Workgroup on Gabriel Myers: Findings Draft 8/8/09
Issue: The case of Gabriel Myers
On April 16, 2009, seven year old Gabriel Myers was found hanging in the residence of his foster parents. Gabriel had been adjudicated dependent on June 29, 2008, following the arrest of his mother. During the subsequent ten months, he had been placed first in the home of a family member and, later, two other foster homes. While in care, he received numerous mental health and behavioral assessments and underwent regular treatment from both a psychiatrist and two psychotherapists, one of whom documented that “it is clear that this child is overwhelmed with change and possible re-experiencing trauma.” Gabriel demonstrated a number of incidents of destructive behavior and conduct problems and was treated through the administration of several psychotherapeutic medications.
In February and March, 2009, Gabriel experienced a number of significant events in life, including changes in foster homes, psychotherapists, after-school programs, and visitation arrangements with his mother, all of which may have contributed to his mental status at the time of his death.
• It is clear that, throughout his placement in foster care, Gabriel Myers was no one’s child; no single individual became a champion to ensure that his needs were met in a timely fashion.
• Responsibility for the treatment and care of Gabriel Myers was not clearly fixed or effectively carried out. No one person stepped forward to act as his parent.
• There was no sense of urgency driving the agencies and individuals responsible for the welfare of Gabriel Myers.
• The case itself was replete with missed opportunities to more effectively serve the needs of this child; numerous “red flags” signaling problems in Gabriel Myers’ life were evident but were not adequately or in a timely fashion addressed.
• There was a lack of on-going and regular communication between the agencies and individuals responsible for the welfare of Gabriel Myers, and reports on his behavior were not fully and regularly shared among those charged with ensuring his welfare. Recommendations for Gabriel’s case were not adequately staffed among members of his treatment team.
• Responsible parties failed to follow established law and operating procedures governing the administration of psychotherapeutic drugs and the obtaining of either informed parental consent or judicial authorization, including the notification of all involved parties.
• There was inadequate supervision of the assigned Childnet case manager.
• There was inadequate oversight of the involved agencies by Department of Children and Families personnel.
• There was inadequate, incomplete, repetitive, and at times inaccurate documentation in the case files relating to Gabriel Myers.
• There was no documented effort to gather all available information on Gabriel’s complete background.
• Appropriate agencies failed to act when the foster parent clearly indicated by e-mail a number of behavioral issues and that the placement of Gabriel Myers was in jeopardy. No action was taken to deal with the clearly expressed stress of the foster parent.
• From the information provided to the Work Group, it appears that school staff was not aware or sufficiently involved in resolving problems/concerns with Gabriel Myers.
• Broward County personnel failed to follow up with Ohio authorities concerning the medical and welfare history of Gabriel Myers, and his claims of sexual abuse were not investigated in a timely manner.
• Recommendations contained in the Comprehensive Behavioral Health Assessment and in reports by other therapists, including the Family Services Planning Team, were not completely followed.
• Gabriel Myers was not provided specific and upfront therapy to deal with identified trauma, possible post-traumatic stress disorder, and depression; intensive therapy was only directed at the prevention of sexual behaviors.
• Unnecessary delay from the time of referral (October 28) to the time of treatment (December 11) occurred.
• No recommended training to deal with Gabriel Myers’ unique background and behavior was provided to foster parents.
Parents and treatment team members apparently accepted discipline and punishment as the solution to Gabriel Myers’ behaviors. There is little evidence of behavioral analyses and positive efforts to support Gabriel and encourage his success.
• No signed consent form was maintained in the medical records.
• Too many changes occurred in the life and environment of Gabriel Myers in too short a period of time with only marginal communication between and without a coordinated assessment or response by those charged with his care.
• There was no placement stability, and Gabriel Myers’ final home was with working parents who were not always available for his unique needs.
• Gabriel Myers was left with an unauthorized caretaker on at least one occasion.
• The case demonstrated the need for a behavioral analyst to support the foster parents and more effectively deal with Gabriel Myers; none was utilized, however.
• As a result of the death of Gabriel Myers, the Broward County Child Welfare Community has identified a number of measures which, if vigorously implemented, monitored, and institutionalized, should ensure more effective and comprehensive treatment of children in the future.
Issue: The Use of Psychotherapeutic Drugs to Treat Children in Foster Care
Data presented to this Work Group indicated that, nationally, some 5% of all children are treated through the use of psychotherapeutic medications. In Florida’s foster care system, ___% of its children receive at least one such medication. While this Work Group recognizes that that the nature of this particular group of children may require an expanded use of medication, safeguards within the system must ensure that children are not needlessly medicated to make their care, not their lives, easier. In treating our children on foster care, we must recognize that they are victims, who have been abused, neglected, or abandoned, and whose lives require the attention and appropriate intervention of the State.
It should be noted that existing statutes and, consequently, DCF rules, policies, and procedures utilize the term “psychotropic medication.” The more appropriate term, and the one used throughout the Report of the Findings of this Work Group, is “psychotherapeutic medication.”
• It is essential that all elements of Florida’s child welfare system understand that each foster child should be cared for and treated as we would our own children.
• The primary issue is not whether psychotherapeutic drugs are over prescribed or whether they are under prescribed; instead, it is whether they are necessary and properly prescribed for a child in care.
• As we reviewed the inadequacies and errors in information provided on foster care children receiving psychotherapeutic drugs, it became clear that a framework for safeguards exists and is proscribed by statute, administrative rule, and operating procedures. The core failures in the system, however, centered on failures in execution, in supervision, and in monitoring.
• We have not clearly articulated the standard of psychiatric care expected for children in state foster care.
• There must be a balance of administrative requirements placed on those involved in the system with meeting the needs of the child.
• Pre-authorization requirements for psychotherapeutic medications must allow for a timely response (within 24 hours) and specify emergency exceptions.
• The designation of a health care surrogate for each foster child could ensure an on-going review and responsiveness to the medical needs of each child.
• There is no requirement for the reporting of adverse consequences of a psychotherapeutic drug.
• Policies on the use of psychotherapeutic medication for non-psychotherapeutic purposes are not clear.
• The administration of psychotherapeutic medications cannot be viewed as an action separate and apart from the child’s treatment plan.
• Psychotherapeutic medications are often being used to help parents, teachers, and other child workers quiet and manage, rather than treat, children.Children receiving medications with “Black Box” warnings are not adequately monitored, nor are those involved in the process adequately informed.
• The Department lacks a plan for the regulation of the psychotherapeutic medication. A good model has been the forensic bed crisis in terms of a daily report and weekly review by senior leadership.
• Use of psychotherapeutic medications varies significantly among DCF regions.
• There is currently no standardized, comprehensive, on-going statewide program to train case workers on issues related to psychotherapeutic medications, including requirements relating to informed consent.
• Department training on psychotherapeutic medications in 2004-05 was not comprehensive and has not been regularly repeated.
• Understanding of psychotherapeutic medications and approval process is not there.
• When medication is indicated, a combination of therapy and medication produces better outcomes. Consideration should be given to requiring children who are prescribed medication for symptoms associated with mental health or substance abuse diagnoses to receive services and supports in addition to medication management.
• Prescribers must engage children of all ages in the prescription process.
• The prescriber should document the child’s perspective and position in the treatment visit notes.
• The concurrent Quality Assurance reports show that existing records are not being provided to Prescriber.
• The child’s Guardian ad Litem should be responsible for ascertaining and informing the court of the child’s position
• Any child who objects to the administration of medication, at any point in time, should be appointed counsel to directly represent his or her position.
• A better practice is to appoint an attorney for each child whose mental health needs rise to the level of psychotherapeutic medication as that child has complex needs deserving of sustained attention of individual counsel.
The best practice is for all children in dependency to be appointed an attorney (with sufficient training and experience to provide meaningful and effective assistance of counsel).
• There is no process to ensure that there is a coordination of care between therapeutic service providers and psychotherapeutic medication prescribers.
• It is not clear whether existing Medicaid funding will support more active involvement by prescriber in therapeutic treatment of children (in contrast to payment for medication management visits).
Issue: Comprehensive Behavioral Health Assessments
Introductory paragraph to be added here
• The goal of the Department of Children and Families is that all children 17 or younger entering out of home care who are Medicaid eligible are provided a Comprehensive Behavioral Health Assessment. Testimony before this Work Group, however, indicated that not every child in foster care is eligible for or receives the Comprehensive Behavioral Health Assessment in a timely manner.
• Children currently entering state care who do not always receive comprehensive behavioral health assessments include children who are not Medicaid eligible (primarily immigrant children); children who do not enter via or remain in “shelter status” long enough for a CBHA to be ordered; and children who are placed in unlicensed settings (relative or non-relative placements).
• While used early in a foster child’s involvement with DCF, the Comprehensive Behavioral Health Assessment is not used on a regular basis to indicate progress of the child within the system unless there are clear emotional disturbances or the use of the instrument is requested.
• While subsequent CBHAs may be performed in certain circumstances, this Work Group received no evidence that CBHAs are routinely ordered for all children whose behaviors are deteriorating and whose emotional needs are escalating.
• Prescribing physicians often lack medical history (including CBHA), yet still prescribe medications.
• There appears to be a gap between those services identified in the CBHA and being included in the child’s case plan
There appears to be a gap between services included in the case plan and those actually being provided to the child.
Issue: Information contained in the Florida Safe Families Network (FSFN)
At the outset of the review by the Gabriel Myers Work group, records contained in the Florida Safe Families Network (FSFN) reflected that, of Florida’s ____ children in out-of-home care, approximately 1800 were being treated through the use of psychotherapeutic medications. A subsequent, more detailed analysis conducted on ___, 2009, indicated that ____ were actually receiving psychotherapeutic medications.
Since that time, the Department of Children and Families, working with its community partners, has been conducting a detailed review of all cases involving the administration of psychotherapeutic medications to foster children. The Gabriel Myers Work Group has received on-going briefings on the progress of these quality assurance reviews, which are clearly identifying deficiencies in data contained in FSFN and specifying corrective action needed. Each of these reports has been included on the website reflecting the activities of this Work Group.
• FSFN data are frequently incomplete and inaccurate. The information contained in FSFN is only as good as the information entered from the field; errors in input, regardless of the reasons for such errors, will continue to yield faulty information.
• A number of representatives from both DCF and the Community Based Care Lead Agencies indicated that, as currently structured, FSFN is a data capture system that provides little support for effective case management.
• The pilot project being conducted by OurKids, the Community Based Care Lead Agency for Miami-Dade/Monroe Counties, using MindShare as a platform for better analysis and case management use of FSFN data is an outstanding option which should be reviewed by the Department and all Community Based Care Lead Agencies.
• Case managers are required to enter medical information into FSFN, yet often do not understand the information and cannot verify its accuracy.
• FSFN has too many “free text” and “other” sections to serve as an adequate monitoring device.
• The list of psychotherapeutic medications, while extensive, does not include all drugs used for such purposes.
• It must be recognized that FSFN is only a data system; by itself, it does not replace adequate supervision and monitoring.
Issue: Informed Consent and Judicial Review
Section 39.407, Florida Statutes, describes in detail the process for obtaining express and informed consent for the administration of psychotherapeutic medications to children in the custody of the department. Subsection (3)(a) of that statute requires that any physician prescribing such medications to a child in the custody of the department must attempt to obtain “express and informed consent” as defined in s. 394.455(9), F.S. and described in s. 394.459(3)(a), F.S. For children whose parents’ rights have not been terminated, the prescribing physician must attempt to obtain written express and informed consent from the child’s parent or legal guardian.
Express and informed consent is defined in s. 394.455(9), F.S., and is described in s. 394.459(3)(a), F.S. Before giving express and informed consent, the following information must be provided and explained in plain language to the child’s parent or legal guardian and to the child, if age appropriate:
• the reason for admission or treatment;
• the proposed treatment;
• the purpose of the treatment to be provided;
• the common risks, benefits, and side effects thereof;
• the specific dosage range for the medication, when applicable;
• alternative treatment modalities;
• the approximate length of care;
• the potential effects of stopping treatment;
• how treatment will be monitored; and
• that any consent given for treatment may be revoked orally or in writing before or during the treatment period by the parent.
To assist the physician with securing the express and informed consent of the parent or legal guardian, the Department of Children and Families or its local partners must take steps necessary to facilitate the inclusion of the parent or legal guardian in the child’s consultation with the physician.
If the parent is unavailable or unwilling to give express and informed consent, if the parent is unknown, or if the parent’s parental rights have been terminated, a court order authorizing the administration of psychotherapeutic medication must be sought when such administration is recommended by the child’s physician. That court authorization must be entered prior to the administration of the medication.
The motion requesting authorization for the administration of the medication must be filed by attorneys representing DCF and must be accompanied by a written report, signed by the prescribing physician, supporting the motion. The required elements of the medical report are outlined in the statute and closely track the requirements for express and informed consent, above. The prescribing physician is not required to testify in any hearing on the motion unless the court orders attendance or a party subpoenas the physician. Any objection to the motion must
is received, the court must schedule a hearing on the motion “as soon as possible.”
• The on-going analysis of data contained within the Florida Safe Families Network (FSFN) clearly showed that a significant portion of cases involving the administration of psychotherapeutic medications to foster children did not meet the legal requirements relating to express and informed consent.
• The on-going analysis of data contained within the Florida Safe Families Network (FSFN) clearly showed that a significant portion of cases involving the administration of psychotherapeutic medications to foster children did not meet the legal requirements relating to judicial review.
• Psychotherapeutic medication is routinely administered to children in Florida without express and informed consent.
• The prescribing physician’s report/affidavit varies between circuits; there is no common, statewide form.
• Prescriptions do not include a “when will medications stop” consideration in the informed consent process.
• Informed consent for use of psychotherapeutic medications in a systemic problem. It appears that, too often, parents and/or the court are unaware of critical issues involving medications, procedures are not followed, and documentation requirements are ignored.
• There is often insufficient exchange of information for parents or judges to make an informed decision involving psychotherapeutic medications.
• Pre-consent process is unclear, particularly if child is already taking a medication.
• Pre-consent age requirement is not understood (under 5 or under 6?)
• The prescriber has a legal and ethical duty to obtain informed consent before psychotherapeutic medication is administered.
• Informed consent cannot be obtained absent a direct conversation between the prescriber, or a trained designee, and the person with authority to provide the consent, whether the parent or the judge. An exchange of paper can never substitute for the oral interchange and visual cues required for the prescriber (or designee) to ascertain that the “consenter” understands the decision being made.
Members of the Gabriel Myers task force that authored the report on psychotropic medications:
Jim Sewell, special assistant to the secretary of the Department of Children & Families, former assistant commissioner of the Florida Department of Law Enforcement
Bill Janes, DCF assistant secretary for substance abuse and mental health, state drug czar
Anne Wells, pharmacy director for the state Agency for Health Care Administration
Robin Rosenberg, attorney and child advocate from Florida’s Children First
Dr. Rajiv Tandon, psychiatrist with the University of Florida