈥檚 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鈥檚 prescription themselves, according to Superior policy. Reviews can also be triggered by health screening, automated claims data or a court request.
But plaintiffs鈥� attorney Paul Yetter questioned why it seemed so few foster care providers made those requests 鈥� data showed providers did not make any PMUR requests for children in the first six months of fiscal year 2022.
鈥淪ir, I think this is an opportunity for additional training and improvement,鈥� Van Ramshorst responded.
Through their own request, plaintiffs鈥� attorneys also received state data that showed 203 children who were taking four or more psychotropic drugs hadn鈥檛 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 鈥� but Yetter pointed out nothing had yet been done.
He pressed Van Ramshorst on whether the state鈥檚 parameters on psychotropic drugs were in place to keep children safe.
鈥淭he parameters are in place to support safe and effective prescription of psychotropic medications to foster children,鈥� Van Ramshorst said.
Yetter and Jack weren鈥檛 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.
鈥淚鈥檓 committed to ensure the health and safety of children enrolled in Medicaid,鈥� 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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