Department of Children and Families - Finding 1

The Department of Children and Families Did Not Always Obtain or Renew Court Approval Before Children in Its Protective Custody Were Administered Antipsychotic Medications.

Overview

The Department of Children and Families (DCF) did not always obtain or renew required court approval before children in its protective custody were administered antipsychotic medications. Our fee-for-service (FFS) and managed care organization (MCO) samples included 36 children¹³ who were prescribed one or more antipsychotic medications, therefore requiring a Rogers guardianship order. Of these 36 children, we found that 4 children¹⁴ were administered antipsychotic medication without a required Rogers guardianship order from the court.

We also found that DCF did not always obtain court approval for antipsychotic medications in a timely manner. Specifically, we determined that six¹⁵ children in our samples were administered antipsychotic medications through an expired Rogers guardianship order. One of these children received medication for eight months past the expiration date for their Rogers guardianship order and without an updated order.

If DCF does not obtain or renew court approvals for antipsychotic medications, which includes presenting treatment plans to the courts, it cannot ensure that these treatment plans are safe and appropriate for the children. In addition, this is removing the courts’ oversight of children in DCF protective custody, who are too young to consent to their treatment plans and need a neutral, third party to ensure that any prescribed medications are in the children’s best interest.

Authoritative Guidance

According to Section 11.14 of Title 110 of the Code of Massachusetts Regulations,

(2)  No Consent by Department. The Department shall not consent to the administration of antipsychotic medication for any individual, but shall in all cases seek . . . prior judicial approval for children in Department custody and wards of the Department. . . .

(4)  Judicial Approval for Wards and Children in Department Custody.

(a)  When any individual, organization, facility, or medical provider seeks the Department’s consent to medicate with antipsychotic drugs a child, who is a ward of the Department or who is in Department custody, the Department shall seek prior judicial approval for administration of such drugs even if the child’s biological parents have consented to the medication.

Reasons for Issues

DCF indicated in an email to us on July 21, 2023 the following reasons for the issues with the Rogers Guardianship Orders:

• There were delays with the court because of the COVID-19 pandemic.
• The child was only in protective custody for 72 hours (although iFamilyNet [iFN] indicated different and no supporting evidence was provided to us).
• DCF was unaware the child was taking the antipsychotic medication.
• The child never took the medication, but the prescription was filled.

In addition to the above reasons, DCF’s policies and procedures do not include monitoring controls to ensure that DCF applies, and receives approval, for Rogers guardianship order and renews them in a timely manner. 

Recommendation

DCF should add monitoring controls to its policies and procedures to ensure that any Rogers guardianship orders are approved and renewed by the court. 

Auditee’s Response

DCF agrees with this recommendation and will make improvements to its electronic case records system to better manage and track dates of court approvals for antipsychotic medications. In Review of the case records for the 4 children identified as having no Rogers Orders issued shows that the Department adhered to existing regulations and policies for 2 of the children, as we have outlined below:

• The child was not in protective custody. The Department followed existing regulation which governs the administration of medication when children come into custody and shortly thereafter was returned to the parents’ custody obviating the need for an order. Child came into DCF custody on previously prescribed antipsychotic medication on December 3, 2019. Per Departmental regulation [Section 11.14(4)(b) of Title 110 of the Code of Massachusetts Regulations]: “Where antipsychotic medications have been previously prescribed for a child who is a ward of the Department or who is in the custody of the Department, and that child is currently being treated with antipsychotic drugs without judicial authorization, the Department shall initiate the process for judicial review and application of substituted judgment. Pending judicial review the Department shall not discontinue the prescribed treatment with antipsychotic drugs, because interruption or discontinuance of the treatment might cause severe medical complications and might violate the individual's legal right to treatment.” The Department adhered to this regulation, and then the child was returned to parents’ custody on December 19, 2019 after a custody hearing. Therefore, no Rogers order entered; the regulation required DCF to maintain the child on medication, however because the child was in DCF custody only 16 days, judicial review of the medication was not possible prior to the child returning to parents’ custody.
• The child never took the medication, but the prescription was filled. The child was never placed on antipsychotic medication, although it was discussed with the provider. Therefore, no Rogers Order entered. In support of this fact, the Department provided a screen shot of the Social Worker’s dictation, which stated: “Once the provider was told about Rogers being needed, they didn’t write it and the med never started.”
• For the other 2 cases, the Department acknowledges that there were delays in scheduling that should have been mitigated or eliminated.
• With respect to the 6 cases identified as having delayed extensions of existing Rogers Orders, the Department believes that the [Office of the State Auditor (OSA)] has incorrectly identified one of the children as having a gap in the Rogers order as outlined:
• OSA identified a gap in the Rogers orders for a child in placement under a Child Requiring Assistance (CRA) application. CRA from 8/2019 to 6/2020, then child returned to parent; C&P custody began in 3/2021. DCF does not consent for CRA children - parents’ consent. No Rogers would have been issued between 8/2019 and 6/2020 during CRA custody. A Rogers Order is only required for children in DCF custody as a result of a Care & Protection Petition. - Orders previously provided to OSA are attached to this response.
• For two other cases, there were situations that involved extenuating circumstances beyond the Department’s control:
• No gap, but delayed Rogers following emergency prescription due to parents’ failure to appear in court. Child was prescribed antipsychotic medication as an emergency while placed in an inpatient hospital at the time that the Department. The Rogers hearing was scheduled for temporary custody hearing, but that was continued for 10 days due to parents’ failure to appear in court. The Rogers hearing was completed at the next court date.
• Gap related to Rogers extension due to failure of Guardian Ad Litem (GAL) to provide the court with an updated affidavit. Antipsychotic drugs had been prescribed for some time. Due to issues with the GAL not submitting an updated affidavit, the judge vacated the Order previously authorized on 11/10/2020, revoked the GAL and appointed a new GAL. Antipsychotic medications need to be tapered and cannot be stopped abruptly in most cases. Rogers was reinstated on 12/16/2020 after new GAL appointed.

For the remaining 3 cases, the Department acknowledges that there were delays in scheduling that should have been mitigated or eliminated.

The Department agrees with the Auditor’s recommendation to establish better monitoring controls and is working to make several enhancements to the electronic legal case records in iFamilyNet. One of the suggestions that has been made is to better utilize the Department’s electronic case filing system to better manage and track dates of judicial approval for prescribed antipsychotic medications.

Auditor’s Reply

We commend DCF for working on steps to better manage the tracking of court approvals for children receiving antipsychotic medications.

Regarding the two cases DCF disagrees with us about—it should be noted that, although DCF states that one child was returned to their parents shortly after entering custody, we were not provided evidence for when the child was returned. Based on the information in iFN, the child was in protective custody for over two years. In addition, regarding the child that DCF states never took the medication, but the prescription was filled, we note that a prescription should not be filled before obtaining a Rogers guardianship order. An open question remains regarding what happened to the medication that was received but not consumed. For the one case with a delay in extension for its existing Rogers order that DCF objected to, we were not provided any supporting documentation to show the child was under CRA. According to iFN the child has been in custody since August 2019.

13.    This number represents 25 children needing Rogers guardianship orders from our FFS sample of 118 and 11 children needing Rogers guardianship orders from our MCO sample of 50. The remaining members in each sample did not require a Rogers guardianship order, as they were not prescribed an antipsychotic medication.

14.    This number represents one child from our FFS sample and three children from our MCO sample.

15.    This number represents five children from our FFS sample and one child from our MCO sample. 

Date published:	November 7, 2024