AUSTIN — A federal judge on Monday lambasted Texas officials for challenging her authority to review how powerful mental health drugs are being given to foster children.
The monitors allege Texas is “overmedicating” children in foster care while state lawyers say the reviews into such prescriptions given are overreach.
U.S. District Judge Janis Graham Jack said she suspects “outside pressure” caused lawyers for two state agencies last month to suddenly object to her monitors’ findings that foster care providers are misusing psychotropic drugs and to ask the monitors for more information about their bills to the state.
Jack did not elaborate about where that pressure was from during the hastily arranged status hearing to discuss her authority to explore use of psychotropics and the monitors’ March invoices.
“Together, those full-time and part-time staff of around 55 of the monitors have done much better investigations than you all have,” she told Department of Family and Protective Services Commissioner Stephanie Muth.
In three cases of mishandled psychotropic drugs, the monitors initiated abuse and neglect investigations by the department that resulted in findings that there was “reason to believe” medical neglect occurred, Jack noted.
Previously, the monitors unearthed items not reported to them, as the state is supposed to, including the fatal gunshot wounds of two foster boys who were on runaway status, thousands of calls abandoned because of long wait times at the state child-abuse hotline, placement of sexually aggressive children in group homes beside sexual-abuse victims, and nighttime adult staff at group homes playing video games and falsifying their bed-check logs, Jack said.
Texas resisted the class-action lawsuit more vigorously than any of the dozens of other states and counties sued by the New York-based nonprofit groups Children’s Rights and A Better Childhood for running foster care systems that are unconstitutional because they subject children to undue risk of harm.
Nearly 2½ years ago, Gov. Greg Abbott ordered two agencies that are his co-defendants in the case to “fully comply” with Jack’s orders.
A tension-filled hearing last month in Corpus Christi signaled to many providers and others who have closely followed the case that Texas may be preparing to ask the 5th U.S. Circuit Court of Appeals to rein in Jack, an appointee of former President Bill Clinton.
Several key child-welfare policy writers in the GOP-controlled Legislature have complained that Jack is micromanaging the long-term foster care system, and some have pointedly criticized her monitors as too costly and intrusive.
“I don’t understand what has changed in your attitude,” Jack said, speaking to lawyers in the office of Attorney General Ken Paxton who are representing the state.
Texas officials have gone from a stance of “alleged cooperation” to “defiant” objections, she said.
Assistant Attorney General Reynolds Brissenden, who represents the Texas Health and Human Services Commission, said the monitors’ combined request for payment of $1.7 million for their work in March was more than usual, raising concerns.
At an April 12 hearing, Brissenden and another lawyer in Paxton’s office who represents the Department of Family and Protective Services lodged objections that monitors were inappropriately reviewing the psychotropic drugs being given to a sample of the 9,000 children in long-term foster care.
None of the judge’s dozens of remedial orders specifically mentions mental health drugs, said Brissenden and Karl Neudorfer, the department’s lawyer.
“HHSC and DFPS were requesting clarification and additional information [about the billings] so they could evaluate the requests per your court order,” Brissenden explained during Monday’s Zoom call.
Testy hearing
That brought a stern rebuke from Jack, who has presided over the suit asserting Texas runs an unsafe long-term foster care system since the suit was filed in March 2011.
“The rate schedule was approved … in early 2019,” she said of state payments to monitors Deborah Fowler of Austin and Kevin Ryan of New Jersey. The two are experts on state-run systems for housing troubled youth. In nearly 3½ years of court monitoring, they and their staff members have rung up nearly $46 million in billings, according to the department.
“Mr. Ryan’s invoice for this month is 79 pages. Ms. Fowler’s is 52 pages. It’s extremely detailed and exactly as we’ve all agreed to in the past,” Jack said.
Fowler testified that the March billing was unusually high because, after the COVID-19 pandemic curtailed the monitors’ movements for two years, her organization Texas Appleseed in recent months resumed on-site visits to foster care providers.
Also, the monitors are preparing a special report for Jack to use at a June 27 hearing, Fowler and the judge said.
At that summer hearing, Jack again may issue rulings that find the state in contempt of court for disobeying her orders and levy thousands of dollars of fines a day until compliance is achieved.
In late 2019, Jack hit Texas with fines of $50,000 a day, mostly for not ensuring there were nighttime watches of kids in all group settings. She suspended them after three days. On two occasions since then, she has threatened but not actually levied fines.
State objections
Brissenden objected, saying the state wasn’t notified in advance of the subjects to be discussed at Monday’s hearing. Also, many of the monitors’ allegations of poorly stored, administered and reviewed mental health drugs were “minimum standards” violations, he said.
Neudorfer said requests by plaintiffs’ lawyers for utilization reviews of 161 children’s mental health drugs was overreach.
A checklist for making sure kids are receiving appropriate mental health drugs, which monitors dinged the state for not following, is designed to assist the state’s foster care health insurer, he said. It “is not intended to be a substitute for clinical judgment” by a doctor, he said.
Plaintiffs’ lawyer Paul Yetter of Houston noted that almost half of those children whose medication was reviewed are on four or more psychotropic drugs. Child-safety considerations require close scrutiny of how providers administer the potent medications, he said.
“The state has repeatedly tried to twist this into an issue about physician prescriptions,” Yetter said. “The issue is about how the providers are not following the … parameters. They’re forgetting them. They’re overmedicating. It’s a mess.”
Jack said two of her remedial orders, covering shoddy providers and robust investigations of foster children’s outcries, give the monitors authority to check on the medications.
“To give Mr. Brissenden and Mr. Neudorfer a break, they may be getting outside pressure. How about that?” she said. Jack immediately moved on, without elaborating.
The judge joined Yetter in denouncing state resistance.
“At some point when the state gets tired of paying monitors’ fees and [for] all these compliance people and all their own independent contractors that they’ve hired and really focus on compliance with those remedial orders, we can stop these hearings,” Jack said.
“Hopefully soon, the obfuscation by the state will stop and they will become more conciliatory and cooperative — for the sake of the children in their care.”
