APPEAL,BCOST,CLOSED,MAPADMIN,PHV
U.S. District Court Western District of Missouri (Jefferson City) CIVIL DOCKET FOR CASE #: 2:17−cv−04102−NKL

M.B. et al v. Tidball et al Assigned to: District Judge Nanette K. Laughrey Referred to: Magistrate Judge Lajuana M. Counts (Settlement) Case in other court: Eighth Circuit, 18−02798
Eighth Circuit, 20−01886 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/12/2017 Date Terminated: 12/12/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

M. B. by and through Next Friend, Ericka Eggemeyer

represented by Aaron Finch Children's Rights 88 Pine Street Suite 800 New York, NY 10005 212−683−2210 Email: afinch@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Catherine Frizell 88 Pine Street Suite 800 New York, NY 10005 646−216−3305 Email: cfrizell@childrensrights.org TERMINATED: 07/30/2018 LEAD ATTORNEY PRO HAC VICE

Daniel T Fahner Morgan, Lewis & Bockius, LLP − Chicago 77 West Wacker Drive Chicago, IL 60601 312−324−1466 Email: daniel.fahner@morganlewis.com TERMINATED: 05/29/2019 LEAD ATTORNEY PRO HAC VICE

Daniele Gerard 88 Pine Street Suite 800 New York, NY 10005 212−683−2210 Email: dgerard@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Danielle Rosenthal 88 Pine Street Suite 800 New York, NY 10005 212−683−2210 Email: drosenthal@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Elizabeth Pitman Gretter 88 Pine Street Suite 800 New York, NY 10005 216−401−1609 Email: egretter@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin McGuinness Children's Rights 88 Pine Street Suite 800 New York, NY 10005 212−683−2210 Email: emcguinness@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Freya Pitts National Center for Youth Law 1212 Broadway Suite 600 Oakland, CA 94612 510−835−8098 Email: fpitts@youthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan King 88 Pine Street Suite 800 New York, NY 10005 Email: jking@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leecia Welch Leecia Welch 1212 Broadway Suite 600 Oakland, CA 94612 510−835−8098 Email: lwelch@youthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Sara Bartosz Children's Rights, Inc. 88 Pine Street Suite 800 New York, NY 10005 646−942−4252 Email: sbartosz@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Poonam Juneja

Plaintiff
E. S. by and through Next Friend, A.S. TERMINATED: 02/02/2018

National Center for Youth Law 1212 Broadway, Suite 600 Oakland, CA 94612 510−835−8098 Email: pjuneja@youthlaw.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott T. Schutte Morgan, Lewis & Bockius, LLP − Chicago 77 West Wacker Drive Chicago, IL 60601 (312) 324−1000 Email: scott.schutte@morganlewis.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Andrew Dixon 88 Pine Street Suite 800 New York, NY 10005 225−588−5407 Email: sdixon@childrensrights.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm 405 14th Street 15th Floor Oakland, CA 94618 510−835−8098 Email: billgrimm@youthlaw.org TERMINATED: 05/01/2019 LEAD ATTORNEY PRO HAC VICE
John J. Ammann St. Louis University Legal Clinic St. Louis University School of Law 100 North Tucker St. Louis, MO 63101 (314) 977−2796 Fax: (314) 977−1180 Email: ammannjj@slu.edu ATTORNEY TO BE NOTICED
represented by Aaron Finch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Catherine Frizell (See above for address) TERMINATED: 07/30/2018 LEAD ATTORNEY PRO HAC VICE
Daniel T Fahner (See above for address)

TERMINATED: 05/29/2019 LEAD ATTORNEY PRO HAC VICE
Danielle Rosenthal (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Pitman Gretter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin McGuinness (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Freya Pitts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan King (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Sara Bartosz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott T. Schutte (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Andrew Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm

Plaintiff
Z. S. by and through Next Friend, S.H. TERMINATED: 05/29/2018

(See above for address) TERMINATED: 05/01/2019 LEAD ATTORNEY PRO HAC VICE
John J. Ammann (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Finch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Catherine Frizell (See above for address) TERMINATED: 07/30/2018 LEAD ATTORNEY PRO HAC VICE
Daniel T Fahner (See above for address) TERMINATED: 05/29/2019 LEAD ATTORNEY PRO HAC VICE
Danielle Rosenthal (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Pitman Gretter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin McGuinness (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Freya Pitts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan King (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
K. C. by and through Next Friend, Kris Dadant

Michael Sara Bartosz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott T. Schutte (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Andrew Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm (See above for address) TERMINATED: 05/01/2019 LEAD ATTORNEY PRO HAC VICE
John J. Ammann (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Finch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Catherine Frizell (See above for address) TERMINATED: 07/30/2018 LEAD ATTORNEY PRO HAC VICE
Daniel T Fahner (See above for address) TERMINATED: 05/29/2019 LEAD ATTORNEY PRO HAC VICE
Daniele Gerard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle Rosenthal (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Elizabeth Pitman Gretter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin McGuinness (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Freya Pitts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan King (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Sara Bartosz (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott T. Schutte (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Andrew Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm (See above for address) TERMINATED: 05/01/2019 LEAD ATTORNEY PRO HAC VICE
John J. Ammann (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
A. H. by and through Next Friend, Kealey Williams

represented by Aaron Finch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Catherine Frizell (See above for address) TERMINATED: 07/30/2018 LEAD ATTORNEY PRO HAC VICE
Daniel T Fahner (See above for address) TERMINATED: 05/29/2019 LEAD ATTORNEY PRO HAC VICE
Daniele Gerard (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Danielle Rosenthal (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Elizabeth Pitman Gretter (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Erin McGuinness (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Freya Pitts (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan King (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Leecia Welch (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael Sara Bartosz (See above for address) LEAD ATTORNEY

V.
Defendant
Steven Corsi in his official capacity as Acting Director of the Missouri Department of Social Services

PRO HAC VICE ATTORNEY TO BE NOTICED
Poonam Juneja (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Scott T. Schutte (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Andrew Dixon (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Grimm (See above for address) TERMINATED: 05/01/2019 LEAD ATTORNEY PRO HAC VICE
John J. Ammann (See above for address) ATTORNEY TO BE NOTICED
represented by Eileen Ruppe Krispin Missouri Attorney General's Office−StL 815 Olive Street Suite 200 St. Louis, MO 63101 314−340−7861 Fax: 314−340−7029 Email: eileen.krispin@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Gilbert Bremer Thompson Coburn LLP − StL One US Bank Plaza St. Louis, MO 63101 314−552−6572 Email: jbremer@thompsoncoburn.com TERMINATED: 08/03/2018 LEAD ATTORNEY
Laura E. Elsbury Missouri Ethics Commission 3411A Knipp Drive P.O. Box 1370 Jefferson City, MO 65102 573−751−2020 Fax: 573−522−2226 Email: laura.elsbury@mec.mo.gov TERMINATED: 09/12/2018 LEAD ATTORNEY

Defendant
Jennifer Tidball in her official capacity as Acting Director of the Missouri Department of Social Services TERMINATED: 02/02/2018

Melanie Pennycuff Missouri Attorney General's Office−StL 815 Olive Street Suite 200 St. Louis, MO 63101 314−340−7652 Email: melanie.pennycuff@ago.mo.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Russell J. Keller Missouri Attorney General's Office−KC 615 East 13th Street Suite 401 Kansas City, MO 64106 (816) 889−5023 Email: russell.keller@ago.mo.gov TERMINATED: 08/12/2019 LEAD ATTORNEY
Ryan Lee Bangert Missouri Attorney General's Office−JC P.O. Box 899 Jefferson City, MO 65102 573−751−8828 Fax: 573−751−0774 Email: ryan.bangert@ago.mo.gov TERMINATED: 12/26/2018 LEAD ATTORNEY
Scotty L. Allen Missouri Department of Transportation PO Box 270 105 West Capitol Jefferson City, MO 65102−0270 (573) 751−1116 Fax: (573) 526−4408 Email: scotty.allen@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David D Dean Missouri Attorney General's Office−StL 815 Olive Street Suite 200 St. Louis, MO 63101 314−340−7950 Fax: 314−340−7957 Email: david.dean@ago.mo.gov TERMINATED: 09/06/2019
represented by Jonathan Gilbert Bremer (See above for address) TERMINATED: 08/03/2018 LEAD ATTORNEY
Laura E. Elsbury (See above for address) TERMINATED: 09/12/2018 LEAD ATTORNEY

Defendant
Tim Decker in his official capacity as Director of the Children's Division

Michael D. Quinlan Missouri Attorney General's Office−JC P.O. Box 899 Jefferson City, MO 65102 573−751−8833 Fax: 573−751−9456 Email: michael.quinlan@ago.mo.gov TERMINATED: 12/07/2017 LEAD ATTORNEY
Russell J. Keller (See above for address) TERMINATED: 08/12/2019 LEAD ATTORNEY
Ryan Lee Bangert (See above for address) TERMINATED: 12/26/2018 LEAD ATTORNEY
Scotty L. Allen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Ruppe Krispin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Gilbert Bremer (See above for address) TERMINATED: 08/03/2018 LEAD ATTORNEY
Laura E. Elsbury (See above for address) TERMINATED: 09/12/2018 LEAD ATTORNEY
Melanie Pennycuff (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Michael D. Quinlan (See above for address) TERMINATED: 12/07/2017 LEAD ATTORNEY
Russell J. Keller (See above for address) TERMINATED: 08/12/2019 LEAD ATTORNEY
Ryan Lee Bangert (See above for address) TERMINATED: 12/26/2018 LEAD ATTORNEY
Scotty L. Allen (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
David D Dean (See above for address) TERMINATED: 09/06/2019

Date Filed 06/12/2017
06/12/2017 06/12/2017
06/12/2017 06/12/2017 06/12/2017 06/12/2017 06/12/2017 06/12/2017 06/12/2017 06/12/2017 06/13/2017 06/13/2017

# Docket Text
1 COMPLAINT filed by John J. Ammann on behalf of All Plaintiffs against all Defendants Filing fee $400, receipt number 0866−5321373. Service due by 9/11/2017 unless otherwise directed by the court. (Attachments: # 1 Civil Cover Sheet)(Ammann, John) Modified by the Clerk's Office on 6/12/2017 to correct docket entry text(Houston, Kiambu). (Entered: 06/12/2017)
2 MOTION for order Use of Pseudonyms filed by John J. Ammann on behalf of All Plaintiffs. Suggestions in opposition/response due by 6/26/2017 unless otherwise directed by the court. (Ammann, John) (Entered: 06/12/2017)
3 NOTICE OF INCLUSION FOR MEDIATION AND ASSESSMENT PROGRAM (MAP). REVIEW NOTICE AND MAP GENERAL ORDER CAREFULLY FOR IMPORTANT CHANGES, DEADLINES AND REQUIREMENTS.
Notice of MAP assignment to an outside mediator. (Attachments: # 1 MAP General Order)(Geiser, Angel) (Entered: 06/12/2017)
4 Motion to allow Michael Bartosz to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5321932) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 06/12/2017)
5 Motion to allow Stephen A. Dixon to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5321947) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 06/12/2017)
6 Motion to allow Elizabeth Pitman Gretter to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5321957) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 06/12/2017)
7 Motion to allow Catherine Frizell to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5321966) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 06/12/2017)
ELECTRONIC SUMMONS ISSUED as to Tim Decker, Jennifer Tidball and emailed to plaintiff's attorney's office for service. (Russel, Jeri) (Entered: 06/12/2017)
8 Motion to allow Poonam Juneja to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5322768) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 06/12/2017)
9 Motion to allow Leecia Welch to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5322790) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 06/12/2017)
10 Motion to allow William Grimm to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5322794) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 06/12/2017)
11 ORDER ON PRETRIAL PROCEDURES. Service must be obtained on all defendants within forty (40) days of the date of this Order unless otherwise authorized by the Court. Signed on 6/13/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 06/13/2017)
12 ORDER granting 4 5 6 7 motion to appear pro hac vice entered by Clerk of Court. Attorney Michael Sara Bartosz, Stephen Andrew Dixon, Elizabeth Pitman Gretter, and Catherine Frizell for M. B., K. C., A. H., E. S., and Z. S. allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the

06/14/2017
06/16/2017
06/20/2017 06/20/2017 06/21/2017 06/21/2017 06/21/2017 06/21/2017 06/22/2017 06/28/2017

attorney.
Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101.
This is a TEXT ONLY ENTRY. No document is attached.(Russel, Jeri) (Entered: 06/13/2017)
13 ORDER granting 8 9 10 motion to appear pro hac vice entered by Clerk of Court. Attorney William Grimm, Leecia Welch, and Poonam Juneja for M. B., K. C.,A. H., E. S., and Z. S. allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.
Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101 This is a TEXT ONLY ENTRY. No document is attached.(Russel, Jeri) (Entered: 06/14/2017)
14 ORDER signed by Judge Nanette Laughrey. Plaintiffs' Motion to Proceed With the Use of Pseudonyms, Doc. 2 , is granted. The minor Plaintiffs shall be permitted to proceed with the use of pseudonymous initials. All parties shall use the pseudonymous initials in the submission of pleadings, briefing, and evidence in this case, and shall not publicly disclose the minor Plaintiffs' personally identifying information. Plaintiffs shall ensure that Defendants are informed of the identity of the minor Plaintiffs at the earliest opportunity after service. This Order is subject to reconsideration or modification at the request of any party, upon the filing of a motion for a protective order, or on the Court's own motion. This is a TEXT ONLY ENTRY. No document is attached.(Barragan−Scott, Alana) (Entered: 06/16/2017)
15 RETURN OF SERVICE of complaint executed by All Plaintiffs. Jennifer Tidball served on 6/16/2017, answer due 7/7/2017. (Ammann, John) (Entered: 06/20/2017)
16 RETURN OF SERVICE of complaint executed by All Plaintiffs. Tim Decker served on 6/16/2017, answer due 7/7/2017. (Ammann, John) (Entered: 06/20/2017)
17 NOTICE of appearance by Laura E. Elsbury on behalf of All Defendants (Attorney Laura E. Elsbury added to party Tim Decker(pty:dft), Attorney Laura E. Elsbury added to party Jennifer Tidball(pty:dft))(Elsbury, Laura) (Entered: 06/21/2017)
18 NOTICE of appearance by Michael D. Quinlan on behalf of All Defendants (Attorney Michael D. Quinlan added to party Tim Decker(pty:dft), Attorney Michael D. Quinlan added to party Jennifer Tidball(pty:dft))(Quinlan, Michael) (Entered: 06/21/2017)
19 MOTION for extension of time to File Answer or Responsive Motion filed by Michael D. Quinlan on behalf of All Defendants. Suggestions in opposition/response due by 7/5/2017 unless otherwise directed by the court. (Quinlan, Michael) (Entered: 06/21/2017)
20 ORDER entered by Judge Nanette Laughrey. Defendants' unopposed motion for extension of time in which to answer or otherwise respond to the complaint, Doc. 19 , is granted and the deadline is extended to August 7, 2017. This is a TEXT ONLY ENTRY. No document is attached.(Barragan−Scott, Alana) (Entered: 06/21/2017)
21 ORDER. Proposed scheduling order due by 8/14/2017. Rule 26 conference due by 8/7/2017. Signed on 6/22/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 06/22/2017)
NOTICE of filing: Mediation and Assessment Program Reminder: Your Designation of Mediator is due soon (filed as an ADR event in CM/ECF). See Notice of Inclusion and MAP General Order for specifics. (ADI, MAP) (Entered: 06/28/2017)

07/03/2017 07/11/2017 07/11/2017
07/31/2017 08/14/2017 08/14/2017
08/16/2017 08/17/2017 08/17/2017 08/17/2017 08/21/2017 08/21/2017
08/21/2017
08/21/2017

22 AMENDED COMPLAINT against All Defendants filed by Elizabeth Pitman Gretter on behalf of All Plaintiffs. (Attachments: # 1 Civil Cover Sheet)(Gretter, Elizabeth) (Entered: 07/03/2017)
23 MOTION for extension of time to File Answer or Responsive Pleading filed by Michael D. Quinlan on behalf of Tim Decker, Jennifer Tidball. Suggestions in opposition/response due by 7/25/2017 unless otherwise directed by the court. (Quinlan, Michael) (Entered: 07/11/2017)
24 ORDER entered by Judge Nanette Laughrey. Defendants' unopposed motion for extension of time in which to answer or otherwise respond to the amended complaint, Doc. 23, is granted and the deadline is extended to August 21, 2017. This is a TEXT ONLY ENTRY. No document is attached.(Barragan−Scott, Alana) (Entered: 07/11/2017)
25 NOTICE of appearance by Jonathan Gilbert Bremer on behalf of All Defendants (Attorney Jonathan Gilbert Bremer added to party Tim Decker(pty:dft), Attorney Jonathan Gilbert Bremer added to party Jennifer Tidball(pty:dft))(Bremer, Jonathan) (Entered: 07/31/2017)
26 Joint MOTION for extension of time to File Proposed Scheduling Order/Discovery Plan filed by Laura E. Elsbury on behalf of All Defendants. Suggestions in opposition/response due by 8/28/2017 unless otherwise directed by the court. (Elsbury, Laura) (Entered: 08/14/2017)
27 ORDER entered by Judge Nanette Laughrey. The parties' joint motion for extension of time in which to file their proposed scheduling order, Doc. 26 , is granted. The proposed scheduling order shall be filed no later than 8/21/2017. This is a TEXT ONLY ENTRY. No document is attached.(Barragan−Scott, Alana) (Entered: 08/14/2017)
28 DESIGNATION OF MEDIATOR naming James Levin(Gretter, Elizabeth) (Entered: 08/16/2017)
29 MOTION for leave to file excess pages filed by Jonathan Gilbert Bremer on behalf of All Defendants. Suggestions in opposition/response due by 8/31/2017 unless otherwise directed by the court. (Bremer, Jonathan) (Entered: 08/17/2017)
30 NOTICE of filing that Motion for leave to file excess pages is unopposed by Tim Decker, Jennifer Tidball re 29 MOTION for leave to file excess pages (Attachments: # 1 Exhibit Exhibit A)(Bremer, Jonathan) (Entered: 08/17/2017)
31 ORDER entered by Judge Nanette Laughrey. Defendants' unopposed motion for leave to exceed page limits in connection with the filing of a brief in support of a motion to dismiss, doc. 29 , is granted. This is a TEXT ONLY ENTRY. No document is attached.(Barragan−Scott, Alana) (Entered: 08/17/2017)
32 Joint PROPOSED SCHEDULING ORDER AND DISCOVERY PLAN by M. B., K. C., A. H., E. S., Z. S.. (Gretter, Elizabeth) (Entered: 08/21/2017)
33 MOTION to dismiss case Defendants' Motion to Dismiss Plaintiff's First Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action filed by Michael D. Quinlan on behalf of All Defendants. Suggestions in opposition/response due by 9/5/2017 unless otherwise directed by the court. (Quinlan, Michael) (Entered: 08/21/2017)
34 WITHDRAWN PUSUANT TO ORDER 49 MOTION to dismiss party Defendants' Motion to Dismiss Unknown Plaintiffs and Suggestions In Support filed by Michael D. Quinlan on behalf of All Defendants. Suggestions in opposition/response due by 9/5/2017 unless otherwise directed by the court. (Attachments: # 1 Exhibit Exhibit A Sealed pursuant to order 39 )(Quinlan, Michael) Modified on 9/13/2017 (Geiser, Angel). (Entered: 08/21/2017)
35 SUGGESTIONS in support re 33 MOTION to dismiss case Defendants' Motion to Dismiss Plaintiff's First Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action Defendants Sugestions In Support of Their Motion To Dismiss Plantiffs' First Amended Complaint For Injunctive and Declaratory Relief and Request For Class Action filed by Michael D. Quinlan on behalf of Defendants Tim

08/23/2017 08/23/2017 08/23/2017
08/24/2017 08/24/2017 08/24/2017 08/24/2017 08/24/2017 08/25/2017 08/25/2017
08/30/2017 09/05/2017

Decker, Jennifer Tidball. (Related document(s) 33 ) (Quinlan, Michael) (Entered: 08/21/2017)
36 MOTION for order Appointing Next Friends filed by Elizabeth Pitman Gretter on behalf of All Plaintiffs. Suggestions in opposition/response due by 9/6/2017 unless otherwise directed by the court. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Gretter, Elizabeth) (Entered: 08/23/2017)
37 NOTICE of appearance by Ryan Lee Bangert on behalf of All Defendants (Attorney Ryan Lee Bangert added to party Tim Decker(pty:dft), Attorney Ryan Lee Bangert added to party Jennifer Tidball(pty:dft))(Bangert, Ryan) (Entered: 08/23/2017)
38 MOTION to seal document 34 MOTION to dismiss party Defendants' Motion to Dismiss Unknown Plaintiffs and Suggestions In Support filed by Laura E. Elsbury on behalf of All Defendants. Suggestions in opposition/response due by 9/6/2017 unless otherwise directed by the court. (Attachments: # 1 Proposed Order Deleted pursuant to administrative procedures)(Related document(s) 34 ) (Elsbury, Laura) (Entered: 08/23/2017)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 08/23/2017 as Document No. 38−1, Proposed Order. The proposed order attached to the motion has been deleted. Per Administrative Procedures any proposed orders are to be emailed to the Courtroom Deputy in Word format. This is a text entry only − no document is attached. (Geiser, Angel) (Entered: 08/24/2017)
39 ORDER entered by Judge Nanette Laughrey. No later than 8/30/2017, Defendants shall file their response to Plaintiffs' motion for order appointing next friends, Doc. 36 . This is a TEXT ONLY ENTRY. No document is attached. (Barragan−Scott, Alana) (Entered: 08/24/2017)
40 ORDER granting 38 motion to seal document. The Court orders Exhibit A (Document 34−1) to be sealed. Signed on 08/24/2017 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached.(Geiser, Angel) (Entered: 08/24/2017)
41 SCHEDULING ORDER: Discovery due by 5/15/2018. Dispositive Motions due by 6/4/2018. Pretrial Conference set for 10/3/2018 at 03:00 PM Courtroom 4A, Jefferson City. Jury Trial set for 10/15/2018 at 09:00 AM in Courtroom 4A, Jefferson City. Signed on 8/24/17 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Entered: 08/24/2017)
42 RULES OF TRIAL. Signed on 8/24/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 08/24/2017)
43 MOTION for extension of time to file response/reply to Defendants' Motion to Dismiss, MOTION for leave to file excess pages filed by Elizabeth Pitman Gretter on behalf of All Plaintiffs. Suggestions in opposition/response due by 9/8/2017 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 08/25/2017)
44 ORDER entered by Judge Nanette Laughrey. Plaintiffs' unopposed motion for extension of time in which to respond to Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action, and for leave to file excess pages, Doc. 43 , is granted. Plaintiffs' response is due no later than September 25, 2017, and Plaintiffs may file opposing suggestions that do not exceed thirty pages.This is a TEXT ONLY ENTRY. No document is attached.(Barragan−Scott, Alana) (Entered: 08/25/2017)
45 SUGGESTIONS in opposition re 36 MOTION for order Appointing Next Friends filed by Jonathan Gilbert Bremer on behalf of Defendants Tim Decker, Jennifer Tidball. Reply suggestions due by 9/13/2017 unless otherwise directed by the court. (Related document(s) 36 ) (Bremer, Jonathan) (Entered: 08/30/2017)
46 SUGGESTIONS in opposition re 34 MOTION to dismiss party Defendants' Motion to Dismiss Unknown Plaintiffs and Suggestions In Support filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S.. Reply suggestions due by 9/19/2017 unless otherwise directed by the court. (Attachments: # 1 Exhibit A)(Related document(s) 34 ) (Gretter, Elizabeth) (Entered: 09/05/2017)

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47 WITHDRAWN PUSUANT TO ORDER 49 Joint MOTION to amend/correct 34 MOTION to dismiss party Defendants' Motion to Dismiss Unknown Plaintiffs and Suggestions In Support filed by Jonathan Gilbert Bremer on behalf of All Defendants. Suggestions in opposition/response due by 9/22/2017 unless otherwise directed by the court. (Related document(s) 34 ) (Bremer, Jonathan) Modified on 9/13/2017 to show withdrawn(Geiser, Angel). (Entered: 09/08/2017)
48 MOTION to withdraw document 34 MOTION to dismiss party Defendants' Motion to Dismiss Unknown Plaintiffs and Suggestions In Support, 47 Joint MOTION to amend/correct 34 MOTION to dismiss party Defendants' Motion to Dismiss Unknown Plaintiffs and Suggestions In Support filed by Jonathan Gilbert Bremer on behalf of All Defendants. Suggestions in opposition/response due by 9/25/2017 unless otherwise directed by the court. (Related document(s) 34 , 47 ) (Bremer, Jonathan) (Entered: 09/11/2017)
49 ORDER entered by J. Nanette Laughrey. Defendants have filed a motion to withdraw, Doc. 48 , their previously filed motion to dismiss certain Plaintiffs on the basis that they could not be adequately identified, Doc. 34 , and their motion to amend their motion to dismiss, Doc. 47 . Defendants state they are satisfied that these Plaintiffs have been adequately identified and therefore no longer wish to pursue the motion to dismiss. Accordingly, the motion to withdraw, Doc. 48 , is granted and the motion to dismiss, Doc. 34 , and motion to amend, Doc. 47 , are terminated. This is a TEXT ONLY ENTRY. No document is attached.(Matthes Mitra, Renea) (Entered: 09/12/2017)
50 STIPULATION and Proposed Order Appointing Next Friends for Plaintiffs M.B., K.C., and A.H. by M. B., K. C., A. H., E. S., Z. S.. (Gretter, Elizabeth) Modified on 9/21/2017 to delete entire document. (Geiser, Angel). Modified on 9/22/2017 to reflect attorney refiled correctly as document 56 (Lock, Tania). (Entered: 09/13/2017)
51 REPLY SUGGESTIONS to motion re 36 MOTION for order Appointing Next Friends filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S.. (Attachments: # 1 Exhibit A)(Related document(s) 36 ) (Gretter, Elizabeth) (Entered: 09/13/2017)
52 Motion to allow Daniel Fahner to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5446532) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 09/20/2017)
53 Motion to allow Scott Schutte to appear pro hac vice (Pro Hac fee $50 receipt number 0866−5446547) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 09/20/2017)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 09/13/2017 as Document No. 50, Stipulation and Proposed Order. The proposed order attached to the motion has been deleted. Per Administrative Procedures any proposed orders are to be emailed to the Courtroom Deputy in Word format. This is a text entry only − no document is attached. (Geiser, Angel) (Entered: 09/21/2017)
54 ORDER granting 52 and 53 motion to appear pro hac vice entered by Clerk of Court. Attorney Scott T. Schutte and Daniel T. Fahner for M. B., K. C., A. H., E. S., and Z. S., allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.
Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a CM/ECF account. This will enable counsel to electronically file documents and receive electronic notification of filings. Please return the original completed ECF Registration Form to 80 Lafayette Street, Jefferson City, Missouri 65101.
This is a TEXT ONLY ENTRY. No document is attached.(Geiser, Angel) (Entered: 09/21/2017)
55 MOTION for leave to file Supplemental Response filed by Jonathan Gilbert Bremer on behalf of All Defendants. Suggestions in opposition/response due by 10/5/2017 unless

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otherwise directed by the court. (Attachments: # 1 Exhibit A)(Bremer, Jonathan) (Entered: 09/21/2017)
56 MOTION for Order for the Appointment of Next Friends for M.B., K.C., and A.H. by M. B., K. C., A. H., E. S., Z. S.. (Gretter, Elizabeth) Modified on 9/22/2017 to file as a motion (Russel, Jeri). (Entered: 09/21/2017)
Set/Reset Deadlines as to 56 MOTION for order. Suggestions in opposition/response due by 10/5/2017 unless otherwise directed by the court. Reply suggestions due by 10/5/2017 unless otherwise directed by the court. (Russel, Jeri) (Entered: 09/22/2017)
57 SUGGESTIONS in opposition re 33 MOTION to dismiss case Defendants' Motion to Dismiss Plaintiff's First Amended Complaint for Injunctive and Declaratory Relief and Request for Class Action filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S.. Reply suggestions due by 10/10/2017 unless otherwise directed by the court. (Related document(s) 33 ) (Gretter, Elizabeth) (Entered: 09/25/2017)
58 ORDER entered by Judge Nanette Laughrey. Defendants' motion to leave to file a supplemental response, doc. 55 , to Plaintiffs' motion to appoint next friends, doc. 36, is granted. Defendants shall file their supplemental response no later than 9/29/2017. Plaintiffs may file a sur−reply to the supplemental response no later than 10/3/2017. This is a TEXT ONLY ENTRY. No document is attached.(Barragan−Scott, Alana) (Entered: 09/28/2017)
59 SUPPLEMENTAL SUGGESTIONS in opposition re 36 MOTION for order Appointing Next Friends filed by Jonathan Gilbert Bremer on behalf of Defendants Tim Decker, Jennifer Tidball. Reply suggestions due by 10/13/2017 unless otherwise directed by the court. (Related document(s) 36 ) (Bremer, Jonathan) Modified on 10/2/2017 (Geiser, Angel). (Entered: 09/29/2017)
60 MOTION for extension of time to file a sur−reply to Defendants' Supplemental Response filed by Poonam Juneja on behalf of All Plaintiffs. Suggestions in opposition/response due by 10/16/2017 unless otherwise directed by the court. (Juneja, Poonam) (Entered: 10/02/2017)
61 STIPULATION to the Appointment of Next Friend for E.S. by M. B., K. C., A. H., E. S., Z. S.. (Gretter, Elizabeth) (Entered: 10/03/2017)
62 MOTION for leave to file sur−reply out of time filed by Poonam Juneja on behalf of All Plaintiffs. Suggestions in opposition/response due by 10/17/2017 unless otherwise directed by the court. (Juneja, Poonam) (Entered: 10/03/2017)
63 ORDER entered by Judge Nanette Laughrey. Plaintiffs' motion for extension of time, Doc. 60 , and motion for leave, Doc. 62 , which Defendants do not oppose, are granted. Plaintiffs shall file their sur−reply to Defendants' Supplemental Response to Plaintiffs' Motion to Appoint Next Friends no later than 10/10/2017. This is a TEXT ONLY ENTRY. No document is attached.(Barragan−Scott, Alana) (Entered: 10/04/2017)
64 MOTION for extension of time to file Reply in further support of Defendants' Motion to Dismiss, MOTION for leave to file excess pages filed by Jonathan Gilbert Bremer on behalf of All Defendants. Suggestions in opposition/response due by 10/19/2017 unless otherwise directed by the court. (Bremer, Jonathan) (Entered: 10/05/2017)
65 ORDER entered by Judge Nanette Laughrey. Defendants' unopposed motion for extension of time, to 10/17/2017, in which to file reply suggestions in support of their motion to dismiss, and for leave to file ten excess pages, Doc. 64 , is granted. This is a TEXT ONLY ENTRY. No document is attached.(Barragan−Scott, Alana) (Entered: 10/10/2017)
66 SUR−REPLY in support re 36 MOTION for order Appointing Next Friends filed by Poonam Juneja on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S.. (Attachments: # 1 Declaration of Catherine Frizell)(Related document(s) 36 ) (Juneja, Poonam) Modified on 10/11/2017 to edit event(Geiser, Angel). (Entered: 10/10/2017)
67 REPLY SUGGESTIONS to motion re 33 MOTION to dismiss case Defendants' Motion to Dismiss Plaintiff's First Amended Complaint for Injunctive and Declaratory

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Relief and Request for Class Action filed by Jonathan Gilbert Bremer on behalf of Defendants Tim Decker, Jennifer Tidball. (Related document(s) 33 ) (Bremer, Jonathan) (Entered: 10/17/2017)
68 STIPULATION to the Appointment of Next Friend for Z.S. by M. B., K. C., A. H., E. S., Z. S.. (Gretter, Elizabeth) (Entered: 10/18/2017)
69 ORDER entered by Judge Nanette Laughrey. Plaintiffs moved for appointment of Next Friends, Doc. 36 and Doc. 56 , and the parties subsequently stipulated to appointment. Pursuant to the parties' stipulations, the Court appoints the following persons as Next Friends for the Named Plaintiffs: Ericka Eggemeyer as Next Friend for Named Plaintiff M.B.; Kris Dadant as Next Friend for Named Plaintiff K.C.; Kealey Williams as Next Friend for Named Plaintiff A.H.; A.S. as Next Friend for Named Plaintiff E.S.; and S.H. as Next Friend for Named Plaintiff Z.S. Plaintiffs' motions for appointment are terminated. (Barragan−Scott, Alana) (Entered: 10/20/2017)
70 MOTION for leave to file Sur−Reply in Opposition to Defendants' Motion to Dismiss filed by Elizabeth Pitman Gretter on behalf of All Plaintiffs. Suggestions in opposition/response due by 11/13/2017 unless otherwise directed by the court. (Attachments: # 1 Exhibit A)(Gretter, Elizabeth) (Entered: 10/30/2017)
71 SUGGESTIONS in opposition re 70 MOTION for leave to file Sur−Reply in Opposition to Defendants' Motion to Dismiss filed by Jonathan Gilbert Bremer on behalf of Defendants Tim Decker, Jennifer Tidball. Reply suggestions due by 11/13/2017 unless otherwise directed by the court. (Related document(s) 70 ) (Bremer, Jonathan) (Entered: 10/30/2017)
72 STIPULATION to the Entry of a Protective Order by M. B., K. C., A. H., E. S., Z. S.. (Gretter, Elizabeth) (Entered: 11/01/2017)
73 ORDER entered by Judge Nanette Laughrey. The parties' stipulation to and request for entry of a protective order, Doc. 72 , is granted. The Court further orders, however, that prior to filing any document under seal, a party must seek leave to do so. (Barragan−Scott, Alana) (Entered: 11/06/2017)
74 MOTION to withdraw as attorney filed by Michael D. Quinlan on behalf of Tim Decker, Jennifer Tidball. Suggestions in opposition/response due by 12/13/2017 unless otherwise directed by the court. (Quinlan, Michael) (Entered: 11/29/2017)
75 ORDER by Judge Nanette K. Laughrey. In light of the fact that other attorneys continue to represent the defendants, the motion by attorney Michael Quinlan to withdraw, Doc. 74 , is granted. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 12/07/2017)
76 ORDER SETTING TELECONFERENCE. Oral argument will be presented on 12/15/2017 at 9:00 AM on Defendants' Motion to Dismiss. The parties shall call Conference number 877−336−1274, access code 2707681 to participate. Signed on 12/11/17 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 12/11/2017)
77 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on December 15, 2017. Oral argument presented on Defendant's Motion to Dismiss, [Doc. 33]. The Court took the matter under advisement. Appearances: Sara Bartosz and William Grimm presented argument for Plaintiffs. Jonathan Bremer presented argument for Defendants. Court Reporter: Katie Wirt. CRD: Renea Matthes Mitra. (Text entry only.) To order a transcript of this hearing please contact Katie Wirt, 816−512−5608. (Matthes Mitra, Renea) (Entered: 12/15/2017)
78 CERTIFICATE OF SERVICE by All Plaintiffs of Rule 26 Initial Disclosures filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S..(Gretter, Elizabeth) (Entered: 12/20/2017)
79 CERTIFICATE OF SERVICE by All Plaintiffs of First Request for Production of Documents filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S..(Gretter, Elizabeth) (Entered: 12/20/2017)

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80 CERTIFICATE OF SERVICE by All Plaintiffs of Second Request for Production of Documents filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S..(Gretter, Elizabeth) (Entered: 12/20/2017)
81 CERTIFICATE OF SERVICE by All Plaintiffs of Responses and Objections to Defendants' First Request for Production filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S..(Gretter, Elizabeth) (Entered: 12/20/2017)
82 MOTION for extension of time and entry of amended scheduling order filed by Elizabeth Pitman Gretter on behalf of All Plaintiffs. Suggestions in opposition/response due by 1/4/2018 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 12/21/2017)
83 ORDER by Judge Nanette K. Laughrey. Defendants' response to Plaintiffs' motion for extension of time and entry of amended scheduling order, Doc. 82 , must be filed on or before December 28, 2017. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 12/21/2017)
84 SUGGESTIONS in opposition re 82 MOTION for extension of time and entry of amended scheduling order filed by Laura E. Elsbury on behalf of Defendants Tim Decker, Jennifer Tidball. Reply suggestions due by 1/11/2018 unless otherwise directed by the court. (Related document(s) 82 ) (Elsbury, Laura) (Entered: 12/28/2017)
85 ORDER by Judge Nanette K. Laughrey. Plaintiffs' reply with respect to the motion for extension of time and entry of amended scheduling order, Doc. 82 , must be filed on or before January 4, 2018. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 12/29/2017)
86 NOTICE of procedural change. Any documents, including proposed orders, that must be emailed to Chambers pursuant to the scheduling order henceforth should be sent to Netra_Sreeprakash@mow.uscourts.gov. (Moore, Terri) (Entered: 01/02/2018)
87 CERTIFICATE OF SERVICE by All Plaintiffs of Notice of Rule 30(b)(6) Deposition filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S..(Gretter, Elizabeth) (Entered: 01/04/2018)
88 REPLY SUGGESTIONS to motion re 82 MOTION for extension of time and entry of amended scheduling order filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S.. (Attachments: # 1 Exhibit A)(Related document(s) 82 ) (Gretter, Elizabeth) (Entered: 01/04/2018)
89 ORDER by Judge Nanette K. Laughrey. In light of the parties' agreement, the deadline for any motion for class certification is extended to March 9, 2018. Other matters raised in the briefing on Plaintiffs' motion for extension and for entry of amended scheduling order, Doc. 82 , will be addressed at a teleconference on January 8, 2018, at 10:00 AM. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 1/4/18 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 01/04/2018)
90 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on January 8, 2018, regarding Plaintiffs' Motion for Extension of Deadlines, Doc. 82 . The Court informed the parties that a ruling will be entered soon on Defendants' motion to dismiss. The parties agreed that the scheduling order deadlines should be extended, although Defendants stated that Plaintiffs' proposed dates are too aggressive, and Defendants continue to request bifurcation of class and merits discovery. The Court granted Plaintiffs' motion for extension of deadlines, except that the Court will alter the trial date to permit enough time for rulings on dispositive motions. The Court denied Defendants' request for bifurcation. Both parties agreed that the case will not be tried by jury. Appearances: Elizabeth Gretter presented argument for Plaintiffs. Ryan Bangert presented argument for Defendants. Court Reporter: None. CRD: Renea Matthes Mitra. (Text entry only.) (Matthes Mitra, Renea) (Entered: 01/08/2018)
91 ORDER entered by Judge Nanette K. Laughrey. Defendants' motion to dismiss (Doc. 33 ) is denied as to the substantive due process claim, except that claims relating to informed consent are dismissed without prejudice, and denied as to the procedural due process claim. The motion is granted with prejudice as to the claim alleging violation

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of the Child Welfare Act. (Sreeprakash, Netra) Modified docket text to add the word "ORDER" on 1/9/2018. (Matthes Mitra, Renea). (Entered: 01/08/2018)
92 ORDER denying motion for leave to file, Doc. 70 ; the parties were given the opportunity to raise additional arguments at oral argument. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 01/08/2018)
93 AMENDED SCHEDULING ORDER:Motion for Class Certification due by 3/19/2018. Discovery due by 8/17/2018. Dispositive Motions due by 9/7/2018. Pretrial Conference set for 1/3/2019 at 02:00 PM Courtroom 4A, Jefferson City. Jury Trial set for 1/14/2019 at 09:00 AM in Courtroom 4A, Jefferson City. Signed on 1/9/18 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on Pretrial Conference) (Matthes Mitra, Renea) (Entered: 01/09/2018)
94 SECOND AMENDED SCHEDULING ORDER:Motion for Class Certificatin due by 3/9/2018. Discovery due by 8/17/2018. Dispositive Motions due by 9/7/2018. Pretrial Conference set for 1/14/2019 at 08:30 AM Courtroom 4A, Jefferson City. BENCH TRIAL set for 1/14/2019 at 09:00 AM in Courtroom 4A, Jefferson City. Signed on 1/9/18 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Entered: 01/09/2018)
95 MOTION for extension of time to file answer re 22 Amended Complaint filed by Jonathan Gilbert Bremer on behalf of Tim Decker, Jennifer Tidball. Suggestions in opposition/response due by 1/30/2018 unless otherwise directed by the court. (Related document(s) 22 ) (Bremer, Jonathan) (Entered: 01/16/2018)
96 ORDER by Judge Nanette K. Laughrey granting unopposed motion by all defendants for extension of time to answer the first amended complaint, Doc. 95 . Defendants' response to the first amended complaint is due on or before February 5, 2018. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 01/17/2018)
97 NOTICE of voluntary dismissal by E. S. (Gretter, Elizabeth) (Entered: 02/01/2018)
98 ANSWER to 22 Amended Complaint on behalf of Steven Corsi, Tim Decker, Jennifer Tidball.(Bremer, Jonathan) (Entered: 02/05/2018)
99 CERTIFICATE OF SERVICE by M. B., K. C., A. H., Z. S. of Plaintiffs' First Set of Interrogatories filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., Z. S..(Gretter, Elizabeth) (Entered: 02/08/2018)
100 ELECTRONIC TRANSCRIPT of Oral Argument held 12/15/2017 before Judge Nanette K. Laughrey. Court Reporter: Katie Wirt, 816−512−5608, katie_wirt@mow.uscourts.gov. Number of pages: 52. NOTICE RE: REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the parties' intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.mow.uscourts.gov. Please read this policy carefully. NOTICE: Attorneys must contact the court reporter for copies during this 90 day period. Notice of Intent to File Redaction of Transcripts due by 2/16/2018 unless otherwise directed by the court. Release of Transcript Restriction set for 5/7/2018.(Wirt, Katie) (Entered: 02/09/2018)
101 NOTICE of appearance by Russell J. Keller on behalf of All Defendants (Attorney Russell J. Keller added to party Steven Corsi(pty:dft), Attorney Russell J. Keller added to party Tim Decker(pty:dft), Attorney Russell J. Keller added to party Jennifer Tidball(pty:dft))(Keller, Russell) (Entered: 02/13/2018)
102 AMENDED ANSWER to Plaintiffs' 22 Amended Complaint filed by Jonathan Gilbert Bremer on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball. (Related document(s) 22 ) (Bremer, Jonathan) (Entered: 02/26/2018)
103 Joint MOTION for extension of time for Class Certification Briefing Schedule filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H., Z. S.. Suggestions in opposition/response due by 3/12/2018 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 02/26/2018)

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104 ORDER by Judge Nanette K. Laughrey. The parties' joint motion for a seven−day extension of the class certification−related briefing schedule is granted. Plaintiffs' class certification motion must be filed on or before March 16, 2018. Any response to the class certification motion must be filed on or before March 30, 2018. Any reply in support of the class certification motion must be filed on or before April 13, 2018. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 02/26/2018)
105 Joint MOTION to amend/correct 73 Order, 72 Stipulation to the Entry of Protective Order filed by Jonathan Gilbert Bremer on behalf of All Defendants. Suggestions in opposition/response due by 3/19/2018 unless otherwise directed by the court. (Related document(s) 73 , 72 ) (Bremer, Jonathan) (Entered: 03/05/2018)
106 ORDER by Judge Nanette K. Laughrey. The joint motion, Doc. 105 , to amend/correct the protective order, Doc. 73 , is granted. Each party must seek leave of Court before filing any material under seal. (Sreeprakash, Netra) (Entered: 03/06/2018)
107 MOTION for leave to file excess pages in support of plaintiffs' motion for class certification filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H., Z. S.. Suggestions in opposition/response due by 3/23/2018 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 03/09/2018)
108 ORDER by Judge Nanette K. Laughrey. The Court grants Plaintiffs' unopposed motion to exceed by ten pages the fifteen−page limit. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 03/09/2018)
109 CERTIFICATE OF SERVICE by M. B., K. C., A. H., Z. S. of Responses and Objections to Defendants' Second Request for Production of Documents filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., Z. S..(Gretter, Elizabeth) (Entered: 03/14/2018)
110 CERTIFICATE OF SERVICE by M. B., K. C., A. H., Z. S. of Responses and Objections to Defendants' First Set of Interrogatories filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., Z. S..(Gretter, Elizabeth) (Entered: 03/14/2018)
111 MOTION to dismiss party Z.S. filed by John J. Ammann on behalf of All Plaintiffs. Suggestions in opposition/response due by 3/30/2018 unless otherwise directed by the court. (Ammann, John) (Entered: 03/16/2018)
112 MOTION to seal document in support of Plaintiffs' motion for class certification filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H., Z. S.. Suggestions in opposition/response due by 3/30/2018 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 03/16/2018)
113 MOTION to certify class and suggestions in support filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H., Z. S.. Suggestions in opposition/response due by 3/30/2018 unless otherwise directed by the court. (Attachments: # 1 Declaration of Sara M. Bartosz Attaching Exhibits, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit K, # 11 Exhibit L, # 12 Declaration of Sara M. Bartosz in Support of Plaintiffs' Motion for Class Certification, # 13 Declaration of Leecia Welch in Support of Plaintiffs' Motion for Class Certification, # 14 Declaration of Scott T. Schutte in Support of Plaintiffs' Motion for Class Certification, # 15 Declaration of John Ammann in Support of Plaintiffs' Motion for Class Certification)(Gretter, Elizabeth) (Entered: 03/16/2018)
114 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Susan Kaye Savage (Russel, Jeri) (Entered: 03/19/2018)
115 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Christy Collins (Russel, Jeri) (Entered: 03/19/2018)
116 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Christy Collins (Russel, Jeri) (Entered: 03/19/2018)
117 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Laine Young−Walker, M.D. (Russel, Jeri) (Entered: 03/19/2018)

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118 ORDER by Judge Nanette K. Laughrey. Plaintiffs' motion for leave to file under seal, Doc. 112 , is granted in part and denied in part. Plaintiffs should file Exhibits M and N to their motion for class certification, as well as any confidential portions of the Collins deposition transcript, under seal. However, excerpts from the Collins deposition that do not disclose confidential information should not be filed under seal. To the extent that the Plaintiffs have not already done so, they should publicly file appropriately redacted versions of the documents to be filed under seal. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 03/23/2018)
119 CERTIFICATE OF SERVICE by Steven Corsi, Tim Decker filed by Jonathan Gilbert Bremer on behalf of Defendants Steven Corsi, Tim Decker.(Bremer, Jonathan) (Entered: 03/23/2018)
120 MOTION for extension of time to file response/reply to Plaintiffs' Motion for Class Certification filed by Jonathan Gilbert Bremer on behalf of Steven Corsi, Tim Decker. Suggestions in opposition/response due by 4/9/2018 unless otherwise directed by the court. (Bremer, Jonathan) (Entered: 03/26/2018)
121 ORDER by Judge Nanette K. Laughrey granting the consent motion (Doc. 120 ) for two−week extension of time to respond to Plaintiffs' motion to certify class (Doc. 113 ). Papers in opposition to the motion for class certification must be filed on or before April 13, 2018. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 03/26/2018)
122 NOTICE (SEALED) by M. B., K. C., A. H., Z. S. re 113 MOTION to certify class and suggestions in support filing of sealed exhibits M and N in support of motion to certify class (Attachments: # 1 Exhibit M, # 2 Exhibit N)(Gretter, Elizabeth) (Entered: 03/26/2018)
123 NOTICE of filing of exhibits A, J, M (redacted), and N (redacted) in support of motion to certify class by M. B., K. C., A. H., Z. S. re 113 MOTION to certify class and suggestions in support (Attachments: # 1 Exhibit A, # 2 Exhibit J, # 3 Exhibit M (Redacted), # 4 Exhibit N (Redacted))(Gretter, Elizabeth) (Entered: 03/26/2018)
124 SUGGESTIONS in opposition re 111 MOTION to dismiss party Z.S. filed by Jonathan Gilbert Bremer on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball. Reply suggestions due by 4/13/2018 unless otherwise directed by the court. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F)(Related document(s) 111 ) (Bremer, Jonathan) (Entered: 03/30/2018)
125 ORDER. A Telephone Conference is set for April 6, 2018 at 2:00 PM regarding a discovery dispute. The parties shall email a one−page summary of the dispute to Netra_Sreeprakash@mow.uscourts.gov by 2:00 PM on April 5, 2018. The parties shall dial conference number 877−336−1828, access code 8503666, to participate in the call. Signed on April 3, 2018 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 04/03/2018)
126 CERTIFICATE OF SERVICE by All Plaintiffs of Notice of Depositions filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S..(Gretter, Elizabeth) (Entered: 04/03/2018)
127 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on April 6, 2018, regarding a discovery dispute. Following oral argument concerning whether the notes of confidential therapy sessions conducted between one plaintiff and her next friend, a psychotherapist, should be produced notwithstanding Plaintiffs' objection on the basis of the psychotherapist−patient privilege, the Court ruled that (1) pursuant to statute and case law, the psychotherapist−patient privilege applies; (2) the privilege was not waived by the filing of this action; (3) to the extent that the notes contain relevant material, the probative value of such material would be minimal, and would be outweighed by the very serious harm that would befall the child if the material were disclosed; and (4) Plaintiffs' production of selected materials that were already available to Defendants did not waive the privilege. Should Defendants wish to further argue the issue of whether the State has a right, either contractually, as the party paying the therapist, or as the legal custodian of the child, to access the private information shared between the child and the therapist, they may file, on or before

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April 13, 2018, a brief on those issues not exceeding two pages. If Defendants submit such a brief, Plaintiffs may file within one week thereof a response not exceeding two pages. If Plaintiffs file such a response, Defendants may file within one week thereafter a reply not exceeding two−pages. Appearances: Sara Bartosz for Plaintiffs; Russ Keller for Defendants. Court Reporter: None. (Sreeprakash, Netra) (Entered: 04/06/2018)
128 NOTICE of filing of Plaintiffs' Notice of Intent to Serve Subpoena by M. B., K. C., A. H., Z. S. (Attachments: # 1 Exhibit 1)(Gretter, Elizabeth) (Entered: 04/09/2018)
129 Consent MOTION for leave to file excess pages in response to Plaintiffs' class certification motion filed by Russell J. Keller on behalf of All Defendants. Suggestions in opposition/response due by 4/23/2018 unless otherwise directed by the court. (Keller, Russell) (Entered: 04/09/2018)
130 ORDER by Judge Nanette K. Laughrey. Defendants' unopposed motion to exceed by ten pages the fifteen−page limit in responding to Plaintiffs' motion for class certification (Doc. 129 ) is GRANTED. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 04/10/2018)
131 MOTION to seal document in Plaintiffs Reply in support of Their Motion for Dismissal Without Prejudice of Named Plaintiff Z.S. filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H., Z. S.. Suggestions in opposition/response due by 4/26/2018 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 04/12/2018)
132 ORDER by Judge Nanette K. Laughrey. Having read and considered the unopposed motion to seal submitted by Plaintiffs, and having reviewed the document proposed to be placed under seal, the Court finds that compelling reasons support sealing the document. Therefore, the Court GRANTS Plaintiffs motion (Doc. 131 ) for leave to file under seal Exhibit A to Plaintiffs reply in support of their motion for dismissal without prejudice of named plaintiff Z.S. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 04/12/2018)
133 REPLY SUGGESTIONS to motion re 111 MOTION to dismiss party Z.S. without prejudice filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., Z. S.. (Attachments: # 1 Declaration of Sara M. Bartosz)(Related document(s) 111 ) (Gretter, Elizabeth) (Entered: 04/13/2018)
134 NOTICE (SEALED) by M. B., K. C., A. H., Z. S. re 133 Reply Suggestions to Motion, (Attachments: # 1 Exhibit A)(Gretter, Elizabeth) (Entered: 04/13/2018)
135 MOTION to seal document re materials for Defendants' Suggestions in Opposition to Plaintiffs' Class Certification Motion filed by Russell J. Keller on behalf of All Defendants. Suggestions in opposition/response due by 4/27/2018 unless otherwise directed by the court. (Attachments: # 1 Exhibit 1 −− Counsel email)(Keller, Russell) (Entered: 04/13/2018)
136 MOTION for leave to file materials to create appellate record re request to compel production from A.H. and Next Friend filed by Russell J. Keller on behalf of All Defendants. Suggestions in opposition/response due by 4/27/2018 unless otherwise directed by the court. (Keller, Russell) (Entered: 04/13/2018)
137 MOTION to seal document re Defendants' request to compel production from Plaintiff A.H. and Next Friend filed by Russell J. Keller on behalf of All Defendants. Suggestions in opposition/response due by 4/27/2018 unless otherwise directed by the court. (Keller, Russell) (Entered: 04/13/2018)
138 MOTION to compel production from Plaintiff A.H. and Next Friend filed by Russell J. Keller on behalf of All Defendants. Suggestions in opposition/response due by 4/27/2018 unless otherwise directed by the court. (Attachments: # 1 Exhibit B −− Privilege Log, # 2 Exhibit C −− Agreement)(Keller, Russell) (Entered: 04/13/2018)
139 NOTICE of filing / transmission of Defendants' Suggestions and Exhibits in Opposition to Plaintiffs' Class Certification Motion by Steven Corsi, Tim Decker, Jennifer Tidball (Keller, Russell) (Entered: 04/13/2018)

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140 NOTICE of filing of Errata by Steven Corsi, Tim Decker, Jennifer Tidball re 135 MOTION to seal document re materials for Defendants' Suggestions in Opposition to Plaintiffs' Class Certification Motion (Keller, Russell) (Entered: 04/16/2018)
141 ORDER by Judge Nanette K. Laughrey. Defendants' unopposed motions to seal (1) certain materials in opposition to Plaintiffs' class certification motion, including Exhibit B (Doc. 135 ), and (2) certain materials in support of Defendants' request to compel discovery from Plaintiff A.H. and her Next Friend (Doc. 137 ), are GRANTED. Defendants may file the confidential material under seal and should publicly file appropriately redacted versions of the documents. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 04/16/2018)
142 NOTICE (SEALED) by Steven Corsi, Tim Decker re 138 MOTION to compel production from Plaintiff A.H. and Next Friend , Sealed Exhibit A (Keller, Russell) (Entered: 04/16/2018)
143 NOTICE of filing of sealed Exhibit A by Steven Corsi, Tim Decker, Jennifer Tidball re 138 MOTION to compel production from Plaintiff A.H. and Next Friend (Keller, Russell) (Entered: 04/16/2018)
144 SUGGESTIONS in opposition re 113 MOTION to certify class and suggestions in support filed by Russell J. Keller on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball. Reply suggestions due by 4/30/2018 unless otherwise directed by the court. (Attachments: # 1 Exhibit A −− Collins 30(b)(6) testimony, # 2 Exhibit C −− Stuve Affidavit, # 3 Exhibit D −− Masek Affidavit, # 4 Exhibit E −− Young−Walker 30(b)(6) testimony)(Related document(s) 113 ) (Keller, Russell) (Entered: 04/16/2018)
145 SUGGESTIONS in opposition (SEALED) re 113 MOTION to certify class and suggestions in support filed by Russell J. Keller on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball. Reply suggestions due by 4/30/2018 unless otherwise directed by the court. (Attachments: # 1 Exhibit B −− Gross Affidavit, # 2 Exhibit F −− Williams Next Friend Testimony, # 3 Exhibit G −− Williams dep ex 14, # 4 Exhibit H −− Williams dep ex 15, # 5 Exhibit I −− Williams dep ex 21, # 6 Exhibit J −− Williams dep ex 30, # 7 Exhibit K −− Williams dep ex 17, # 8 Exhibit L −− Williams dep ex 29, # 9 Exhibit M −− Williams dep ex 16, # 10 Exhibit N −− Williams dep ex 20, # 11 Exhibit O −− Williams dep ex 27, # 12 Exhibit P −− Williams dep ex 28, # 13 Exhibit Q −− Williams dep ex 32, # 14 Exhibit R −− Williams dep ex 22, # 15 Exhibit S −− Dadant Next Friend Testimony, # 16 Exhibit T −− Dadant dep ex 5, # 17 Exhibit U −− Eggemeyer Next Friend Testimony, # 18 Exhibit V −− Eggemeyer dep ex 35, # 19 Exhibit W −− Eggemeyer dep ex 36, # 20 Exhibit X −− Dadant dep ex 12, # 21 Exhibit Y −− K.C. Evaluation, # 22 Exhibit Z −− Williams dep ex 18, # 23 Exhibit BB −− 2−20−14 AH Report, # 24 Exhibit CC −− 8−13−14 AH Report, # 25 Exhibit DD −− 12−8−15 AH Report, # 26 Exhibit EE −− 7−10−15 AH Report, # 27 Exhibit FF −− 11−30−15 AH Report, # 28 Exhibit GG −− Oberlag Affidavit)(Related document(s) 113 ) (Keller, Russell) (Entered: 04/16/2018)
146 NOTICE of filing of sealed Exhibits B, F−Z, BB−GG by Steven Corsi, Tim Decker, Jennifer Tidball re 145 Suggestions in Opposition to Motion (Sealed),,,,, (Keller, Russell) (Entered: 04/16/2018)
147 NOTICE of appearance by David D Dean on behalf of Steven Corsi, Tim Decker (Attorney David D Dean added to party Steven Corsi(pty:dft), Attorney David D Dean added to party Tim Decker(pty:dft))(Dean, David) (Entered: 04/17/2018)
148 SUGGESTIONS in opposition re 138 MOTION to compel production from Plaintiff A.H. and Next Friend filed by Poonam Juneja on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S.. Reply suggestions due by 5/4/2018 unless otherwise directed by the court. (Attachments: # 1 Exhibit Declaration of Kealey Williams)(Related document(s) 138 ) (Juneja, Poonam) (Entered: 04/20/2018)
149 Consent MOTION for extension of time to file response/reply as to 113 MOTION to certify class and suggestions in support, 144 Suggestions in Opposition to Motion,, filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H., Z. S.. Suggestions in opposition/response due by 5/4/2018 unless otherwise directed by the court. (Related document(s) 113 , 144 ) (Gretter, Elizabeth) (Entered: 04/20/2018)

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150 ORDER by Judge Nanette K. Laughrey. Plaintiffs' unopposed motion, Doc. 149 , for a week's extension of time to file a reply in further support of their motion to certify class, Doc. 113 , is granted. Plaintiffs' reply papers must be filed on or before 5/4/2018. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 04/23/2018)
151 REPLY SUGGESTIONS to motion re 138 MOTION to compel production from Plaintiff A.H. and Next Friend filed by Russell J. Keller on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball. (Related document(s) 138 ) (Keller, Russell) (Entered: 04/27/2018)
152 SUGGESTIONS in opposition re 136 MOTION for leave to file materials to create appellate record re request to compel production from A.H. and Next Friend filed by Poonam Juneja on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S.. Reply suggestions due by 5/11/2018 unless otherwise directed by the court. (Related document(s) 136 ) (Juneja, Poonam) (Entered: 04/27/2018)
153 REPLY SUGGESTIONS to motion re 136 MOTION for leave to file materials to create appellate record re request to compel production from A.H. and Next Friend filed by Russell J. Keller on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball. (Attachments: # 1 Exhibit 1 −− Proposed Confidential Exhibits)(Related document(s) 136 ) (Keller, Russell) (Entered: 05/03/2018)
154 REPLY SUGGESTIONS to motion re 113 MOTION to certify class and suggestions in support filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H., Z. S.. (Related document(s) 113 ) (Gretter, Elizabeth) (Entered: 05/04/2018)
155 Motion to allow Danielle Rosenthal to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−5767328) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 05/08/2018)
156 Motion to allow Erin McGuinness to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−5767341) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 05/08/2018)
157 Motion to allow Aaron Finch to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−5767347) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 05/08/2018)
158 ORDER granting 156 & 157 motion to appear pro hac vice entered by Clerk of Court. Attorneys Aaron Finch and Erin McGuinness for plaintiffs allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

05/15/2018

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a WDMO e−filing account for NextGen CM/ECF. This will enable counsel to electronically file documents and receive electronic notification of filings. Register for a WDMO e−filing account at PACER. This is a TEXT ONLY ENTRY. No document is attached.(Geiser, Angel) (Entered: 05/11/2018)
159 ORDER denying 155 motion to appear pro hac vice entered by Clerk of Court.

The court has denied your pro hac vice motion because the form was not fully completed to provide the name of a United States District Court that Ms. Rosenthal is admitted to. This is a requirement of Local Rule 83.5(h).

05/16/2018

If you still wish to proceed pro hac vice in this case, please refile your fully completed motion. To avoid being charged a duplicate fee, please insert the receipt number issued for this motion in the receipt box on your new filing. This is a TEXT ONLY ENTRY. No document is attached.(Russel, Jeri) (Entered: 05/15/2018)
160 ORDER by Judge Nanette K. Laughrey. Defendants' motion to create an appellate record (Doc. 136 ) is granted in part and denied in part. The parties are permitted to file the one−page summaries they submitted to the Court, as well as any documents submitted with or expressly referenced in them, in order to create a record for appeal. Those summaries and additional documents may be filed under seal, so long as appropriately redacted versions of the documents are filed publicly

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contemporaneously. Defendants' request to supply new argument, new authorities, or new documents is denied. Defendants have not requested reconsideration and cannot raise new arguments or present new documents on appeal. Further, Defendants could not raise new arguments or present additional documentation to support a motion for reconsideration, even if they had filed such a motion. Defendants had ample time to present their arguments to the Court and to present any pertinent documents prior to the Court's ruling. Defendants also were given an opportunity to argue their position orally before the Court. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 05/16/2018)
161 ORDER by Judge Nanette K. Laughrey. Plaintiffs are ordered to furnish to the Court for in camera inspection within one week copies of Ms. Williams' notes from November 12, 2015, November 19, 2015, and December 3, 2015. Copies of the documents may be submitted by email. Defendants' motion to compel (Doc. 138 ) otherwise is denied. (Sreeprakash, Netra) (Entered: 05/16/2018)
162 NOTICE of filing of Defendants' Summary and Exhibits for Request to Compel Production from Plaintiff A.H. and her Next Friend by Steven Corsi, Tim Decker, Jennifer Tidball re 160 Order on Motion for Leave to File,,,, (Attachments: # 1 Exhibit 1 −− Defendants' one−page summary)(Keller, Russell) (Entered: 05/18/2018)
163 NOTICE (SEALED) by Steven Corsi, Tim Decker re 160 Order on Motion for Leave to File,,,, Sealed Exhibits for Request to Compel Production from Plaintiff A.H. and her Next Friend (Attachments: # 1 Exhibit A −− 3/31/14 PTP (updated), # 2 Exhibit B −− 3/31/14 PTP, # 3 Exhibit C −− 8/5/14 PTP, # 4 Exhibit D −− 2/5/15 PTP, # 5 Exhibit E −− 10/28/15 PTP, # 6 Exhibit F −− 3/13/17 PTP, # 7 Exhibit G −− 7/12/17 PTP, # 8 Exhibit H −− 10/23/17 PTP, # 9 Exhibit I −− 11/28/17 PTP, # 10 Exhibit J −− 11/29/17 PTP (updated), # 11 Exhibit K −− 7/31/14 Intake Note, # 12 Exhibit L −− 11/11/17 Consultation Note, # 13 Exhibit M −− 2/22/17 Contact Note, # 14 Exhibit N −− 6/7/11 Letter, # 15 Exhibit O −− 8/1/11 Letter)(Keller, Russell) (Entered: 05/18/2018)
164 ORDER by Judge Nanette K. Laughrey. Having reviewed in camera Ms. Williams' notes from November 12, 2015, November 19, 2015, and December 3, 2015, the Court finds that Ms. Williams was serving as A.H.'s therapist on each occasion, and therefore each set of notes is subject to the psychotherapist−patient privilege. Defendants' motion to compel production of said notes, Doc. 138 , is denied. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 05/21/2018)
165 NOTICE of filing of Plaintiffs' Summary and Exhibit re Defendants' Request to Compel Production from Plaintiff A.H. and her Next Friend by M. B., K. C., A. H., Z. S. re 160 Order on Motion for Leave to File,,,, (Attachments: # 1 Exhibit Plaintiffs' One−Page Summary and Exhibit − Redacted)(Gretter, Elizabeth) (Entered: 05/22/2018)
166 NOTICE (SEALED) by M. B., K. C., A. H., Z. S. re 160 Order on Motion for Leave to File,,,, of Plaintiffs' Summary and Exhibit re Defendants' Request to Compel Production from Plaintiff A.H. and her Next Friend (Attachments: # 1 Exhibit Plaintiffs' One−Page Summary and Exhibit)(Gretter, Elizabeth) (Entered: 05/22/2018)
167 Joint MOTION for extension of time and entry of amended scheduling order filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H., Z. S.. Suggestions in opposition/response due by 6/8/2018 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 05/25/2018)
168 ORDER by Judge Nanette K. Laughrey granting motion to dismiss party Z.S. as named plaintiff without prejudice(Doc. 111 ). (Sreeprakash, Netra) (Entered: 05/29/2018)
169 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 5/30/2018 at 02:00 PM regarding discovery and scheduling. The parties shall call conference number 877−336−1274, access code 2707681 to participate. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/29/2018)
170 ORDER entered by Judge Nanette K. Laughrey. The Telephone Conference set for 5/30/2018 is rescheduled for 5/31/2017 at 10:00 AM. The parties shall call Conference

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number 877−336−1274, access code 2707681 to participate. Signed on 5/29/18 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/29/2018)
Set/Reset Hearings: Telephone Conference set for 5/31/2018 at 10:00 AM before District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 05/30/2018)
171 CERTIFICATE OF SERVICE by Steven Corsi, Tim Decker COS re Defendants Second Interrogatories and Third RFP Directed to All Plaintiffs filed by David D Dean on behalf of Defendants Steven Corsi, Tim Decker.(Dean, David) (Entered: 05/30/2018)
172 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on May 31, 2018, regarding the Joint Motion for Extension of Deadlines (Doc. 167 ). The parties presented statements regarding discovery efforts to date and discovery that has yet to be completed. The Court granted the motion for extension. The Court will extend the discovery deadlines in accordance with the parties' request. All fact discovery must be completed by January 17, 2019, and the parties are expected to devote the resources necessary to meet that deadline. Further, the Court will refer this case to the Court's Mediation and Assessment Program for a mediation conference. Appearances: Plaintiffs by Sara Bartosz and Aaron Finch. Defendants by Russell Keller and Jonathan Bremer. Court Reporter: None. CRD: Renea Matthes Mitra. (Text entry only.) (Matthes Mitra, Renea) (Entered: 05/31/2018)
173 THIRD AMENDED SCHEDULING ORDER: Discovery due by 1/17/2019. Dispositive Motions due by 2/7/2019. Pretrial Conference set for 6/17/2019 at 08:30 AM Courtroom 4A, Jefferson City. Bench Trial set for 6/17/2019 at 09:00 AM in Courtroom 4A, Jefferson City. Signed on 5/31/18 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Entered: 05/31/2018)
174 ORDER by Judge Nanette K. Laughrey. The Court orders the parties to participate in mediation before the Director of the Mediation and Assessment Program, Jill Morris. The parties shall contact the mediator (816−512−5080; map@mow.uscourts.gov) to arrange the mediation. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 06/14/2018)
175 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Third Request for Production of Documents filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 06/15/2018)
176 Motion to allow Danielle Rosenthal to appear pro hac vice (Pro Hac fee $100 receipt number 5767328) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 06/19/2018)
177 ORDER granting 176 motion to appear pro hac vice entered by Clerk of Court. Attorney Danielle Rosenthal for plaintiffs allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

06/22/2018 06/27/2018

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a WDMO e−filing account for NextGen CM/ECF. This will enable counsel to electronically file documents and receive electronic notification of filings. Register for a WDMO e−filing account at PACER. This is a TEXT ONLY ENTRY. No document is attached.(Geiser, Angel) (Entered: 06/20/2018)
178 CERTIFICATE OF SERVICE by Steven Corsi, Tim Decker COS re Defendants' Third Interrogatories to All Plaintiffs filed by David D Dean on behalf of Defendants Steven Corsi, Tim Decker.(Dean, David) (Entered: 06/22/2018)
179 ORDER entered by Judge Nanette K. Laughrey. Oral argument on the motion for class certification will be presented by telephone conference on 6/28/2018 at 10:00 AM. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 6/27/18 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 06/27/2018)

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180 ORDER RESETTING TELECONFERENCE entered by Judge Nanette K. Laughrey. Oral argument on the motion for class certification will be presented by telephone conference on 7/2/2018 at 10:00 AM. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 6/27/18 by District Judge Nanette K. Laughrey.This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 06/27/2018)
181 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on July 2, 2018. Oral argument presented on Plaintiffs' Motion to Certify Class, [Doc. 113]. The Court took the matter under advisement. Appearances: Samantha Bartosz presented argument for Plaintiffs. Russell Keller presented argument for Defendants. Court Reporter: Katie Wirt. CRD: Renea Matthes Mitra. (Text entry only.) To order a transcript of this hearing please contact Katie Wirt, 816−512−5608. (Matthes Mitra, Renea) (Entered: 07/02/2018)
182 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Responses and Objections to Defendants' Second Set of Interrogatories and Third Request for Production of Documents filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 07/11/2018)
183 ORDER by Judge Nanette K. Laughrey. Plaintiffs' motion for class certification, Doc. 113 , is GRANTED. The Court certifies a class of plaintiffs consisting of: all children in Children's Division foster care custody who presently are, or in the future will be, prescribed or administered one or more psychotropic medications while in state care. (Sreeprakash, Netra) (Entered: 07/19/2018)
184 CERTIFICATE OF SERVICE by All Defendants of Responses and Objections to Plaintiffs Third Requests for Production of Documents filed by Jonathan Gilbert Bremer on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball.(Bremer, Jonathan) (Entered: 07/23/2018)
185 ELECTRONIC TRANSCRIPT of Teleconference held 7/2/2018 before Judge Nanette K. Laughrey. Court Reporter: Katie Wirt, 816−512−5608, katie_wirt@mow.uscourts.gov. Number of pages: 18. NOTICE RE: REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the parties' intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.mow.uscourts.gov. Please read this policy carefully. NOTICE: Attorneys must contact the court reporter for copies during this 90 day period. Notice of Intent to File Redaction of Transcripts due by 7/30/2018 unless otherwise directed by the court. Release of Transcript Restriction set for 10/18/2018.(Wirt, Katie) (Entered: 07/23/2018)
186 CERTIFICATE OF SERVICE by All Plaintiffs of Responses and Objections to Defendants' Third Set of Interrogatories filed by Poonam Juneja on behalf of Plaintiffs M. B., K. C., A. H., E. S., Z. S..(Juneja, Poonam) (Entered: 07/23/2018)
187 Motion to allow Daniele Gerard to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−5870721) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 07/27/2018)
188 MOTION to withdraw as attorney Catherine Frizell filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 8/13/2018 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 07/30/2018)
189 ORDER by Judge Nanette K. Laughrey. In light of the fact that Ms. Frizell is no longer employed by Children's Rights and the fact that other attorneys continue to represent the plaintiffs, the motion for withdrawal of attorney Catherine Frizell, Doc. 188 , is GRANTED. Attorney Catherine Frizell is terminated. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 07/30/2018)
190 ORDER granting 187 motion to appear pro hac vice entered by Clerk of Court. Attorney Daniele Gerard for M. B.,Daniele Gerard for K. C.,Daniele Gerard for A. H. allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to

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immediately register for a WDMO e−filing account for NextGen CM/ECF. This will enable counsel to electronically file documents and receive electronic notification of filings. Register for a WDMO e−filing account at PACER. This is a TEXT ONLY ENTRY. No document is attached.(Russel, Jeri) (Entered: 07/31/2018)
191 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES AS AMENDED filed by Jonathan Gilbert Bremer on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball.(Bremer, Jonathan) (Entered: 08/02/2018)
192 NOTICE by 8th Circuit of filing of Petition for Permission to Appeal re 183 Order on Motion to Certify Class, (Attachments: # 1 Petition for Permission to File Appeal filed with 8th Circuit)(Russel, Jeri) (Entered: 08/03/2018)
193 MOTION to withdraw as attorney filed by Jonathan Gilbert Bremer on behalf of All Defendants. Suggestions in opposition/response due by 8/17/2018 unless otherwise directed by the court. (Bremer, Jonathan) (Entered: 08/03/2018)
194 ORDER by Judge Nanette K. Laughrey. In light of the fact that Mr. Bremer soon will no longer employed by the Missouri Attorney General's office and the fact that other attorneys continue to represent the defendants, the motion for withdrawal of attorney Jonathan Gilber Bremer, Doc. 193 , is GRANTED. Attorney Jonathan Gilbert Bremer is terminated as counsel of record for the defendants. This is a TEXT ONLY ENTRY. No document is attached.(Sreeprakash, Netra) (Entered: 08/03/2018)
195 NOTICE OF APPEAL as to 183 Order on Motion to Certify Class, by Steven Corsi, Tim Decker. Filing fee $ 0, receipt number Not Paid. This appeal was filed directly with the 8th Circuit Court of Appeals. (Geiser, Angel) (Entered: 08/23/2018)
196 USCA Case Number from Eighth Circuit is 18−2798 for 195 Notice of Appeal filed by Steven Corsi, Tim Decker. Briefing schedule entered by the Court of Appeals is attached. (Attachments: # 1 USCA case number)(Geiser, Angel) (Entered: 08/23/2018)
197 Appeal Remark re 195 Notice of Appeal : Case Docketed On Transfer − 23(f). Case was transferred from miscellaneous case number 18−8009 to 18−2798 (Geiser, Angel) (Entered: 08/23/2018)
198 Appeal Remark re 195 Notice of Appeal : Original district court defendant, Tim Decker, retired in July 2018. Appellant's replaced him with Julie Lester, the new interim director on their Petition to appeal 23(f). This information was confirmed by the Children's Division of the Missouri Department of Social Services on 8/22/18. Lester was added to the appeal herein as she is the proper party. [18−2798] (Geiser, Angel) (Entered: 08/23/2018)
199 Appeal Remark re 195 Notice of Appeal : Judgment and Mandate on USCA miscellaneous case number 18−8009 (Attachments: # 1 USCA Mandate on 18−8009)(Geiser, Angel) (Entered: 08/23/2018)
RECEIPT number KCMO072609 in the amount of $505.00 issued to Atty General for Steven Corsi. (Ellis, Lindsey) (Entered: 08/30/2018)
200 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Amended Notice of Depositions filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 08/31/2018)
201 MOTION to stay pending appeal of class certification order filed by Russell J. Keller on behalf of All Defendants. Suggestions in opposition/response due by 9/20/2018 unless otherwise directed by the court. (Keller, Russell) (Entered: 09/06/2018)
202 SUGGESTIONS in support re 201 MOTION to stay pending appeal of class certification order filed by Russell J. Keller on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball. (Attachments: # 1 Exhibit A −− Order allowing MB appeal, # 2 Exhibit B −− Order allowing Postawko appeal, # 3 Exhibit C −− Defendant email and attachments, # 4 Exhibit D −− Plaintiff email, # 5 Exhibit E −− MB 23(f) petition, # 6 Exhibit F −− CFE contract, # 7 Exhibit G −− Informed consent policy, # 8 Exhibit H −− Postawko oral argument calendar)(Related document(s) 201 ) (Keller, Russell) (Entered: 09/06/2018)

09/11/2018 09/12/2018
09/12/2018 09/13/2018

203 MOTION to withdraw as attorney for Defendants filed by Laura E. Elsbury on behalf of Steven Corsi, Tim Decker, Jennifer Tidball. Suggestions in opposition/response due by 9/25/2018 unless otherwise directed by the court. (Elsbury, Laura) (Entered: 09/11/2018)
204 ORDER by Judge Nanette K. Laughrey. The motion by attorney Laura E. Elsbury to withdraw as counsel for the defendants, Doc. 203 , is GRANTED in light of the fact that other attorneys continue to represent the defendants. Attorney Laura E. Elsbury terminated. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 09/12/2018)
205 Motion to allow Jonathan King to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−5935796) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 09/12/2018)
206 ORDER granting 205 motion to appear pro hac vice entered by Clerk of Court. Attorney Jonathan King for plaintiff's allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

09/19/2018 09/19/2018
09/20/2018 09/20/2018
09/20/2018 09/21/2018 09/24/2018

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a WDMO e−filing account for NextGen CM/ECF. This will enable counsel to electronically file documents and receive electronic notification of filings. Register for a WDMO e−filing account at PACER. This is a TEXT ONLY ENTRY. No document is attached. (Geiser, Angel) (Entered: 09/13/2018)
207 MOTION to seal document filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 10/3/2018 unless otherwise directed by the court. (Attachments: # 1 Exhibit)(Gretter, Elizabeth) (Entered: 09/19/2018)
208 ORDER by Judge Nanette K. Laughrey. Plaintiffs' unopposed motion (Doc. 207 ) to seal portions of Plaintiffs' suggestions in opposition to Defendants' motion to stay pending appeal of the class certification order, and Exhibits A through G and K through T thereto, is GRANTED. Plaintiffs may file the confidential material under seal and should publicly file appropriately redacted versions of the documents. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 09/19/2018)
209 SUGGESTIONS in opposition re 201 MOTION to stay pending appeal of class certification order filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H.. Reply suggestions due by 10/4/2018 unless otherwise directed by the court. (Attachments: # 1 Declaration of Samantha M. Bartosz in Support of Plaintiffs' Suggestions, # 2 Exhibit H, # 3 Exhibit I, # 4 Exhibit J)(Related document(s) 201 ) (Gretter, Elizabeth) (Entered: 09/20/2018)
210 SUGGESTIONS in opposition (SEALED) re 201 MOTION to stay pending appeal of class certification order filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H.. Reply suggestions due by 10/4/2018 unless otherwise directed by the court. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit K, # 9 Exhibit L, # 10 Exhibit M, # 11 Exhibit N, # 12 Exhibit O, # 13 Exhibit P, # 14 Exhibit Q, # 15 Exhibit R, # 16 Exhibit S, # 17 Exhibit T)(Related document(s) 201 ) (Gretter, Elizabeth) (Entered: 09/20/2018)
211 NOTICE of filing of sealed Plaintiffs' Suggestions and Exhibits A−G, K−T by M. B., K. C., A. H. re 210 Suggestions in Opposition to Motion (Sealed),, (Gretter, Elizabeth) (Entered: 09/20/2018)
212 Motion to allow Freya Pitts to appear pro hac vice (Pro Hac fee $100 receipt number AMOWDC−5949406) filed by John J. Ammann on behalf of All Plaintiffs. (Ammann, John) (Entered: 09/21/2018)
213 ORDER granting 212 motion to appear pro hac vice entered by Clerk of Court. Attorney Freya Pitts for plaintiff's allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

09/25/2018 10/01/2018 10/01/2018
10/02/2018 10/03/2018 10/04/2018 10/04/2018 10/04/2018 10/04/2018 10/23/2018
10/25/2018
10/29/2018

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a WDMO e−filing account for NextGen CM/ECF. This will enable counsel to electronically file documents and receive electronic notification of filings. Register for a WDMO e−filing account at PACER. This is a TEXT ONLY ENTRY. No document is attached. (Geiser, Angel) (Entered: 09/24/2018)
214 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Notice of Depositions filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 09/25/2018)
215 Consent MOTION for leave to file excess pages for Defendants' reply suggestions in support of motion to stay pending appeal filed by Russell J. Keller on behalf of All Defendants. Suggestions in opposition/response due by 10/15/2018 unless otherwise directed by the court. (Keller, Russell) (Entered: 10/01/2018)
216 ORDER by Judge Nanette K. Laughrey. For good cause shown, Defendants' unopposed motion for leave to exceed by one page the page limit for their reply suggestions in support of their motion to stay proceedings before the Court pending appeal of the class certification order is GRANTED. Defendants' reply suggestions shall not exceed 11 pages. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 10/01/2018)
217 NOTICE of filing of Plaintiffs' Notice of Intent to Serve Subpoena by M. B., K. C., A. H. (Attachments: # 1 Exhibit 1)(Gretter, Elizabeth) (Entered: 10/02/2018)
218 NOTICE of filing of Plaintiffs' Notice of Intent to Serve Subpoena by M. B., K. C., A. H. (Attachments: # 1 Exhibit 1)(Gretter, Elizabeth) (Entered: 10/03/2018)
219 MOTION to seal document filed by David D Dean on behalf of Steven Corsi, Tim Decker. Suggestions in opposition/response due by 10/18/2018 unless otherwise directed by the court. (Dean, David) (Entered: 10/04/2018)
220 ORDER by Judge Nanette K. Laughrey. Defendants' unopposed motion (Doc. 219 ) to seal portions of their reply in support of their motion to stay as well as Exhibit 1 thereto is GRANTED. Defendants may file the confidential material under seal and should publicly file an appropriately redacted version of the reply. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 10/04/2018)
221 REPLY SUGGESTIONS to motion re 201 MOTION to stay pending appeal of class certification order (redacted) filed by David D Dean on behalf of Defendants Steven Corsi, Tim Decker. (Attachments: # 1 Exhibit 2, # 2 Exhibit 3, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6)(Related document(s) 201 ) (Dean, David) (Entered: 10/04/2018)
222 REPLY SUGGESTIONS to motion (Sealed) re 201 MOTION to stay pending appeal of class certification order (unredacted) filed by David D Dean on behalf of Defendants Steven Corsi, Tim Decker. (Attachments: # 1 Exhibit 1)(Related document(s) 201 ) (Dean, David) (Entered: 10/04/2018)
223 ORDER entered by Judge Nanette K. Laughrey. Oral Argument will be presented by teleconference on the Motion to Stay Pending Appeal, Doc. 201 on 10/25/2018 at 11:00 AM. The parties shall call conference number 877−336−1828, access code: 8503666 to participate. Signed on 10/23/18 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 10/23/2018)
224 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on October 25, 2018. Oral argument presented on Defendants' Motion to Stay Pending Appeal of Class Certification order, Doc. 201 . The Court took the matter under advisement. Appearances: Samantha Bartosz presented argument for Plaintiffs. Russell Keller presented argument for Defendants. Court Reporter: Jeannine Rankin. CRD: Renea Matthes Mitra. (Text entry only.) To order a transcript of this hearing please contact Jeannine Rankin, 417−225−7713. (Matthes Mitra, Renea) (Entered: 10/25/2018)
225 ORDER (SEALED) by Judge Nanette K. Laughrey. Defendants' motion for a stay pending appeal is DENIED. If any party believes that a stay of post−discovery

10/29/2018 10/31/2018
11/01/2018 11/02/2018
11/09/2018 11/09/2018 11/12/2018 11/26/2018 12/06/2018 12/07/2018 12/11/2018 12/17/2018

deadlines is warranted, he or she may move at the appropriate time to stay those deadlines pending appeal. (Sreeprakash, Netra) (Entered: 10/29/2018)
226 ORDER by Judge Nanette K. Laughrey. Defendants' motion for a stay pending appeal, Doc. 201 , is DENIED. If any party believes that a stay of post−discovery deadlines is warranted, he or she may move at the appropriate time to stay those deadlines pending appeal. (Sreeprakash, Netra) (Entered: 10/29/2018)
227 ELECTRONIC TRANSCRIPT of Teleconference/Oral Argument held October 25, 2018 before Judge Nanette K. Laughrey. Court Reporter: Jeannine Rankin, 417−225−7713, jeannine_rankin@mow.uscourts.gov. Number of pages: 16. NOTICE RE: REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the parties' intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.mow.uscourts.gov. Please read this policy carefully. NOTICE: Attorneys must contact the court reporter for copies during this 90 day period. Notice of Intent to File Redaction of Transcripts due by 11/7/2018 unless otherwise directed by the court. Release of Transcript Restriction set for 1/28/2019.(Rankin, Jeannine) (Entered: 10/31/2018)
228 Joint MOTION for extension of time for disclosure of Parties' experts filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 11/15/2018 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 11/01/2018)
229 FOURTH AMENDED SCHEDULING ORDER: Discovery due by 1/17/2019. Dispositive Motions due by 2/7/2019. Pretrial Conference set for 6/17/2019 at 08:30 AM Courtroom 4A, Jefferson City. Bench Trial set for 6/17/2019 at 09:00 AM in Courtroom 4A, Jefferson City. Signed on 11/2/18 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Main Document 229 replaced on 11/5/2018) (Geiser, Angel). Modified on 11/5/2018 to replace with corrected document and to re−generate notice(Geiser, Angel). (Entered: 11/02/2018)
230 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Notice of Deposition filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 11/09/2018)
231 CERTIFICATE OF SERVICE by All Defendants of Fourth Request for Production to all Plaintiffs filed by Russell J. Keller on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball.(Keller, Russell) (Entered: 11/09/2018)
232 NOTICE of filing of Plaintiffs' Notice of Intent to Serve Subpoena by M. B., K. C., A. H. (Attachments: # 1 Exhibit 1)(Gretter, Elizabeth) (Entered: 11/12/2018)
233 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Plaintiffs' Second Set of Interrogatories filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 11/26/2018)
234 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Notice of Depositions filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 12/06/2018)
235 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Responses and Objections to Defendants' Fourth Request for Production of Documents filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 12/07/2018)
236 Joint MOTION for order Fifth Amended Scheduling Order filed by David D Dean on behalf of Steven Corsi, Tim Decker. Suggestions in opposition/response due by 12/26/2018 unless otherwise directed by the court. (Dean, David) (Entered: 12/11/2018)
237 FIFTH AMENDED SCHEDULING and BENCH TRIAL ORDER: Discovery due by 2/18/2019. Dispositive Motions due by 3/8/2019. Pretrial Conference set for 7/15/2019 at 08:30 AM Courtroom 4A, Jefferson City. Bench Trial set for 7/15/2019 at 09:00 AM in Courtroom 4A, Jefferson City. Signed on 12/17/18 by District Judge Nanette K. Laughrey. (Attachments: # 1 Memo on PTC) (Matthes Mitra, Renea) (Entered: 12/17/2018)

12/21/2018 12/21/2018
12/26/2018
01/04/2019 01/07/2019 01/07/2019 01/07/2019 01/07/2019 01/07/2019 01/07/2019 01/07/2019 01/07/2019 01/08/2019 01/11/2019 01/15/2019 01/16/2019 01/22/2019

238 MOTION to withdraw as attorney filed by Ryan Lee Bangert on behalf of All Defendants. Suggestions in opposition/response due by 1/4/2019 unless otherwise directed by the court. (Bangert, Ryan) (Entered: 12/21/2018)
239 CERTIFICATE OF SERVICE by All Defendants for Defendants' Objections And Responses To Plaintiffs' Second Interrogatories filed by Russell J. Keller on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball.(Keller, Russell) (Entered: 12/21/2018)
240 ORDER by Judge Nanette K. Laughrey. The motion by attorney Ryan L. Bangert to withdraw as counsel for the defendants, Doc. 238 , is GRANTED in light of the fact that other attorneys continue to represent the defendants. Attorney Ryan L. Bangert terminated. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 12/26/2018)
241 NOTICE of filing of Plaintiffs' Notice of Intent to Serve Subpoena by M. B., K. C., A. H. (Attachments: # 1 Exhibit 1)(Gretter, Elizabeth) (Entered: 01/04/2019)
242 NOTICE of filing "Defendants Notice of Intent to Serve Subpoena−Bhatti by Steven Corsi, Tim Decker, Jennifer Tidball (Attachments: # 1 Subpoena)(Keller, Russell) (Entered: 01/07/2019)
243 NOTICE of filing "Defendants Notice of Intent to Serve Subpoena−Brooks by Steven Corsi, Tim Decker, Jennifer Tidball (Attachments: # 1 Subpoena)(Keller, Russell) (Entered: 01/07/2019)
244 NOTICE to take deposition of Dr Javed Choudhry filed by Russell J. Keller on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball. (Attachments: # 1 Subpoena)(Keller, Russell) (Entered: 01/07/2019)
245 NOTICE of filing "Defendants Notice of Intent to Serve Subpoena−Forrer by Steven Corsi, Tim Decker, Jennifer Tidball (Attachments: # 1 Subpoena)(Keller, Russell) (Entered: 01/07/2019)
246 NOTICE of filing "Defendants Notice of Intent to Serve Subpoena−Heisler by Steven Corsi, Tim Decker, Jennifer Tidball (Attachments: # 1 Subpoena)(Keller, Russell) (Entered: 01/07/2019)
247 NOTICE of filing "Defendants Notice of Intent to Serve Subpoena−Lambotte by Steven Corsi, Tim Decker, Jennifer Tidball (Attachments: # 1 Subpoena)(Keller, Russell) (Entered: 01/07/2019)
248 NOTICE of filing "Defendants Notice of Intent to Serve Subpoena−Naveed by Steven Corsi, Tim Decker, Jennifer Tidball (Attachments: # 1 Subpoena)(Keller, Russell) (Entered: 01/07/2019)
249 NOTICE of filing "Defendants Notice of Intent to Serve Subpoena−Walters by Steven Corsi, Tim Decker, Jennifer Tidball (Attachments: # 1 Subpoena)(Keller, Russell) (Entered: 01/07/2019)
250 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Fourth Request for Production of Documents filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 01/08/2019)
251 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES (Defendants' Second Amended Disclosures) filed by David D Dean on behalf of Defendants Steven Corsi, Tim Decker.(Dean, David) (Entered: 01/11/2019)
252 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Plaintiffs' Rule 26(a)(2) Expert Designations and Disclosures filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 01/15/2019)
253 Amended NOTICE to take deposition of Javed Choudhry filed by Russell J. Keller on behalf of Defendants Steven Corsi, Tim Decker, Jennifer Tidball.(Keller, Russell) (Entered: 01/16/2019)
254 NOTICE of filing "Defendants' Notice of Intent to Service Subpoena with Subpoena Attached−Lambotte by Steven Corsi, Tim Decker, Jennifer Tidball (Attachments: # 1 Subpoena)(Keller, Russell) (Entered: 01/22/2019)

01/24/2019 01/24/2019 02/03/2019 02/04/2019
02/19/2019 02/22/2019
03/14/2019

255 CERTIFICATE OF SERVICE by M. B., K. C., A. H. of Plaintiffs' Rule 26 Supplemental Initial Disclosures filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H..(Gretter, Elizabeth) (Entered: 01/24/2019)
256 NOTICE of appearance by Scotty L. Allen on behalf of Steven Corsi (Attorney Scotty L. Allen added to party Steven Corsi(pty:dft))(Allen, Scotty) (Entered: 01/24/2019)
257 Joint MOTION for extension of time and for Sixth Amended Scheduling Order filed by Russell J. Keller on behalf of All Defendants. Suggestions in opposition/response due by 2/19/2019 unless otherwise directed by the court. (Keller, Russell) (Entered: 02/03/2019)
258 ORDER by Judge Nanette K. Laughrey. The parties' joint motion, Doc. 257 , for entry of a sixth amended scheduling order is GRANTED. The parties are permitted to temporarily pause discovery and other litigation efforts for approximately three weeks, to focus on mediation. The current February 18, 2019 deadline for the close of fact discovery and for Defendants to depose Plaintiffs' experts and disclose their own experts is reset to March 15, 2019. The current March 8, 2019 deadline for Plaintiffs to depose Defendants' experts is reset to April 1, 2019. No later than February 22, 2019, the parties will notify the Court if it appears mediation is unlikely to produce at least an agreement in principle to resolve this matter. At that point the Court will either call for briefing or set a hearing to discuss remaining case deadlines and events.(Sreeprakash, Netra) (Entered: 02/04/2019)
259 ORDER entered by Judge Nanette K. Laughrey. A status telephone conference is set for 2/22/2019 at 10:00 AM. The parties shall call conference number 877−336−1274, access code 2707681 to participate. Signed on 2/19/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 02/19/2019)
260 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on February 22, 2019, regarding the status of the case. The parties reported that they have been continuing to work together on mediating the case while discovery has gone forward and they are cautiously optimistic that a resolution can be reached. The parties requested the remaining scheduling deadlines be extended for three weeks so that they can focus on mediation. The Court granted the parties' request, extending the close of discovery and the deadline for Defendants' expert report to April 5, 2019 and extending the deadline for Plaintiffs' deposition of Defendants' expert to April 22, 2019. The Court extended the deadlines solely to allow the parties to focus exclusively on mediation for three weeks. Appearances: Plaintiffs by Samantha Bartosz; Defendants by Russell Keller. Court Reporter: None. CRD: Renea Matthes Mitra. (Text entry only.) (Matthes Mitra, Renea) (Entered: 02/22/2019)
261 AMENDED NOTICE OF INCLUSION FOR MEDIATION AND ASSESSMENT PROGRAM (MAP). REVIEW NOTICE AND MAP GENERAL ORDER CAREFULLY FOR IMPORTANT CHANGES, DEADLINES AND REQUIREMENTS.

03/25/2019 03/25/2019
04/12/2019

Notice of MAP re−assignment to Program Director. (Attachments: # 1 MAP General Order)(Woods, Gloria) (Entered: 03/14/2019)
262 Joint MOTION for extension of time filed by Russell J. Keller on behalf of Steven Corsi. Suggestions in opposition/response due by 4/8/2019 unless otherwise directed by the court. (Keller, Russell) (Entered: 03/25/2019)
263 ORDER by Judge Nanette K. Laughrey. The parties' joint motion (Doc. 262 ) for a three−week extension of certain deadlines to permit the parties to continue focusing on mediation is GRANTED. The deadline for completion of fact discovery, depositions of plaintiffs' expert witnesses, and defendants' designation of expert witnesses is hereby moved to April 26, 2019, and the deadline for depositions of Defendants' expert witnesses is hereby moved to May 13, 2019. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 03/25/2019)
264 Joint MOTION for extension of time and for Seventh Amended Scheduling Order filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 4/26/2019 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 04/12/2019)

04/22/2019
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05/28/2019 05/29/2019 05/29/2019 05/29/2019 05/30/2019

265 ORDER by Judge Nanette K. Laughrey. The parties jointly move (Doc. 264 ) for another extension of the deadlines in the scheduling order. The parties report that they have continued working on mediating the case while discovery has been paused. They also report that they understand that this will be the last joint request for an extension of time to focus exclusively on mediation. The parties have requested that the remaining scheduling deadlines be extended for another three weeks so that they can continue to focus on mediation. The Court grants the joint motion, extending the close of discovery and the deadline for Defendants' expert reports to May 17, 2019, and extending the deadline for Plaintiffs' depositions of Defendants' experts to June 3, 2019. The parties shall report to the Court no later than May 17, 2019 whether they believe a motion seeking approval of an agreement will be filed, and if so, when. Signed on April 22, 2019 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 04/22/2019)
266 MOTION to withdraw as attorney William Grimm filed by Poonam Juneja on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 5/15/2019 unless otherwise directed by the court. (Juneja, Poonam) (Entered: 05/01/2019)
267 ORDER by Judge Nanette K. Laughrey. In light of the fact that Mr. Grimm has passed away, the motion for withdrawal of attorney William Grimm by his co−counsel (Doc. 266 ) is GRANTED. Signed on May 1, 2019 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 05/01/2019)
268 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 5/17/2019 at 09:00 AM regarding the status of the case. The parties shall call conference number 877−336−1828, access code: 8503666 to participate. Signed on 5/16/19 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 05/16/2019)
269 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on May 17, 2019 regarding the status of the case. The Court granted the parties request to be permitted an additional week to try to amicably resolve their disputes. The Court ordered the parties to file a notice concerning status on or before May 28, 2019. The Court suspended all pretrial deadlines. Appearances: Plaintiffs by Samantha Bartosz; Defendants by Russell Keller. Court Reporter: None. CRD: Renea Matthes Mitra. (Text entry only.) This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/17/2019)
270 NOTICE of filing of Joint Status Report Regarding Settlement Negotiations by M. B., K. C., A. H. (Gretter, Elizabeth) (Entered: 05/28/2019)
271 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 5/30/2019 at 10:00 AM regarding the status of the case. The parties shall call conference number 877−336−1828, access code: 8503666 to participate. Signed on 5/29/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/29/2019)
272 MOTION to withdraw as attorney Daniel T. Fahner filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 6/12/2019 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 05/29/2019)
273 ORDER by Judge Nanette K. Laughrey. Plaintiffs' motion for the withdrawal of attorney Daniel T. Fahner (Doc. 272 ) is GRANTED in light of the fact that other attorneys will continue to represent Plaintiffs. Attorney Daniel T. Fahner is terminated. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 05/29/2019)
274 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on May 30, 2019 regarding the status of the case. Plaintiffs reported the parties have reached a settlement as to the substance of Plaintiffs' complaint and a separate agreement that the issue of attorney fees and costs would be presented to the Court for resolution. The Court directed the parties to submit a proposed schedule by June 6, 2019. Appearances: Plaintiffs by Samantha Bartosz; Defendants by Russell Keller. Court Reporter: None. CRD: Renea Matthes Mitra. (Text entry only.) This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/30/2019)

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275 ORDER entered by Judge Nanette K. Laughrey. The Pretrial Conference and Bench Trial set for July 15, 2019, is cancelled. Signed on 5/30/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 05/30/2019)
276 Joint MOTION for order Setting Schedule for Approval of Settlement Agreement and Motion for Attorneys' Fees filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 6/20/2019 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 06/06/2019)
277 ORDER entered by Judge Nanette K. Laughrey. A Telephone Conference is set for 6/14/2019 at 10:00 AM regarding the status of the appeal. The parties shall call conference number 877−336−1828, access code: 8503666 to participate. Signed on 6/13/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 06/13/2019)
278 SCHEDULING ORDER FOR SETTLEMENT AGREEMENT AND ATTORNEYS' FEES. Final Fairness Hearing set Wednesday, November 20, 2019 at 10:00 AM. Signed on 6/13/19 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 06/13/2019)
279 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on June 14, 2019 regarding the status of the appeal. Ms. Bartosz stated that the parties have now executed a settlement agreement resolving all claims in this case subject to the Court's approval. Plaintiffs wish to inform the Eighth Circuit of the settlement forthwith. Mr. Keller stated that the defendants would be willing to notify the Court of Appeals of the settlement once the Court has preliminarily approved the settlement. He stated that he will inquire as to whether his office will authorize him to notify the Eighth Circuit of the settlement prior to the Court's approval of the settlement. The Court directed Mr. Keller to notify the Court by Monday, June 17, 2019, as to whether his office will jointly notify the Eighth Circuit of the settlement. Appearances: Plaintiffs by Samantha Bartosz, Lisa Welch, Elizabeth Gretter and John Ammann; Defendants by Russell Keller. Court Reporter: None. CRD: Renea Matthes Mitra. (Text entry only.) (Matthes Mitra, Renea) (Entered: 06/14/2019)
280 Joint MOTION for order of Preliminary Approval of Class Action Settlement and Suggestions in Support filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 7/22/2019 unless otherwise directed by the court. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Gretter, Elizabeth) (Entered: 07/08/2019)
281 ORDER of US COURT OF APPEALS to stay appeal as to 195 Notice of Appeal filed by Steven Corsi, Tim Decker (Geiser, Angel) (Entered: 07/10/2019)
282 ORDER by Judge Nanette K. Laughrey granting motion, Doc. 280 , for preliminary approval of class action settlement. A hearing shall be held in Courtroom 8B at the Charles Evans Whittaker U.S. Courthouse, 400 East 9th Street, Kansas City, Missouri 64106 at 9:00 A.M. on November 20, 2019, to consider whether the proposed Settlement Agreement is fair, reasonable, and adequate and should receive the Court's final approval pursuant to Rule 23(e). (Sreeprakash, Netra) (Entered: 07/15/2019)
Final Settlement Approval Hearing set for 11/20/2019 09:00 AM in Courtroom 8B, Kansas City (DW) before District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) Modified on 7/15/2019 (Sreeprakash, Netra). (Entered: 07/15/2019)
283 Consent MOTION for leave to file excess pages in Support of Plaintiffs' Motion for Attorneys' Fees and Costs filed by Poonam Juneja on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 8/13/2019 unless otherwise directed by the court. (Juneja, Poonam) (Entered: 07/30/2019)
284 ORDER by Judge Nanette K. Laughrey. Plaintiffs' consent motion for leave to file excess pages, Doc. 283 , is GRANTED. Plaintiffs' Suggestions in Support of Their Motion for Attorneys Fees and Costs may be up to 20 pages in length. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 07/30/2019)
285 MOTION for attorney fees and expenses and suggestions in support filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response

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due by 8/15/2019 unless otherwise directed by the court. (Attachments: # 1 Declaration of Erin L. Sussman Attaching Exhibit, # 2 Declaration of Samantha M. Bartosz Attaching Exhibits, # 3 Declaration of Leecia Welch Attaching Exhibits, # 4 Declaration of John J. Ammann Attaching Exhibits, # 5 Declaration of Scott T. Schutte Attaching Exhibits, # 6 Declaration of Thomas E. Kennedy, III, # 7 Declaration of John M. Kilroy, Jr.)(Gretter, Elizabeth) (Entered: 08/01/2019)
286 ORDER entered by Judge Nanette K. Laughrey. A hearing on the Motion for Attorneys' Fees is set for 10/30/2019 at 11:00 AM in Courtroom 4A, Jefferson City (NKL) before District Judge Nanette K. Laughrey. Signed on 8/5/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 08/05/2019)
287 MOTION to withdraw as attorney filed by Russell J. Keller on behalf of Jennifer Tidball. Suggestions in opposition/response due by 8/26/2019 unless otherwise directed by the court. (Keller, Russell) (Entered: 08/11/2019)
288 ORDER by Judge Nanette K. Laughrey. The motion by attorney Russell J. Keller to withdraw as attorney, Doc. 287 , is GRANTED in light of the fact that other counsel continue to represent the defendants. Attorney Russell J. Keller terminated. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 08/12/2019)
289 ORDER entered by Judge Nanette K. Laughrey. The hearing on the Motion for Attorneys' Fees previously set for 10/30/2019 at 11:00 AM is rescheduled for 11/1/2019 at 11:00 AM in Courtroom 4A, Jefferson City (NKL) before District Judge Nanette K. Laughrey. Signed on 8/5/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 08/21/2019)
290 AFFIDAVIT of David B. Kurt, Director of Missouri Children's Division re Compliance with Notice Requirements by Steven Corsi, Tim Decker. (Dean, David) (Entered: 08/28/2019)
291 ORDER entered by Judge Nanette K. Laughrey. The hearing on the Motion for Attorneys' Fees previously set for 11/1/2019 at 11:00 AM is rescheduled for 11/5/2019 at 1:00 PM in Courtroom 4A, Jefferson City (NKL) before District Judge Nanette K. Laughrey. Signed on 8/28/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 08/28/2019)
292 Motion to allow Melanie Pennycuff to appear pro hac vice (Pro Hac fee $100 receipt number BMOWDC−6465825) filed by Eileen Ruppe Krispin on behalf of Steven Corsi, Tim Decker. (Attorney Eileen Ruppe Krispin added to party Steven Corsi(pty:dft), Attorney Eileen Ruppe Krispin added to party Tim Decker(pty:dft))(Krispin, Eileen) (Entered: 08/28/2019)
293 ORDER granting 292 motion to appear pro hac vice entered by Clerk of Court. Attorney Melanie Pennycuff for Tim Decker and Steven Corsi allowed to appear pro hac vice. This entry will serve as authorization for the pro hac participation by the attorney.

09/06/2019 09/06/2019

Western District of Missouri Local Rule 5.1 requires documents to be filed electronically. If pro hac vice counsel has not already done so, counsel is directed to immediately register for a WDMO e−filing account for NextGen CM/ECF. This will enable counsel to electronically file documents and receive electronic notification of filings. Register for a WDMO e−filing account at PACER. This is a TEXT ONLY ENTRY. No document is attached. (Geiser, Angel) (Entered: 08/29/2019)
294 MOTION to withdraw as attorney filed by David D Dean on behalf of Steven Corsi, Tim Decker. Suggestions in opposition/response due by 9/20/2019 unless otherwise directed by the court. (Dean, David) (Entered: 09/06/2019)
295 ORDER by Judge Nanette K. Laughrey. Because Mr. Dean is leaving the Missouri Attorney General's office and other attorneys continue to represent the defendants, the motion for withdrawal of attorney David D. Dean, Doc. 294 , is GRANTED. Attorney David D. Dean is terminated as counsel of record for the defendants. This is a TEXT

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ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 09/06/2019)
296 MOTION for leave to file excess pages filed by Melanie Pennycuff on behalf of Steven Corsi, Tim Decker. Suggestions in opposition/response due by 10/9/2019 unless otherwise directed by the court. (Pennycuff, Melanie) (Entered: 09/25/2019)
297 ORDER by Judge Nanette K. Laughrey. Defendants' unopposed motion for leave to file excess pages, Doc. 296 , is GRANTED. Defendants' response to Plaintiffs' motion for attorneys' fees and costs may comprise up to 20 pages. Signed on September 25, 2019 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 09/25/2019)
298 SUGGESTIONS in opposition re 285 MOTION for attorney fees and expenses and suggestions in support filed by Melanie Pennycuff on behalf of Defendants Steven Corsi, Tim Decker. Reply suggestions due by 10/10/2019 unless otherwise directed by the court. (Related document(s) 285 ) (Pennycuff, Melanie) (Entered: 09/26/2019)
299 REPLY SUGGESTIONS to motion re 285 MOTION for attorney fees and expenses and suggestions in support filed by Elizabeth Pitman Gretter on behalf of Plaintiffs M. B., K. C., A. H.. (Attachments: # 1 Affidavit Supplemental Declaration of Sterling Analytics Attaching Exhibit, # 2 Affidavit Supplemental Declaration of John J. Ammann Attaching Exhibits, # 3 Affidavit Supplemental Declaration of Leecia Welch, # 4 Affidavit Supplemental Declaration of Samantha M. Bartosz)(Related document(s) 285 ) (Gretter, Elizabeth) (Entered: 10/17/2019)
300 ORDER entered by Judge Nanette K. Laughrey. The hearing on the Motion for Attorneys' Fees, Doc. 278 , scheduled for November 5, 2019 at 1:00 PM will be held by telephone conference. The parties shall call conference number 877−336−1828, access code: 8503666 to participate. Signed on 10/31/19 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Matthes Mitra, Renea) (Entered: 10/31/2019)
301 Joint MOTION to seal document regarding the Parties' Joint Motion for Final Approval of Class Action Settlement filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 11/18/2019 unless otherwise directed by the court. (Gretter, Elizabeth) (Entered: 11/04/2019)
302 ORDER by Judge Nanette K. Laughrey. Having read and considered the motion for leave to file under seal submitted by the parties, and having reviewed the exhibits proposed to be placed under seal, the Court finds that compelling reasons support sealing these documents, as they contain non−public information, including medical information, concerning minors. The Court therefore GRANTS the parties' joint motion (Doc. 301 ) for leave to file under seal Exhibits A to MM to the parties' Joint Motion for Final Approval of Class Action Settlement and Suggestions in Support. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 11/04/2019)
303 Minute Entry. Proceedings held before District Judge Nanette K. Laughrey: Teleconference held before the Honorable Nanette K. Laughrey on November 5, 2019. Oral argument presented on Plaintiffs' Motion for Attorneys' Fees and Expenses, [Doc. 285]. The Court took the matter under advisement. Appearances: Leecia Welch and Samantha Bartosz presented argument for Plaintiffs. Melanie Pennycuff presented argument for Defendants. Time in court: 1:01 p..m. to 2:33 p.m.. To order a transcript of this hearing please contact Katie Wirt, 816−512−5608, katie_wirt@mow.uscourts.gov. This is a TEXT ONLY ENTRY. No document is attached. (Geiser, Angel) (Entered: 11/05/2019)
304 Joint MOTION for order of Final Approval of Class Action Settlement and Suggestions in Support filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 11/20/2019 unless otherwise directed by the court. (Attachments: # 1 Exhibit 1 (Settlement Agreement), # 2 Declaration of Samantha M. Bartosz Attaching Exhibits, # 3 Exhibit NN, # 4 Exhibit OO, # 5 Exhibit PP, # 6 Exhibit QQ, # 7 Exhibit RR, # 8 Exhibit SS, # 9 Exhibit TT, # 10 Exhibit UU, # 11 Exhibit VV)(Gretter, Elizabeth) (Entered: 11/06/2019)
305 NOTICE (SEALED) by M. B., K. C., A. H. re 304 Joint MOTION for order of Final Approval of Class Action Settlement and Suggestions in Support (Attachments: # 1

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Sealed Exhibit A, # 2 Sealed Exhibit B, # 3 Sealed Exhibit C, # 4 Sealed Exhibit D, # 5 Sealed Exhibit E, # 6 Sealed Exhibit F, # 7 Sealed Exhibit G, # 8 Sealed Exhibit H, # 9 Sealed Exhibit I, # 10 Sealed Exhibit J, # 11 Sealed Exhibit K, # 12 Sealed Exhibit L, # 13 Sealed Exhibit M, # 14 Sealed Exhibit N, # 15 Sealed Exhibit O, # 16 Sealed Exhibit P, # 17 Sealed Exhibit Q, # 18 Sealed Exhibit R, # 19 Sealed Exhibit S, # 20 Sealed Exhibit T, # 21 Sealed Exhibit U, # 22 Sealed Exhibit V, # 23 Sealed Exhibit W, # 24 Sealed Exhibit X, # 25 Sealed Exhibit Y, # 26 Sealed Exhibit Z, # 27 Sealed Exhibit AA, # 28 Sealed Exhibit BB, # 29 Sealed Exhibit CC, # 30 Sealed Exhibit DD, # 31 Sealed Exhibit EE, # 32 Sealed Exhibit FF, # 33 Sealed Exhibit GG, # 34 Sealed Exhibit HH, # 35 Sealed Exhibit II, # 36 Sealed Exhibit JJ, # 37 Sealed Exhibit KK, # 38 Sealed Exhibit LL, # 39 Sealed Exhibit MM)(Gretter, Elizabeth) (Entered: 11/06/2019)
306 NOTICE of filing of Sealed Exhibits A−MM in Support of the Parties' Joint Motion for Final Approval of Class Action Settlement and Suggestions in Support by M. B., K. C., A. H. re 305 Notice(SEALED),,,, (Gretter, Elizabeth) (Entered: 11/06/2019)
307 ELECTRONIC TRANSCRIPT of Teleconference held 11/5/2019 before Judge Nanette K. Laughrey. Court Reporter: Katie Wirt, 816−512−5608, katie_wirt@mow.uscourts.gov. Number of pages: 57. NOTICE RE: REDACTION OF TRANSCRIPTS: Within 7 calendar days of this filing, each party shall inform the Court, by filing a Notice of Redaction, of the parties' intent to redact personal data identifiers from the electronic transcript of the court proceeding. The policy is located on our website at www.mow.uscourts.gov. Please read this policy carefully. NOTICE: Attorneys must contact the court reporter for copies during this 90 day period. Notice of Intent to File Redaction of Transcripts due by 11/14/2019 unless otherwise directed by the court. Release of Transcript Restriction set for 2/3/2020.(Wirt, Katie) (Entered: 11/07/2019)
308 AMENDED NOTICE OF HEARING (*please note the new courtroom location and hearing Judge*)− This is the official notice for this hearing. This is a TEXT ONLY ENTRY. No document is attached.

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Fairness Hearing set for 11/20/2019 09:00 AM in Courtroom 6E, Kansas City (LMC) before Magistrate Judge Lajuana M. Counts. (Chorny, Traci) Modified on 11/14/2019 to reflect the hearing is a Fairness Hearing.(Matthes Mitra, Renea). (Entered: 11/14/2019)
NOTICE OF DOCKET MODIFICATION. The Amended Notice of Hearing entered 11/14/2019 has been modified to reflect the hearing is a Fairness Hearing scheduled on November 20, 2019 at 9:00 AM in Courtroom 6E, Kansas City (LMC) before Magistrate Judge Lajuana M. Counts. This is a text entry only − no document is attached. (Matthes Mitra, Renea) (Entered: 11/14/2019)
309 ORDER by Judge Nanette K. Laughrey. This case is REFERRED to the Honorable Lajuana M. Counts for the purpose of conducting the fairness hearing scheduled for November 20, 2019. Signed on November 19, 2019 by District Judge Nanette K. Laughrey. This is a TEXT ONLY ENTRY. No document is attached. (Sreeprakash, Netra) (Entered: 11/19/2019)
310 STATUS REPORT Report to Court on Issue of Number of Attorneys by Steven Corsi. (Attachments: # 1 Exhibit)(Pennycuff, Melanie) (Entered: 11/19/2019)
311 SEALED MINUTE ENTRY− FAIRNESS HEARING held on 11/20/2019 before Magistrate Judge Lajuana M. Counts. Time in court: 9:05am to 10:30am. To order a transcript of this hearing please contact Traci Chorny, 816−512−5789. (Chorny, Traci) (Entered: 11/20/2019)
312 SEALED TRANSCRIPT of SETTLEMENT CONFERENCE AND FAIRNESS HEARING held November 20, 2019, before Judge Lajuana M. Counts. Court Reporter: Lissa Whittaker, 816−914−3613, rapidtranscript@gmail.com. Number of pages: 55.(Whittaker, Lissa) (Entered: 11/25/2019)
313 STATUS REPORT regarding Plaintiffs' Response to Defendants' Report to the Court Concerning the Number of Attorneys Representing Defendants by M. B., K. C., A. H.. (Attachments: # 1 Declaration of Elizabeth Pitman Gretter)(Gretter, Elizabeth) (Entered: 11/25/2019)

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314 MOTION for order Approving and Directing Notice to Class Members of Plaintiffs' Motion for Attorneys' Fees and Expenses filed by Elizabeth Pitman Gretter on behalf of M. B., K. C., A. H.. Suggestions in opposition/response due by 12/11/2019 unless otherwise directed by the court. (Attachments: # 1 Exhibit 1)(Gretter, Elizabeth) (Entered: 11/27/2019)
315 ORDER by Judge Nanette K. Laughrey GRANTING unopposed motion (Doc. 314 ) regarding class notice as to plaintiffs' motion for attorneys' fees and expenses. (Sreeprakash, Netra) (Entered: 12/04/2019)
316 REPORT AND RECOMMENDATION re: 304 Joint Motion for Final Approval of Class Action Settlement and Suggestions in Support. The parties have waived the 14−day period within which to object to a Report and Recommendation. Signed on December 4, 2019 by Magistrate Judge Lajuana M. Counts. (Clinton, Erica) (Main Document 316 replaced on 12/5/2019 to remove extra blank page) (Lock, Tania). (Entered: 12/04/2019)
317 ORDER by Judge Nanette K. Laughrey adopting the Report and Recommendations by the Honorable Lajuana M. Counts (Doc. 316 ) and granting the parties' motion for final approval of the class action settlement. (Sreeprakash, Netra) (Entered: 12/05/2019)
318 AFFIDAVIT of Samantha M. Bartosz re Compliance with Notice Requirements by M. B., K. C., A. H.. (Gretter, Elizabeth) (Entered: 12/09/2019)
319 AFFIDAVIT of David Kurt re Compliance with Notice Requirements by Jennifer Tidball. (Pennycuff, Melanie) (Entered: 12/09/2019)
320 AMENDED FINAL JUDGMENT AND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT. Signed on 12/12/19 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea) (Entered: 12/12/2019)
321 PROPOSED BILL OF COSTS by M. B., K. C., A. H..Objections to Bill of Costs due by 1/2/2020 unless otherwise directed by the court. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Gretter, Elizabeth) (Entered: 12/19/2019)
322 STATUS REPORT Regarding No Written Objections to Notice of Motion for Attorneys' Fees and Expenses by M. B., K. C., A. H.. (Ammann, John) (Entered: 12/30/2019)
323 REDACTED ELECTRONIC TRANSCRIPT of SETTLEMENT CONFERENCE AND FAIRNESS HEARING held November 20, 2019, before Judge Lajuana M. Counts. Court Reporter: Lissa Whittaker, 816−914−3613, rapidtranscript@gmail.com. Number of pages: 55. Related document 312 Electronic Transcript. Release of Transcript Restriction set for 2/20/2020.(Whittaker, Lissa) (Entered: 01/10/2020)
324 USCA Judgment and/or Opinion as to 195 Notice of Appeal filed by Steven Corsi, Tim Decker granting motion to dismiss case filed by Mr. Dean John Sauer. The case is dismissed in accordance with Rule 42(b), Federal Rules of Appellate Procedure. This is a preliminary judgment and/or opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. (Lock, Tania) (Entered: 01/31/2020)
325 MANDATE of US COURT OF APPEALS as to 195 Notice of Appeal filed by Steven Corsi, Tim Decker with mandate issued on 01/30/2020. (Lock, Tania) (Entered: 01/31/2020)
326 ORDER by Judge Nanette K. Laughrey granting in part Plaintiffs' motion for attorneys' fees and expenses (Doc. 285 ). (Sreeprakash, Netra) (Entered: 04/03/2020)
327 CLERK'S JUDGMENT (Matthes Mitra, Renea) (Entered: 04/17/2020)
328 NOTICE OF APPEAL by Tim Decker, Jennifer Tidball. Filing fee $ 505, receipt number AMOWDC−6837608. (Pennycuff, Melanie) (Entered: 04/28/2020)
329 TRANSMISSION of Notice of Appeal Supplement to US Court of Appeals, 8th Circuit via electronic mail. Related document 328 Notice of Appeal. (Lock, Tania) (Entered: 04/29/2020)

04/30/2020

330 USCA Case Number from Eighth Circuit Court of Appeals is 20−1886 for 328 Notice of Appeal filed by Jennifer Tidball, Tim Decker. Briefing schedule entered by the Court of Appeals is attached. Transcript due by 6/9/2020. (Attachments: # 1 Briefing Schedule)(Lock, Tania) (Entered: 04/30/2020)

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

_________________________________________

M.B. by his next friend Ericka Eggemeyer; E.S. )

and Z.S. by their next friend Nina Schunck; K.C. by her next friend Kris Dadant; A.H. by her next

)

friend Grey Endres, for themselves and those similarly situated,

) No. ____________

) Plaintiffs,

) v.

) Jennifer Tidball, in her official capacity as Interim

Director of the Missouri Department of Social

)

Services; Tim Decker, in his official capacity as Director of the Children’s Division of the Missouri

)

Department of Social Services,

)

Defendants.

)

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REQUEST FOR CLASS ACTION
1. When the state acts to remove children into foster care due to circumstances of abuse or neglect, it assumes an affirmative duty to act in loco parentis to keep those children safe. Missouri is failing in this critical duty. Every day, the approximately 13,000 children in the foster care custody of the state of Missouri are exposed to an unreasonable risk of serious physical and psychological harm because the state fails to maintain an adequate oversight system to ensure that psychotropic drugs are administered safely and only when necessary. In contravention of its custodial obligations, the state routinely permits children in its care to be prescribed one or more of these potent medications without essential safeguards in place:
 The state fails to maintain and provide to foster caregivers, and prescribing physicians as needed, up-to-date medical records detailing the child’s physical and mental health history, including current and prior medications

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and any observed adverse effects, in order to facilitate fully informed and well-coordinated treatment;  The state fails to ensure that informed consent and assent to the administration of a psychotropic medication to a child in foster care is obtained prior and throughout the time a child in foster care is administered a psychotropic medication;  The state fails to operate a system to catch “red flags” and ensure high risk prescriptions of psychotropic medications – e.g. multiple drugs from the same class or drugs given to very young children – are promptly identified and a secondary review obtained by a qualified child psychiatrist to assure child safety. 2. Psychotropic medications are powerful drugs that directly affect the central nervous system. Antipsychotics are one of the most powerful and frequently prescribed classes of psychotropic drugs given to children in foster care. They are often administered as chemical straight-jackets, used to control the behavior of foster children. Yet for many, if not most, of these foster children, psychotropic drugs are being administered to treat a diagnosis – e.g. conduct disorder, ADHD – that the drug was never even designed to address. Serious, longlasting adverse effects are common for children given psychotropic medications. Among children given antipsychotic drugs the incidence of type 2 diabetes is three times as high as children not medicated, condemning them to a debilitating and life-shortening disease. The medications sometimes cause other profound and, at times, permanent adverse effects including psychosis, seizures, irreversible movement disorders, suicidal thoughts, aggression, weight gain, organ damage, and other life-threatening conditions. 3. Many of these drugs have no or very limited uses for children and adolescents that are approved by the federal Food and Drug Administration (“FDA”). In the absence of FDA approval of a drug for use by children, there is no FDA dosage instruction. Although children in foster care are often administered these drugs for months or even years, there is little to no
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research demonstrating their impact on the developing brains of children or adolescents. Close and continuing scrutiny of children given such medications is therefore critical. Of particular cause for concern and posing even more serious risks are instances where children are impacted by “outlier” prescribing practices: prescribed too many psychotropic medications, too much medication, or at too young an age.
4. The grave harms and risks to foster children related to the administration of psychotropic medications are exacerbated because they are often living with caretakers who do not have detailed knowledge of their trauma background, mental health needs, or medical history. These caretakers have not known the child their whole lives the way their biological parent would, so they are dependent on the child’s health records to know their history and needs. Frequent changes in placement are often accompanied by changes in a foster child’s health care provider and lead to disruptions in the child’s health care. Maintaining and sharing an accurate and complete medical history with the child’s foster parent and physician is critical to ensuring the child’s health and safety but often does not occur. As a direct result, foster parents and physicians trying to care for a foster child are in the dark about the child’s history, past treatments, and responses to treatment.
5. This civil rights class action is brought on behalf of a putative class of children under the age of eighteen who are or will be placed in the custody of the state of Missouri due to a report that they have suffered abuse or neglect in the homes of their parents, guardians, or other legal custodians (“the Plaintiff Class”). The suit names Jennifer Tidball, Acting Director of the Missouri Department of Social Services (“DSS”), and Tim Decker, Director of the Children’s Division (“CD”) of DSS, as Defendants solely in their official capacities (collectively, “Defendants”). The approximately 13,000 children in Missouri’s foster care custody are placed
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in foster homes, with relatives, in congregate care facilities, and other settings. The Plaintiff Class alleges, among other things, that they are or may be administered one or more psychotropic medications while in the state’s custody and that the state fails to ensure that the medications administered are appropriate, safe, and adequately monitored. As a result of the state’s failures, the Plaintiff Class has suffered or will suffer substantial and often irreversible harm to their physical, emotional, and/or mental health.
6. Defendants have long been aware that CD’s failure to maintain a system of effective oversight and monitoring of the administration of psychotropic medications to children in its custody poses a substantial and ongoing risk of harm to these vulnerable wards. In 2011 Congress enacted the Child and Family Services Improvements and Innovation Act requiring all states to adopt and implement protocols to ensure the appropriate use and monitoring of foster children administered psychotropic medications. Yet CD failed to take action. Five years later, CD’s own words to the federal government confirm its indifference to the health and well-being of children on psychotropic medications in its custody: “Many foster care children are prescribed multiple psychotropic medications without clear evidence of benefit and with inadequate safety data. The use of multiple medications (psychotropic or otherwise) creates the potential for serious drug interactions.”
7. As legal custodian for the Plaintiff Class, Defendants are required by the United States Constitution and federal statutory law to provide for their safety and well-being, including the provision of adequate medical and mental health care. Under Defendants’ management and direction, CD has failed to meet its critical obligations and presently subjects the Plaintiff Class to physical and psychological harm and the unreasonable risk of such harm in violation of their federal constitutional and statutory rights.
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8. On behalf of the Plaintiff Class, Plaintiffs M.B., E.S., Z.S., K.C., and A.H., through their respective adult Next Friends, (collectively, “the Named Plaintiff Children”) therefore seek declaratory and injunctive relief to abate the substantial, ongoing, and common risks of harm resulting from CD’s longstanding failure to maintain an adequate oversight system to assure that psychotropic drugs are administered safely to foster children and only when necessary.
JURISDICTION AND VENUE 9. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of the United States Constitution and federal statutory law. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202. 10. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to the claim occurred in this district and because Defendants maintain their principal offices within this district in Jefferson City, Missouri.
PARTIES A. The Named Plaintiffs
M.B. 11. M.B. is a fourteen-year-old boy in the foster care custody of CD, currently placed
in a residential facility, though as of the time of filing he was temporarily placed in a psychiatric hospital. M.B.’s case is brought by his adult Next Friend, Ericka Eggemeyer. Over at least the past three years that M.B. has been in Missouri foster care, CD has failed in its obligation to provide for his safety and well-being with respect to how psychotropic medications are being
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administered. CD has allowed M.B. to be placed on more than six psychotropic drugs at once, failed to provide M.B. and his caregivers with updated medical and mental health records, failed to maintain a consistent informed consent process to ensure individual attention to his treatment, and failed to institute an effective mechanism for reviewing dangerous prescription practices. As a result, he has been harmed and put at further risk of harm.
12. It is not clear exactly when M.B. began taking psychotropic medications (though he reports being on these drugs since he was three years old), but by January 2015, at age twelve and in the custody of CD, he was already being given a combination of six such drugs, including lithium and two atypical antipsychotics.
13. Over the course of the next two and a half years in CD custody, M.B. was moved among eight different placements, including at least two psychiatric hospitalizations. With each changed placement, M.B.’s regimen of psychotropic medications fluctuated, with medications being rapidly added, removed, and dosages changing. In some cases, M.B. was placed on a medication for a single month, only to have it removed the next month. In other instances, drugs were tried that had already been tried and discontinued in the past. For example, between January 5 and January 26, 2015, M.B.’s medication regimen reflected that at least one of the six drugs he was taking was discontinued, and two more were added.
14. As of November 2015, M.B. had been placed in a residential facility for almost a year. His Next Friend, Ms. Eggemeyer, was a newly licensed therapeutic foster parent at this time, and CD determined that M.B. would be the first child placed in her home. Ms. Eggemeyer attended one meeting at the residential facility with M.B. and his assigned CD and residential workers. No one discussed M.B.’s medications at this meeting. Ms. Eggemeyer next drove to the residential placement to pick M.B. up from the locked unit. No one discussed M.B.’s
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medications with Ms. Eggemeyer at this time either, despite the fact that he was then taking a combination of five powerful psychotropic drugs with well-documented adverse effects, including suicidality and aggression. Rather, Ms. Eggemeyer was handed a brown grocery bag full of M.B.’s medications by one of the residential staff members. There was no discussion of M.B.’s history with these drugs, the proper methods for administering them, or possible adverse effects. Ms. Eggemeyer was not provided a medical record or history for M.B., nor was she given an opportunity to ask questions about M.B.’s drug regimen.
15. Ms. Eggemeyer did her best to follow the labels on the pill bottles and monitor for adverse effects, guided by the child’s own instructions of what he should take in the morning and evening. Ms. Eggemeyer began to notice significant adverse effects. In the evening, after dispensing M.B.’s drugs, he once told her, “I feel like I have knives in my eyes” and he was often scared to go to sleep. She would see him “twitch” and “tweak” and wondered if it was the medication causing these movements. He described himself to Ms. Eggemeyer as having a “tic.” She observed his “eyeballs roll back in his head.”
16. After just three weeks, the placement disrupted after a brief visit to a respite foster home, when M.B. became agitated and threatened Ms. Eggemeyer’s life. M.B. was hospitalized and would never be returned to Ms. Eggemeyer’s home, despite her desire and intention to care for M.B. Ms. Eggemeyer continues to act as a visiting resource and stays actively involved in M.B.’s care.
17. Over the next two years, M.B. was moved through four different residential placements, with medication changes each time. Powerful medications, such as the antipsychotic Paliperidome, were abruptly discontinued and then added back into his regimen. One constant: the dosages and total number of medications steadily increased. By January 2017,
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M.B. was taking a total of seven psychotropic medications, including three antipsychotics at the same time. Doses of some of the drugs, including the antipsychotic Quetiapine, had nearly doubled over the course of the past two years.
18. In addition to the psychotropic drugs M.B. was taking in January 2017, his medication regimen also included Benzotropine, a drug commonly used to treat the involuntary movements associated with Parkinson’s Disease. Ms. Eggemeyer had seen M.B. exhibit such motions, including tics and twitches, all well-documented adverse effects of psychotropic medications.
19. Around this time, M.B. was also prescribed Levothyroxine, a drug used to treat hypothyroidism. “Lithium-induced hypothyroidism” is one of the documented adverse effects of long-term Lithium use. M.B. had been taking Lithium at daily doses of 600 mg for at least two years, with only brief pauses as his medication regimen changed.
20. In early 2017, still on the same extensive medication regimen, M.B. was moved to a facility hundreds of miles away from Ms. Eggemeyer, the only constant adult presence in his life, reportedly because the prior facility could not accommodate his mental health needs. After M.B. attempted to run away from that facility in April 2017, Ms. Eggemeyer visited M.B. and observed him to be an entirely changed child. Once a child who was hyperactive, energetic and had great difficulty sleeping, M.B. was now lethargic, slurring his speech, and falling asleep in broad daylight as he sat with Ms. Eggemeyer. These behaviors are all documented adverse effects of high dosages of a number of different psychotropic drugs.
21. M.B. was recently moved again to a residential facility outside St. Louis. After living in this facility for just a few days, M.B. was again removed to a psychiatric hospital, where he remained as of the date of filing, after reports of self-harming, aggression, and hearing
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voices telling him to hurt himself. M.B. confirmed to Ms. Eggemeyer that he had been hearing voices telling him to kill himself.
22. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate M.B.’s constitutional and federal statutory rights. Defendants have failed to protect him from harm and risk of harm while in their care by subjecting him to harmful psychotropic medication regimens without adequate oversight, failing to ensure a consistent informed consent process, and failing to provide his caregivers with updated medical and mental health records.
23. M.B. continues to be at risk of injury as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
E.S. and Z.S. 24. Plaintiffs E.S., age three, and Z.S., age two, are siblings whose cases are brought
through their adult Next Friend, Nina Schunck. They are both in the foster care custody of CD. CD has allowed E.S. and Z.S. to be placed on psychotropic medications as toddlers in the absence of any effective mechanism for reviewing this troubling prescription practice. As a result, they have been harmed and put at further risk of harm.
25. Despite their young ages, since CD was granted legal custody of E.S. and Z.S., they have been placed in multiple foster homes.
26. While in the care of CD, E.S. and Z.S. were placed on atypical antipsychotics, specifically Risperdal, and may have also been prescribed an alpha agonist.
27. Risperdal is not FDA approved for pediatric patients less than five years of age for the treatment of any disorder. Specifically, Risperdal’s safety and effectiveness has not been established for schizophrenia less than thirteen years of age, for bipolar mania less than ten years
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of age, and for autistic disorder less than five years of age. Adverse reactions can include somnolence, increased appetite, fatigue, insomnia, sedation, Parkinsonism, akathisia, vomiting, cough, constipation, nasopharyngitis, drooling, rhinorrhea, dry mouth, abdominal pain, dizziness, nausea, anxiety, headache, nasal congestion, rhinitis, tremor, and rash.
28. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate E.S. and Z.S.’s constitutional and federal statutory rights. Defendants have failed to protect them from harm and risk of harm while in their care by subjecting them to harmful psychotropic medications without adequate oversight and, upon information and belief, failing to ensure a consistent informed consent process, and failing to provide their caregivers with updated medical and mental health records.
29. E.S. and Z.S. continue to be at risk of injury as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
K.C. 30. K.C. is a twelve-year-old girl who was brought into the foster care custody of CD
as a result of abuse and neglect she suffered in her home. K.C.’s case is brought by her adult Next Friend, Kris Dadant.
31. During K.C.’s last three years in foster care, CD has allowed her to be placed on daily doses of multiple psychotropic medications, as many as five at a time, failed to provide K.C. and her caregivers with updated medical and mental health records, failed to maintain a consistent informed consent process to ensure individual attention to her treatment, and failed to institute an effective mechanism for reviewing troubling prescription practices. As a result, she has been harmed and put at further risk of harm.
32. Comprehensive, updated, and accurate mental health and medication records have
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not followed K.C. as CD has moved her through several placements. As a result, pertinent information has not been available to K.C.’s caregivers or medical consenters to facilitate informed decision-making on her behalf, and physicians have not had access to complete medical records or history when prescribing medications to K.C.
33. For example, earlier this year, those responsible for caring for K.C. had three different understandings of what daily dose of a particular psychotropic medication K.C. was to be administered. Neither CD nor the caregivers had medical records that could be used to resolve the confusion about the dosage. Significantly, this confusion was only brought to light due to questions raised by a volunteer advocate.
34. CD has also permitted K.C. to be placed on multiple psychotropic medications without first obtaining proper informed consent, which requires ongoing monitoring and dialogue so that any adverse effects of these medications may be timely addressed.
35. For example, at one residential facility, it was reported several times that K.C. was visibly involuntarily shaking. CD and the staff at its privately contracted residential treatment center did not address the issue. Eventually, the center staff firmly denied that any shaking was occurring even though a volunteer visiting resource had been noting it for weeks, and the child twice complained of the shaking.
36. During the period that K.C. was observed to be involuntarily shaking, she was taking the antipsychotic Abilify. The warning label for Abilify provides, in part: “Stop using Abilify and call your doctor at once if you have the following symptoms: . . . uncontrolled muscle movements; . . .”
37. Eventually, without facility staff ever admitting that the shaking was occurring due to medication, and only after the visiting resource repeatedly raised an alarm, K.C.’s
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psychotropic medications were changed to cut the dosage of Abilify in half. 38. CD’s failure to obtain informed consent for K.C.’s medications has not been
limited to her Abilify prescription. She has also been placed on Strattera, another powerful psychotropic medication, without informed consent. At least one formal assessment and observation of K.C. indicate that she does not have Attention-Deficit Hyperactivity Disorder (“ADHD”), yet she has been given a formal diagnosis of ADHD. Despite the indications that she does not have ADHD, K.C. has been prescribed and administered Strattera for ADHD. She has complained that the medication does not help her.
39. The warning label for Strattera provides, in part: “Common side effects in children and teenagers include upset stomach, a decreased appetite, nausea, or vomiting, dizziness, tiredness, and mood swings.” Also, the label notes: “Strattera increases the risk of suicidal thoughts or actions.”
40. Beyond these examples, K.C.’s psychotropic medications have been changed frequently and erratically with little to no input from informed or knowledgeable medical consenters.
41. In response to K.C.’s high number and doses of psychotropic medications, concerned individuals outside CD observing the treatment of K.C. have sought for months an independent second opinion as to whether her psychotropic medications are harmful or appropriate. These efforts have failed.
42. K.C. has suffered harm as a result of the lack of a second opinion mechanism to review her medications. For example, in October 2016, K.C. suddenly began acting generally aggressive, being angry and violent, and getting into repeated altercations. Facility staff placed K.C. in numerous physical holds to try to stop these fights. One restraint lasted one hour and
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forty-five minutes. Over one ten-day stretch K.C. was held six times. Along with four other previously administered prescriptions, a strong psychotropic medication, Seroquel, had begun being given to K.C. at the time the aggression began. CD and its private contractor did not note the correlation or raise concern about the number of medications. Once again, a volunteer visiting resource did raise concerns and asked the caseworker to address the issue. CD and the contractor were slow to respond to the concerns about the medication. The volunteer persisted and eventually contacted the prescribing doctor. She mentioned that the child was not diagnosed with bipolar disorder and questioned whether Seroquel should be prescribed, especially in light of the increased aggression and numerous other medications. Later that night, the doctor noted a bipolar disorder diagnosis in K.C.’s records. Eventually, the Seroquel prescription was discontinued. When K.C. stopped taking Seroquel, her aggression ceased.
43. The warning label for Seroquel provides: “Call a healthcare professional right away if you or your family member has any of the following symptoms, especially if they are new, worse, or worry you: . . . acting aggressive, being angry, or violent. . . .” Seroquel is not FDA approved for use by children. The drug’s labeling notes that Seroquel is nevertheless prescribed to some children at least thirteen years old; however, K.C. has only recently turned twelve years old. CD failed to provide a safety check in this instance. An automatic second opinion triggered by the addition of a fifth or contra-indicated psychotropic medication could have served to protect K.C. from a profoundly traumatic period.
44. K.C. has experienced rapid weight gain since being placed on psychotropic medications, including a gain of more than fifteen pounds over a two to three month period.
45. K.C. also has begun hallucinating since being placed on psychotropic medications. Two new medications being administered to K.C. have hallucinations as a known adverse effect.
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46. K.C. is sad or angry much of the time. She is routinely given five different powerful medications which keep her sedated and controllable. She has shown little or no progress toward achieving good mental health even after being subjected to years of institutional care and strong psychotropic medications.
47. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate K.C.’s constitutional and federal statutory rights. Defendants have failed to protect her from harm and risk of harm while in their care by subjecting her to harmful psychotropic medication regimens without adequate oversight, failing to ensure a consistent informed consent process, failing to institute a protective mechanism for reviewing troubling prescription practices, and failing to provide her caregivers with updated medical and mental health records. K.C. has suffered numerous harmful adverse effects and other consequences associated with the psychotropic medications she has been prescribed as a result of Defendants’ failures.
48. K.C. continues to be at risk of injury as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
A.H. 49. A.H. is a twelve-year-old girl who has spent approximately six years in the foster
care custody of CD. A.H.’s case is brought by her adult Next Friend, Grey Endres. Over the course of A.H.’s six years in foster care, CD has failed in its obligation to provide for her safety and well-being with respect to how psychotropic medications are being administered. In particular, CD has failed to adequately monitor the dosage of psychotropic medications she has been given, failed to provide A.H. and her caregivers with updated medical and mental health records, and failed to maintain a consistent informed consent process to ensure individual
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attention to her treatment. As a result, she has been harmed and put at further risk of harm. 50. A.H. has experienced numerous placement moves such that knowledge of her
medical and mental health history, in the absence of reliable recordkeeping practices, has become fragmented and dispersed between her assigned caseworker, foster caretakers, and health providers.
51. One example of the harm that results from such fragmented health care occurred in or about November 2016. At that time, C.D. hospitalized A.H. after she tried to physically harm herself. At the psychiatric hospital, she was prescribed two pills of Latuda and two pills of Remeron each day. CD did not involve A.H.’s legal parents in the decision to prescribe and administer these psychotropic medications to her.
52. Upon discharge from the psychiatric hospital, C.D. moved A.H. into the home of a non-kinship foster parent. After placing A.H. in this non-kinship home for a few months, CD transferred A.H. to the home of a kinship resource. Although A.H. remained in CD custody at the time of the transfer, her non-kinship foster parent transported A.H. to her new kinship resource’s home, not the assigned CD caseworker.
53. Upon arriving at the new kinship home, A.H.’s former foster parent handed A.H.’s psychotropic medications, wrapped in tissue paper, to the new kinship resource parent. The former foster parent also informed the kinship resource parent that A.H. was to be administered just one pill of Latuda and one pill of Remeron each day. No medical records or pill bottles were provided to the kinship resource parent documenting the instructions for administration of these drugs or their prescribed dosages. As a result, A.H. was given the wrong dosages of these psychotropic medications and experienced a severe reaction, resulting in a six-day hospitalization.
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54. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate A.H.’s constitutional and federal statutory rights. Defendants have failed to protect her from harm and risk of harm while in their care by subjecting her to harmful psychotropic medications without adequate oversight, failing to ensure a consistent informed consent process, and failing to provide her caregivers with updated medical and mental health records.
55. A.H. continues to be at risk of injury as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices. B. The Next Friends
56. Pursuant to Fed. R. Civ. P. 17(c)(2), Plaintiff M.B. appears through his Next Friend, Ericka Eggemeyer. Ms. Eggemeyer has been a licensed therapeutic foster parent in the state of Missouri since 2015 and was a previous foster care placement for M.B. Ms. Eggemeyer knows M.B. personally and continues to be a visiting resource and a constant presence in his life. Ms. Eggemeyer has personally observed the state agency’s failure to adequately oversee the administration of prescription drugs to M.B.
57. Pursuant to Fed. R. Civ. P. 17(c)(2), Plaintiffs E.S. and Z.S. appear through their Next Friend, Nina Schunck. Ms. Schunck has been working in mental health services for thirty years. She is a licensed clinical social worker and has provided individual therapy to foster and adoptive children in Missouri since 1995. Ms. Schunck holds a Master of Sciences in Psychology: Mental Health Services from Avila University.
58. Pursuant to Fed. R. Civ. P. 17(c)(2), Plaintiff K.C. appears through her Next Friend, Kris Dadant. Ms. Dadant has had a career as a Title I teaching specialist, instructing high needs young children in the elementary public schools of Columbia, Missouri. She encounters
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numerous foster children in her role as a Title I teacher and is a keen observer of the emotional, developmental, intellectual, and psychological behavior of children. As a visiting resource and non-legal advocate for K.C., Ms. Dadant has observed CD’s failure to provide effective management and oversight of K.C.’s mental health care, including the administration of psychotropic medications.
59. Pursuant to Fed. R. Civ. P. 17(c)(2), Plaintiff A.H. appears through her Next Friend, Grey Endres. Mr. Endres has been working in child welfare in the state of Missouri for thirty years and supervises A.H.’s therapist in his role as co-founding partner at Lifeworks Family Treatment Group. In addition to overseeing a team of therapists at Lifeworks, Mr. Endres supervises social work students in his role as adjunct professor in the School of Social Work at the University of Missouri-Kansas City and also at Kansas University. Previously, Mr. Endres was the Clinical Director at Gillis Center, a residential treatment center in Kansas City, Missouri, which served foster children with mental health needs. C. The Defendants
60. Defendant Jennifer Tidball is the Acting Director of DSS. Acting Director Tidball maintains her principal office at the Department of Social Services, Broadway State Office Building, Room 240, P.O. Box 1527, Jefferson City, Missouri 65102. Acting Director Tidball is mandated under state law to carry out the purposes of DSS, including the coordination of the state’s programs devoted to those unable to provide for themselves and the rehabilitation of victims of social disadvantage. Missouri state law requires Acting Director Tidball to “use the resources provided to the department to provide comprehensive programs and leadership striking at the roots of dependency, disability and abuse of the society’s rules with the purpose of improving service and economical operations.”
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61. Defendant Tim Decker is the Director of the CD, an office within DSS. Director Decker maintains his principal office at the Jefferson State Office Building, 10th Floor, 205 Jefferson Street, Jefferson City, Missouri, 65101. As head of the state of Missouri’s designated Title IV-E agency, Director Decker has the day-to-day responsibility to ensure the safety and well-being of children in state foster care.
CLASS ACTION ALLEGATIONS 62. This action is properly maintained as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 63. The class is defined as all children under the age of eighteen who are or will be placed in the foster care custody of the state of Missouri following reports that they have suffered child abuse or neglect. 64. The class is sufficiently numerous to make joinder impracticable. As of April 2017, an estimated 13,534 children under eighteen years old were in the legal custody of CD in foster care. 65. The Named Plaintiffs will fairly and adequately protect the interests of the entire class of Plaintiff Children. 66. The violations of law and resulting harms averred by the Named Plaintiffs are typical of the legal violations and harms suffered by all class members. 67. Each Named Plaintiff appears by a Next Friend, and each Next Friend has sufficient knowledge of the common systemic deficiencies underlying this complaint to represent the best interests of the Named Plaintiff on whose behalf they appear and the best interests of the putative class.
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68. Plaintiff Children are represented by John Ammann, a Missouri attorney with over thirty years of experience in civil rights litigation and supervisor of the litigation clinic at St. Louis University School of Law; attorneys employed by Children’s Rights, a non-profit legal organization whose attorneys have substantial experience and expertise in child welfare institutional reform class actions; and attorneys employed by the National Center for Youth Law, a non-profit organization specializing in representing children and adolescents in child welfare, mental health, education and juvenile justice reform class actions and impact litigation.
69. Plaintiff Children’s attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the class.
70. Defendants have acted or failed to act on grounds generally applicable to all Plaintiff Children, necessitating declaratory and injunctive relief for the class. Plaintiff Children’s counsel knows of no conflicts among class members.
71. The questions of fact and law raised by Named Plaintiffs’ claims are common to and typical of those raised by the putative class of children they seek to represent. Each child relies on Defendants for their safety and well-being, including their physical and mental health. Longstanding and well-known systemic deficiencies within Missouri’s child welfare system in relation to the administration and oversight of psychotropic medications place all children in CD custody at a common and ongoing risk of harm.
72. Defendants have acted or failed to act on grounds generally applicable to all members of the putative Class, necessitating class-wide declaratory and injunctive relief.
73. Questions of fact common to the Class include: (i) Whether Defendants, through their actions and inactions, have demonstrated a policy, pattern, custom and/or practice of inadequately monitoring and
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overseeing the administration of psychotropic medications to children in the custody of CD by failing to: (a) ensure that informed consent is obtained prior to and throughout the time that children in foster care are administered psychotropic medications; (b) maintain complete and current medical records, including medication history, for children in foster care and to provide these records to foster caregivers and health care providers to facilitate the effective delivery of services; and (c) operate a statewide secondary review system to identify and address outlier prescribing practices to assure the safe administration of drugs to children; and (ii) Whether these failures result in unreasonable harm and the risk of harm to children in CD custody. 74. Questions of law common to the class include: (i) Whether Defendants’ actions and inactions, policies, patterns, customs, and/or practices violate Plaintiff Children’s substantive due process rights to be reasonably free from harm and the unreasonable risk of harm while in state custody, as guaranteed by the Fourteenth Amendment to the United States Constitution; (ii) Whether Defendants’ actions and inactions, policies, patterns, customs, and/or practices violate Plaintiff Children’s rights under the Adoption Assistance and Child Welfare Act of 1980 (“AACWA”) to case plans containing up-to-date medical records and timely delivery of medical histories to their foster caretakers upon placement in their home; and
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(iii) Whether the class members are entitled to declaratory and injunctive relief to vindicate the rights they have been denied.
FACTUAL ALLEGATIONS DEFENDANTS’ FAILURE TO EFFECTIVELY MONITOR AND OVERSEE THE ADMINISTRATION OF PSYCHOTROPIC MEDICATIONS TO CHILDREN IN CD CUSTODY RESULTS IN HARM AND A SUBSTANTIAL RISK OF HARM
A. Serious risks attend the use of psychotropic medications in children 75. Psychotropic medications are powerful drugs that act on the central nervous
system and can affect cognition, emotions, and behavior. These medications are to be prescribed for specifically diagnosed psychiatric illnesses and mental health disorders. Most psychotropic medications have not been approved by the FDA as safe and effective to treat children’s mental health disorders. Those drugs with an FDA-approved use with children or adolescents are usually limited to certain age groups and specific mental health diagnoses. For example, none of the atypical antipsychotics (such as Aripiprazole/Abilify, Risperidone/Risperdal, Quetiapine/Seroquel, and Paliperidone/Invega) are approved for children under age five. The limited FDA-approved diagnoses for older children are restricted to schizophrenia, bipolar disorder, Tourette’s disorder, and autistic disorder with irritability.
76. As noted by one expert in a publication by the American Bar Association’s Center on Children and the Law, “[l]ittle is known about how [psychotropic] medications impact children and adolescents in the short or long term. Children are not just ‘mini adults’; they cannot just be given a smaller dose because they have smaller bodies.” Moreover, as observed by the Administration of Children and Families (“ACF”), the office within the U.S. Department of Health and Human Services charged with administering the federal Title IV-E foster care
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program, “research on the safe and appropriate pediatric use of psychotropic medications lags
behind prescribing trends. . . . In the absence of such research, it is not possible to know all of
the short- and long-term effects, both positive and negative, of psychotropic medications on
young minds and bodies.” This fact has not stopped the practice of physicians prescribing these
drugs to children “off-label,” a term the FDA defines as the “unapproved use of an approved
drug.” At least one study has shown that approximately 45% of medications used for the
treatment of emotional or behavioral disturbances in children or adolescents are prescribed off-
label.
77. While some of the risks to children may not be well understood, psychotropic drugs
are known to cause serious and sometimes irreversible adverse effects in adults. These well-
documented adverse effects include:
 Psychosis, suicidal thoughts, and agitation  Blurred vision  Nightmares and hallucinations  Drowsiness and dizziness  Irreversible movement disorders (such as tardive dyskinesia), rigidity, tremor
and tics  Seizures  Weight gain, diabetes, and high cholesterol  Kidney, thyroid, liver, and pancreas damage
78. In the developing brain and body of a child these medications may induce these
adverse effects more frequently with greater severity. A recent study gathering information
about adverse effects from parents of children given one or more psychotropic medications
found:
 The number of adverse effects increased with the number of medications being used. In comparison with children taking one medication, those taking two drugs reported on average 17% more adverse effects while those taking three or more medications reported on average 38% more adverse effects.
 The side effect profile shifted for children depending upon the number of medications taken. Suicidality and self-harm became more frequent with
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increasing numbers of medication. Increased appetite, sleepiness/fatigue, and tics and tremors were 200 to 300% more prevalent among children taking three or more medications than those taking only one drug.  The number of adverse effects increased the longer the child was on the medication.  Polypharmacy regimens including SSRI antidepressants or antipsychotics were especially associated with adverse effects. 79. Some psychotropic medications, including some antipsychotics and SSRI antidepressants, even come with “black box” warning labels, indicating “their use requires particular attention and caution regarding potentially dangerous or life threatening side effects.” It is recognized that these drugs may increase the risk of “suicidal thinking and behavior (suicidality) in children, adolescents and young adults,” and that patients starting these drugs should be “monitored appropriately and observed closely for clinical worsening, suicidality, or unusual changes in behavior.” 80. The American Academy of Child and Adolescent Psychiatry (“AACAP”), the leading professional organization dedicated to promoting psychiatric care and healthy development of children and adolescents, posits that “best practice does not involve psychotropic medication as the sole intervention for youth with complex mental health needs. Psychosocial interventions, particularly those that are evidence-based and systematically monitored, are also essential.” Children in foster care nevertheless are often at heightened risk of persistent mental health issues because of the “frequent absence of effective psychosocial interventions, including various forms of psychotherapy” provided along with psychotropic medications. Too frequently, psychotropic medications are administered to achieve behavioral control rather than to treat an underlying trauma. For some disorders, including Reactive Attachment Disorder and Disinhibited Social Engagement Disorder, no psychopharmacological intervention trials have been conducted, nor are there any indications for medication for the treatment of these disorders.
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81. Children in foster care are also particularly vulnerable to high risk prescriptions because, as ACF explains, “the majority of physicians responsible for prescribing psychotropic medication to foster children are pediatricians or general psychiatrists without formal training in child and adolescent psychiatry and may not have an abundance of exposure to concerns specific to children in foster care.” AACAP practice guidelines makes clear that a comprehensive psychiatric evaluation of a child should be completed before any pharmacological intervention is considered. Such an evaluation “increases the likelihood that medication interventions will be well conceptualized and hopefully reduces the likelihood of treatment failure and poor adherence.” In Missouri, due to shortages of child psychiatrists, children are often prescribed psychotropic medications by their pediatrician, a general psychiatrist, or a doctor who sees them for just a few minutes or via tele-medicine.
82. Given the lack of research on the safe and appropriate use of psychotropic medications in children, and the inherent vulnerabilities of this population, it is of particular concern when children in foster care are exposed to “outlier” prescribing practices. In 2012, ACF issued guidance to states on implementing effective oversight of psychotropic medications for youth in foster care. ACF defined “outlier practices” as “patterns that may signal that factors other than clinical need are impacting the prescription of psychotropic medications” and identified the following three areas of concern that should trigger heightened scrutiny: “instances where children are prescribed too many psychotropic medications, too much medication, or at too young an age,” commonly referred to as “too many, and too much, too young.”
83. Too many. Polypharmacy (the use of multiple psychotropic medications at once) is increasingly prevalent in the foster care population, despite long-standing awareness of “the lack of supporting evidence and the potential for adverse effects (e.g., side effects, drug
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interactions, metabolic effects, and potential that some medications may alter nervous system development).” There is “scant evidence” that using multiple psychotropic medications at once is effective and safe in children. Experts report that “increasing the number of drugs used concurrently increases the likelihood of adverse reactions and long-term side effects, such as high cholesterol or diabetes, and limits the ability to assess which of multiple drugs are related to a particular treatment goal.” Research looking at the incidence of type 2 diabetes among children administered an antipsychotic medication found that children given an antipsychotic were 50% more likely than non-medicated children to suffer from diabetes. The same research found the risk of developing diabetes was even greater for children given an antidepressant concurrently with the antipsychotic. Children in foster care are frequently administered an antidepressant and a stimulant concurrently. Data to substantiate the safety and efficacy of this combination of drugs is lacking.
84. Too much. Because the majority of pediatric psychotropic medication use is done off-label, there are very few research-based guidelines for medication dosages, which would typically be supplied by FDA prescription labels. For this reason, it is a cause for concern when children are prescribed these medications at dosages that exceed recommendations. Experts report that this practice “increases the risk of adverse side effects and does not typically increase the efficacy of the drugs to any significant extent.”
85. Too young. Very young children are particularly vulnerable to the possible adverse effects of psychotropic medications. Experts have reported that there is “no established use [for psychotropic medications] for mental health conditions in infants [under age one]; providing them these drugs could result in serious adverse effects.” Moreover, it is generally
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understood that drugs in the class of atypical antipsychotics, one of the most powerful psychotropic drug categories, should not be administered to children below the age of five.
B. CD has long been aware that large numbers of children in its foster care custody are regularly being administered powerful psychotropic drugs. 86. On any given day, substantial numbers of children in CD foster care custody are
being administered one or more psychotropic medications. Indeed, CD acknowledged “high psychotropic medication utilization rates for children in out-of-home care” in its 2016 Title IV-B Annual Progress and Service Report (“APSR”), submitted to the federal government.
87. CD has long been aware that large numbers of children in foster care are being administered psychotropic drugs. More than a decade ago, Missouri participated with fifteen other states in a study of Antipsychotic Medication Use in Medicaid Children and Adolescents (“16-State Study”). The purpose of the study was, among other things, to gather information about antipsychotic utilization rates and trends among children on Medicaid, including foster children, to flag prescribing practices that raised concerns about the safety of children, and to foster prescribing patterns for children that are supported by the evidence.
88. Each of the states participating in the 16-State Study, including Missouri, collected and reported data on five core safety measures:
 Use of antipsychotic medication in children five years of age and younger  Use of high doses of antipsychotic medication  Use of multiple antipsychotic medications  Use of multiple (four or more) psychotropic medications  Gap in days between filling antipsychotic prescriptions 89. Missouri was one of the thirteen states to collect and report separate data on children in foster care. 90. The 16-State Study found that the rate of antipsychotic medication use for children in foster care in those states was almost nine times the rate for children not in foster care
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(12.37% versus 1.4%). It further found that one in five children were prescribed two different antipsychotics, and more than one in ten children received four or more psychotropic medications.
91. Years later, in or about 2012, a review of psychotropic medication utilization in the foster care population conducted as part of the Missouri Initiative for Children in Foster Care, looking at the prior year’s data, showed that 28% of children in state foster care were on a psychotropic medication. Of these children, fully 20% were subject to an outlier prescription (too much, too many, too young), including 6.65% who were prescribed five or more psychotropic medications in tandem and 3.03% who were prescribed two or more antipsychotics. A January 2015 Missourian article, entitled “Missouri foster children are given higher-thanaverage amounts of psychiatric drugs,” reported MOHealthNet data from 2012 indicating that more than 30% of Missouri's foster children were prescribed at least one psychotropic medication. It was further reported based on this data that children as young as two years old had been prescribed an antipsychotic drug. In addition, at least 20% of Missouri’s foster youth were taking an average of two or more psychotropic medications, with some foster children prescribed as many as seven psychotropic medications at one time.
C. Federal law and professional standards require that states have in place a system to oversee the administration of psychotropic medications to children in foster care. 92. The vital need for rigorous and effective oversight of psychotropic medication use
for children in foster care is well established. Under federal law, CD is required to develop “a plan for the ongoing oversight and coordination of health care services for any child in a foster care placement,” which must include “an outline of . . . the oversight of prescription medicines, including protocols for the appropriate use and monitoring of psychotropic medications.” See, 42 U.S.C. § 622(b)(15)(A), 622(b)(15)(A)(v). ACF has stated that “[s]trengthened oversight of
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psychotropic medication use is necessary in order to responsibly and effectively attend to the clinical needs of children who have experienced maltreatment” and urged “close supervision and monitoring . . . [and] careful management and oversight” in the use of psychotropic medications for children.
93. Additionally, AACAP has published recommended practices to be applied by child welfare agencies in overseeing the mental health treatment of children in foster care, including active monitoring to assure safe utilization of psychotropic medications. AACAP explained that children in state custody “often have no consistent interested party to provide informed consent for their treatment, to coordinate treatment planning and clinical care, or to provide longitudinal oversight of their treatment.” Thus, “[t]he state has a duty to perform this protective role for children in state custody.”
94. Over the past several years, CD has repeatedly acknowledged its awareness of these standards and the compelling need to implement a robust system to protect children in foster care from unsafe medication practices and ensure appropriate use and oversight of psychotropic medication. Shockingly, despite the inherent and widely recognized risks associated with the use of psychotropic medications in children, CD has failed to implement such a system.
D. Defendants fail to maintain complete and current medical records for Plaintiff Children and to provide these records to caregivers. 95. Ready access to a child’s full medical history is critical to ensuring effective
medical and mental health care, including the safe and appropriate administration of psychotropic drugs. Accordingly, the case plan requirements of Title IV-E of the Social Security Act require child welfare agencies to maintain up-to-date medical records as part of a written case plan for each child in care. The case plan must contain updated health care records
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including: “the child’s known medical problems” and “the child’s medications.” Child welfare agencies also must have a procedure for ensuring that a copy of this record is supplied to the foster parent or placement provider “at the time of each placement.”
96. CD’s own policy requires that “the child’s Children’s Service Worker shall establish and maintain a medical record (separate and distinct section in the file or separate record) on each child in care.” Upon entry into care, CD policy requires that the worker “ensure initial medical information is obtained from the parent/physician and given to the resource provider within 72 hours.” Similarly, Missouri’s Foster Parents’ Bill of Rights requires that “the children's division and its contractors shall provide to foster parents and potential adoptive parents, prior to placement, all pertinent information, including but not limited to full disclosure of all medical, psychological, and psychiatric conditions of the child.”
97. Likewise, widely-accepted standards promulgated by the Child Welfare League of America (“CWLA”) require the public child welfare agency to develop “an abbreviated health record, such as a medical passport, that accompanies the child throughout the child’s stay in outof-home care.” This record is to include, among other things: “[t]he child’s health history prior to placement . . . and immediately before entering care . . . [a]ny medical, dental, mental health, or developmental problems . . . current medications . . . [and] allergies . . . [It] should prominently identify . . . any medication allergies.” CWLA standards further provide that the agency should update this record “in a timely manner, entering information about the child’s health status, services, and needs as soon as [it] becomes available.”
98. AACAP similarly recommends maintenance of “an ongoing record of diagnoses, height and weight, allergies, medical history, ongoing medical problem list, psychotropic medications, and adverse medication reactions that are easily available to treating clinicians 24
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hours a day.” Review of these records “to assess past successful and unsuccessful treatments can
. . . reduce the chance that previously ineffective treatments will be used again.”
99. CD acknowledged the importance of a centralized medical record in the 2016
“Health Oversight and Coordination Plan” (the “2016 Health Plan”) submitted to the federal
government:
At a minimum, every child in foster care should have a centralized medical record that is updated regularly. The record should contain historical information obtained from birth families, immunization records, notes and recommendations from primary care physicians, notes and recommendations of subspecialty providers that evaluated the child, pertinent test results, medication history, and school records.
100. Three years earlier, CD expounded upon why these records are of particular
importance to the vulnerable children in its custody and the direct linkage between current
medical records and adequate oversight of psychotropic medications:
When a child in foster care experiences a placement change, the child may also have new medical providers who are not familiar with their history. The lack of shared access to health records can limit the practitioner’s ability to make the most informed clinical decisions possible. The intended purpose of [a centralized health record] is to track health care information of foster children so health providers, case managers and caregivers may have a comprehensive understanding of a child’s medical history. Additionally, [a centralized health record] will provide all foster children with a personal health record which belongs to them forever, reducing the fragmentation of their medical history while in care, after reunification, or when the child ages out of foster care . . . Because foster children may be relocated frequently, physicians may be unaware of a child’s existing medication regimen and often prescribe another treatment beyond current therapy. An additional targeted outcome for [a centralized health record] is to better track prescribing habits and to reduce the overuse of psychotropic medications in this population.
101. Notwithstanding the above laws, policies, standards, and acknowledgements, CD,
by its own admission, currently maintains no centralized medical record for the children in its
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custody. Indeed, it identified “fragmented care” and “inadequate medical record management”
as challenges in its 2016 Health Plan and candidly reported:
There is a lack of health care information about children as they enter care, and once a child has entered care there are significant difficulties retaining accrued information in a form readily accessible to staff. No central database or communication system exists for children in foster care. Children in foster care typically have numerous individuals involved in their health care, yet an effective means of communication and record management does not exist.
102. In the absence of a system to maintain comprehensive medical records for all
children in care, CD has resorted to giving its caseworkers electronic access to the state’s
Medicaid claims data through a web-based tool known as CyberAccess as a proxy for tracking a
child’s prescription drug history. Professionals in the human services field, however, warn that
Medicaid claims data is not an adequate replacement for a comprehensive medical record. In a
2015 letter to the federal government, the American Public Human Services Association strongly
advised against relying on data contained in the state’s Medicaid Management Information
System (“MMIS”) as a proxy for a child’s complete medical file, stating:
[A] client’s Medicaid medical history is typically not captured by, nor housed within, the state’s MMIS. The MMIS is essentially a claims processing system for fee-for-service (FFS) care, as well as a provider payment system. . . . The FFS claim history data that does reside within the MMIS is a payment history file cross-walked to a diagnosis code but in no way is an accurate portrayal of the child’s medical history . . . In addition, the data contained within the typical MMIS is often incomplete and considerably out-of-date. Claim history data is based on when the claim for payment is settled, not when the claim was originally submitted.
103. Simply viewing Medicaid claims data does not provide the CD caseworker with
critical information, such as whether a prescribed drug was ever actually administered, what
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diagnoses or behavior a particular drug has been prescribed to treat, or whether the child previously experienced any adverse effects from a medication.
104. CD similarly fails to ensure that every child has a written case plan including the required medical records, as mandated by federal law. In 2003 and again in 2010, the federal government’s Child and Family Services Review of Missouri’s child welfare system found that the state’s process of ensuring “that each child has a written case plan to be developed jointly with the child’s parent(s) that includes the required provisions” was an “area needing improvement.” Moreover, Missouri’s 2016 APSR reported the results of a case record review finding that more than a quarter of child case files reviewed did not contain a current written case plan. Even where a case plan did exist in the child’s file, the file was often incomplete with respect to medical and mental health records.
105. Even if CD were maintaining medical records or current case plans for children, they are of no utility if they are not provided to the individuals charged with caring for and, in some cases, providing informed consent for medications being given to those children. Yet CD routinely fails to provide the required medical records to foster caregivers, as required by law and policy. Foster parents are regularly provided incomplete health records and medication histories for children in their care, and very often no health information at all.
106. CD has long been aware of this failure. The 2016 Health Plan acknowledged that “[f]oster care providers and others assisting the child or family do not always have updated health information to make decisions related to the child’s health care.” In the absence of any system to ensure that this information is consistently provided to caretakers, foster parents are often forced to wing it, cobbling together what health information they can glean about the child
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and exercising an educated guess as to what medications to administer, when and how, potential risks and adverse effects, and how to respond when a child experiences those effects.
E. Defendants fail to assure a meaningful informed consent process. 107. Informed consent is a prerequisite to the administration of any medical treatment
to a child. Ordinarily, a child’s parent or guardian is authorized to consent and the child must assent to the treatment. But the administration of psychotropic drugs is not an ordinary medical treatment. As noted earlier in paragraphs 75 to 85, these drugs can have extraordinary and lifealtering adverse effects that are irreversible. Their effects on the mind and body of a child can be profound. Moreover, additional safeguards must be in place for children in foster care due to the fragmented nature of the health care they receive while in state custody. Consequently, decisions about whether or not to administer a psychotropic medication to a child in foster care require a more rigorous decision-making process.
108. In a 2012 Information Memorandum, the federal government identified the “need for written policies” with provisions for “[i]nformed and shared decision-making (consent and assent) and methods for on-going communication between the prescriber, the child, his/her caregivers, other healthcare workers, [and] the child welfare worker” as an element that is consistently included in guidelines and recommendations for the systemic monitoring and oversight of psychotropic medications in the foster care context. AACAP standards further clarify that “[a]lthough particularly important at the time of psychotropic medication initiation, informed consent and assent are ongoing processes. Informed consent involves discussion of target symptoms, likely benefits of a potential treatment, potential risks of treatment, and risks of not pursuing the treatment in question. Documentation of the discussion is essential, to provide clear evidence of what occurred.”
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109. CD has acknowledged the importance of the informed consent process in
delivering and assuring safe and appropriate care to children. In a September 2013
memorandum to staff addressing the agency’s informed consent policy, CD management
instructed that adherence to the informed consent policy is required “in order for children in the
custody of the Children’s Division (CD) to receive appropriate health or mental health services.”
110. CD has promulgated an informed consent policy with respect to psychotropic
medications, which provides:
When the need for psychotropic medication arises, the parent(s) should be engaged in all medication decisions and appointments for the child, unless parental rights have been terminated or the court has issued an order restricting the parent’s participation in the decision making process. . . . When a psychotropic medication is prescribed, the child’s Children’s Service Worker should obtain information regarding the benefits and side effects of the medication to help make an informed decision. . . . If the child’s parent(s) is unavailable for consultation regarding treatment, the child’s Children’s Service Worker or the resource parent are authorized to give consent. Prior to administering the medication, the resource parent must notify the child’s Children’s Service Worker to obtain approval for the child to begin the medication. The child’s Children’s Service Worker should notify the parents regarding treatment.
111. CD’s informed consent policy is deficient on its face in at least the following
ways:
 The policy is subject to inconsistent interpretation and application because of its repeated use of the conditional or contingent term “should” rather than the obligatory term “must”1 in delineating the role of the caseworker.
 In situations where the parent is considered unavailable, either the foster parent or the caseworker may have authority to consent but the circumstances under which one over the other is empowered to consent are unclear.
 There is no description of what is necessary for a parent to be considered unavailable.
1 “Must” is used only in reference to the obligation of the resource parents to notify the caseworker before actually administering a psychotropic drug to a child.
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 Many foster children administered psychotropic medications are placed in congregate care facilities. The policy is silent on the role, if any, that the group care provider plays in the consent process.
 The policy does not provide for or require any periodic review of the initial consent nor set forth factors that require a reconsideration of initial consent. The result is that foster children may continue on a regimen of medications for months or years without review.
 The policy fails to clearly delineate a mandatory process for offering youth the opportunity to provide “informed assent” before undergoing a course of psychotropic medication treatment.
112. While appearing to require some consultation or engagement with the parent, the policy does not actually vest the parent or youth with the decision to grant or withhold consent, but rather sets forth a scenario where any parental or youth refusal can be overridden by CD. The policy provides that “[i]n cases of refusal, the child’s Children’s Service Worker will consult with the prescribing healthcare provider.” The policy directs that, after the consultation, “the child’s Children’s Service Worker should revisit the discussion with the parent(s),” but does not even suggest further engagement with the youth themselves. If a “parent or youth still disagree with the treatment,” the policy states that ultimately “CD will make the decision under its authority as the legal custodian.”
113. The result of this policy is that a youth may be required to take a medication that they or their parent have explicitly refused. Nothing in policy would even require the caseworker to discuss the refusal with the parents before disregarding it, inform the youth or parent of the reasons why their refusal has been overridden, or explain the basis for the caseworker’s decision.
114. Finally, because the policy is so vague and ambiguous it is all too frequently either misunderstood, misapplied, or wholly ignored by caseworkers and resource parents in securing mental health treatment for children in CD custody.
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115. Despite the critical importance of obtaining proper informed consent, CD management has no system to track compliance with the agency’s informed consent policy across all children in care, betraying the widely recognized principle that “you cannot manage what you cannot measure.” CD has no system for tracking in the aggregate whether (a) the child’s parents are engaged in medical decision-making when available, (b) the assigned caseworker is notified by the resource parents before they administer medication to a child for which the resource parents provided informed consent to the prescriber, (c) youth are given the opportunity for informed assent before going on a psychotropic medication regimen, or (d) when medication is refused, whether the appropriate procedures are followed and documented before CD overrides this refusal. Absent this aggregate data, CD management is unable to identify and timely correct areas of non-compliance with this important policy, leaving children at risk.
116. Notwithstanding CD’s failure to promulgate and enforce a clear, unambiguous, and effective informed consent policy, the lack of comprehensive and up-to-date health records for all children in care, in any event, materially impedes caseworkers and caregivers from giving truly informed consent. Medications may be approved without the benefit of knowing a child’s health history, which could include allergies to medication, documented adverse effects to medications, or failed previous attempts with that very same drug.
F. Defendants fail to operate a monitoring and oversight system that promptly flags outlier prescriptions and subjects them to secondary review. 117. In the absence of comprehensive medical records and effective informed consent
for children in state foster care, it is crucial for the safety of these children that CD have a system to make sure that particularly risky prescription practices are identified and reviewed. The 2015 AACAP recommendations, as well as guidance from ACF and professional organizations, call for child welfare agencies, Medicaid agencies, and mental health agencies to collaborate in
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creating systems to monitor the safety of psychotropic medication utilization among children in foster care. The AACAP standards in particular call for the systemic capacity to identify “red flag criteria triggering external reviews.” ACF guidance directs that these systems be designed to flag outlier prescriptions including “instances where children are prescribed too many psychotropic medications, too much medication, or at too young an age: too many, and too much, too young.” The AACAP recommendations further call for “[m]andatory consultations with an identified child and adolescent reviewer” in response to identified red flags.
118. CD currently has no system in place to identify and address “red flag” or “outlier” prescriptions of psychotropic medications to safeguard children in its custody. Instead, over the last decade, CD has essentially paid lip service to this critical systemic element, repeatedly advising the federal government that it is in the process of “development . . . of an agency monitoring protocol for psychotropic medications.”
119. In its 2010 APSR, CD reported to ACF that it had begun coordinating with the Missouri Department of Mental Health (“DMH”) in 2008 to develop a system able to “identify multiple psychotropic drugs and or contraindicated medications automatically and [with] alerts provided to staff to address.”
120. Two years later, CD submitted its 2012 APSR advising that it was “still in the exploration phase for psychotropic medications,” and describing CD’s “early” stage collaboration with DMH to develop a suitable monitoring system:
The Children’s Division in conjunction with DMH is exploring the use of psychotropic medications among children in foster care. While medication can be an important component of treatment, oversight is necessary when addressing the needs of children who have experienced maltreatment. This work is in the early stages of discovery. The Children’s Division has met with DMH to discuss this issue and identify a protocol for monitoring the utilization of psychotropic medication. The examination consisted of exploring
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age counts, medication counts and costs, diagnosis counts and costs, and prescriber information. The next steps will be to determine which combination of medications is most problematic and make practice decisions as a result of the findings. 121. In its 2013 APSR, CD once again advised ACF that it was “still in the exploration phase for psychotropic medications.” CD additionally described a contemplated “second opinion process” which would “take a close look at those children being prescribed two or more antipsychotics or five or more psychotropic medications and elicit trends.” CD reported that 200 children in foster care custody fit this criteria for a secondary review, but that only ten child case files would be reviewed to “begin this process.” 122. Subsequent efforts undertaken in 2013 to review these ten cases proved an abject failure. As averred herein at paragraphs 95 to 106, CD to this day fails to maintain a system of comprehensive medical records for the children in its care. This persistent, yet curable, systemic deficiency imposes a substantial barrier to CD’s implementation of an effective secondary review process. Because CD was not in possession of comprehensive, up-to-date medical files for these ten children, letters were sent to their prescribing physicians requesting copies of their files. For eight of those ten cases, the medical records obtained were “too incomplete to perform a thorough and meaningful review.” The secondary review process, therefore, stalled. CD made no efforts to initiate the process again until three years later, in 2016, when CD again failed to implement it as a result of not having complete health records. 123. CD’s renewed effort in 2016 to conduct secondary reviews on two sets of twentyfive child case files once again confronted documentation obstacles. CD reported in its 2016 APSR that “[t]he lack of timely compliance from prescribers providing the requested documentation, as well as the quality of the documentation received, has required extensive
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follow up.” Not surprisingly, CD’s most recent 2016 Health Plan states that the Division is “not currently implementing this second opinion process.”
124. Fully nine years after CD began collaborating with DMH to develop a monitoring and oversight system, CD still has no credible and functioning system in place to ensure that it does not go unnoticed when a child in CD custody is prescribed a potentially dangerous combination or dosage of psychotropic medications, and to require a professional to review that child’s case. CD’s demonstrated lack of urgency in implementing a monitoring system reflects a deliberate and conscience shocking indifference toward the safety of children it has a duty to protect.
FIRST CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION
(Asserted on behalf of all Named Plaintiffs and the putative class and against all Defendants)
125. Paragraphs 1 – 124 above are repeated and re-alleged as if fully set forth herein. 126. A state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to protect a child from an unreasonable risk of harm once it takes that child into its foster care custody. 127. The foregoing policies and practices of Defendants Tidball and Decker, in their official capacities, constitute a failure to meet the affirmative duty to protect the Plaintiff Children and class members from an unreasonable risk of harm. These failures are a substantial factor leading to, and proximate cause of, the ongoing violation of the Plaintiff Children’s and class members’ constitutionally-protected liberty interests conferred upon them by the Fourteenth Amendment to the United States Constitution.
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128. Defendants are well aware of the policies and practices that constitute a failure to protect Plaintiff Children and class members from an unreasonable risk of harm.
129. The foregoing actions and inactions of the Defendants, in their official capacities, constitute policies, patterns, practices and/or customs that are contrary to law and are substantial departures from any accepted professional judgment such that they are outside of that judgment. Defendants’ actions and inactions are also in deliberate indifference to their awareness of facts from which the inference could be drawn that a substantial risk of serious harm exists for Plaintiff Children and class members, and they have drawn that inference. As a result of Defendants’ actions and inactions, Plaintiff Children and class members have been harmed or are at continuing and imminent risk of harm, and have been deprived of their substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution.
130. These substantive due process rights include, but are not limited to: the right to protection from harm and unreasonable risk of harm while in state foster care custody; the right to necessary treatment, care, and services to prevent class members from deteriorating or being harmed physically, psychologically, developmentally, or otherwise while in state foster care; and the right to adequate supervision and monitoring of class members’ health and safety.
SECOND CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ RIGHTS UNDER THE FEDERAL ADOPTION ASSISTANCE AND CHILD WELFARE ACT, 42 U.S.C.
§§ 621 et seq., 670 et seq. (Asserted on behalf of all Named Plaintiffs and the putative class
and against all Defendants) 131. Paragraphs 1 – 124 above are repeated and re-alleged as if fully set forth herein.
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132. The foregoing actions and inactions of the Defendants, in their official capacities, constitute policies, patterns, practices and/or customs that violate the statutory rights of the Plaintiff Children and class members under the federal Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 621 et seq., 670 et seq., and the regulations promulgated under the Act, 45 C.F.R. Parts 1355-1357.
133. These rights include, but are not limited to, (a) the right of the Plaintiff Children and class members to have a written case plan that contains, inter alia, the health records of the child, including the child’s most recent health information available regarding the names and addresses of the child’s health providers, a record of the child’s immunizations, the child’s known medical problems, the child’s medications, and any other relevant health information concerning the child determined to be appropriate by the State agency; and (b) the right of the Plaintiff Children and class members to have his or her health records reviewed, updated, and supplied to foster care providers with whom the child is placed before or at the time of placement. 42 U.S.C. §§ 622(b)(8)(A)(ii), 671(a)(16), 675(1) & (5).
134. These rights are clearly intended to benefit the Plaintiff Children and class members; the rights are neither vague nor amorphous such to strain judicial competence; and the statutory provisions noted above impose a binding obligation on the states.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiff Children, on behalf of the putative class they represent, respectfully request that this Court exercise its legal and equitable powers and award classwide relief as follows:
a. Assert subject matter jurisdiction over this action; 41
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b. Order that this action be maintained as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2);
c. Declare pursuant to Federal Rule of Civil Procedure 57 that: (i) Defendants’ failure to maintain a minimally adequate oversight system in relation to the administration of psychotropic medications to the class of children in CD foster care custody violates Plaintiffs’ substantive due process rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution to be protected from harm and the unreasonable risk of harm while in state custody; and (ii) Defendants’ failure to (1) maintain complete and updated medical records, including, but not limited to, medication history and any history of adverse reactions and side effects, in the case plans of each child in the class of children in CD foster care custody; and (2) deliver such medical records to Plaintiffs’ foster caretakers upon placement violates Plaintiffs’ statutory rights under the Adoption Assistance and Child Welfare Act to (a) a written case plan that contains, inter alia, the health records of the child, including the child’s most recent health information available regarding the names and addresses of the child’s health providers, a record of the child’s immunizations, the child’s known medical problems, the child’s medications, and any other relevant health information concerning the child determined to be appropriate by the State agency; and (b) to have his or her health records reviewed, updated, and supplied to foster care providers with whom the child is placed before or at the time of placement.
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d. Permanently enjoin Defendants from subjecting the class of children in CD custody to policies and practices that violate Plaintiffs' constitutional and statutory rights as set forth in subparagraph (c) above as follows: (i) Medical Records: Order Defendants to (1) implement and maintain a comprehensive and updated electronic healthcare record for all children in CD foster care custody; and (2) deliver to each child's foster caretaker upon placement of the child in the caretaker's home or licensed facility a complete medical history for the child including, but not limited to, the child's prescription medication history and any history of adverse reactions and side effects; (ii) Informed Consent Policy: Order Defendants to (1) promulgate a clear, unambiguous and effective informed consent policy; (2) develop and maintain a system of records that facilitates the tracking of aggregate compliance with the above informed consent policy; and (3) develop and implement a mandatory training program for all social workers and foster caretakers regarding the safe administration of psychotropic medications to children and compliance with CD policy in relation to these medications; and (iii) Secondary Review System: Order Defendants to develop and implement a secondary review system that (1) establishes and tracks “red flag” criteria designating outlier or elevated risk prescription practices in relation to the administration of one or more psychotropic or antipsychotic medications to children in CD foster care custody; and (2) requires secondary review by a
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qualified child psychiatrist of all “red flag” prescription regimens to children in CD foster care custody and a feedback mechanism to the prescribing doctor and the adult authorized to provide informed consent on behalf of the child regarding the findings of the secondary review and any need for revision of the prescription; e. Award to the Plaintiff Children the reasonable costs and expenses incurred in the prosecution of this action, including reasonable attorneys' fees pursuant to 28 U.S.C. §§ 1920 and 1988 and Federal Rules of Civil Procedure 23(e) and (h); and f. Grant such further equitable relief as the Court deems just, necessary, and proper to abate the ongoing risk of harm to the class of children in CD foster care custody. DATED: June 12, 2017
Respectfully Submitted,
/s/ John J. Ammann, Mo. Bar #34308 Attorney for the Plaintiffs Saint Louis University Legal Clinic 100 N. Tucker Blvd., Suite 704 Saint Louis, MO 63101-1911 (314) 977-2778 (314) 977-1180 (fax) ammannjj@slu.edu
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CHILDREN’S RIGHTS, INC. Sara M. Bartosz Elizabeth Pitman Gretter Stephen Dixon Catherine Frizell 88 Pine Street, Suite 800 New York, New York 10005 (212) 683-2210 (212) 683-4015 (fax) sbartosz@childrensrights.org egretter@childrensrights.org sdixon@childrensrights.org cfrizell@childrensrights.org
NATIONAL CENTER FOR YOUTH LAW William Grimm Leecia Welch Poonam Juneja 405 14th Street, 15th Floor Oakland, California 94612 (510) 835-8098 (510) 835-8099 (fax) billgrimm@youthlaw.org lwelch@youthlaw.org pjuneja@youthlaw.org ATTORNEYS FOR PLAINTIFFS
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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

_________________________________________

M.B. by his next friend Ericka Eggemeyer; E.S. )

and Z.S. by their next friend Nina Schunck; K.C. by her next friend Kris Dadant; A.H. by her next

)

friend Grey Endres, for themselves and those similarly situated,

) No. 2:17-cv-4102-NKL

) Plaintiffs,

) v.

) Jennifer Tidball, in her official capacity as Interim

Director of the Missouri Department of Social

)

Services; Tim Decker, in his official capacity as Director of the Children’s Division of the Missouri

)

Department of Social Services,

)

Defendants.

)

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND REQUEST FOR CLASS ACTION
1. When the state acts to remove children into foster care due to circumstances of abuse or neglect, it assumes an affirmative duty to act in loco parentis to keep those children safe. Missouri is failing in this critical duty. Every day, the approximately 13,000 children in the foster care custody of the state of Missouri are exposed to an unreasonable risk of serious physical and psychological harm because the state fails to maintain an adequate oversight system to ensure that psychotropic drugs are administered safely and only when necessary. In contravention of its custodial obligations, the state routinely permits children in its care to be prescribed one or more of these potent medications without essential safeguards in place:
 The state fails to maintain and provide to foster caregivers, and prescribing physicians as needed, up-to-date medical records detailing the child’s physical and mental health history, including current and prior medications

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and any observed adverse effects, in order to facilitate fully informed and well-coordinated treatment;  The state fails to ensure that informed consent and assent to the administration of a psychotropic medication to a child in foster care is obtained prior and throughout the time a child in foster care is administered a psychotropic medication;  The state fails to operate a system to catch “red flags” and ensure high risk prescriptions of psychotropic medications – e.g. multiple drugs from the same class or drugs given to very young children – are promptly identified and a secondary review obtained by a qualified child psychiatrist to assure child safety. 2. Psychotropic medications are powerful drugs that directly affect the central nervous system. Antipsychotics are one of the most powerful and frequently prescribed classes of psychotropic drugs given to children in foster care. They are often administered as chemical straight-jackets, used to control the behavior of foster children. Yet for many, if not most, of these foster children, psychotropic drugs are being administered to treat a diagnosis – e.g. conduct disorder, ADHD – that the drug was never even designed to address. Serious, longlasting adverse effects are common for children given psychotropic medications. Among children given antipsychotic drugs the incidence of type 2 diabetes is three times as high as children not medicated, condemning them to a debilitating and life-shortening disease. The medications sometimes cause other profound and, at times, permanent adverse effects including psychosis, seizures, irreversible movement disorders, suicidal thoughts, aggression, weight gain, organ damage, and other life-threatening conditions. 3. Many of these drugs have no or very limited uses for children and adolescents that are approved by the federal Food and Drug Administration (“FDA”). In the absence of FDA approval of a drug for use by children, there is no FDA dosage instruction. Although children in foster care are often administered these drugs for months or even years, there is little to no
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research demonstrating their impact on the developing brains of children or adolescents. Close and continuing scrutiny of children given such medications is therefore critical. Of particular cause for concern and posing even more serious risks are instances where children are impacted by “outlier” prescribing practices: prescribed too many psychotropic medications, too much medication, or at too young an age.
4. The grave harms and risks to foster children related to the administration of psychotropic medications are exacerbated because they are often living with caretakers who do not have detailed knowledge of their trauma background, mental health needs, or medical history. These caretakers have not known the child their whole lives the way their biological parent would, so they are dependent on the child’s health records to know their history and needs. Frequent changes in placement are often accompanied by changes in a foster child’s health care provider and lead to disruptions in the child’s health care. Maintaining and sharing an accurate and complete medical history with the child’s foster parent and physician is critical to ensuring the child’s health and safety but often does not occur. As a direct result, foster parents and physicians trying to care for a foster child are in the dark about the child’s history, past treatments, and responses to treatment.
5. This civil rights class action is brought on behalf of a putative class of children under the age of eighteen who are or will be placed in the custody of the state of Missouri due to a report that they have suffered abuse or neglect in the homes of their parents, guardians, or other legal custodians (“the Plaintiff Class”). The suit names Jennifer Tidball, Acting Director of the Missouri Department of Social Services (“DSS”), and Tim Decker, Director of the Children’s Division (“CD”) of DSS, as Defendants solely in their official capacities (collectively, “Defendants”). The approximately 13,000 children in Missouri’s foster care custody are placed
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in foster homes, with relatives, in congregate care facilities, and other settings. The Plaintiff Class alleges, among other things, that they are or may be administered one or more psychotropic medications while in the state’s custody and that the state fails to ensure that the medications administered are appropriate, safe, and adequately monitored. As a result of the state’s failures, the Plaintiff Class has suffered or will suffer substantial and often irreversible harm to their physical, emotional, and/or mental health.
6. Defendants have long been aware that CD’s failure to maintain a system of effective oversight and monitoring of the administration of psychotropic medications to children in its custody poses a substantial and ongoing risk of harm to these vulnerable wards. In 2011 Congress enacted the Child and Family Services Improvements and Innovation Act requiring all states to adopt and implement protocols to ensure the appropriate use and monitoring of foster children administered psychotropic medications. Yet CD failed to take action. Five years later, CD’s own words to the federal government confirm its indifference to the health and well-being of children on psychotropic medications in its custody: “Many foster care children are prescribed multiple psychotropic medications without clear evidence of benefit and with inadequate safety data. The use of multiple medications (psychotropic or otherwise) creates the potential for serious drug interactions.”
7. As legal custodian for the Plaintiff Class, Defendants are required by the United States Constitution and federal statutory law to provide for their safety and well-being, including the provision of adequate medical and mental health care. Under Defendants’ management and direction, CD has failed to meet its critical obligations and presently subjects the Plaintiff Class to physical and psychological harm and the unreasonable risk of such harm in violation of their federal constitutional and statutory rights.
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8. On behalf of the Plaintiff Class, Plaintiffs M.B., E.S., Z.S., K.C., and A.H., through their respective adult Next Friends, (collectively, “the Named Plaintiff Children”) therefore seek declaratory and injunctive relief to abate the substantial, ongoing, and common risks of harm resulting from CD’s longstanding failure to maintain an adequate oversight system to assure that psychotropic drugs are administered safely to foster children and only when necessary.
JURISDICTION AND VENUE 9. This action is brought pursuant to 42 U.S.C. § 1983 to redress violations of the United States Constitution and federal statutory law. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and authority to grant declaratory relief under 28 U.S.C. §§ 2201 and 2202. 10. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to the claim occurred in this district and because Defendants maintain their principal offices within this district in Jefferson City, Missouri.
PARTIES A. The Named Plaintiffs
M.B. 11. M.B. is a fourteen-year-old boy in the foster care custody of CD, currently placed
in a residential facility, though as of the time of filing he was temporarily placed in a psychiatric hospital. M.B.’s case is brought by his adult Next Friend, Ericka Eggemeyer. Over at least the past three years that M.B. has been in Missouri foster care, CD has failed in its obligation to provide for his safety and well-being with respect to how psychotropic medications are being
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administered. CD has allowed M.B. to be placed on more than six psychotropic drugs at once, failed to provide M.B. and his caregivers with updated medical and mental health records, failed to maintain a consistent informed consent process to ensure individual attention to his treatment, and failed to institute an effective mechanism for reviewing dangerous prescription practices. As a result, he has been harmed and put at further risk of harm.
12. It is not clear exactly when M.B. began taking psychotropic medications (though he reports being on these drugs since he was three years old), but by January 2015, at age twelve and in the custody of CD, he was already being given a combination of six such drugs, including lithium and two atypical antipsychotics.
13. Over the course of the next two and a half years in CD custody, M.B. was moved among eight different placements, including at least two psychiatric hospitalizations. With each changed placement, M.B.’s regimen of psychotropic medications fluctuated, with medications being rapidly added, removed, and dosages changing. In some cases, M.B. was placed on a medication for a single month, only to have it removed the next month. In other instances, drugs were tried that had already been tried and discontinued in the past. For example, between January 5 and January 26, 2015, M.B.’s medication regimen reflected that at least one of the six drugs he was taking was discontinued, and two more were added.
14. As of November 2015, M.B. had been placed in a residential facility for almost a year. His Next Friend, Ms. Eggemeyer, was a newly licensed therapeutic foster parent at this time, and CD determined that M.B. would be the first child placed in her home. Ms. Eggemeyer attended one meeting at the residential facility with M.B. and his assigned CD and residential workers. No one discussed M.B.’s medications at this meeting. Ms. Eggemeyer next drove to the residential placement to pick M.B. up from the locked unit. No one discussed M.B.’s
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medications with Ms. Eggemeyer at this time either, despite the fact that he was then taking a combination of five powerful psychotropic drugs with well-documented adverse effects, including suicidality and aggression. Rather, Ms. Eggemeyer was handed a brown grocery bag full of M.B.’s medications by one of the residential staff members. There was no discussion of M.B.’s history with these drugs, the proper methods for administering them, or possible adverse effects. Ms. Eggemeyer was not provided a medical record or history for M.B., nor was she given an opportunity to ask questions about M.B.’s drug regimen.
15. Ms. Eggemeyer did her best to follow the labels on the pill bottles and monitor for adverse effects, guided by the child’s own instructions of what he should take in the morning and evening. Ms. Eggemeyer began to notice significant adverse effects. In the evening, after dispensing M.B.’s drugs, he once told her, “I feel like I have knives in my eyes” and he was often scared to go to sleep. She would see him “twitch” and “tweak” and wondered if it was the medication causing these movements. He described himself to Ms. Eggemeyer as having a “tic.” She observed his “eyeballs roll back in his head.”
16. After just three weeks, the placement disrupted after a brief visit to a respite foster home, when M.B. became agitated and threatened Ms. Eggemeyer’s life. M.B. was hospitalized and would never be returned to Ms. Eggemeyer’s home, despite her desire and intention to care for M.B. Ms. Eggemeyer continues to act as a visiting resource and stays actively involved in M.B.’s care.
17. Over the next two years, M.B. was moved through four different residential placements, with medication changes each time. Powerful medications, such as the antipsychotic Paliperidome, were abruptly discontinued and then added back into his regimen. One constant: the dosages and total number of medications steadily increased. By January 2017,
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M.B. was taking a total of seven psychotropic medications, including three antipsychotics at the same time. Doses of some of the drugs, including the antipsychotic Quetiapine, had nearly doubled over the course of the past two years.
18. In addition to the psychotropic drugs M.B. was taking in January 2017, his medication regimen also included Benzotropine, a drug commonly used to treat the involuntary movements associated with Parkinson’s Disease. Ms. Eggemeyer had seen M.B. exhibit such motions, including tics and twitches, all well-documented adverse effects of psychotropic medications.
19. Around this time, M.B. was also prescribed Levothyroxine, a drug used to treat hypothyroidism. “Lithium-induced hypothyroidism” is one of the documented adverse effects of long-term Lithium use. M.B. had been taking Lithium at daily doses of 600 mg for at least two years, with only brief pauses as his medication regimen changed.
20. In early 2017, still on the same extensive medication regimen, M.B. was moved to a facility hundreds of miles away from Ms. Eggemeyer, the only constant adult presence in his life, reportedly because the prior facility could not accommodate his mental health needs. After M.B. attempted to run away from that facility in April 2017, Ms. Eggemeyer visited M.B. and observed him to be an entirely changed child. Once a child who was hyperactive, energetic and had great difficulty sleeping, M.B. was now lethargic, slurring his speech, and falling asleep in broad daylight as he sat with Ms. Eggemeyer. These behaviors are all documented adverse effects of high dosages of a number of different psychotropic drugs.
21. M.B. was recently moved again to a residential facility outside St. Louis. After living in this facility for just a few days, M.B. was again removed to a psychiatric hospital, where he remained as of the date of filing, after reports of self-harming, aggression, and hearing
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voices telling him to hurt himself. M.B. confirmed to Ms. Eggemeyer that he had been hearing voices telling him to kill himself.
22. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate M.B.’s substantive due process and federal statutory rights. Defendants have failed to protect him from harm and risk of harm while in their care by subjecting him to harmful psychotropic medication regimens without adequate oversight, failing to ensure a consistent informed consent process, and failing to provide his caregivers with updated medical and mental health records.
23. M.B. continues to be at risk of injury as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
24. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have also violated and continue to violate M.B.’s procedural due process rights. Defendants have deprived M.B. of his substantial liberty interest in being free from the unnecessary and inappropriate administration of psychotropic medication without due process of law.
E.S. and Z.S. 25. Plaintiffs E.S., age three, and Z.S., age two, are siblings whose cases are brought
through their adult Next Friend, Nina Schunck. They are both in the foster care custody of CD. CD has allowed E.S. and Z.S. to be placed on psychotropic medications as toddlers in the absence of any effective mechanism for reviewing this troubling prescription practice. As a result, they have been harmed and put at further risk of harm.
26. Despite their young ages, since CD was granted legal custody of E.S. and Z.S., they have been placed in multiple foster homes.
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27. While in the care of CD, E.S. and Z.S. were placed on atypical antipsychotics, specifically Risperdal, and may have also been prescribed an alpha agonist.
28. Risperdal is not FDA approved for pediatric patients less than five years of age for the treatment of any disorder. Specifically, Risperdal’s safety and effectiveness has not been established for schizophrenia less than thirteen years of age, for bipolar mania less than ten years of age, and for autistic disorder less than five years of age. Adverse reactions can include somnolence, increased appetite, fatigue, insomnia, sedation, Parkinsonism, akathisia, vomiting, cough, constipation, nasopharyngitis, drooling, rhinorrhea, dry mouth, abdominal pain, dizziness, nausea, anxiety, headache, nasal congestion, rhinitis, tremor, and rash.
29. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate E.S. and Z.S.’s substantive due process and federal statutory rights. Defendants have failed to protect them from harm and risk of harm while in their care by subjecting them to harmful psychotropic medications without adequate oversight and, upon information and belief, failing to ensure a consistent informed consent process, and failing to provide their caregivers with updated medical and mental health records.
30. E.S. and Z.S. continue to be at risk of injury as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
31. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have also violated and continue to violate E.S. and Z.S.’s procedural due process rights. Defendants have deprived E.Z. and Z.S of their substantial liberty interest in being free from the unnecessary and inappropriate administration of psychotropic medication without due process of law.
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K.C. 32. K.C. is a twelve-year-old girl who was brought into the foster care custody of CD
as a result of abuse and neglect she suffered in her home. K.C.’s case is brought by her adult Next Friend, Kris Dadant.
33. During K.C.’s last three years in foster care, CD has allowed her to be placed on daily doses of multiple psychotropic medications, as many as five at a time, failed to provide K.C. and her caregivers with updated medical and mental health records, failed to maintain a consistent informed consent process to ensure individual attention to her treatment, and failed to institute an effective mechanism for reviewing troubling prescription practices. As a result, she has been harmed and put at further risk of harm.
34. Comprehensive, updated, and accurate mental health and medication records have not followed K.C. as CD has moved her through several placements. As a result, pertinent information has not been available to K.C.’s caregivers or medical consenters to facilitate informed decision-making on her behalf, and physicians have not had access to complete medical records or history when prescribing medications to K.C.
35. For example, earlier this year, those responsible for caring for K.C. had three different understandings of what daily dose of a particular psychotropic medication K.C. was to be administered. Neither CD nor the caregivers had medical records that could be used to resolve the confusion about the dosage. Significantly, this confusion was only brought to light due to questions raised by a volunteer advocate.
36. CD has also permitted K.C. to be placed on multiple psychotropic medications without first obtaining proper informed consent, which requires ongoing monitoring and dialogue so that any adverse effects of these medications may be timely addressed.
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37. For example, at one residential facility, it was reported several times that K.C. was visibly involuntarily shaking. CD and the staff at its privately contracted residential treatment center did not address the issue. Eventually, the center staff firmly denied that any shaking was occurring even though a volunteer visiting resource had been noting it for weeks, and the child twice complained of the shaking.
38. During the period that K.C. was observed to be involuntarily shaking, she was taking the antipsychotic Abilify. The warning label for Abilify provides, in part: “Stop using Abilify and call your doctor at once if you have the following symptoms: . . . uncontrolled muscle movements; . . .”
39. Eventually, without facility staff ever admitting that the shaking was occurring due to medication, and only after the visiting resource repeatedly raised an alarm, K.C.’s psychotropic medications were changed to cut the dosage of Abilify in half.
40. CD’s failure to obtain informed consent for K.C.’s medications has not been limited to her Abilify prescription. She has also been placed on Strattera, another powerful psychotropic medication, without informed consent. At least one formal assessment and observation of K.C. indicate that she does not have Attention-Deficit Hyperactivity Disorder (“ADHD”), yet she has been given a formal diagnosis of ADHD. Despite the indications that she does not have ADHD, K.C. has been prescribed and administered Strattera for ADHD. She has complained that the medication does not help her.
41. The warning label for Strattera provides, in part: “Common side effects in children and teenagers include upset stomach, a decreased appetite, nausea, or vomiting, dizziness, tiredness, and mood swings.” Also, the label notes: “Strattera increases the risk of suicidal thoughts or actions.”
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42. Beyond these examples, K.C.’s psychotropic medications have been changed frequently and erratically with little to no input from informed or knowledgeable medical consenters.
43. In response to K.C.’s high number and doses of psychotropic medications, concerned individuals outside CD observing the treatment of K.C. have sought for months an independent second opinion as to whether her psychotropic medications are harmful or appropriate. These efforts have failed.
44. K.C. has suffered harm as a result of the lack of a second opinion mechanism to review her medications. For example, in October 2016, K.C. suddenly began acting generally aggressive, being angry and violent, and getting into repeated altercations. Facility staff placed K.C. in numerous physical holds to try to stop these fights. One restraint lasted one hour and forty-five minutes. Over one ten-day stretch K.C. was held six times. Along with four other previously administered prescriptions, a strong psychotropic medication, Seroquel, had begun being given to K.C. at the time the aggression began. CD and its private contractor did not note the correlation or raise concern about the number of medications. Once again, a volunteer visiting resource did raise concerns and asked the caseworker to address the issue. CD and the contractor were slow to respond to the concerns about the medication. The volunteer persisted and eventually contacted the prescribing doctor. She mentioned that the child was not diagnosed with bipolar disorder and questioned whether Seroquel should be prescribed, especially in light of the increased aggression and numerous other medications. Later that night, the doctor noted a bipolar disorder diagnosis in K.C.’s records. Eventually, the Seroquel prescription was discontinued. When K.C. stopped taking Seroquel, her aggression ceased.
45. The warning label for Seroquel provides: “Call a healthcare professional right away
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if you or your family member has any of the following symptoms, especially if they are new, worse, or worry you: . . . acting aggressive, being angry, or violent. . . .” Seroquel is not FDA approved for use by children. The drug’s labeling notes that Seroquel is nevertheless prescribed to some children at least thirteen years old; however, K.C. has only recently turned twelve years old. CD failed to provide a safety check in this instance. An automatic second opinion triggered by the addition of a fifth or contra-indicated psychotropic medication could have served to protect K.C. from a profoundly traumatic period.
46. K.C. has experienced rapid weight gain since being placed on psychotropic medications, including a gain of more than fifteen pounds over a two to three month period.
47. K.C. also has begun hallucinating since being placed on psychotropic medications. Two new medications being administered to K.C. have hallucinations as a known adverse effect.
48. K.C. is sad or angry much of the time. She is routinely given five different powerful medications which keep her sedated and controllable. She has shown little or no progress toward achieving good mental health even after being subjected to years of institutional care and strong psychotropic medications.
49. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate K.C.’s substantive due process and federal statutory rights. Defendants have failed to protect her from harm and risk of harm while in their care by subjecting her to harmful psychotropic medication regimens without adequate oversight, failing to ensure a consistent informed consent process, failing to institute a protective mechanism for reviewing troubling prescription practices, and failing to provide her caregivers with updated medical and mental health records. K.C. has suffered numerous harmful adverse effects and other consequences associated with the psychotropic medications she has been prescribed as a
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result of Defendants’ failures. 50. K.C. continues to be at risk of injury as a result of Defendants’ actions and
inactions, policies, patterns, customs, and/or practices. 51. Defendants’ actions and inactions, policies, patterns, customs, and/or practices
have also violated and continue to violate K.C.’s procedural due process rights. Defendants have deprived K.C. of her substantial liberty interest in being free from the unnecessary and inappropriate administration of psychotropic medication without due process of law.
A.H. 52. A.H. is a twelve-year-old girl who has spent approximately six years in the foster
care custody of CD. A.H.’s case is brought by her adult Next Friend, Grey Endres. Over the course of A.H.’s six years in foster care, CD has failed in its obligation to provide for her safety and well-being with respect to how psychotropic medications are being administered. In particular, CD has failed to adequately monitor the dosage of psychotropic medications she has been given, failed to provide A.H. and her caregivers with updated medical and mental health records, and failed to maintain a consistent informed consent process to ensure individual attention to her treatment. As a result, she has been harmed and put at further risk of harm.
53. A.H. has experienced numerous placement moves such that knowledge of her medical and mental health history, in the absence of reliable recordkeeping practices, has become fragmented and dispersed between her assigned caseworker, foster caretakers, and health providers.
54. One example of the harm that results from such fragmented health care occurred in or about November 2016. At that time, C.D. hospitalized A.H. after she tried to physically harm herself. At the psychiatric hospital, she was prescribed two pills of Latuda and two pills of
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Remeron each day. CD did not involve A.H.’s legal parents in the decision to prescribe and administer these psychotropic medications to her.
55. Upon discharge from the psychiatric hospital, C.D. moved A.H. into the home of a non-kinship foster parent. After placing A.H. in this non-kinship home for a few months, CD transferred A.H. to the home of a kinship resource. Although A.H. remained in CD custody at the time of the transfer, her non-kinship foster parent transported A.H. to her new kinship resource’s home, not the assigned CD caseworker.
56. Upon arriving at the new kinship home, A.H.’s former foster parent handed A.H.’s psychotropic medications, wrapped in tissue paper, to the new kinship resource parent. The former foster parent also informed the kinship resource parent that A.H. was to be administered just one pill of Latuda and one pill of Remeron each day. No medical records or pill bottles were provided to the kinship resource parent documenting the instructions for administration of these drugs or their prescribed dosages. As a result, A.H. was given the wrong dosages of these psychotropic medications and experienced a severe reaction, resulting in a six-day hospitalization.
57. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have violated and continue to violate A.H.’s substantive due process and federal statutory rights. Defendants have failed to protect her from harm and risk of harm while in their care by subjecting her to harmful psychotropic medications without adequate oversight, failing to ensure a consistent informed consent process, and failing to provide her caregivers with updated medical and mental health records.
58. A.H. continues to be at risk of injury as a result of Defendants’ actions and inactions, policies, patterns, customs, and/or practices.
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59. Defendants’ actions and inactions, policies, patterns, customs, and/or practices have also violated and continue to violate A.H.’s procedural due process rights. Defendants have deprived A.H. of her substantial liberty interest in being free from the unnecessary and inappropriate administration of psychotropic medication without due process of law. B. The Next Friends
60. Pursuant to Fed. R. Civ. P. 17(c)(2), Plaintiff M.B. appears through his Next Friend, Ericka Eggemeyer. Ms. Eggemeyer has been a licensed therapeutic foster parent in the state of Missouri since 2015 and was a previous foster care placement for M.B. Ms. Eggemeyer knows M.B. personally and continues to be a visiting resource and a constant presence in his life. Ms. Eggemeyer has personally observed the state agency’s failure to adequately oversee the administration of prescription drugs to M.B.
61. Pursuant to Fed. R. Civ. P. 17(c)(2), Plaintiffs E.S. and Z.S. appear through their Next Friend, Nina Schunck. Ms. Schunck has been working in mental health services for thirty years. She is a licensed clinical social worker and has provided individual therapy to foster and adoptive children in Missouri since 1995. Ms. Schunck holds a Master of Sciences in Psychology: Mental Health Services from Avila University.
62. Pursuant to Fed. R. Civ. P. 17(c)(2), Plaintiff K.C. appears through her Next Friend, Kris Dadant. Ms. Dadant has had a career as a Title I teaching specialist, instructing high needs young children in the elementary public schools of Columbia, Missouri. She encounters numerous foster children in her role as a Title I teacher and is a keen observer of the emotional, developmental, intellectual, and psychological behavior of children. As a visiting resource and non-legal advocate for K.C., Ms. Dadant has observed CD’s failure to provide effective
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management and oversight of K.C.’s mental health care, including the administration of psychotropic medications.
63. Pursuant to Fed. R. Civ. P. 17(c)(2), Plaintiff A.H. appears through her Next Friend, Grey Endres. Mr. Endres has been working in child welfare in the state of Missouri for thirty years and supervises A.H.’s therapist in his role as co-founding partner at Lifeworks Family Treatment Group. In addition to overseeing a team of therapists at Lifeworks, Mr. Endres supervises social work students in his role as adjunct professor in the School of Social Work at the University of Missouri-Kansas City and also at Kansas University. Previously, Mr. Endres was the Clinical Director at Gillis Center, a residential treatment center in Kansas City, Missouri, which served foster children with mental health needs. C. The Defendants
64. Defendant Jennifer Tidball is the Acting Director of DSS. Acting Director Tidball maintains her principal office at the Department of Social Services, Broadway State Office Building, Room 240, P.O. Box 1527, Jefferson City, Missouri 65102. Acting Director Tidball is mandated under state law to carry out the purposes of DSS, including the coordination of the state’s programs devoted to those unable to provide for themselves and the rehabilitation of victims of social disadvantage. Missouri state law requires Acting Director Tidball to “use the resources provided to the department to provide comprehensive programs and leadership striking at the roots of dependency, disability and abuse of the society’s rules with the purpose of improving service and economical operations.”
65. Defendant Tim Decker is the Director of the CD, an office within DSS. Director Decker maintains his principal office at the Jefferson State Office Building, 10th Floor, 205 Jefferson Street, Jefferson City, Missouri, 65101. As head of the state of Missouri’s designated
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Title IV-E agency, Director Decker has the day-to-day responsibility to ensure the safety and well-being of children in state foster care.
CLASS ACTION ALLEGATIONS 66. This action is properly maintained as a class action pursuant to Rules 23(a) and (b)(2) of the Federal Rules of Civil Procedure. 67. The class is defined as all children under the age of eighteen who are or will be placed in the foster care custody of the state of Missouri following reports that they have suffered child abuse or neglect. 68. The class is sufficiently numerous to make joinder impracticable. As of April 2017, an estimated 13,534 children under eighteen years old were in the legal custody of CD in foster care. 69. The Named Plaintiffs will fairly and adequately protect the interests of the entire class of Plaintiff Children. 70. The violations of law and resulting harms averred by the Named Plaintiffs are typical of the legal violations and harms suffered by all class members. 71. Each Named Plaintiff appears by a Next Friend, and each Next Friend has sufficient knowledge of the common systemic deficiencies underlying this complaint to represent the best interests of the Named Plaintiff on whose behalf they appear and the best interests of the putative class. 72. Plaintiff Children are represented by John Ammann, a Missouri attorney with over thirty years of experience in civil rights litigation and supervisor of the litigation clinic at St. Louis University School of Law; attorneys employed by Children’s Rights, a non-profit legal
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organization whose attorneys have substantial experience and expertise in child welfare institutional reform class actions; and attorneys employed by the National Center for Youth Law, a non-profit organization specializing in representing children and adolescents in child welfare, mental health, education and juvenile justice reform class actions and impact litigation.
73. Plaintiff Children’s attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the class.
74. Defendants have acted or failed to act on grounds generally applicable to all Plaintiff Children, necessitating declaratory and injunctive relief for the class. Plaintiff Children’s counsel knows of no conflicts among class members.
75. The questions of fact and law raised by Named Plaintiffs’ claims are common to and typical of those raised by the putative class of children they seek to represent. Each child relies on Defendants for their safety and well-being, including their physical and mental health. Longstanding and well-known systemic deficiencies within Missouri’s child welfare system in relation to the administration and oversight of psychotropic medications place all children in CD custody at a common and ongoing risk of harm.
76. Defendants have acted or failed to act on grounds generally applicable to all members of the putative Class, necessitating class-wide declaratory and injunctive relief.
77. Questions of fact common to the Class include: (i) Whether Defendants, through their actions and inactions, have demonstrated a policy, pattern, custom and/or practice of inadequately monitoring and overseeing the administration of psychotropic medications to children in the custody of CD by failing to: (a) ensure that informed consent is obtained prior to and throughout the time that children in foster care are administered
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psychotropic medications, or institute any other procedure to ensure that psychotropic medications are given appropriately and only when necessary; (b) maintain complete and current medical records, including medication history, for children in foster care and to provide these records to foster caregivers and health care providers to facilitate the effective delivery of services; and (c) operate a statewide secondary review system to identify and address outlier prescribing practices to assure the safe administration of drugs to children; and (ii) Whether these failures result in unreasonable harm and the risk of harm to children in CD custody. 78. Questions of law common to the class include: (i) Whether Defendants’ actions and inactions, policies, patterns, customs, and/or practices violate Plaintiff Children’s substantive due process rights to be reasonably free from harm and the unreasonable risk of harm while in state custody, as guaranteed by the Fourteenth Amendment to the United States Constitution; (ii) Whether Defendants’ actions and inactions, policies, patterns, customs, and/or practices violate Plaintiff Children’s procedural due process rights to be free from the unnecessary and inappropriate administration of psychotropic medication as guaranteed by the Fourteenth Amendment to the United States Constitution; (iii) Whether Defendants’ actions and inactions, policies, patterns, customs, and/or practices violate Plaintiff Children’s rights under the Adoption
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Assistance and Child Welfare Act of 1980 (“AACWA”) to case plans containing up-to-date medical records and timely delivery of medical histories to their foster caretakers upon placement in their home; and (iv) Whether the class members are entitled to declaratory and injunctive relief to vindicate the rights they have been denied.
FACTUAL ALLEGATIONS DEFENDANTS’ FAILURE TO EFFECTIVELY MONITOR AND OVERSEE THE ADMINISTRATION OF PSYCHOTROPIC MEDICATIONS TO CHILDREN IN CD CUSTODY RESULTS IN HARM AND A SUBSTANTIAL RISK OF HARM
A. Serious risks attend the use of psychotropic medications in children 79. Psychotropic medications are powerful drugs that act on the central nervous
system and can affect cognition, emotions, and behavior. These medications are to be prescribed for specifically diagnosed psychiatric illnesses and mental health disorders. Most psychotropic medications have not been approved by the FDA as safe and effective to treat children’s mental health disorders. Those drugs with an FDA-approved use with children or adolescents are usually limited to certain age groups and specific mental health diagnoses. For example, none of the atypical antipsychotics (such as Aripiprazole/Abilify, Risperidone/Risperdal, Quetiapine/Seroquel, and Paliperidone/Invega) are approved for children under age five. The limited FDA-approved diagnoses for older children are restricted to schizophrenia, bipolar disorder, Tourette’s disorder, and autistic disorder with irritability.
80. As noted by one expert in a publication by the American Bar Association’s Center on Children and the Law, “[l]ittle is known about how [psychotropic] medications impact children and adolescents in the short or long term. Children are not just ‘mini adults’; they
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cannot just be given a smaller dose because they have smaller bodies.” Moreover, as observed
by the Administration of Children and Families (“ACF”), the office within the U.S. Department
of Health and Human Services charged with administering the federal Title IV-E foster care
program, “research on the safe and appropriate pediatric use of psychotropic medications lags
behind prescribing trends. . . . In the absence of such research, it is not possible to know all of
the short- and long-term effects, both positive and negative, of psychotropic medications on
young minds and bodies.” This fact has not stopped the practice of physicians prescribing these
drugs to children “off-label,” a term the FDA defines as the “unapproved use of an approved
drug.” At least one study has shown that approximately 45% of medications used for the
treatment of emotional or behavioral disturbances in children or adolescents are prescribed off-
label.
81. While some of the risks to children may not be well understood, psychotropic drugs
are known to cause serious and sometimes irreversible adverse effects in adults. These well-
documented adverse effects include:
 Psychosis, suicidal thoughts, and agitation  Blurred vision  Nightmares and hallucinations  Drowsiness and dizziness  Irreversible movement disorders (such as tardive dyskinesia), rigidity, tremor
and tics  Seizures  Weight gain, diabetes, and high cholesterol  Kidney, thyroid, liver, and pancreas damage 82. In the developing brain and body of a child these medications may induce these
adverse effects more frequently with greater severity. A recent study gathering information
about adverse effects from parents of children given one or more psychotropic medications
found:
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 The number of adverse effects increased with the number of medications being used. In comparison with children taking one medication, those taking two drugs reported on average 17% more adverse effects while those taking three or more medications reported on average 38% more adverse effects.
 The side effect profile shifted for children depending upon the number of medications taken. Suicidality and self-harm became more frequent with increasing numbers of medication. Increased appetite, sleepiness/fatigue, and tics and tremors were 200 to 300% more prevalent among children taking three or more medications than those taking only one drug.
 The number of adverse effects increased the longer the child was on the medication.
 Polypharmacy regimens including SSRI antidepressants or antipsychotics were especially associated with adverse effects.
83. Some psychotropic medications, including some antipsychotics and SSRI
antidepressants, even come with “black box” warning labels, indicating “their use requires
particular attention and caution regarding potentially dangerous or life threatening side effects.”
It is recognized that these drugs may increase the risk of “suicidal thinking and behavior
(suicidality) in children, adolescents and young adults,” and that patients starting these drugs
should be “monitored appropriately and observed closely for clinical worsening, suicidality, or
unusual changes in behavior.”
84. The American Academy of Child and Adolescent Psychiatry (“AACAP”), the
leading professional organization dedicated to promoting psychiatric care and healthy
development of children and adolescents, posits that “best practice does not involve psychotropic
medication as the sole intervention for youth with complex mental health needs. Psychosocial
interventions, particularly those that are evidence-based and systematically monitored, are also
essential.” Children in foster care nevertheless are often at heightened risk of persistent mental
health issues because of the “frequent absence of effective psychosocial interventions, including
various forms of psychotherapy” provided along with psychotropic medications. Too frequently,
psychotropic medications are administered to achieve behavioral control rather than to treat an
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underlying trauma. For some disorders, including Reactive Attachment Disorder and Disinhibited Social Engagement Disorder, no psychopharmacological intervention trials have been conducted, nor are there any indications for medication for the treatment of these disorders.
85. Children in foster care are also particularly vulnerable to high risk prescriptions because, as ACF explains, “the majority of physicians responsible for prescribing psychotropic medication to foster children are pediatricians or general psychiatrists without formal training in child and adolescent psychiatry and may not have an abundance of exposure to concerns specific to children in foster care.” AACAP practice guidelines makes clear that a comprehensive psychiatric evaluation of a child should be completed before any pharmacological intervention is considered. Such an evaluation “increases the likelihood that medication interventions will be well conceptualized and hopefully reduces the likelihood of treatment failure and poor adherence.” In Missouri, due to shortages of child psychiatrists, children are often prescribed psychotropic medications by their pediatrician, a general psychiatrist, or a doctor who sees them for just a few minutes or via tele-medicine.
86. Given the lack of research on the safe and appropriate use of psychotropic medications in children, and the inherent vulnerabilities of this population, it is of particular concern when children in foster care are exposed to “outlier” prescribing practices. In 2012, ACF issued guidance to states on implementing effective oversight of psychotropic medications for youth in foster care. ACF defined “outlier practices” as “patterns that may signal that factors other than clinical need are impacting the prescription of psychotropic medications” and identified the following three areas of concern that should trigger heightened scrutiny: “instances where children are prescribed too many psychotropic medications, too much medication, or at too young an age,” commonly referred to as “too many, and too much, too young.”
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87. Too many. Polypharmacy (the use of multiple psychotropic medications at once) is increasingly prevalent in the foster care population, despite long-standing awareness of “the lack of supporting evidence and the potential for adverse effects (e.g., side effects, drug interactions, metabolic effects, and potential that some medications may alter nervous system development).” There is “scant evidence” that using multiple psychotropic medications at once is effective and safe in children. Experts report that “increasing the number of drugs used concurrently increases the likelihood of adverse reactions and long-term side effects, such as high cholesterol or diabetes, and limits the ability to assess which of multiple drugs are related to a particular treatment goal.” Research looking at the incidence of type 2 diabetes among children administered an antipsychotic medication found that children given an antipsychotic were 50% more likely than non-medicated children to suffer from diabetes. The same research found the risk of developing diabetes was even greater for children given an antidepressant concurrently with the antipsychotic. Children in foster care are frequently administered an antidepressant and a stimulant concurrently. Data to substantiate the safety and efficacy of this combination of drugs is lacking.
88. Too much. Because the majority of pediatric psychotropic medication use is done off-label, there are very few research-based guidelines for medication dosages, which would typically be supplied by FDA prescription labels. For this reason, it is a cause for concern when children are prescribed these medications at dosages that exceed recommendations. Experts report that this practice “increases the risk of adverse side effects and does not typically increase the efficacy of the drugs to any significant extent.”
89. Too young. Very young children are particularly vulnerable to the possible adverse effects of psychotropic medications. Experts have reported that there is “no established
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use [for psychotropic medications] for mental health conditions in infants [under age one]; providing them these drugs could result in serious adverse effects.” Moreover, it is generally understood that drugs in the class of atypical antipsychotics, one of the most powerful psychotropic drug categories, should not be administered to children below the age of five.
B. CD has long been aware that large numbers of children in its foster care custody are regularly being administered powerful psychotropic drugs. 90. On any given day, substantial numbers of children in CD foster care custody are
being administered one or more psychotropic medications. Indeed, CD acknowledged “high psychotropic medication utilization rates for children in out-of-home care” in its 2016 Title IV-B Annual Progress and Service Report (“APSR”), submitted to the federal government.
91. CD has long been aware that large numbers of children in foster care are being administered psychotropic drugs. More than a decade ago, Missouri participated with fifteen other states in a study of Antipsychotic Medication Use in Medicaid Children and Adolescents (“16-State Study”). The purpose of the study was, among other things, to gather information about antipsychotic utilization rates and trends among children on Medicaid, including foster children, to flag prescribing practices that raised concerns about the safety of children, and to foster prescribing patterns for children that are supported by the evidence.
92. Each of the states participating in the 16-State Study, including Missouri, collected and reported data on five core safety measures:
 Use of antipsychotic medication in children five years of age and younger  Use of high doses of antipsychotic medication  Use of multiple antipsychotic medications  Use of multiple (four or more) psychotropic medications  Gap in days between filling antipsychotic prescriptions 93. Missouri was one of the thirteen states to collect and report separate data on children in foster care.
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94. The 16-State Study found that the rate of antipsychotic medication use for children in foster care in those states was almost nine times the rate for children not in foster care (12.37% versus 1.4%). It further found that one in five children were prescribed two different antipsychotics, and more than one in ten children received four or more psychotropic medications.
95. Years later, in or about 2012, a review of psychotropic medication utilization in the foster care population conducted as part of the Missouri Initiative for Children in Foster Care, looking at the prior year’s data, showed that 28% of children in state foster care were on a psychotropic medication. Of these children, fully 20% were subject to an outlier prescription (too much, too many, too young), including 6.65% who were prescribed five or more psychotropic medications in tandem and 3.03% who were prescribed two or more antipsychotics. A January 2015 Missourian article, entitled “Missouri foster children are given higher-thanaverage amounts of psychiatric drugs,” reported MOHealthNet data from 2012 indicating that more than 30% of Missouri's foster children were prescribed at least one psychotropic medication. It was further reported based on this data that children as young as two years old had been prescribed an antipsychotic drug. In addition, at least 20% of Missouri’s foster youth were taking an average of two or more psychotropic medications, with some foster children prescribed as many as seven psychotropic medications at one time.
C. Federal law and professional standards require that states have in place a system to oversee the administration of psychotropic medications to children in foster care. 96. The vital need for rigorous and effective oversight of psychotropic medication use
for children in foster care is well established. Under federal law, CD is required to develop “a plan for the ongoing oversight and coordination of health care services for any child in a foster care placement,” which must include “an outline of . . . the oversight of prescription medicines,
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including protocols for the appropriate use and monitoring of psychotropic medications.” See, 42 U.S.C. § 622(b)(15)(A), 622(b)(15)(A)(v). ACF has stated that “[s]trengthened oversight of psychotropic medication use is necessary in order to responsibly and effectively attend to the clinical needs of children who have experienced maltreatment” and urged “close supervision and monitoring . . . [and] careful management and oversight” in the use of psychotropic medications for children.
97. Additionally, AACAP has published recommended practices to be applied by child welfare agencies in overseeing the mental health treatment of children in foster care, including active monitoring to assure safe utilization of psychotropic medications. AACAP explained that children in state custody “often have no consistent interested party to provide informed consent for their treatment, to coordinate treatment planning and clinical care, or to provide longitudinal oversight of their treatment.” Thus, “[t]he state has a duty to perform this protective role for children in state custody.”
98. Over the past several years, CD has repeatedly acknowledged its awareness of these standards and the compelling need to implement a robust system to protect children in foster care from unsafe medication practices and ensure appropriate use and oversight of psychotropic medication. Shockingly, despite the inherent and widely recognized risks associated with the use of psychotropic medications in children, CD has failed to implement such a system.
D. Defendants fail to maintain complete and current medical records for Plaintiff Children and to provide these records to caregivers. 99. Ready access to a child’s full medical history is critical to ensuring effective
medical and mental health care, including the safe and appropriate administration of psychotropic drugs. Accordingly, the case plan requirements of Title IV-E of the Social Security
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Act require child welfare agencies to maintain up-to-date medical records as part of a written case plan for each child in care. The case plan must contain updated health care records including: “the child’s known medical problems” and “the child’s medications.” Child welfare agencies also must have a procedure for ensuring that a copy of this record is supplied to the foster parent or placement provider “at the time of each placement.”
100. CD’s own policy requires that “the child’s Children’s Service Worker shall establish and maintain a medical record (separate and distinct section in the file or separate record) on each child in care.” Upon entry into care, CD policy requires that the worker “ensure initial medical information is obtained from the parent/physician and given to the resource provider within 72 hours.” Similarly, Missouri’s Foster Parents’ Bill of Rights requires that “the children's division and its contractors shall provide to foster parents and potential adoptive parents, prior to placement, all pertinent information, including but not limited to full disclosure of all medical, psychological, and psychiatric conditions of the child.”
101. Likewise, widely-accepted standards promulgated by the Child Welfare League of America (“CWLA”) require the public child welfare agency to develop “an abbreviated health record, such as a medical passport, that accompanies the child throughout the child’s stay in outof-home care.” This record is to include, among other things: “[t]he child’s health history prior to placement . . . and immediately before entering care . . . [a]ny medical, dental, mental health, or developmental problems . . . current medications . . . [and] allergies . . . [It] should prominently identify . . . any medication allergies.” CWLA standards further provide that the agency should update this record “in a timely manner, entering information about the child’s health status, services, and needs as soon as [it] becomes available.”
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102. AACAP similarly recommends maintenance of “an ongoing record of diagnoses,
height and weight, allergies, medical history, ongoing medical problem list, psychotropic
medications, and adverse medication reactions that are easily available to treating clinicians 24
hours a day.” Review of these records “to assess past successful and unsuccessful treatments can
. . . reduce the chance that previously ineffective treatments will be used again.”
103. CD acknowledged the importance of a centralized medical record in the 2016
“Health Oversight and Coordination Plan” (the “2016 Health Plan”) submitted to the federal
government:
At a minimum, every child in foster care should have a centralized medical record that is updated regularly. The record should contain historical information obtained from birth families, immunization records, notes and recommendations from primary care physicians, notes and recommendations of subspecialty providers that evaluated the child, pertinent test results, medication history, and school records.
104. Three years earlier, CD expounded upon why these records are of particular
importance to the vulnerable children in its custody and the direct linkage between current
medical records and adequate oversight of psychotropic medications:
When a child in foster care experiences a placement change, the child may also have new medical providers who are not familiar with their history. The lack of shared access to health records can limit the practitioner’s ability to make the most informed clinical decisions possible. The intended purpose of [a centralized health record] is to track health care information of foster children so health providers, case managers and caregivers may have a comprehensive understanding of a child’s medical history. Additionally, [a centralized health record] will provide all foster children with a personal health record which belongs to them forever, reducing the fragmentation of their medical history while in care, after reunification, or when the child ages out of foster care . . . Because foster children may be relocated frequently, physicians may be unaware of a child’s existing medication regimen and often prescribe another treatment beyond current therapy. An additional targeted outcome for [a centralized health record] is to better
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track prescribing habits and to reduce the overuse of psychotropic medications in this population.
105. Notwithstanding the above laws, policies, standards, and acknowledgements, CD,
by its own admission, currently maintains no centralized medical record for the children in its
custody. Indeed, it identified “fragmented care” and “inadequate medical record management”
as challenges in its 2016 Health Plan and candidly reported:
There is a lack of health care information about children as they enter care, and once a child has entered care there are significant difficulties retaining accrued information in a form readily accessible to staff. No central database or communication system exists for children in foster care. Children in foster care typically have numerous individuals involved in their health care, yet an effective means of communication and record management does not exist.
106. In the absence of a system to maintain comprehensive medical records for all
children in care, CD has resorted to giving its caseworkers electronic access to the state’s
Medicaid claims data through a web-based tool known as CyberAccess as a proxy for tracking a
child’s prescription drug history. Professionals in the human services field, however, warn that
Medicaid claims data is not an adequate replacement for a comprehensive medical record. In a
2015 letter to the federal government, the American Public Human Services Association strongly
advised against relying on data contained in the state’s Medicaid Management Information
System (“MMIS”) as a proxy for a child’s complete medical file, stating:
[A] client’s Medicaid medical history is typically not captured by, nor housed within, the state’s MMIS. The MMIS is essentially a claims processing system for fee-for-service (FFS) care, as well as a provider payment system. . . . The FFS claim history data that does reside within the MMIS is a payment history file cross-walked to a diagnosis code but in no way is an accurate portrayal of the child’s medical history . . . In addition, the data contained within the typical MMIS is often incomplete and considerably out-of-date. Claim history data is based on when the claim for payment is settled, not when the claim was originally submitted.
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107. Simply viewing Medicaid claims data does not provide the CD caseworker with critical information, such as whether a prescribed drug was ever actually administered, what diagnoses or behavior a particular drug has been prescribed to treat, or whether the child previously experienced any adverse effects from a medication.
108. CD similarly fails to ensure that every child has a written case plan including the required medical records, as mandated by federal law. In 2003 and again in 2010, the federal government’s Child and Family Services Review of Missouri’s child welfare system found that the state’s process of ensuring “that each child has a written case plan to be developed jointly with the child’s parent(s) that includes the required provisions” was an “area needing improvement.” Moreover, Missouri’s 2016 APSR reported the results of a case record review finding that more than a quarter of child case files reviewed did not contain a current written case plan. Even where a case plan did exist in the child’s file, the file was often incomplete with respect to medical and mental health records.
109. Even if CD were maintaining medical records or current case plans for children, they are of no utility if they are not provided to the individuals charged with caring for and, in some cases, providing informed consent for medications being given to those children. Yet CD routinely fails to provide the required medical records to foster caregivers, as required by law and policy. Foster parents are regularly provided incomplete health records and medication histories for children in their care, and very often no health information at all.
110. CD has long been aware of this failure. The 2016 Health Plan acknowledged that “[f]oster care providers and others assisting the child or family do not always have updated health information to make decisions related to the child’s health care.” In the absence of any system to ensure that this information is consistently provided to caretakers, foster parents are
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often forced to wing it, cobbling together what health information they can glean about the child and exercising an educated guess as to what medications to administer, when and how, potential risks and adverse effects, and how to respond when a child experiences those effects.
E. Defendants fail to assure a meaningful informed consent process. 111. Informed consent is a prerequisite to the administration of any medical treatment
to a child. Ordinarily, a child’s parent or guardian is authorized to consent and the child must assent to the treatment. But the administration of psychotropic drugs is not an ordinary medical treatment. As noted earlier in paragraphs 75 to 85, these drugs can have extraordinary and lifealtering adverse effects that are irreversible. Their effects on the mind and body of a child can be profound. Moreover, additional safeguards must be in place for children in foster care due to the fragmented nature of the health care they receive while in state custody. Consequently, decisions about whether or not to administer a psychotropic medication to a child in foster care require a more rigorous decision-making process.
112. In a 2012 Information Memorandum, the federal government identified the “need for written policies” with provisions for “[i]nformed and shared decision-making (consent and assent) and methods for on-going communication between the prescriber, the child, his/her caregivers, other healthcare workers, [and] the child welfare worker” as an element that is consistently included in guidelines and recommendations for the systemic monitoring and oversight of psychotropic medications in the foster care context. AACAP standards further clarify that “[a]lthough particularly important at the time of psychotropic medication initiation, informed consent and assent are ongoing processes. Informed consent involves discussion of target symptoms, likely benefits of a potential treatment, potential risks of treatment, and risks of
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not pursuing the treatment in question. Documentation of the discussion is essential, to provide
clear evidence of what occurred.”
113. CD has acknowledged the importance of the informed consent process in
delivering and assuring safe and appropriate care to children. In a September 2013
memorandum to staff addressing the agency’s informed consent policy, CD management
instructed that adherence to the informed consent policy is required “in order for children in the
custody of the Children’s Division (CD) to receive appropriate health or mental health services.”
114. CD has promulgated an informed consent policy with respect to psychotropic
medications, which provides:
When the need for psychotropic medication arises, the parent(s) should be engaged in all medication decisions and appointments for the child, unless parental rights have been terminated or the court has issued an order restricting the parent’s participation in the decision making process. . . . When a psychotropic medication is prescribed, the child’s Children’s Service Worker should obtain information regarding the benefits and side effects of the medication to help make an informed decision. . . . If the child’s parent(s) is unavailable for consultation regarding treatment, the child’s Children’s Service Worker or the resource parent are authorized to give consent. Prior to administering the medication, the resource parent must notify the child’s Children’s Service Worker to obtain approval for the child to begin the medication. The child’s Children’s Service Worker should notify the parents regarding treatment.
115. CD’s informed consent policy is deficient on its face in at least the following
ways:
 The policy is subject to inconsistent interpretation and application because of its repeated use of the conditional or contingent term “should” rather than the obligatory term “must”1 in delineating the role of the caseworker.
 In situations where the parent is considered unavailable, either the foster parent or the caseworker may have authority to consent but the circumstances under which one over the other is empowered to consent are unclear.
1 “Must” is used only in reference to the obligation of the resource parents to notify the caseworker before actually administering a psychotropic drug to a child.
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 There is no description of what is necessary for a parent to be considered unavailable.
 Many foster children administered psychotropic medications are placed in congregate care facilities. The policy is silent on the role, if any, that the group care provider plays in the consent process.
 The policy does not provide for or require any periodic review of the initial consent nor set forth factors that require a reconsideration of initial consent. The result is that foster children may continue on a regimen of medications for months or years without review.
 The policy fails to clearly delineate a mandatory process for offering youth the opportunity to provide “informed assent” before undergoing a course of psychotropic medication treatment.
116. While appearing to require some consultation or engagement with the parent, the
policy does not actually vest the parent or youth with the decision to grant or withhold consent,
but rather sets forth a scenario where any parental or youth refusal can be overridden by CD.
The policy provides that “[i]n cases of refusal, the child’s Children’s Service Worker will consult
with the prescribing healthcare provider.” The policy directs that, after the consultation, “the
child’s Children’s Service Worker should revisit the discussion with the parent(s),” but does not
even suggest further engagement with the youth themselves. If a “parent or youth still disagree
with the treatment,” the policy states that ultimately “CD will make the decision under its
authority as the legal custodian.”
117. The result of this policy is that a youth may be required to take a medication that
they or their parent have explicitly refused. Nothing in policy would even require the
caseworker to discuss the refusal with the parents before disregarding it, inform the youth or
parent of the reasons why their refusal has been overridden, or explain the basis for the
caseworker’s decision.
118. Finally, because the policy is so vague and ambiguous it is all too frequently
either misunderstood, misapplied, or wholly ignored by caseworkers and resource parents in
securing mental health treatment for children in CD custody.
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119. Despite the critical importance of obtaining proper informed consent, CD management has no system to track compliance with the agency’s informed consent policy across all children in care, betraying the widely recognized principle that “you cannot manage what you cannot measure.” CD has no system for tracking in the aggregate whether (a) the child’s parents are engaged in medical decision-making when available, (b) the assigned caseworker is notified by the resource parents before they administer medication to a child for which the resource parents provided informed consent to the prescriber, (c) youth are given the opportunity for informed assent before going on a psychotropic medication regimen, or (d) when medication is refused, whether the appropriate procedures are followed and documented before CD overrides this refusal. Absent this aggregate data, CD management is unable to identify and timely correct areas of non-compliance with this important policy, leaving children at risk.
120. Notwithstanding CD’s failure to promulgate and enforce a clear, unambiguous, and effective informed consent policy, the lack of comprehensive and up-to-date health records for all children in care, in any event, materially impedes caseworkers and caregivers from giving truly informed consent. Medications may be approved without the benefit of knowing a child’s health history, which could include allergies to medication, documented adverse effects to medications, or failed previous attempts with that very same drug.
121. In the absence of an effective informed consent process, CD has failed to institute any other procedures to ensure that medications are given to children in custody appropriately and only when necessary.
F. Defendants fail to operate a monitoring and oversight system that promptly flags outlier prescriptions and subjects them to secondary review. 122. In the absence of comprehensive medical records and effective informed consent
for children in state foster care, it is crucial for the safety of these children that CD have a system
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to make sure that particularly risky prescription practices are identified and reviewed. The 2015 AACAP recommendations, as well as guidance from ACF and professional organizations, call for child welfare agencies, Medicaid agencies, and mental health agencies to collaborate in creating systems to monitor the safety of psychotropic medication utilization among children in foster care. The AACAP standards in particular call for the systemic capacity to identify “red flag criteria triggering external reviews.” ACF guidance directs that these systems be designed to flag outlier prescriptions including “instances where children are prescribed too many psychotropic medications, too much medication, or at too young an age: too many, and too much, too young.” The AACAP recommendations further call for “[m]andatory consultations with an identified child and adolescent reviewer” in response to identified red flags.
123. CD currently has no system in place to identify and address “red flag” or “outlier” prescriptions of psychotropic medications to safeguard children in its custody. Instead, over the last decade, CD has essentially paid lip service to this critical systemic element, repeatedly advising the federal government that it is in the process of “development . . . of an agency monitoring protocol for psychotropic medications.”
124. In its 2010 APSR, CD reported to ACF that it had begun coordinating with the Missouri Department of Mental Health (“DMH”) in 2008 to develop a system able to “identify multiple psychotropic drugs and or contraindicated medications automatically and [with] alerts provided to staff to address.”
125. Two years later, CD submitted its 2012 APSR advising that it was “still in the exploration phase for psychotropic medications,” and describing CD’s “early” stage collaboration with DMH to develop a suitable monitoring system:
The Children’s Division in conjunction with DMH is exploring the use of psychotropic medications among children in foster care.
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While medication can be an important component of treatment, oversight is necessary when addressing the needs of children who have experienced maltreatment. This work is in the early stages of discovery. The Children’s Division has met with DMH to discuss this issue and identify a protocol for monitoring the utilization of psychotropic medication. The examination consisted of exploring age counts, medication counts and costs, diagnosis counts and costs, and prescriber information. The next steps will be to determine which combination of medications is most problematic and make practice decisions as a result of the findings.
126. In its 2013 APSR, CD once again advised ACF that it was “still in the exploration
phase for psychotropic medications.” CD additionally described a contemplated “second opinion
process” which would “take a close look at those children being prescribed two or more
antipsychotics or five or more psychotropic medications and elicit trends.” CD reported that 200
children in foster care custody fit this criteria for a secondary review, but that only ten child case
files would be reviewed to “begin this process.”
127. Subsequent efforts undertaken in 2013 to review these ten cases proved an abject
failure. As averred herein at paragraphs 95 to 106, CD to this day fails to maintain a system of
comprehensive medical records for the children in its care. This persistent, yet curable, systemic
deficiency imposes a substantial barrier to CD’s implementation of an effective secondary
review process. Because CD was not in possession of comprehensive, up-to-date medical files
for these ten children, letters were sent to their prescribing physicians requesting copies of their
files. For eight of those ten cases, the medical records obtained were “too incomplete to perform
a thorough and meaningful review.” The secondary review process, therefore, stalled. CD made
no efforts to initiate the process again until three years later, in 2016, when CD again failed to
implement it as a result of not having complete health records.
128. CD’s renewed effort in 2016 to conduct secondary reviews on two sets of twenty-
five child case files once again confronted documentation obstacles. CD reported in its 2016
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APSR that “[t]he lack of timely compliance from prescribers providing the requested documentation, as well as the quality of the documentation received, has required extensive follow up.” Not surprisingly, CD’s most recent 2016 Health Plan states that the Division is “not currently implementing this second opinion process.”
129. Fully nine years after CD began collaborating with DMH to develop a monitoring and oversight system, CD still has no credible and functioning system in place to ensure that it does not go unnoticed when a child in CD custody is prescribed a potentially dangerous combination or dosage of psychotropic medications, and to require a professional to review that child’s case. CD’s demonstrated lack of urgency in implementing a monitoring system reflects a deliberate and conscience shocking indifference toward the safety of children it has a duty to protect.
FIRST CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION
(Asserted on behalf of all Named Plaintiffs and the putative class and against all Defendants)
130. Paragraphs 1 – 129 above are repeated and re-alleged as if fully set forth herein. 131. A state assumes an affirmative duty under the Fourteenth Amendment to the United States Constitution to protect a child from an unreasonable risk of harm once it takes that child into its foster care custody. 132. The foregoing policies and practices of Defendants Tidball and Decker, in their official capacities, constitute a failure to meet the affirmative duty to protect the Plaintiff Children and class members from an unreasonable risk of harm. These failures are a substantial factor leading to, and proximate cause of, the ongoing violation of the Plaintiff Children’s and
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class members’ constitutionally-protected liberty interests conferred upon them by the Fourteenth Amendment to the United States Constitution.
133. Defendants are well aware of the policies and practices that constitute a failure to protect Plaintiff Children and class members from an unreasonable risk of harm.
134. The foregoing actions and inactions of the Defendants, in their official capacities, constitute policies, patterns, practices and/or customs that are contrary to law and are substantial departures from any accepted professional judgment such that they are outside of that judgment. Defendants’ actions and inactions are also in deliberate indifference to their awareness of facts from which the inference could be drawn that a substantial risk of serious harm exists for Plaintiff Children and class members, and they have drawn that inference. As a result of Defendants’ actions and inactions, Plaintiff Children and class members have been harmed or are at continuing and imminent risk of harm, and have been deprived of their substantive due process rights guaranteed by the Fourteenth Amendment to the United States Constitution.
135. These substantive due process rights include, but are not limited to: the right to protection from harm and unreasonable risk of harm while in state foster care custody; the right to necessary treatment, care, and services to prevent class members from deteriorating or being harmed physically, psychologically, developmentally, or otherwise while in state foster care; and the right to adequate supervision and monitoring of class members’ health and safety.
SECOND CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ PROCEDURAL DUE PROCESS RIGHTS UNDER THE U.S. CONSTITUTION
(Asserted on behalf of all Named Plaintiffs and the putative class and against all Defendants)
136. Paragraphs 1 – 129 above are repeated and re-alleged as if fully set forth herein. 41
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137. The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits Defendants from depriving any person of life, liberty, or property without due process of law.
138. Foster children have a substantial liberty interest, protected by the Due Process Clause, in being free from the unnecessary and inappropriate administration of psychotropic medication.
139. The foregoing actions and inactions of the Defendants, in their official capacities, constitute policies, patterns, practices and/or customs that deprive the Plaintiff Children and class members of this liberty interest without due process of law. Defendants’ actions and inactions subject the Plaintiff Children and class members to the administration of psychotropic medication without having procedures in place for ensuring that these medications are appropriately being given to the Plaintiff Children and class members.
THIRD CAUSE OF ACTION – VIOLATION OF PLAINTIFFS’ RIGHTS UNDER THE FEDERAL ADOPTION ASSISTANCE AND CHILD WELFARE ACT, 42 U.S.C. §§ 621
et seq., 670 et seq. (Asserted on behalf of all Named Plaintiffs and the putative class
and against all Defendants) 140. Paragraphs 1 – 129 above are repeated and re-alleged as if fully set forth herein. 141. The foregoing actions and inactions of the Defendants, in their official capacities, constitute policies, patterns, practices and/or customs that violate the statutory rights of the Plaintiff Children and class members under the federal Adoption Assistance and Child Welfare Act of 1980, as amended by the Adoption and Safe Families Act of 1997, 42 U.S.C. §§ 621 et seq., 670 et seq., and the regulations promulgated under the Act, 45 C.F.R. Parts 1355-1357.
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142. These rights include, but are not limited to, (a) the right of the Plaintiff Children and class members to have a written case plan that contains, inter alia, the health records of the child, including the child’s most recent health information available regarding the names and addresses of the child’s health providers, a record of the child’s immunizations, the child’s known medical problems, the child’s medications, and any other relevant health information concerning the child determined to be appropriate by the State agency; and (b) the right of the Plaintiff Children and class members to have his or her health records reviewed, updated, and supplied to foster care providers with whom the child is placed before or at the time of placement. 42 U.S.C. §§ 622(b)(8)(A)(ii), 671(a)(16), 675(1) & (5).
143. These rights are clearly intended to benefit the Plaintiff Children and class members; the rights are neither vague nor amorphous such to strain judicial competence; and the statutory provisions noted above impose a binding obligation on the states.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiff Children, on behalf of the putative class they represent, respectfully request that this Court exercise its legal and equitable powers and award classwide relief as follows:
a. Assert subject matter jurisdiction over this action; b. Order that this action be maintained as a class action pursuant to Federal Rules of Civil
Procedure 23(a) and 23(b)(2); c. Declare pursuant to Federal Rule of Civil Procedure 57 that:
(i) Defendants’ failure to maintain a minimally adequate oversight system in relation to the administration of psychotropic medications to the class of 43
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children in CD foster care custody violates Plaintiffs’ substantive due process rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution to be protected from harm and the unreasonable risk of harm while in state custody; and (ii) Defendants’ failure to institute procedures to ensure that psychotropic medications are being appropriately given to the Plaintiff Children violates Plaintiffs’ procedural due process rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution to be free from the unnecessary and inappropriate administration of psychotropic medication; and (iii) Defendants’ failure to (1) maintain complete and updated medical records, including, but not limited to, medication history and any history of adverse reactions and side effects, in the case plans of each child in the class of children in CD foster care custody; and (2) deliver such medical records to Plaintiffs’ foster caretakers upon placement violates Plaintiffs’ statutory rights under the Adoption Assistance and Child Welfare Act to (a) a written case plan that contains, inter alia, the health records of the child, including the child’s most recent health information available regarding the names and addresses of the child’s health providers, a record of the child’s immunizations, the child’s known medical problems, the child’s medications, and any other relevant health information concerning the child determined to be appropriate by the State agency; and (b) to have his or her
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health records reviewed, updated, and supplied to foster care providers with whom the child is placed before or at the time of placement. d. Permanently enjoin Defendants from subjecting the class of children in CD custody to policies and practices that violate Plaintiffs' constitutional and statutory rights as set forth in subparagraph (c) above as follows: (i) Medical Records: Order Defendants to (1) implement and maintain a comprehensive and updated electronic healthcare record for all children in CD foster care custody; and (2) deliver to each child's foster caretaker upon placement of the child in the caretaker's home or licensed facility a complete medical history for the child including, but not limited to, the child's prescription medication history and any history of adverse reactions and side effects; and (ii) Informed Consent Policy: Order Defendants to (1) promulgate a clear, unambiguous and effective informed consent policy; (2) develop and maintain a system of records that facilitates the tracking of aggregate compliance with the above informed consent policy; and (3) develop and implement a mandatory training program for all social workers and foster caretakers regarding the safe administration of psychotropic medications to children and compliance with CD policy in relation to these medications; and (iii) Secondary Review System: Order Defendants to develop and implement a secondary review system that (1) establishes and tracks “red flag” criteria designating outlier or elevated risk prescription practices in relation to the
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administration of one or more psychotropic or antipsychotic medications to
children in CD foster care custody; and (2) requires secondary review by a
qualified child psychiatrist of all “red flag” prescription regimens to children
in CD foster care custody and a feedback mechanism to the prescribing
doctor and the adult authorized to provide informed consent on behalf of the
child regarding the findings of the secondary review and any need for
revision of the prescription;
e. Award to the Plaintiff Children the reasonable costs and expenses incurred in the
prosecution of this action, including reasonable attorneys' fees pursuant to 28 U.S.C.
§§ 1920 and 1988 and Federal Rules of Civil Procedure 23(e) and (h); and
f. Grant such further equitable relief as the Court deems just, necessary, and proper to abate
the ongoing risk of harm to the class of children in CD foster care custody.
DATED: July 3, 2017
Respectfully Submitted,
CHILDREN’S RIGHTS, INC.
/s/ Elizabeth Pitman Gretter Elizabeth Pitman Gretter Sara M. Bartosz Stephen Dixon Catherine Frizell 88 Pine Street, Suite 800 New York, New York 10005 (212) 683-2210 (212) 683-4015 (fax) egretter@childrensrights.org sbartosz@childrensrights.org sdixon@childrensrights.org cfrizell@childrensrights.org
46
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SAINT LOUIS UNIVERSITY LEGAL CLINIC
John J. Ammann, Mo. Bar #34308 100 N. Tucker Blvd., Suite 704 Saint Louis, MO 63101-1911 (314) 977-2778 (314) 977-1180 (fax) ammannjj@slu.edu
NATIONAL CENTER FOR YOUTH LAW
William Grimm Leecia Welch Poonam Juneja 405 14th Street, 15th Floor Oakland, California 94612 (510) 835-8098 (510) 835-8099 (fax) billgrimm@youthlaw.org lwelch@youthlaw.org pjuneja@youthlaw.org
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that on July 3, 2017, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
Michael Quinlan Michael.Quinlan@ago.mo.gov Laura E. Elsbury laura.elsbury@ago.mo.gov OFFICE OF THE ATTORNEY GENERAL 221 West High Street Jefferson City, MO 65102
CHILDREN’S RIGHTS
By /s/ Elizabeth Pitman Gretter Elizabeth Pitman Gretter
47
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

M.B. by his next friend Ericka

)

Eggemeyer; E.S. by her next friend A.S.;

)

Z.S. by her next friend S.H.; K.C.

)

by her next friend Kris Dadant;

)

A.H. by her next friend Kealey

)

Williams, for themselves and those

)

similarly situated,

)

Plaintiffs,

)

)

v.

)

)

Steve Corsi in his official

)

capacity as Acting Director of

)

the Missouri Department of

)

Social Services; Tim Decker, in his

)

official capacity as Director of the Children’s )

Division of the Missouri

)

Department of Social Services,

)

)

Defendants.

)

No. 2:17-cv-04102-NKL

ORDER Plaintiffs, children in foster care, claim that Defendants, the Acting Director of the

Missouri Department of Social Services and the Director of the Children’s Division of the

Missouri Department of Social Services (“CD”), have failed to implement a system of safeguards

and oversight with respect to the administration of psychotropic drugs to Plaintiffs. These drugs

leave the children vulnerable to various serious adverse effects, including hallucinations, self-

harm and suicidal thoughts, and such life-shortening illnesses as type 2 diabetes, and therefore

should be administered only when necessary. However, according to Plaintiffs, psychotropic

drugs often are administered not with the best interests of a child in mind, but instead,

unnecessarily and inappropriately, sometimes simply to make the children less troublesome. CD

itself has acknowledged that “[t]he use of multiple medications (psychotropic or otherwise)

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creates the potential for serious drug interactions.” It also is aware that the lack of a reasonable system of oversight and monitoring of the administration of psychotropic medications to children in its custody poses a substantial and ongoing risk of harm to the children. Yet, according to the Plaintiffs, Defendants have failed to address this substantial and ongoing risk of harm to children in foster care.
Plaintiffs allege that the state fails in three specific regards to ensure that psychotropic medications are appropriately and safely administered and adequately monitored. First, Defendants fail to maintain, and to furnish to caregivers and prescribing physicians, up-to-date medical records detailing each child’s physical and mental health history, including current and prior medications and observed adverse effects—information necessary to ensure that the prescribing physicians and caretakers are fully informed and that treatment is well-coordinated. Second, Defendants fail to ensure informed consent to the administration of psychotropic medication to each child in foster care, both at the outset and as treatment continues. Finally, Defendants fail to ensure that high-risk prescriptions of psychotropic medications, such as multiple drugs from the same class, too high a dosage, or drugs given to very young children, are promptly identified and presented to an independent, qualified child psychiatrist for secondary review. As a result of the administration of psychotropic medication without adequate safeguards or oversight, Plaintiffs have suffered or are at grave risk of suffering “substantial and often irreversible harm to their physical, emotional, and/or mental health.”
Plaintiffs bring this action on behalf of themselves and of a putative class of children who are or will be placed in the custody of the state of Missouri due to abuse or neglect by their parents, guardians, or other legal custodians. Plaintiffs bring claims for (i) violation of their substantive due process rights under the Fourteenth Amendment to the U.S. Constitution; (ii)
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violation of their procedural due process rights, specifically, deprivation, without due process, of the right to be free from the unnecessary and inappropriate administration of psychotropic medication; and (iii) violation of rights under the Federal Adoption Assistance and Child Welfare Act. Plaintiffs seek only declaratory and injunctive relief.
Defendants move to dismiss this action for failure to state a claim. For the reasons discussed below, the motion is granted in part and denied in part.
I. THE ALLEGED FACTS1 When the state removes children into foster care, it assumes an affirmative duty to act in
loco parentis to keep those children safe. Yet, according to the plaintiffs, children in Missouri’s foster care custody are exposed to a grave risk of severe physical and psychological harm because the state fails to oversee the administration of psychotropic drugs to them.
a. Psychotropic Drugs and Children Psychotropic drugs are powerful medications that directly affect the central nervous system. They are particularly potent when administered to children. Children administered psychotropic medications are at particularly serious risk of long-lasting adverse effects. They are more vulnerable to psychosis, seizures, irreversible movement disorders, suicidal thoughts, aggression, weight gain, organ damage, and other life-threatening conditions. Children given two subclasses of psychotropic drugs, antipsychotics and antidepressants, are particularly vulnerable. For example, children administered antipsychotic drugs are three times as likely as other children to develop type 2 diabetes.
1 In deciding the motion to dismiss, the Court accepts the factual allegations in the complaint as true and construes them in the light most favorable to the plaintiffs. See Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008).
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The full risk posed to children by psychotropic drugs is not yet even fully understood. As the Administration of Children and Families (“ACF”), the office within the U.S. Department of Health and Human Services charged with administering the federal Title IV-E foster care program, has noted, “research on the safe and appropriate pediatric use of psychotropic medications lags behind prescribing trends . . . . In the absence of such research, it is not possible to know all of the short- and long-term effects, both positive and negative, of psychotropic medications on young minds and bodies.” Doc. 22, ¶ 80.
Risks to children are compounded when children are subject to “outlier” prescribing practices—receiving too many psychotropic drugs or too high a dosage, or receiving drugs at too young an age (commonly described as “too many, and too much, too young”). The number of adverse effects increases with the number of medications being used. On average, those taking two psychotropic drugs report 17% more adverse effects, and those taking three or more, 38% more adverse effects, than those taking one. Suicidality and the urge to harm oneself increase with increasing numbers of medication. Increased appetite, sleepiness/fatigue, and tics and tremors are 200 to 300% more prevalent among children taking three or more medications than among those taking one drug alone.
The ACF has noted that outlier practices “may signal that factors other than clinical need are impacting the prescription of psychotropic medications.” Id., ¶ 86. Indeed, for many, if not most, of the affected children, psychotropic drugs are administered to treat a diagnosis that the drugs were never designed to address.
The longer a child is on a given psychotropic medication, the greater the number of adverse effects. Some psychotropic medications, including some antipsychotics and SSRI antidepressants, even come with “black box” warning labels, indicating “their use requires
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particular attention and caution regarding potentially dangerous or life threatening side effects.” Id., ¶ 83. Thus, due to the serious risks associated with psychotropic drugs, they should be administered to children only when necessary, and safely, and accordingly it is critical that children being administered these drugs are closely monitored.
b. Unique Risks for Children in Foster Care More than a decade ago, a study including data from Missouri and 16 other states found that the rate of use of antipsychotics (one of the most powerful classes of psychotropic drugs) was 12.37% for children in foster care, compared with 1.4% for children receiving Medicaid who were not in foster care. The study further found that one in five children was prescribed two different antipsychotics, and at least one in ten children was prescribed four or more psychotropic medications. The Missouri Initiative for Children in Foster Care, looking at data from 2011, showed that 28% of children in state foster care were on psychotropic medication. 20% of those children were subject to an outlier prescription (too much, and too many, too young), including 6.65% who were prescribed five or more psychotropic medications at once and 3.03% who were prescribed two or more antipsychotics at once. A January 2015 Missourian article reported MOHealthNet data from 2012 showing that more than 30% of Missouri’s foster children were prescribed at least one psychotropic medication. It was further reported based on this data that children as young as two years old (like plaintiff Z.S.) had been prescribed an antipsychotic drug. In addition, at least 20% of Missouri’s foster youth were taking an average of two or more psychotropic medications, with some foster children prescribed as many as seven psychotropic medications at one time. Children in foster care are at increased risk of being improperly or unnecessarily administered psychotropic drugs. Often, those who care for foster children do not have detailed
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knowledge of their trauma background, mental health needs, or medical history. Unlike biological parents, the foster caregivers must rely on a child’s health records to know her history and needs. At the same time, frequent changes in placement often are accompanied by changes in a foster child’s health care provider and cause disruptions in the child’s health care. Thus, the sharing of accurate and complete medical information with both the child’s foster parent and physician is critical to the child’s health and safety. Yet, all too often, it does not occur. Moreover, the state has no system in place to avoid subjecting children to “outlier”—too much, and too many, too young—prescriptions.
c. The Plaintiffs M.B. Plaintiff M.B., a fourteen-year old boy, has been administered up to seven psychotropic drugs at once, including lithium and two atypical antipsychotics. Over the course of two-and-a-half years in CD custody, as he has been moved through eight different placements, his regimen of psychotropic medications has fluctuated, with medications being rapidly added or removed, and dosages changing. At times, M.B. was placed on a medication for a month, only to have it removed the next month, and drugs that had already been tried and discontinued were tried again. Yet, neither he nor any of his caregivers has been provided updated medical and mental health records, and Missouri has not maintained “a consistent informed consent process to ensure individual attention to his treatment” or “institute[d] an effective mechanism for reviewing dangerous prescription practices,” placing him at further risk of harm. Id., ¶ 11. M.B. has exhibited several conditions known to be among the serious adverse effects of the psychotropic medications he has been administered, including hypothyroidism, hearing voices, and suicidal thoughts.
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E.S. and Z.S. Plaintiffs E.S. and Z.S., siblings aged three years and two years, respectively, already are being administered psychotropic medications, including “atypical antipsychotics.” They have been placed in multiple foster homes. One of their prescribed medications, Risperdal, has not been approved for children under the age of five years. Adverse reactions to that medication can include somnolence, increased appetite, fatigue, insomnia, sedation, Parkinsonism, feelings of muscular quivering and inability to remain seated, vomiting, cough, constipation, nasopharyngitis, drooling, runny nose, dry mouth, abdominal pain, dizziness, nausea, anxiety, headache, nasal congestion, inflammation of the mucus membrane, tremor, and rash.
K.C. Plaintiff K.C., a twelve-year-old girl, has been placed on as many as five psychotropic medications at one time. Although she has been placed in several foster care situations, neither she nor any of her caregivers has been provided with comprehensive, up-todate, and accurate medical and mental health records. Indeed, earlier this year, K.C.’s caregivers had three different understandings of what daily dose of a particular psychotropic medication she was to receive, and they had no medical records to resolve the confusion. The confusion may not even have come to light had a volunteer advocate not raised questions about it. Her physicians have not had access to complete medical records or history when prescribing her medications. CD also failed to ensure that proper informed consent was given when K.C. was placed on multiple psychotropic medications, despite the fact that the drugs require ongoing monitoring to permit adverse effects to be addressed promptly. At one residential facility, K.C. was reported on multiple occasions to be “visibly involuntarily shaking.” Id., ¶ 37. At that time, K.C. was taking the antipsychotic Abilify, the label for which warns, “Stop using . . . and call your doctor at once if you have . . . uncontrolled muscle movements.” Id., ¶ 38. Neither CD nor
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the staff at the private residential treatment center housing K.C. addressed the issue. In fact, the treatment center staff denied that K.C. had been shaking at all. Eventually, after the visitor who had noted the shaking repeatedly raised an alarm, K.C.’s Abilify dosage was cut in half. K.C. also has been prescribed Strattera, purportedly for Attention-Deficit Hyperactivity Disorder (“ADHD”), although at least one formal assessment and observation of K.C. indicated that she does not have ADHD. Strattera’s label warns that “[c]ommon side effects in children and teenagers include upset stomach, a decreased appetite, nausea, or vomiting, dizziness, tiredness, and mood swings,” and “Strattera increases the risk of suicidal thoughts or actions.” Id., ¶ 41. In response to K.C.’s high number and doses of psychotropic medications, concerned persons outside CD who have observed K.C. have for months sought an independent second opinion as to whether her psychotropic medication regimen is appropriate, but to no avail.
In October 2016, K.C. suddenly began acting angry, aggressive, and violent, and repeatedly became involved in altercations. Staff at her facility placed her in physical holds numerous times—including once for an hour and forty-five minutes—to keep her from fighting. Around the time that her behavior changed in this fashion, K.C. had been newly administered the strong psychotropic drug Seroquel. Seroquel’s label advises: “Call a healthcare professional right away if you or your family member has any of the following symptoms, especially if they are new, worse, or worry you: . . . acting aggressive, being angry, or violent. . . .” Id., ¶ 45. Seroquel is not FDA-approved for use by children. The drug’s labeling notes that Seroquel nonetheless is prescribed to some children at least thirteen years old—but K.C. had reached twelve years of age only shortly before the introduction of Seroquel.
CD and its private contractor failed to note the correlation between her behavior and the medication change. Once again, a volunteer visiting resource raised the issue. CD and the
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private contractor took no action. Eventually, the volunteer contacted the prescribing doctor, asking whether Seroquel should have been prescribed given that the child had not been diagnosed with bipolar disorder, and in light of her changed behavior. That night, the doctor made note of a bipolar disorder diagnosis in K.C.’s records.
Eventually, K.C. ceased taking Seroquel, and her aggressive behavior ceased. K.C. is “sad or angry much of the time.” Id., ¶ 48. She has experienced rapid weight gain since being placed on psychotropic medications, including a gain of more than fifteen pounds over a three-month period. She also has experienced hallucinations since she commenced taking psychotropic drugs. Hallucinations are among the known adverse effects of two new medications being given to K.C. A.H. A.H., a twelve-year-old girl, has spent approximately six years in CD’s custody. As a result of being placed in numerous different living situations, “knowledge of her medical and mental health history, in the absence of reliable recordkeeping practices, has become fragmented and dispersed between her assigned caseworker, foster caretakers, and health providers.” Id., ¶ 53. In or about November 2016, A.H. tried to physically harm herself and was hospitalized. At the psychiatric hospital, she was prescribed two pills of Latuda and two pills of Remeron each day. CD did not involve A.H.’s legal parents in the decision to administer these psychotropic medications to her. After she was discharged, A.H. moved into the home of a nonkinship foster parent for a few months, and then was moved to the home of a kinship resource. The non-kinship foster parent transferred A.H. to the kinship resource home, and provided A.H.’s medications wrapped only in tissue paper. The foster parent advised the kinship resource that A.H. was to take just one pill of Latuda and one pill of Remeron each day. The kinship resource parent received no medical records, no pill bottles, and no written instructions for
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administering the medication. Consequently, A.H. was given incorrect dosages of the psychotropic medications and experienced a severe reaction that resulted in her being hospitalized for six-days.
II. DISCUSSION “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted). A claim is “plausible on its face” when the allegations allow the court to draw the reasonable inference that the defendants are liable for the misconduct alleged. Id. (citation omitted). There must be more than “a sheer possibility” that the defendants acted unlawfully. Id. (citation omitted).
a. The Younger Abstention Doctrine Defendants argue that all of Plaintiff’s claims are barred by the Younger abstention doctrine, which requires a federal court to abstain, on principles of comity and federalism, from exercising jurisdiction over certain actions seeking injunctive or declaratory relief. See Younger v. Harris, 401 U.S. 37, 41 & n.2 (1971). The general rule is that a federal court should not abstain merely because there is a state court action which concerns the same matter pending in the federal court. Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 588 (2013). The Supreme Court has “cautioned . . . that federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant, and should not refuse to decide a case in deference to the States.” Id. (quotation marks and citation omitted). The Younger abstention doctrine is an exception to this general rule, applicable in exceptional circumstances. Those circumstances are: state criminal prosecutions, civil
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enforcement proceedings, and civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions. Sprint, 134 S. Ct. at 588); see also New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 368 (1989) (“NOPSI”).
Contrary to the teachings of Sprint, Defendants argue that abstention is appropriate here if the three so-called Middlesex conditions are met: “(1) there are ongoing state proceedings, (2) that implicate important state interests, and (3) that provide adequate opportunities to raise any relevant federal questions presented in that action.” Doc. 35, at 14 (citing Tony Alamo Christian Ministries v. Selig, 664 F.3d 1245, 1249 (8th Cir. 2012)). But the Middlesex factors preceded Sprint, and the Eighth Circuit has acknowledged that the limited exceptions identified in Sprint control. See Banks v. Slay, 789 F.3d, 919, 923 (8th Cir. 2014)
Defendants also argue that NOPSI and Sprint do not apply because they concerned “public utility rates and telecommunication access fees (respectively),” rather than “children in state custody” (Doc. 67, at 3), but to the contrary, NOPSI and Sprint “define Younger’s scope,” without exception. Sprint, 134 S. Ct. at 591 (“This Court has not applied Younger outside these three ‘exceptional’ categories, and rules, in accord with NOPSI, that they define Younger’s scope.”). Thus, for the Younger abstention doctrine to apply, there must be “state criminal prosecutions, civil enforcement proceedings, [or] civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Sprint, 134 S. Ct. at 588 (quotation marks and citation omitted).
There is no dispute that this case does not concern either a state criminal prosecution or civil enforcement proceedings. Defendants argue, however, that Younger abstention is appropriate here under the third Sprint category: civil proceedings involving certain orders that
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are uniquely in furtherance of the state courts’ ability to perform their judicial functions. In Sprint, the Supreme Court cited two cases to illustrate this third exception, Juidice v. Vail, 430 U.S. 327 (1977) and Pennzoil Co. v. Texaco, Inc., 481 U.S 1 (1987). Juidice concerned the state court’s use of its contempt power to enforce its orders. 430 U.S. at 335. In Pennzoil, the question was whether the federal court should abstain from enjoining the state process for obtaining a property lien to enforce a state court judgment. 481 U.S. at 13. Both cases illustrate the very narrow reach of the third exception. Critical to both cases was an effort by the plaintiffs to interfere with state procedures necessary to enforce the orders of a state court.
Defendants, however, contend that this exception applies “because each Plaintiff and putative class member is subject to juvenile court proceedings that include within their ambit decisions concerning medical care,” and this case therefore touches on orders that are “part and parcel of the Juvenile Court’s essential enforcement function . . . .” Doc. 35, at 18; Doc. 67, at 4. Defendants point out that “[t]he authority to care for and treat children in foster care” commences with “the Juvenile Court’s decision to bring the child into care, not the State agency charged with carrying out its orders.” Id. But the operative fact here is not that the juvenile court placed a given child into CD’s custody, but that CD has custody over the child: Plaintiffs complain not about the placement of children in foster care, but instead about the care, or lack thereof, the children receive while in CD’s custody. It is the executive’s actions that are being questioned, not the power of the juvenile court. See NOPSI, 491 U.S. at 368 (“[I]t has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action. Such a broad abstention requirement would make a mockery of the rule that only exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States.”).
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Furthermore, there is not even a parallel action in a Missouri state court, juvenile or otherwise, dealing with the administration of psychotropic drugs. There is no remedy sought by the Plaintiffs that would interfere with any order that has been entered by the juvenile court. It would be absurd to conclude that because a juvenile court might someday enter an order related to some subject in this federal lawsuit, the Younger abstention applies. To so hold would mean that a federal court would always have to abstain on any dispute related to a foster child because the juvenile court has continuing jurisdiction over the child. This would indeed be a “mockery of the rule that only exceptional circumstances justify” Younger abstention. Id.at 368.
The Court therefore concludes that the Younger abstention doctrine does not apply here. See also Doe v. Piper, 165 F. Supp. 3d 789, 806 (D. Minn. 2016) (finding that “state court adoption proceeding was undeniably not . . . a civil proceeding involving the enforcement of a state court judgment,” and therefore “Younger abstention does not apply”); Oglala Sioux Tribe v. Van Hunnik, 993 F. Supp. 2d 1017, 1024 (D. S.D. 2014) (holding that where “Plaintiffs’ complaint seeks prospective relief” and does not “seek[] to interfere with any ongoing state judicial function or challenge[] any previous state court ruling,” abstention “would be inappropriate”); Tinsley v. McKay, 156 F. Supp. 3d 1024, 1038-39 and 1040 (D. Ariz. 2015) (concluding that, where juvenile courts were “responsible for approving motions for psychiatric assessments and residential treatment services,” but defendant state agencies were “obligated to provide ‘comprehensive medical and dental care’ for foster children [or] to collaborate . . . to find the most effective way of delivering that care as well as behavioral health services,” “[t]he requested relief[,] concern[ing] the systems for facilitating the provision of care” did “not involve or interfere with the interest of the state in enforcing the orders and judgments of state courts”).
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b. Substantive Due Process Claim The state indisputably has an obligation to protect children in foster care, including by providing adequate medical care. James ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir. 2006) (“The state is required . . . to protect individuals who are in its custody or are subjected to a state-created danger. A custodial relationship is created when a child is placed in foster care.”) (citations omitted); Norfleet By & Through Norfleet v. Arkansas Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir. 1993) (“It cannot be seriously doubted that the state assumed an obligation to provide adequate medical care for [the child]; the reason [he] was placed in foster care was precisely because he was not able to take care of himself and needed the supervision and attention of an adult caregiver. We thus conclude that, in light of . . . the undeniable nature of the state’s relationship with and corresponding obligations to [the child], . . . the state had an obligation to provide adequate medical care, protection and supervision.”). However, in the custodial context, “a substantive due process violation will be found to have occurred only if the official conduct or inaction is so egregious or outrageous that it is conscience-shocking.” James, 458 F.3d at 730. In James, the Eighth Circuit held that “officials’ conduct will not be found to be conscience-shocking unless the officials acted with deliberate indifference.” Id. In other words, the defendants must have been “aware of facts from which an inference could be drawn that a substantial risk of serious harm existed” and they must “actually [have] dr[a]w[n] that inference.” Id. Plaintiffs have alleged that Defendants are aware that Missouri foster children are being administered psychotropic drugs without adequate oversight and therefore are subject to a serious risk of substantial harm. According to Plaintiffs, “CD has repeatedly acknowledged its awareness of these standards and the compelling need to implement a robust system to protect children in foster care from unsafe medication practices and ensure appropriate use and oversight
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of psychotropic medication.” Doc. 22, ¶ 98. Indeed, CD admitted to the federal government that “[m]any foster care children are prescribed multiple psychotropic medications without clear evidence of benefit and with inadequate safety data,” even though “[t]he use of multiple medications (psychotropic or otherwise) creates the potential for serious drug interactions.” Id., ¶ 6.
The complaint also states that federal law requires CD to “develop ‘a plan for the ongoing oversight and coordination of health care services for any child in a foster care placement,’ which must include ‘an outline of . . . the oversight of prescription medicines, including protocols for the appropriate use and monitoring of psychotropic medications.’” Id., ¶ 96 (citing 42 U.S.C. § 622(b)(15)(A), 622(b)(15)(A)(v)). In addition, the federal agency “ACF has stated that ‘[s]trengthened oversight of psychotropic medication use is necessary in order to responsibly and effectively attend to the clinical needs of children who have experienced maltreatment,’” and has “urged ‘close supervision and monitoring . . . [and] careful management and oversight’ in the use of psychotropic medications for children.” Id. Furthermore, the American Academy of Child and Adolescent Psychiatry (“AACAP”) “has published recommended practices for child welfare agencies in overseeing the mental health treatment of children in foster care, including active monitoring to assure safe utilization of psychotropic medications,” explaining that “children in state custody ‘often have no consistent interested party to provide informed consent for their treatment, to coordinate treatment planning and clinical care, or to provide longitudinal oversight of their treatment.’” Id., ¶ 97.
Plaintiffs identify three systemic shortcomings in the administration of psychotropic drugs to children in Missouri foster care:
 Medical Records. According to Plaintiffs, the maintenance and provision of up-to-date and complete medical records is required not only by “widely[ ]accepted standards
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promulgated by the Child Welfare League of America” and AACAP, but also federal law and even state policy. See id., ¶¶ 99-104. “The case plan requirements of Title IV-E of the Social Security Act require child welfare agencies to maintain up-to-date medical records as part of a written case plan for each child in care,” including “the child’s known medical problems” and “the child’s medications.” Id., ¶ 99. The agencies “also must have a procedure for ensuring that a copy of this record is supplied to the foster parent or placement provider ‘at the time of each placement.’” Id. Moreover, “CD’s own policy requires that ‘the child’s Children’s Service Worker . . . establish and maintain a medical record . . . on each child in care.’” Id., at 100. CD’s policy also “requires that the worker ‘ensure initial medical information is obtained from the parent/physician and given to the resource provider within 72 hours.” Id. Missouri’s Foster Parents’ Bill of Rights likewise provides that CD and its contractors “shall provide to foster parents and potential adoptive parents, prior to placement, all pertinent information, including but not limited to full disclosure of all medical, psychological, and psychiatric conditions of the child.” Id. Yet, CD has not procured or maintained complete medical records for the foster children in its care, or at least, does not provide that information to foster caregivers. See id., ¶¶ 105-110. Indeed, CD’s 2016 Health Plan acknowledged that “[f]oster care providers and others assisting the child or family do not always have updated health information to make decisions related to the child’s health care.” Id., ¶ 110. CD’s consent policy and procedures are deficient because they are unclear and, partially as a result, ignored. Id., ¶¶ 115-117.
 Informed Consent. According to AACAP, informed consent is “particularly important at the time of psychotropic medication initiation,” but also should be an “ongoing process[],” involving “discussion of target symptoms, likely benefits of a potential treatment, potential risks of treatment, and risks of not pursuing the treatment in question.” Id., ¶ 112. The federal government stated in 2012 that, in the administration of psychotropic drugs to children in foster care, there is a “need for written policies” with provisions for “[i]nformed and shared decision-making (consent and assent) and methods for on-going communication between the prescriber, the child, his/her caregivers, other healthcare workers, [and] the child welfare worker . . . .” Id. CD itself has recognized the importance of an informed consent process in this context. “In a September 2013 memorandum to staff addressing the agency’s informed consent policy, CD management instructed that adherence to the informed consent policy is required “in order for children in the custody of the Children’s Division (CD) to receive appropriate health or mental health services.” Id., ¶ 113. Indeed, CD promulgated an informed consent policy with respect to psychotropic medications, which provides that, where psychotropic drugs are concerned, “the parent(s) should be engaged in all medication decisions and appointments for the child, unless parental rights have been terminated or the court has issued an order restricting the parent’s participation in the decision making process.” Id., ¶ 114. The policy also provides that “the Children’s Service Worker should obtain information regarding the benefits and side effects of the medication to help make an informed decision,” and “[i]f the child’s parent(s) is unavailable for consultation regarding treatment, the child’s Children’s Service Worker or the resource parent are authorized to give consent.” Id. The Children’s Service Worker also should approve the administration of drugs to the child, and “should notify the parents regarding treatment.” Id. Nonetheless, CD does not track information concerning consent—who gives it,
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whether the caseworkers are apprised of consent decisions, whether the youth consents, and whether CD overrides the lack of consent by a child or parent. Id., ¶ 119. Furthermore, absent complete medical records, consent arguably cannot be informed. See id., ¶ 120 (“Medications may be approved without the benefit of knowing a child’s health history, which could include allergies to medication, documented adverse effects to medications, or failed previous attempts with that very same drug.”).
 System for Flagging Outlying Prescriptions. Plaintiffs also allege that CD has acknowledged the need for a “monitoring protocol for psychotropic medications”—a system recommended by both AACAP and ACF. See id., ¶ 122. CD reported to ACF that, in 2008, it began coordinating with the Missouri Department of Mental Health (“DMH”) to develop a system to “identify multiple psychotropic drugs and or contraindicated medications automatically and [with] alerts provided to staff to address.” Id. CD since has repeatedly recognized the need for such a system, but has failed to develop one. See id., ¶¶ 123-129 (quoting CD as acknowledging that “oversight is necessary when addressing the needs of children who have experienced maltreatment”). Still, CD purportedly has no system for catching “red flags,” such as too many different drugs, too much of any given drug, or the administration of drugs to those who are too young. See id., ¶¶ 122-129.
Relying solely on the complaint, Defendants argue that the conduct alleged in the
complaint does not rise to the level of deliberate indifference. They first argue that they have
made various efforts to address the three aforementioned shortcomings. They point to the
complaint itself which states that, “[i]n the absence of a system to maintain comprehensive
medical records for all children in care, CD has resorted to giving its caseworkers electronic
access to the state’s Medicaid claims data through a web-based tool known as CyberAccess as a
proxy for tracking a child’s prescription drug history.” Id., ¶ 106. However, the complaint also
alleges that this system “is not an adequate replacement for a comprehensive medical record.”
Id. “Simply viewing Medicaid claims data does not provide the CD caseworker with critical
information, such as whether a prescribed drug was ever actually administered, what diagnoses
or behavior a particular drug has been prescribed to treat, or whether the child previously
experienced any adverse effects from a medication.” Id., ¶ 107.
The complaint also alleges that CD “met with [the Missouri Department of Mental
Health] to discuss th[e] [red flag] issue and identify a protocol for monitoring the utilization of
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psychotropic medication. The examination consisted of exploring age counts, medication counts and costs, diagnosis counts and costs, and prescriber information,” and “next steps” involving determining “which combination of medications is most problematic and mak[ing] practice decisions as a result of the findings.” Id., ¶¶ 123-129.2 In 2013, CD also contemplated a “second opinion process” that would “take a close look at those children being prescribed two or more antipsychotics or five or more psychotropic medications and elicit trends.” Id., ¶ 126. To begin, CD was to review ten child case files. Id. But the medical records for eight of those ten cases were “too incomplete to [permit CD to] perform a thorough and meaningful review.” Id., ¶ 127. In 2016, CD again failed to implement the secondary review process for lack of complete health records. Id. Purportedly because obtaining the files “required extensive follow up,” CD is “not currently implementing this second opinion process.” Id., ¶ 128.
Defendants argue that these allegations show that there are no reasonable means for CD to procure the medical records for the children in foster care, and therefore no reasonable means to implement a “second opinion process,” that the CyberAccess system is an adequate substitute for complete medical records, and that given these actions, the Defendants cannot be found to be deliberately indifferent to a serious risk of harm to foster children. However, based on the allegations in the complaint as a whole, it is possible that the defendants’ decisions to stop trying to procure medical records and to not implement the long-contemplated second opinion process demonstrate deliberate indifference to a serious risk that Plaintiffs are facing.
There are clearly plausible allegations that Defendants were “aware of facts from which an inference could be drawn that a substantial risk of serious harm exist[s],” James, 458 F.3d at
2 The complaint does not state whether any protocol was developed or implemented as a result of these efforts or whether a decision was reached about which combination of medications was most problematic.
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730, and that they actually knew of the serious risk of harm. Yet they have not adopted any systematic administrative review because Defendants can’t find the medical records of the children. But the absence of the medical records itself creates an unreasonable risk of harm and the Defendants are aware of that risk as well.3 Also, the fact that the federal government, child welfare experts, and Missouri’s own policy require the maintenance of medical records for foster children, suggests that there is a reasonable method for getting a meaningful portion of those records. All of that information is contained in the complaint, so drawing every reasonable inference in Plaintiffs’ favor, the Court concludes that the allegations concerning the medical records and system for catching red flags plausibly allege a deliberate indifference claim.
Defendants also argue their conduct was “per se constitutional because they rely on the professional judgment of physicians to diagnose and prescribe psychotropics” (Doc. 67, at 10). But this argument fails to address the underlying risk that Plaintiffs have alleged. The complaint states that drugs are being prescribed for children who are too young, that doses are too high, and too many different psychotropic drugs are being given to the same child. Even CD has admitted that “[m]any foster children are prescribed multiple psychiatric medications without clear evidence of benefit and with inadequate safety data . . . .” Doc. 22, ¶ 6. Plaintiffs effectively allege that systematic administrative review is needed because doctors may not be acting, or may lack sufficient medical records to act, in the best interests of the children. It is the Defendants’ failure to implement specific administrative safeguards that puts Plaintiffs at a substantially higher risk of serious harm. This risk is aggravated for foster children because psychotropic drugs may be prescribed to benefit social workers or foster parents, rather than for the interest of the child.
3 Indeed, even a lay parent understands that risk.
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The argument that Plaintiffs’ substantive due process claim is deficient because Defendants are not alleged to have exposed the plaintiffs to risks greater than those to which they otherwise would have been exposed also fails. In both of the cases that Defendants cite in support of this argument, the children were harmed while in the custody of family members with whom they had resided prior to the state agency’s involvement. S.S. v. McMullen, 225 F.3d 960, 965 (8th Cir. 2000); Burton v. Richmond, 370 F.3d 723, 729 (8th Cir. 2004). The same was true in the Supreme Court case upon which McMullen relies. Deshaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 201 (1989) (“Petitioners concede that the harms Joshua suffered occurred not while he was in the State’s custody, but while he was in the custody of his natural father, who was in no sense a state actor.”). In Deshaney, the Supreme Court expressly stated that it might have reached a different conclusion “[h]ad the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents . . . .” Id., at 201, n.9. These cases do not limit the state’s well established obligation to protect a child within its custody. See, e.g., James, 458 F.3d at 730.
The Court thus concludes that Plaintiffs have stated a plausible substantive due process claim as to the medical records and the system for flagging outlying prescriptions. This conclusion is reinforced by similar decisions by other courts. See Henry A. v. Willden, 678 F.3d 991, 1004–05 (9th Cir. 2012) (denying motion to dismiss due process claims under deliberate indifference standard, noting, inter alia, “that there may be a causal connection between the State defendants’ failure to share these medical records and the injuries suffered by plaintiffs such as Henry, who received a dangerous combination of prescription drugs because his medical records were not given to his treatment providers”); see also Thomas S. by Brooks v. Flaherty, 902 F.2d 250, 252 (4th Cir. 1990) (affirming trial court decision that found that government official’s
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decision “to administer antipsychotic drugs at the levels and under the conditions found to exist in the state psychiatric hospitals . . . substantially departed from accepted professional standards”) (quotation marks and citation omitted); Olivia Y. ex rel. Johnson v. Barbour, 351 F. Supp. 2d 543, 555–56 (S.D. Miss. 2004) (finding that plaintiff foster children alleging, inter alia, state’s failure to “provide them with necessary medical . . . and mental health services” stated claim for substantive due process violation under both the “professional judgment” and “deliberate indifference” standards); Charlie H. v. Whitman, 83 F. Supp. 2d 476, 507 (D.N.J. 2000) (denying motion to dismiss substantive due process claim regarding “the right to receive care, treatment and services consistent with competent professional judgment”).
The allegations concerning consent, on the other hand, do not fare as well. Plaintiffs’ complaints regarding CD’s policy are that: (i) it is not phrased in mandatory terms; (ii) when the parent is not available, it is not clear whether the caseworker or the foster parent has decisionmaking authority; (iii) it is unclear what it means for a parent to not be available; (iv) it is silent as to the role of a group care provider; (v) it does not require periodic review; (vi) it does not provide for procuring input from the foster child to be administered the drugs; (vii) any parental or youth refusal can be overridden by CD in its sole discretion, without explanation; (viii) it is so vague and ambiguous that it is frequently misunderstood, misapplied, or ignored; and (ix) compliance with the policy is not tracked in any way. Id., ¶¶ 115-117, 119. The allegation that the policy is not mandatory is undercut by the allegation that in a September 2013 memorandum, CD advised its staff “that adherence to the informed consent policy is required ‘in order for children in the custody of the Children’s Division (CD) to receive appropriate health or mental health services.’” Id., ¶ 113. In any event, even when viewed in the light most favorable to
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Plaintiffs, these allegations cannot be said to rise to the level of deliberate indifference because of the vagueness of the allegations.
c. Procedural Due Process “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Determining whether Plaintiffs have stated a procedural due process claim “requires consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. Id., at 321.
1. Private Interest Defendants concede that “Plaintiffs have a substantial liberty interest in avoiding the unnecessary administration of medical treatment.” Doc. 67, at 12. Indeed, the Supreme Court has recognized that prisoners have “a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment.” Washington v. Harper, 494 U.S. 210, 221–22 (1990). “[F]orcing antipsychotic drugs on a convicted prisoner is impermissible absent a finding of overriding justification and a determination of medical appropriateness.” Riggins v. Nevada, 504 U.S. 127, 135 (1992) (holding that “[t]he Fourteenth Amendment affords at least as much protection to persons the State detains for trial”). The Supreme Court also has found that “a child, in common with adults, has a substantial liberty interest in not being confined unnecessarily for medical treatment . . . .”
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Parham v. J. R., 442 U.S. 584, 600 (1979); see also id., at 601 (holding that “a child has a protectible interest not only in being free of unnecessary bodily restraints but also in not being labeled erroneously by some persons because of an improper decision by the state hospital superintendent”). It follows from these precedents that Plaintiffs possess a strong liberty interest in not being unnecessarily administered psychotropic drugs.
2. Adequacy of Existing Procedural Protections Plaintiffs argue that the want of complete medical records, failure to implement an effective process for informed consent, and failure to implement a system to flag outlier prescriptions for secondary review create an unduly high risk of erroneous deprivation of Plaintiffs’ right to be free from the unnecessary administration of psychotropic drugs. Defendants insist that existing procedural protections are adequate. In their initial suggestions, Defendants argue that a physician’s prescription of psychotropic drugs is by itself a “proper procedure” under the Constitution, and that Missouri’s juvenile courts have “intrinsic authority to facilitate [Plaintiffs’] care, protection, and discipline,” which “adds an additional layer of procedural protections.” Doc. 35, at 29. On reply, Defendants raise the additional argument that children in foster care are entitled to fewer protections than prisoners.4 Defendants’ argument that a physician’s prescription of a given medication itself affords sufficient procedural protection to the Plaintiffs cannot defeat the procedural due process claim at this stage. As a preliminary matter, Plaintiffs allege that the physicians prescribing medications to foster children in Missouri are not provided with complete medical records for those children, and that the foster care givers or case workers presenting the children to the 4 The Court ordinarily would not consider arguments made for the first time on reply, but because Plaintiffs had the opportunity to present counter-arguments at oral argument, the Court will consider this argument.
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doctors often lack adequate knowledge concerning the child’s social and medical history. Thus, even if a fully informed physician’s assessment that a child should be medicated might constitute sufficient process, it arguably cannot be sufficient in the absence of a full picture of the child’s medical history and social profile.
Moreover, as Plaintiffs point out, Supreme Court decisions concerning the administration of psychotropic drugs to prisoners and the commitment of children to state mental health care facilities suggest that the state’s decision to administer psychotropic drugs to children should not rest on the treating physician’s prescription alone. In Parham, which concerned the commitment of children to state mental health facilities, the Supreme Court found that there was a risk that the parents “may at times be acting against the interest of their children . . . .” Parham, 442 U.S. at 602. Here, similarly, there is a risk that the foster care giver or case worker will push for a child to be medicated in order to make their job easier, rather than to address real medical needs. See Doc. 22, ¶¶ 2, 84. Indeed, the risk of the care giver acting against the child’s best interest is greater in this case than it was in Parham, as the “natural bonds of affection [that] lead parents to act in the best interests of their children” may not exist in the foster care system, particularly where children’s placements often change, and the exigencies of accommodating numerous children with limited resources may incentivize medically unnecessary medication of children. Parham, 442 U.S. at 602.
In Parham, the Supreme Court “conclude[d] that the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a ‘neutral factfinder’ to determine whether the statutory requirements for admission are satisfied.” Id., at 606. The process envisioned by the Supreme Court required only that the decision be made by a “neutral and detached trier of fact”—not
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necessarily a judicial or administrative officer—“a staff physician will suffice, so long as he or she is free to evaluate independently the child’s mental and emotional condition and need for treatment.” Id., at 607. No “formal or quasi-formal” hearing was required. Id.
Critically, however, the Supreme Court in Parham noted that the procedures at issue in that case did not leave “a single physician or other professional” with “the unbridled discretion” to commit a child. Id., at 615 (quotation marks omitted). Likewise, in Porter v. Knickrehm, which Defendants cite, the Eighth Circuit noted that commitment was preceded by “preplacement reviews by independent professionals” as well as “adversarial administrative proceedings to determine proper treatment and placement.” 457 F.3d 794, 797 (8th Cir. 2006).5 Similarly, in Harper, which concerned the administration of psychotropic drugs to objecting prisoners, the Supreme Court required that the ultimate decision-maker(s) not “be involved in the inmate’s current treatment or diagnosis.” Harper, 494 U.S. at 233.
In an effort to avoid the implications of Harper, Defendants argue that Plaintiffs are entitled to fewer procedural protections than the Constitution affords to prisoners. Yet, the Supreme Court has stated that “[p]ersons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321–22 (1982). Defendants argue that the administration of psychotropic drugs to children is “per se voluntary” because children by law cannot make medical decisions “by virtue of their minority.” Doc. 67,
5 Defendants acknowledge that “the institutionalization of incompetents into mental health treatment facilities” is “analogous” to the administration of psychotropic drugs to children in foster care. Doc. 67 at 12. Indeed, the Supreme Court has concluded that the forcible administration of psychotropic drugs, particularly antipsychotics, is “particularly severe . . . .” Riggins v. Nevada, 504 U.S. 127, 134 (1992). Justice Stevens found that the “interest in refusing mind-altering drugs with potentially permanent and fatal side effects” is “far” greater than the interesting in avoiding physical restraints and institutionalization. Harper, 494 U.S. at 250 n.19.
25 Case 2:17-cv-04102-NKL Document 91 Filed 01/08/18 Page 25 of 33

at 13. Even if a meaningful comparison could be drawn between CD here, on the one hand, and the parents in Parham and the legal guardian in Porter on the other hand,6 both Parham and Porter suggest, as discussed above, that additional procedural protections are required here.7
In light of these precedents, the Court cannot say on the basis of the allegations in the
complaint that a physician’s prescription of psychotropic drugs to a child in foster care by itself
constitutes sufficient procedural protection.
Finally, the Court rejects Defendants’ argument that the juvenile court’s authority with
regard to foster children provides an additional layer of protection that warrants dismissing the
due process claim. As discussed more fully in Section II(a) above, it is CD, and not the juvenile
court, that is responsible for ordinary medical care for foster children. Mo. Rev. Stat.
§ 207.020.1(17). Defendants provide no legal authority supporting their claim that the juvenile
court provides procedural protections with respect to the administration of psychotropic drugs to
children in foster care, and their bald assertion that it does contradicts the facts as pleaded and
must be rejected on this motion to dismiss.
At this stage, the Court cannot find as a matter of law that either “the risk of an erroneous
deprivation” of the plaintiffs’ liberty interest by existing procedures or the value of “additional
6 Given Plaintiffs’ allegations concerning informed consent—which paint a picture of a confused array of legal parents, foster care givers, and case workers without adequate medical or social knowledge or clearly delegated authority making the critical decision of whether to administer psychotropic drugs to a child—a factfinder may conclude that the administration of psychotropic drugs to the Plaintiffs is not “voluntary.” 7 In Parham, the parents retained “a substantial, if not the dominant, role in the decision” to commit a child, in light of the “traditional presumption that the parents act in the best interests of their child . . . .” 442 U.S. at 604. Even still, the parental decision to institutionalize a child was “subject to a physician’s independent examination and medical judgment.” Id. Here, the state is charged with acting in loco parentis. Yet, in arguing that the state should be allowed to rely entirely on the treating physician’s prescription, Defendants seek to abdicate the responsibility that the parents in Parham had.
26
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procedural safeguards” is so minimal as to warrant dismissal of the procedural due process claim.
3. Government Interest Both Plaintiffs and Defendants assert that government interests support their own positions. Plaintiffs note that there is “compelling governmental interest in the protection of minor children,” and that here, unlike in prisoner or pre-trial detainee cases, there is no countervailing government interest in prison safety or bringing an accused to trial. Doc. 57, at 21 (quoting K.D. v. Cty. of Crow Wing, 434 F.3d 1051, 155-56 (8th Cir. 2006)). Defendants counter that the state has an interest in allowing medical professionals to focus on practicing medicine, rather than participating in unnecessary hearings, and that many of the procedural protections Plaintiffs seek would render the foster care system inefficient and are simply unworkable. However, as the Court in Parham noted, a formal or even quasi-formal hearing may not be necessary—informal medical procedures may confer adequate procedural protections, and Defendants’ professed fear of intensive hearings may be baseless. 442 U.S. at 607. As there are important governmental interests on both sides, this factor does not weigh in favor of dismissing the procedural due process claim.
* * * For these reasons, Defendants’ motion to dismiss the procedural due process claim is denied.
d. Private Right of Action Pursuant to the Child Welfare Act Plaintiffs’ final claim is for violation of certain portions of the Adoption Assistance and Child Welfare Act (the “CWA”). Defendants argue that the relevant CWA provisions confer no
27 Case 2:17-cv-04102-NKL Document 91 Filed 01/08/18 Page 27 of 33

federal rights on Plaintiffs. Plaintiffs, on the other hand, contend that the “majority” of courts have concluded that 42 U.S.C. Sections 622(a), 622(b)(8)(A)(ii), 671(a)(16), and 675(1) and (5) create judicially enforceable rights, the violation of which can be remedied through a Section 1983 action. See 42 U.S.C. § 1983.
The question of whether sections 622(a), 622(b)(8)(A)(ii), 671(a)(16), and 675(1) and (5) confer a private right of enforcement is one of first impression within this Circuit, although the Eighth Circuit has concluded that certain other provisions of the CWA (sections 672(a) and 675(4)(A)) do not confer a privately enforceable right to receive payments from the state sufficient to cover certain statutorily enumerated foster care costs. Midwest Foster Care and Adoption Ass’n v. Kincade, 712 F.3d 1190, 1202 (8th Cir. 2013).
“Section 1983 provides a cause of action against any person who, under color of law, subjects a citizen to the deprivation of any rights secured by the laws of the United States.” Does v. Gillespie, 867 F.3d 1034, 1039 (8th Cir. 2017). Importantly, a Section 1983 action supplies a remedy for violation of federal rights, and not merely violation of federal law. Blessing v. Freestone, 520 U.S. 329, 340 (1997). Thus, “[t]o support an action under § 1983, a plaintiff relying on a federal law must establish that Congress clearly intended to create an enforceable federal right.” Does, 867 F.3d at 1039 (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002)). “[N]othing short of an unambiguously conferred right will support a cause of action under § 1983.” Does, 867 F.3d at 1040 (quotation marks and citation omitted).
To determine whether Congress intended that the provisions at issue benefit the plaintiffs, the Court must weigh three factors: (a) whether the provisions are phrased “in terms of the individuals who benefit, rather than the persons or institutions that are regulated”; (b) “whether the contested statutory language manifest[s] an aggregate focus, instead of being concerned with
28 Case 2:17-cv-04102-NKL Document 91 Filed 01/08/18 Page 28 of 33

whether the needs of any particular person have been satisfied;” and (c) “whether Congress provided a federal review mechanism.” Midwest Foster Care, 712 F.3d at 1196-97 (quotation marks and citations omitted).
1. Rights-Creating Language The statutory language in Midwest Foster Care, Gonzaga, and Does was twice removed from the party seeking enforcement. See Midwest Foster Care, 712 F.3d at 1197 (finding that the sections at issue “speak to the states as regulated participants in the CWA and enumerate limitations on when the states expenditures will be matched with federal dollars; they do not speak directly to the interests of the Providers”); Gonzaga, 536 U.S. at 274-75 (“FERPA’s provisions speak only to the Secretary, directing that ‘[n]o funds shall be made available’ to any ‘educational . . . institution’ which has a prohibited ‘policy or practice,’ . . . .”); Does, 867 F.3d at 1041 (“[T]he focus of the Act is two steps removed from the interests of the patients who seek services from a Medicaid provider. . . . ‘[I]t is phrased as a directive to the federal agency charged with approving state Medicaid plans, not as a conferral of the right to sue upon the beneficiaries of the State’s decision to participate in Medicaid.’”) (citation omitted). Here, the statutes specifically concern the interests of children in foster care. Section 622(a) provides that the state “must have a plan for child welfare services” meeting the requirements of subsection (b). The relevant portion of subsection (b) in turn provides that each plan shall “provide assurances that the State--(A) is operating . . . (ii) a case review system (as defined in section 675(5) . . .) for each child receiving foster care under the supervision of the State . . . .” 42 U.S.C. § 622(b)(8)(A)(ii) (emphasis added). Section 675(5) defines “case review system” as “a procedure for assuring that,” inter alia, “(D) a child’s health and education record . . . is reviewed and updated, and a copy of the record is supplied to the foster parent or foster care
29 Case 2:17-cv-04102-NKL Document 91 Filed 01/08/18 Page 29 of 33

provider with whom the child is placed, at the time of each placement of the child in foster care .
. . .” Id., § 675(5)(D) (emphases added). Section 671(a)(16) requires the state to “have a plan . .
. which . . . provides for the development of a case plan (as defined in section 675(1) of this title .
. . ) for each child receiving foster care maintenance payments under the State plan and provides
for a case review system which meets the requirements described in sections 675(5) and 675a of
this title with respect to each such child . . . .” Id., § 671(a)(16) (emphases added). Section
675(1) defines “case plan” as “a written document which . . . includes at least the following: . . .
(C) The health and education records of the child, including the most recent information
available regarding . . . (v) the child’s known medical problems; (vi) the child’s medications; and
(vii) any other relevant health . . . information concerning the child . . . .” Id., § 675(1)
(emphases added).8
Nevertheless, the Court is obligated to discern congressional intent not “by considering
merely a portion of a statutory provision in isolation, but rather by reading the complete
provision in the context of the statute as a whole.” Does, 867 F.3d at 1043. Here, as in Does, the
8 Defendants rely heavily on 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), which concluded that sections 671(a) and 675(5)(D) and (E) did not permit a privately enforceable right. However, that case does not end our inquiry as it concerned a different version of section 671(a)(16). The Eleventh Circuit stated that while another section “conditions receipt of federal funds on the existence of a state plan that, among other things, provides for ‘a case review system which meets the requirements described in section 675(5)(B) . . . with respect to each such child’ . . . , Section 671(a)(16) does not go beyond that and explicitly require a plan to meet the requirements described in §§ 675(5)(D) and (E).” 329 F.3d at 1271. However, the current version of section 671(a)(16) explicitly requires the plan to meet §675(5) in full. See 42 U.S.C. § 671(a)(16) (requiring provision of “case review system which meets the requirements described in section[] 675(5)”). Section 671 was amended to reference section 675(5) in its entirety on September 29, 2014. See PREVENTING SEX TRAFFICKING AND STRENGTHENING FAMILIES ACT, PL 113-183, September 29, 2014, 128 Stat 1919. Thus, 31 Foster Children’s reason for finding no “rights-creating” language in sections 671(a)(16) and 675(5) no longer applies. See 31 Foster Children, 329 F.3d at 1271-72 (noting that “42 U.S.C. § 671(a)(16) . . . does not say that a plan’s case review system must meet the requirements of §§ 675(5)(D) and (E)”).
30
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language specific to “each” child is “nested within one of [several] subsections and is two steps removed from the [statute]’s focus on which state plans the Secretary ‘shall approve.’” Does, 867 F.3d at 1042; see 42 U.S.C. § 622.
2. Aggregate or Individual Focus The Court next considers whether the statutory provisions have an aggregate or individual focus. “[W]hen a statute links funding to substantial compliance with its conditions—including forming and adhering to a state plan with specified features”—as the CWA indisputably does (see 42 U.S.C. § 1320a–2a)—“this counsels against the creation of individually enforceable rights.” Midwest Foster Care, 712 F.3d at 1200. A statute that “triggers a funding prohibition” also may show an aggregate focus. Id., at 1202. Plaintiffs argue that the provisions at issue here “are not concerned with the triggering of specific funding prohibitions,” but instead “set forth entitlements that a state is required to give to foster youth, once a state has decided to participate in a federal matching program.” Doc. 57, at 27. But the statutory language in Midwest Foster Care, like the statutory language here, concerned “eligibility” for payments. Compare 42 U.S.C. § 672(a) (containing three subsections with “eligibility” in their title) with id. § 622(a) (providing that state must “have a plan” in order “to be eligible for” payment) and id. § 671(a)(16) (same). This language indicates an “aggregate focus.” Furthermore, although the subsections at issue focus on the individual child in foster care, the broader provisions focus primarily on the state’s plan. Federal law provides that, “[i]n an action brought to enforce a provision of this chapter [including the CWA], such provision is not to be deemed unenforceable because of its inclusion in a section of this chapter requiring a State
31 Case 2:17-cv-04102-NKL Document 91 Filed 01/08/18 Page 31 of 33

plan or specifying the required contents of a State plan.” 42 U.S.C.A. § 1320a-2. The Eighth Circuit accordingly previously held that “a statute could not be considered to have an aggregate focus simply because, as here, it requires states to engineer a plan governing their participation in a federal matching program that inures to the advantage of an entire group of beneficiaries.” Midwest Foster Care, 712 F.3d at 1200. But more recently, the Eighth Circuit clarified that “[t]his does not mean that we should ignore . . . the structure of the statute and its focus . . . . Where a provision is included in a section of the Act requiring a state plan or specifying the required contents of a state plan, Congress still must create new rights in clear terms that show unambiguous intent before they are enforceable under § 1983.” Does, 867 F.3d at 1045.
3. Federal Review Mechanism The Eighth Circuit previously concluded that the mechanism for federal review in the CWA is “limited” and not “direct”: [A]lthough the CWA “provides for oversight and funding restrictions that may be imposed by the Secretary” on the participating states, there is no direct federal review of the claims of individual providers. [Mo. Child Care Ass’n v.] Cross, 294 F.3d [1034,] 1038 [(8th Cir. 2002)]. Instead, the CWA delegates oversight of individual grievances to the states. . . . Federal review is limited to auditing states for substantial compliance with these and other requirements. See § 1320a– 2a. Midwest Foster Care, 712 F.3d at 1202. However, in the more recent Does case, the Eighth Circuit held that “the withholding of federal funds by the Secretary” is “another means of enforcing a State’s compliance” that weighs against finding that a statute confers a private right of action. Does, 867 F.3d at 1041.
* * * Under Does, the three factors discussed above “give mixed signals about legislative intent,” which means that “Congress has not spoken—as required by Gonzaga, 536 U.S. at 280,
32 Case 2:17-cv-04102-NKL Document 91 Filed 01/08/18 Page 32 of 33

122 S.Ct. 2268—with a clear voice that manifests an unambiguous intent to confer individual rights.” Does, 867 F.3d at 1043 (quotation marks and citation omitted). Accordingly, the Court concludes that the statutes at issue do not confer a private right of action, and Plaintiffs’ third cause of action must be dismissed.
III. CONCLUSION For the foregoing reasons, Defendants’ motion to dismiss is denied as to the substantive
due process claim, except that claims relating to informed consent are dismissed without prejudice, and denied as to the procedural due process claim. The motion to dismiss is granted with prejudice as to the claim alleging violation of the Child Welfare Act.

Dated: January 8, 2018 Jefferson City, Missouri

s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge

33 Case 2:17-cv-04102-NKL Document 91 Filed 01/08/18 Page 33 of 33

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

M.B. by his next friend Ericka

)

Eggemeyer; E.S. by her next friend A.S.;

)

Z.S. by her next friend S.H.; K.C.

)

by her next friend Kris Dadant;

)

A.H. by her next friend Kealey

)

Williams, for themselves and those

)

similarly situated,

)

Plaintiffs,

)

)

v.

)

)

Steve Corsi in his official

)

capacity as Acting Director of

)

the Missouri Department of

)

Social Services; Tim Decker, in his

)

official capacity as Director of the Children’s )

Division of the Missouri

)

Department of Social Services,

)

)

Defendants.

)

No. 2:17-cv-04102-NKL

ORDER

For the reasons discussed below, the Court grants Plaintiffs’ motion to dismiss Z.S. as a

named plaintiff (along with her next friend, S.H.).

I. BACKGROUND This case concerns whether the State of Missouri adequately oversees the administration
of psychotropic medications to children in foster care. While conducting a pre-filing investigation in April 2017, attorneys for the plaintiffs
learned of a three-year-old child in the custody of the Children’s Division (CD) who had been administered Risperdal, and subsequently had to be weaned off the drug by a different treating physician. Doc. 133-1, ¶ 3. Although Plaintiffs’ attorneys spoke with several adult sources

1 Case 2:17-cv-04102-NKL Document 168 Filed 05/29/18 Page 1 of 5

regarding the child, the sources did not reveal the child’s legal name because of confidentiality restrictions. Id.
The complaint that the plaintiffs filed contained allegations concerning the three-year old child, identified as Z.S. See Doc. 1.
The Court directed Plaintiffs’ counsel to provide to Defendants the plaintiffs’ legal names. Doc. 133-1, ¶ 4. Plaintiffs then conducted further due diligence and obtained from a source what they understood to be the correct legal name of Z.S. Id. Plaintiffs revealed that name to Defendants’ counsel on September 7, 2017. Id.
However, Plaintiffs later came to believe that the legal name they supplied to Defendants for Z.S. was not the name of the 3-year-old child Plaintiffs described in their pleadings. On February 21, 2018, Plaintiffs came across two pages of email transmissions (part of a production made by Defendants) concerning a child whose circumstances appeared identical to those of the child identified as Z.S. in the pleadings. That unidentified child had, at the age of three, been prescribed Risperdal by one provider and then weaned off of it by subsequent medical provider. Plaintiffs already knew that the CD case file that belonged to the child whose legal name they had provided to Defendants did not show that the child had been administered Risperdal. However, Plaintiffs’ investigation had indicated that CD case files often are missing medical records and medication histories, so they did not initially have reason to suspect that Z.S. had been misidentified. They assumed that the relevant records were missing from the child’s file, or that the prescription drugs were purchased with cash. However, after reviewing the email correspondence on February 21, 2018 concerning the three-year old who had been prescribed Risperdal, Plaintiffs concluded that they had misidentified Z.S.
2 Case 2:17-cv-04102-NKL Document 168 Filed 05/29/18 Page 2 of 5

On February 27, 2018, Plaintiffs’ counsel suggested to Defendants’ counsel that the parties stipulate to the dismissal of Z.S. as class representative. Doc. 124-3, at 3. Plaintiffs offered to dismiss Z.S. as a class representative with prejudice, although Plaintiffs would not agree to dismiss Z.S. from the case with prejudice. Id., at 2. In other words, Plaintiffs wished to preserve the misidentified child’s right to participate in the case as a member of the putative class. Defendants refused to stipulate to the dismissal of Z.S. without prejudice. Id. at 1. Plaintiffs then filed this motion to dismiss Z.S. without prejudice.
II. STANDARD Federal Rule of Civil Procedure 41 permits the Court to dismiss a case “at the plaintiff’s
request . . . on terms that the court considers proper.” Fed. R. Civ. P. 41(a)(2). Defendants question whether Rule 41 permits the dismissal of a party, but in fact, dismissal of a party pursuant to Rule 41 is appropriate. See, e.g., James ex rel. James Ambrose Johnson, Jr., 1999 Tr. v. UMG Recordings, Inc., No. 11-1613 SI, 2012 WL 4859069, at *3 (N.D. Cal. Oct. 11, 2012) (dismissing without prejudice three of multiple plaintiffs from case, noting that “[t]he decision to dismiss a plaintiff under Rule 41(a)(2) is a matter of the district court’s sound discretion”); Dee-K Enterprises, Inc. v. Heveafil Sdn. Bhd., 177 F.R.D. 351, 355–56 (E.D. Va. 1998) (“Rule 41 overlaps with Rule 15(a) to the extent that a plaintiff can effectively amend the pleading by dismissing particular parties or claims from the action.”) (quoting 8 James Wm. Moore, Moore's Federal Practice, § 41.13(6)).
“When determining whether to allow a voluntary dismissal without prejudice, a district court should consider whether the party has presented a proper explanation for its desire to dismiss; whether a dismissal would result in a waste of judicial time and effort; and whether a dismissal will prejudice the defendants.” United States v. Thirty-two thousand eight hundred
3 Case 2:17-cv-04102-NKL Document 168 Filed 05/29/18 Page 3 of 5

twenty dollars & fifty-six cents ($32,820.56) in United States Currency, 838 F.3d 930, 937 (8th Cir. 2016) (quotation marks and citations omitted). A decision under Rule 41(a)(2) is soundly within the Court’s discretion. Thatcher v. Hanover Ins. Grp., Inc., 659 F.3d 1212, 1213 (8th Cir. 2011) (citation omitted).
III. ANALYSIS a. Whether Plaintiffs Have Presented a Proper Explanation
Given the confidentiality restrictions that prevented Plaintiffs’ from learning before filing suit the identity of the 3-year old who was administered Risperdal, their good faith belief that a source had identified the correct child when they provided Defendants with a legal name for Z.S., Plaintiffs’ representation that they assumed that Z.S.’s case file did not evidence her taking Risperdal because it was incomplete or the prescriptions were purchased with cash, and their prompt effort to dismiss Z.S. when they concluded that they had identified the wrong three-year old, Plaintiffs have provided a proper explanation as to why they would like to dismiss Z.S. as a named plaintiff.
b. Whether Dismissal Would Result in a Waste of Judicial Time and Effort This case is still in the discovery process. Discovery is not scheduled to close until August 17, 2018. Doc. 94. Plaintiffs filed a motion for class certification on the same day that they filed the motion to dismiss Z.S. as a named plaintiff, so both Plaintiffs’ motion for class certification and Defendants’ opposition to that motion were informed by Plaintiffs’ motion to dismiss Z.S. Given the status of the litigation, granting the motion to dismiss Z.S. without prejudice would not waste judicial time or effort. See Mullen v. Heinkel Filtering Sys., Inc., 770 F.3d 724, 728 (8th Cir. 2014) (“The grant of voluntary dismissal did not result in a waste of judicial time and effort, because the case had not progressed very far. The magistrate judge held
4 Case 2:17-cv-04102-NKL Document 168 Filed 05/29/18 Page 4 of 5

two hearings on discovery disputes, but the case was still in the early stages of discovery. We have upheld granting motions to dismiss without prejudice when the cases were much further along.”).
c. Whether Dismissal Would Prejudice Defendants Defendants complain that Plaintiffs refused to provide discovery concerning Z.S. after they moved to dismiss her as a named plaintiff, and they argue that this prevented Defendants from adequately responding to Plaintiffs’ motion for class certification. But Plaintiffs have not relied on Z.S. in moving for class certification, and Defendants therefore were not prejudiced by Plaintiffs’ refusal to provide discovery concerning Z.S.1 Thus, there is no indication that dismissal of Z.S. as a named plaintiff would prejudice Defendants.
IV. CONCLUSION For the foregoing reasons, Plaintiffs’ motion to dismiss Z.S. as a named plaintiff without
prejudice is GRANTED.

Dated: May 29, 2018 Jefferson City, Missouri

s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge

1 In any event, if Defendants feared that they would be prejudiced by Plaintiffs’ refusal to provide discovery concerning Z.S., the proper course would have been to request a telephonic conference with the Court. See Local Rule 37.1 (providing that attorney that has not been successful in attempting to confer with opposing counsel concerning discovery dispute “must arrange with the Court for an immediate telephone conference with the judge and opposing counsel,” and the “[t]he attorney may not file a written discovery motion until after this telephone conference”). Having failed to do so, Defendants cannot now complain of prejudice.
5
Case 2:17-cv-04102-NKL Document 168 Filed 05/29/18 Page 5 of 5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

M.B. by his next friend Ericka

)

Eggemeyer; K.C. by her next friend Kris

)

Dadant; A.H. by her next friend Kealey

)

Williams, for themselves and those

)

similarly situated,

)

Plaintiffs,

)

)

v.

)

)

Steve Corsi in his official

)

capacity as Acting Director of

)

the Missouri Department of

)

Social Services; Tim Decker, in his

)

official capacity as Director of the Children’s )

Division of the Missouri

)

Department of Social Services,

)

)

Defendants.

)

)

)

ORDER

No. 2:17-cv-04102-NKL

Plaintiffs, children in foster care, allege that Defendants, the Acting Director of the

Missouri Department of Social Services and the Director of the Children’s Division of the Missouri

Department of Social Services (“CD”), have failed to implement a system of safeguards and

oversight with respect to the administration of psychotropic drugs to Plaintiffs. These drugs leave

the children vulnerable to various serious adverse effects, including hallucinations, self-harm and

suicidal thoughts, and such life-shortening illnesses as type 2 diabetes, and therefore should be

administered only when necessary. CD itself is aware that the lack of a reasonable system of

oversight and monitoring of the administration of psychotropic medications to children in its

custody poses a substantial and ongoing risk of harm to the children. Yet, according to the

Plaintiffs, Defendants have failed to address this substantial and ongoing risk of harm.

1 Case 2:17-cv-04102-NKL Document 183 Filed 07/19/18 Page 1 of 19

Plaintiffs assert claims for violation of their substantive and procedural due process rights under the Fourteenth Amendment to the U.S. Constitution and seek declaratory and injunctive relief. They now move for certification of a class of plaintiffs consisting of “[a]ll children in Children’s Division foster care custody who presently are, or in the future will be, prescribed or administered one or more psychotropic medications while in state care.” Doc. 154, at 1 n.2.1 For the reasons discussed below, the Court grants the motion for class certification.
I. BACKGROUND When the state removes children into foster care, it assumes an affirmative duty to act in
loco parentis to keep those children safe. Yet, according to the plaintiffs, children in Missouri’s foster care custody who are prescribed or administered psychotropic drugs are exposed to a grave risk of severe physical and psychological harm because of the state’s policies and practices.
a. Psychotropic Drugs and Children Psychotropic drugs are powerful medications that directly affect the central nervous system. They are particularly potent when administered to children. Children administered psychotropic medications are more vulnerable to psychosis, seizures, irreversible movement disorders, suicidal thoughts, aggression, weight gain, organ damage, and other life-threatening conditions. The full risk posed to children by psychotropic drugs is not even fully understood as yet. As the Administration of Children and Families (“ACF”), the office within the U.S. Department of Health and Human Services charged with administering the federal Title IV-E
1 Plaintiffs originally moved for certification of a class consisting of “[a]ll children under the age of eighteen who are or will be placed in the foster care custody of the state of Missouri following reports that they have suffered child abuse or neglect.” Doc. 113, at 3. However, in their reply papers and at oral argument, Plaintiffs adopted the more narrow class definition set forth above.
2 Case 2:17-cv-04102-NKL Document 183 Filed 07/19/18 Page 2 of 19

foster care program, has noted, “research on the safe and appropriate pediatric use of psychotropic medications lags behind prescribing trends . . . . In the absence of such research, it is not possible to know all of the short- and long-term effects, both positive and negative, of psychotropic medications on young minds and bodies.” Doc. 22, ¶ 80.
Risks to children are compounded when children are subject to “outlier” prescribing practices—receiving too many psychotropic drugs or too high a dosage, or receiving drugs at too young an age (commonly described as “too many, and too much, too young”). The number of adverse effects increases with the number of medications being used. On average, those taking two psychotropic drugs report 17% more adverse effects, and those taking three or more, 38% more adverse effects, than those taking one. Id., ¶ 82. Suicidality and the urge to harm oneself increase with increasing numbers of medications. Id. Increased appetite, sleepiness/fatigue, and tics and tremors are 200 to 300% more prevalent among children taking three or more medications than among those taking one drug alone. Id.
The ACF has noted that outlier practices “may signal that factors other than clinical need are impacting the prescription of psychotropic medications.” Id., ¶ 86. Indeed, for many, if not most, of the affected children, psychotropic drugs are administered to treat a diagnosis that the drugs were never designed to address.
The longer a child is on a given psychotropic medication, the greater the number of adverse effects. Id., ¶ 82. Some psychotropic medications, including some antipsychotics and SSRI antidepressants, even come with warning labels indicating that “their use requires particular attention and caution regarding potentially dangerous or life threatening side effects.” Id., ¶ 83.
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b. Unique Risks for Children in Foster Care More than a decade ago, a study including data from Missouri and 16 other states found that the rate of use of antipsychotics (one of the most powerful classes of psychotropic drugs) was 12.37% for children in foster care, compared with 1.4% for children receiving Medicaid who were not in foster care. Id., ¶ 94. The study further found that one in five children was prescribed two different antipsychotics, and at least one in ten children was prescribed four or more psychotropic medications. Id. The Missouri Initiative for Children in Foster Care, looking at data from 2011, showed that 28% of children in state foster care were on psychotropic medication. 20% of those children were subject to an outlier prescription (too much, and too many, too young), including 6.65% who were prescribed five or more psychotropic medications at once and 3.03% who were prescribed two or more antipsychotics at once. Id., ¶ 95. A January 2015 Missourian article reported MOHealthNet data from 2012 showing that more than 30% of Missouri’s foster children were prescribed at least one psychotropic medication. Id. It was further reported based on this data that children as young as two years of age had been prescribed an antipsychotic drug. Id. In addition, at least 20% of Missouri’s foster youth were taking an average of two or more psychotropic medications, with some foster children prescribed as many as seven at one time. Id. Children in foster care are at increased risk of being improperly or unnecessarily administered psychotropic drugs. Often, those who care for foster children do not have detailed knowledge of their trauma background, mental health needs, or medical history. Unlike biological parents, the foster caregivers must rely on a child’s health records to know her history and needs. At the same time, frequent changes in placement often are accompanied by changes in a foster child’s health care provider and cause disruptions in the child’s health care. Id., ¶ 4. Yet, all too often, accurate and complete medical information is not shared with either foster parents or treating
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physicians. Id. Moreover, the state has no system in place to avoid subjecting children to “outlier”—too much, and too many, too young—prescriptions. Id., ¶¶ 123-29.
c. The Plaintiffs M.B. Plaintiff M.B., a fourteen-year old boy, has been administered more than six psychotropic drugs at once, including lithium and two atypical antipsychotics. Id., ¶ 11. Over the course of two-and-a-half years in CD custody, as he has been moved through eight different placements, his regimen of psychotropic medications has fluctuated, with medications being rapidly added or removed, and dosages changing. Id., ¶ 13. At times, M.B. was placed on a medication for a month, only to have it removed the next month, and drugs that had already been tried and discontinued were tried again. Id. Yet, neither he nor any of his caregivers has been provided updated medical and mental health records, and Missouri has not maintained “a consistent informed consent process to ensure individual attention to his treatment” or “institute[d] an effective mechanism for reviewing dangerous prescription practices,” placing him at further risk of harm. Id., ¶ 11. M.B. has exhibited several conditions known to be among the serious adverse effects of the psychotropic medications he has been administered, including hypothyroidism, hearing voices, and suicidal thoughts. Id., ¶ 14. K.C. Plaintiff K.C., a twelve-year-old girl, has been placed on as many as five psychotropic medications at one time. Id., ¶¶ 32-33. Although she has been placed in several foster care situations, neither she nor any of her caregivers has been provided with comprehensive, up-todate, and accurate medical and mental health records. Id., ¶ 33. Indeed, earlier this year, K.C.’s caregivers had three different understandings of what daily dose of a particular psychotropic medication she was to receive, and they had no medical records to resolve the confusion. Id., ¶ 35. The confusion may not even have come to light had a volunteer advocate not raised questions
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about it. Id. Her physicians have not had access to complete medical records or history when prescribing her medications. Id., ¶ 34. CD also failed to ensure that proper informed consent was given when K.C. was placed on multiple psychotropic medications, despite the fact that the drugs require ongoing monitoring to permit adverse effects to be addressed promptly. Id., ¶ 36. At one residential facility, K.C. was reported on multiple occasions to be “visibly involuntarily shaking.” Id., ¶ 37. At that time, K.C. was taking the antipsychotic Abilify, the label for which warns, “Stop using . . . and call your doctor at once if you have . . . uncontrolled muscle movements.” Id., ¶ 38. After a visitor who had noted the shaking repeatedly raised an alarm, K.C.’s Abilify dosage was cut in half. Id., ¶ 39. K.C. also has been prescribed Strattera, purportedly for Attention-Deficit Hyperactivity Disorder (“ADHD”), although at least one formal assessment and observation of K.C. indicated that she does not have ADHD. Id., ¶ 40. Strattera’s label warns that “[c]ommon side effects in children and teenagers include upset stomach, a decreased appetite, nausea, or vomiting, dizziness, tiredness, and mood swings,” and “Strattera increases the risk of suicidal thoughts or actions.” Id., ¶ 41. In response to K.C.’s high number and doses of psychotropic medications, concerned persons outside CD who have observed K.C. have for months sought an independent second opinion as to whether her psychotropic medication regimen is appropriate, but to no avail. Id., ¶ 43.
In October 2016, K.C. suddenly began acting angry, aggressive, and violent, and repeatedly became involved in altercations. Id., ¶ 44. Staff at her facility placed her in physical holds numerous times—including once for an hour and forty-five minutes—to keep her from fighting. Id. Around the time that her behavior changed in this fashion, K.C. had been newly administered the strong psychotropic drug Seroquel. Id. Seroquel’s label advises: “Call a healthcare professional right away if you or your family member has any of the following symptoms,
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especially if they are new, worse, or worry you: . . . acting aggressive, being angry, or violent. . . .” Id., ¶ 45. Seroquel is not FDA-approved for use by children. Id., ¶ 45. The drug’s labeling notes that Seroquel nonetheless is prescribed to some children at least thirteen years old—but K.C. had reached twelve years of age only shortly before the introduction of Seroquel. Id.
CD and its private contractor failed to note the correlation between her behavior and the medication change. Id., ¶ 44. Once again, a volunteer visiting resource raised the issue, but CD and the private contractor took no action. Id. Eventually, the volunteer contacted the prescribing doctor, asking whether Seroquel should have been prescribed given that the child had not been diagnosed with bipolar disorder, and in light of her changed behavior. Id. That night, the doctor made note of a bipolar disorder diagnosis in K.C.’s records. Id.
Eventually, K.C. ceased taking Seroquel, and her aggressive behavior ceased. Id. K.C. is “sad or angry much of the time.” Id., ¶ 48. She has experienced rapid weight gain since being placed on psychotropic medications, including a gain of more than fifteen pounds over a three-month period. Id., ¶ 46. She also has experienced hallucinations since she commenced taking psychotropic drugs. Id., ¶ 47. Hallucinations are among the known adverse effects of two new medications being given to K.C. Id. A.H. A.H., a twelve-year-old girl, has spent approximately six years in CD’s custody. Id., ¶ 52. As a result of being placed in numerous different living situations, “knowledge of her medical and mental health history, in the absence of reliable recordkeeping practices, has become fragmented and dispersed between her assigned caseworker, foster caretakers, and health providers.” Id., ¶ 53. In or about November 2016, A.H. tried to physically harm herself and was hospitalized. Id., ¶ 54. At the psychiatric hospital, she was prescribed two pills of Latuda and two pills of Remeron each day. Id. CD did not involve A.H.’s legal parents in the decision to
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administer these psychotropic medications to her. Id. After she was discharged, A.H. moved into the home of a non-kinship foster parent for a few months, and then was moved to the home of a kinship resource. Id., ¶ 55. When the non-kinship foster parent transferred A.H. to the kinship resource home, the foster parent provided A.H.’s medications wrapped only in tissue paper. Id., ¶ 56. The foster parent advised the kinship resource that A.H. was to take just one pill of Latuda and one pill of Remeron each day. Id. The kinship resource received no medical records, no pill bottles, and no written instructions for administering the medication. Id. Consequently, A.H. was given incorrect dosages of the psychotropic medications and experienced a severe reaction that resulted in her being hospitalized for six days. Id.
II. CLASS CERTIFICATION STANDARD Under Federal Rule of Civil Procedure 23, a motion for class certification involves a two-
part analysis. First, under Rule 23(a), the proposed class must satisfy the requirements of “numerosity, commonality, typicality, and fair and adequate representation.” Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013). Second, the proposed class must meet at least one of the three requirements of Rule 23(b). Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013).
The burden of showing that the class should be certified rests on Plaintiffs. Luiken, 705 F.3d at 372. They will meet this burden only if, “after a rigorous analysis,” the Court is convinced that the Rule 23 requirements are satisfied. Comcast, 133 S. Ct. at 1432 (quotation marks and citation omitted). The Court has broad discretion in deciding whether class certification is appropriate. Prof’l Firefighters Ass’n of Omaha, Local 385 v. Zalewski, 678 F.3d 640, 645 (8th Cir. 2012) (citation omitted).
In determining a class certification motion, the Court may consider “[m]erits questions . . . only to the extent[ ]that they are relevant to determining whether the Rule 23 prerequisites for class
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certification are satisfied.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 133 S. Ct. 1184, 1194-95 (2013). The Court’s inquiry on a motion for class certification therefore is “tentative,” “preliminary,” and “limited.” In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011).

III. DISCUSSION a. Rule 23(a) 1. Numerosity
Rule 23(a)(1) requires that a class be sufficiently numerous to render joinder of all

members impracticable. In assessing whether the numerosity requirement has been met, courts

examine factors such as the number of persons in the proposed class, the nature of the action, the

size of the individual claims, and the inconvenience of trying individual claims. Paxton v. Union

Nat’l Bank, 688 F.2d 552, 561 (8th Cir. 1982).

As of December 2017, there were more than 13,500 children in CD’s legal custody. See

Mo.

Dep’t

of

Social

Services,

DSS

Caseload

Counter,

https://dss.mo.gov/mis/clcounter/history.htm (last accessed June 13, 2018). Defendants argue that

approximately 77% of the children in the Missouri foster care system are not taking psychotropic

medications. Doc. 145, at 7; Doc. 144-1, Transcript of Deposition of Christy Collins, Vol. I, at

278:25-279:20. 23% of 13,500 is 3,105. Thus, approximately 3,105 children in CD’s foster care

custody are being administered psychotropic medications.

Joinder of more than 3,000 children would be impracticable and unduly burdensome. See

Van Orden v. Meyers, No. 09-00971 AGF, 2011 WL 4600688, *6 (E.D. Mo. Sept. 30, 2011)

(finding numerosity requirement satisfied where proposed class consisted of 150 members, noting

that “joining each of the putative plaintiffs individually and trying separate suits for each would

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be wasteful, duplicative, and time consuming,” as “much of the evidence and many of the witnesses would be the same in each case”). This is particularly the case because the proposed class includes both present and future children in the foster care custody of the State of Missouri who are or will be prescribed or administered psychotropic medications, and future members of the putative class are necessarily unidentifiable. See Barrett v. Claycomb, No. 11-CV-04242NKL, 2011 WL 5822382, at *2 (W.D. Mo. Nov. 15, 2011) (finding numerosity requirement satisfied in light of not only the “large initial number of potential plaintiffs,” 1,100, but also “the fluid nature of this class,” which included “an unknown number of future students”); Portz v. St. Cloud State Univ., 297 F. Supp. 3d 929, 944 (D. Minn. 2018) (finding numerosity requirement satisfied for class including over 4,000 current students as well as future students, noting, “courts in this circuit have found numerosity where an unknown group may in the future suffer harm”).
The Court finds that the numerosity requirement has been satisfied.
2. Commonality Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Plaintiffs must show that their class claims “depend upon a common contention” that “is capable of class wide resolution,” such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S. Ct. 2541 (2011). Commonality “‘does not require that every question of law or fact be common to every member of the class . . . and may be satisfied, for example, where the question of law linking the class members is substantially related to the resolution of the litigation even though the individuals are not identically situated.’” Downing v. Goldman Phipps PLLC, No. 13-206 CDP, 2015 WL 4255342, at *4 (E.D. Mo. July 14, 2015) (quoting Paxton, 688 F.2d at 561); see also Ebert v. General Mills, Inc., 823 F.3d 472,
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478 (8th Cir. 2016) (“[A] single common question ‘will do’ for purposes of Rule 23(a)(2).”) (citing
Dukes, 131 S. Ct. at 2556). Commonality is easily satisfied in most cases. Wineland v. Casey’s
General Stores, Inc., 267 F.R.D. 669, 674 (S.D. Iowa 2009) (“The burden imposed by [the
commonality] requirement is light and easily met in most cases.”) (citing In re Hartford Sales
Practices Litig., 192 F.R.D. 592, 603 (D. Minn. 1999); Newberg on Class Actions § 3:10 (4th
ed.)).
Plaintiffs challenge system-wide policies and practices that place all members of the
proposed class at substantial risk of harm. With respect to the substantive due process claim
(Count I), Plaintiffs raise the following questions of fact common to all potential class members:
 Whether Defendants have a policy or practice of inadequately monitoring the administration of psychotropic medications to children in CD’s foster care custody by failing to maintain complete, current, and reasonably accessible medical records, including medication history, for those children and to provide these records to foster caregivers and health care providers to facilitate the effective delivery of health services; and
 Whether Defendants have a policy or practice of inadequately monitoring the administration of psychotropic medications to children in CD’s foster care custody by failing to operate a secondary review system capable of timely identifying and addressing outlier prescribing practices for purposes of assuring the safety of those children.
If the foregoing questions are answered in the affirmative, the Court will be presented with a
common question of law, whether these policies or practices subject the children in CD’s foster
care custody who are or will be prescribed or administered psychotropic drugs to an unreasonable
risk of harm in violation of their substantive due process rights under the Fourteenth Amendment.
With respect to the procedural due process claim (Count II), Plaintiffs present at least the
following common factual questions:
 Whether Defendants fail to maintain a policy or practice for the provision of adequate notice and a meaningful opportunity to be heard before children in foster care are administered psychotropic medications.
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 Whether Defendants’ fail to maintain a policy and practice providing for periodic review or reconsideration of the prescription and administration of psychotropic medications to children in foster care.
If these questions are answered in the affirmative, the Court will need to determine the common legal question of whether these policies or practices infringe upon the procedural due process rights of the children in CD’s foster care custody who are or will be prescribed or administered psychotropic drugs.
Plaintiffs have presented evidence that CD is supposed to maintain medical records for children in foster care, but in fact does not. See, e.g., Mo. Rev. Stat. § 210.760; Doc. 113-4, State of Missouri, Office of Administration, Division of Purchasing Materials and Management, Request for Proposal, Internet-Based Health Records System for Foster Children, at 7 (noting that “[t]he lack of shared access to health records can limit the practitioner’s ability to make the most informed clinical decisions possible”). Plaintiffs have presented evidence that CD has found that oversight of the administration of psychotropic medications to children is necessary, but that CD does not provide such oversight. See, e.g., Doc. 113-5 (Ex. E), Health Oversight and Coordination Plan, Strategic Plan for Children in State Custody, 2015-2019, at 11 (acknowledging that “oversight [of psychotropic medications] is necessary when addressing the needs of children who have experienced maltreatment,” but that CD “is not currently implementing this second opinion practice”). Finally, Plaintiffs have presented evidence that CD fails to maintain informed consent policies and procedures capable of assuring that children in CD’s foster care custody are administered psychotropic drugs only when a neutral decision-maker, in consultation with the prescribing physician, determines that is a safe and necessary treatment. See, e.g., Doc. 123-1, Deposition of Christy Collins, Vol. I, at 223:2-19 (acknowledging that a foster parent might find it “much easier . . . to seek out medications than to try other non-medication-based treatment to
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resolve” issues with respect to a child’s behavior) and 194:5-9 (noting that a foster parent “could
have a kid on medication for several weeks before [CD] even know[s] about it”).
Defendants’ argument that the likelihood that not all children in CD’s foster care custody
will be administered psychotropic drugs means that Plaintiffs have alleged only a “mere
possibility” of injury is, as a preliminary matter, addressed by the narrowed class definition that
Plaintiffs have adopted. Moreover, the possibility that not all children in the putative class may
actually suffer harm as a result of the policies and practices at issue does not defeat commonality.
The commonality requirement is satisfied where, as Plaintiffs allege here, Defendants’ policies
and practices uniformly subject members of the putative class to a substantial risk of serious harm.
See Postawko v. Missouri Dep’t of Corr., No. 16-4219-NKL, 2017 WL 3185155, at *8 (W.D. Mo.
July 26, 2017) (holding that every individual in a putative class “suffers exactly the same
constitutional injury when he is exposed to a single statewide . . . policy or practice that creates a
substantial risk of serious harm,” even if “a presently existing risk may ultimately result in different
future harm for different [class members] ranging from no harm at all to death”) (quoting Parsons
v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014));2 see also DeBoer v. Mellon Mortg. Co., 64 F.3d 1171,
2 The Court has previously rejected the “contention that Parsons somehow erroneously departs from long-standing Eighth Amendment precedent.” Postawko, 2017 WL 3185155, at *8 n.8 (quotation marks omitted). Moreover, the only other federal appellate courts to have discussed Parsons cite it approvingly. See Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 552–57 (7th Cir. 2016), reh’g and suggestion for reh’g en banc denied (Aug. 3, 2016) (noting that, “[a]s Parsons suggests, a class action probably could be brought where plaintiffs presented some evidence that a prison had a policy that regularly and systemically impeded timely examinations” or “where evidence suggested that a prison had such a consistent pattern of egregious delays in medical treatment that a trier of fact might infer a systemic unconstitutional practice”); In re D.C., 792 F.3d 96, 102 (D.C. Cir. 2015) (denying petition to permit appeal of class certification, noting that “Rule 23(b)(2) was intended for civil rights cases”) (citing, inter alia, Parsons, 754 F.3d at 686); see also Civil Rights Educ. & Enf’t Ctr. v. Hosp. Properties Tr., 867 F.3d 1093, 1105 (9th Cir. 2017) (distinguishing Parsons because it involved “a common policy or practice” whereas the plaintiff in the case before that court had not alleged “[i]ntentional noncompliance”). The Court therefore rejects Defendants’ argument that the Court should not rely on the “logic” of Parsons.
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1174 (8th Cir. 1995) (holding that claims of differing strengths do not preclude a finding of commonality where, although class members may face differing circumstances, they nonetheless are interested in a “satisfactory common course of conduct”).
The Court also is not convinced that the “near term policy or practice changes” that Defendants claim they “are poised to make” should defeat class certification. Defendants’ anticipated implementation of an electronic tool “to collect, aggregate, and analyze medication data,” an initiative in partnership with the University of Missouri’s Psychiatric Center to “enhance [CD’s] clinical infrastructure by providing access to additional child psychiatrists, psychologists, nurses, or case managers with foster care expertise to evaluate psychotropic prescriptions for children,” an electronic health record system that “will pull medical data on foster children, including data on psychotropic medications, directly from the records of physicians and other sources,” or a revised policy on informed consent (Doc. 145, at 10) may go to the merits of this case. But these potential changes—none of which apparently has been implemented as yet—are not sufficient to defeat certification of a class of plaintiffs who are affected by the policies and practices currently in effect. See Amgen, 133 S. Ct. at 1194-95 (holding that courts may consider “[m]erits questions ... only to the extent[ ]that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied”); Zurn Pex Plumbing Prod., 644 F.3d at 613 (holding that a court’s inquiry on a motion for class certification is “preliminary” and “limited”).
In light of the common legal and factual questions at the heart of this litigation, the Court finds that the commonality requirement is satisfied.
3. Typicality The typicality requirement is met when the claims or defenses of the representative party are typical of those of the class. Fed. R. Civ. P. 23(a)(3). In determining typicality, courts consider
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whether the named plaintiff’s claim “arises from the same event or course of conduct as the class
claims, and gives rise to the same legal or remedial theory.” Alpern v. UtiliCorp United, Inc., 84
F.3d 1525, 1540 (8th Cir. 1996). The requirement “is fairly easily met so long as other class
members have claims similar to the named plaintiff.” DeBoer, 64 F.3d at 1174.
Plaintiffs’ claims and the claims of the proposed class arise from the same course of
conduct—the maintenance (or lack) of adequate medical records, a system of oversight for
outlying prescriptions of psychotropic drugs, and policies and procedures to obtain informed
consent from neutral decision-makers. As children in CD’s foster care custody who are or will be
prescribed or administered psychotropic drugs, the named plaintiffs and the putative class
members are all subject to the same policies and procedures, and therefore are all, allegedly,
subject to a substantial risk of harm.
Defendants argue that the named plaintiffs’ claims are not typical because each named
plaintiff is subject to a unique defense. However, regardless of whether the named plaintiffs have
mental or physical health problems that are unusually severe, or whether their juvenile court
proceedings address psychotropic medications, or when each child came into CD’s foster care
custody,3 each continues to be subject to the same policies and procedures—or lack thereof—that
3 Plaintiff A.H.’s claim would only be barred by the statute of limitations if the alleged violations ceased more than five years ago. See Mo. Rev. Stat. §§ 516.120.4 (providing for five-year statute of limitations for personal injury claims) and 516.100 (“[T]he cause of action shall not be deemed to accrue when the wrong is done . . . , but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.”). Plaintiffs allege that Defendants continue to violate Plaintiff A.H.’s constitutional rights. Her claims therefore are not time-barred. See Montin v. Estate of Johnson, 636 F.3d 409, 415 (8th Cir. 2011) (“Not every plaintiff is deemed to have permanently sacrificed his or her right to obtain injunctive relief merely because the statute of limitations has run as measured from the onset of the objected-to condition or policy. . . . This is particularly true where it is appropriate to describe each new day under an objected-to policy as comprising a new or continuing violation of rights, as in the context of an
15
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allegedly creates a substantial risk of harm. Plaintiffs are not litigating whether the named Plaintiffs should have been administered psychotropic drugs; rather, they are litigating whether Defendants are obligated to provide additional safeguards against the improper administration of psychotropic medications to children in foster care, an issue that equally concerns all of the named plaintiffs and the members of the proposed class. The typicality requirement therefore is satisfied. See Lane v. Lombardi, No. 2:12-CV-4219-NKL, 2012 WL 5462932 (W.D. Mo. Nov. 8, 2012) (finding typicality where plaintiffs’ Section 1983 claim was “based on the same policy and proposed conduct of Defendants” as the claims of other putative class members); Rentschler v. Carnahan, 160 F.R.D. 114, 116 (E.D. Mo. 1995) (finding typicality requirement satisfied where plaintiffs and the putative class members were subjected to the “same allegedly unlawful policies and conditions” and their claims were “all based on the same legal theories, the same arguments of unconstitutionality”).
4. Adequacy Rule 23(a)(4) requires that the class representative and class counsel “fairly and adequately protect the interests of the class.” The adequacy requirement is met where: “(1) the representatives and their attorneys are able and willing to prosecute the action competently and vigorously; and (2) each representative’s interests are sufficiently similar to those of the class that it is unlikely that their goals and viewpoints will diverge.” Carpe v. Aquila, Inc., 224 F.R.D. 454, 458 (W.D. Mo. 2004) (internal quotes omitted). This requirement “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997).
Eighth Amendment claim for cruel or unusual punishment or a discrimination claim alleging ongoing implementation of a discriminatory wage scheme.”).
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As a preliminary matter, the legal issues presented are the same for every potential plaintiff, so the Plaintiffs’ interests are substantively identical to those of the other potential class members. See Wal-Mart, 564 U.S. at 349, n. 5 (noting that the requirements of typicality and adequacy “tend to merge”).
Further, the parties stipulated to the appointment of the Next Friends representing the named plaintiff children (Doc. 61), and the Court so-ordered the appointments (Doc. 69). The Next Friends are participating in this litigation to improve the care of children in Missouri’s foster care custody. See Doc. 36-1 (Declaration of Ericka Eggemeyer, Next Friend for M.B.), ¶ 3; Doc. 36-3 (Declaration of Kris Dadant, Next Friend for K.C.), ¶¶ 3-4. Defendants do not dispute that the Next Friends are capable and committed.
Moreover, defendants do not dispute that Plaintiffs’ counsel can adequately represent the proposed class members. Plaintiffs’ counsel have been prosecuting this action competently and vigorously. They are qualified and experienced, including with respect to issues surrounding children’s rights and class actions. Doc. 113-12 (Declaration of Sara M. Bartosz in Support of Plaintiffs’ Motion for Class Certification), ¶¶ 3-5; Doc. 113-13 (Declaration of Leecia Welch in Support of Plaintiffs’ Motion for Class Certification), ¶¶ 2-6; Doc. 113-14 (Declaration of Scott T. Schutte in Support of Plaintiffs’ Motion for Class Certification), ¶¶ 3-5; Doc. 113-15 (Declaration of John J. Ammann), ¶¶ 2-7. Before filing this lawsuit, Children’s Rights attorneys spent nearly two years investigating the oversight of psychotropic medications in the Missouri child welfare system—testament to their diligence and dedication. Doc. 113-12 (Bartosz Decl.), ¶ 6. Counsel for the Plaintiffs have the resources required to represent the class. See Doc. 113-12 (Bartosz Decl.), ¶ 8; Doc. 113-13 (Welch Decl.), ¶ 7; Doc. 113-14 (Schutte Decl.), ¶ 6; Doc. 113-
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15 (Ammann Decl.), ¶ 8. The proposed class counsel is well equipped to vigorously represent the plaintiffs in this action.
For these reasons, the Court finds that the adequacy requirement is satisfied.
b. Rule 23(b) A class must satisfy at least one of the requirements of Rule 23(b), in addition to the requirements of Rule 23(a), in order to merit certification. Fed. R. Civ. P. 23. “Certification is appropriate under subsection (b)(2) if classwide injunctive relief is sought when the defendant ‘has acted or refused to act on grounds generally applicable to the class.’” DeBoer, 64 F.3d at 1175 (quoting Fed. R. Civ. P. 23(b)(2)). “If the Rule 23(a) prerequisites have been met and injunctive or declaratory relief has been requested, the action usually should be allowed to proceed under subdivision (b)(2).” Id. (quotation marks and citation omitted). Moreover, “[b]ecause one purpose of Rule 23(b)(2) was to enable plaintiffs to bring lawsuits vindicating civil rights, the rule ‘must be read liberally in the context of civil rights suits.’” Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980) (citation omitted). Plaintiffs allege that Defendants, applying policies and practices uniformly across the class, “acted or refused to act on grounds that apply generally to the class.” Fed. R. Civ. P. 23(b)(2). Plaintiffs seek “final injunctive relief or corresponding declaratory relief . . . respecting the class as a whole.” Id. Because “a single injunction or declaratory judgment would provide relief to each member of the class,” Rule 23(b)(2) is satisfied. Dukes, 564 U.S. 338, 360.
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IV. CONCLUSION For the foregoing reasons, Plaintiffs’ motion for class certification is GRANTED. The
Court certifies a class of plaintiffs consisting of: all children in Children’s Division foster care custody who presently are, or in the future will be, prescribed or administered one or more psychotropic medications while in state care. s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge
Dated: July 19, 2018 Jefferson City, Missouri
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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

M.B. by his next friend Ericka Eggemeyer, et al.,
Plaintiffs, v. Jennifer Tidball, et al.,
Defendants.

)

)

)

)

)

)

Case No. 2:17-cv-04102-NKL

)

)

)

)

ORDER GRANTING PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT, SETTING HEARING, AND DIRECTING CLASS NOTICE
This matter comes before the Court on the parties’ Joint Motion for Preliminary Approval of Class Action Settlement and Suggestions in Support (the “Joint Motion”). The parties request the Court’s preliminary approval of a settlement agreement to this class action (the “Settlement Agreement”) reached between Defendants and the Class certified by the Court of children in the custody of the Children’s Division (“CD”) of the Missouri Department of Social Services (“DSS”). In their Joint Motion, the parties move the Court to (a) preliminarily approve the Settlement Agreement; (b) authorize and approve the form and manner of a Notice of Proposed Class Action Settlement to be sent to Class members; (c) set the deadline for written submissions by persons who are Class members, or legal representatives of Class members, who wish to be heard in favor of or in objection to the Settlement Agreement; and (d) set the date for a fairness hearing in accordance with Rule 23(e).

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The Court has preliminarily reviewed and evaluated the proposed Settlement Agreement and finds that it falls within the range of possible approval. Accordingly, the Joint Motion is GRANTED and the Court orders as follows:
1. Preliminary Approval of the Parties’ Settlement Agreement Taking into account the applicable standard, the Court finds that the Settlement Agreement
is worthy of the Class’s consideration. It falls within the range of possible approval, as required by Rule 23. The Court therefore grants preliminary approval of the Settlement Agreement; approves the Notice of Proposed Class Action Settlement, a copy of which is attached to this order, and orders that the Notice be directed to Class members and their legal representatives; and orders a hearing to be scheduled, as provided below, to ascertain whether the proposed Settlement Agreement meets the standards required for final approval under Rule 23(e).
2. Hearing A hearing shall be held in Courtroom 8B at the Charles Evans Whittaker U.S. Courthouse,
400 East 9th Street, Kansas City, Missouri 64106 at 9:00 A.M. on November 20, 2019, to consider whether the proposed Settlement Agreement is fair, reasonable, and adequate and should receive the Court’s final approval pursuant to Rule 23(e).
a. Objections, support, or comments by Class members, or their legal representatives, regarding the proposed Settlement Agreement will be considered if submitted by U.S. Mail or email on or before October 23, 2019 to either: i. Children’s Rights, Attn: Samantha Bartosz, 88 Pine Street, Suite 800, New York, NY 10005, sbartosz@childrensrights.org; or ii. St. Louis University Legal Clinic, Attn: Professor John Ammann, 100 North Tucker, Suite 704, St. Louis, MO 63101, john.ammann@slu.edu
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b. Class members, or their legal representatives, who wish to be heard orally in support of or in opposition to the proposed Settlement Agreement at the hearing must submit with their objections, support, or comments, as described in Paragraph (a) above, a written notification of their desire to appear personally and briefly indicate (if in opposition to the settlement) the nature of the opposition on or before October 23, 2019.
c. Counsel for the Class will provide counsel for Defendants any objections, support, or comments received from Class members, their legal representatives, or any other person, entity, or interested party regarding the proposed Settlement Agreement and any information received in relation to Paragraph (b) within five days of receipt.
d. Counsel for the Class and for Defendants shall be prepared at the hearing to respond to objections filed by Class members, or their legal representatives, and to provide other information, as appropriate, bearing on why the Settlement Agreement should be approved.
3. Notice to Class Members The Notice of Proposed Class Action Settlement in M.B., et al. v. Tidball, et al., attached
hereto as Exhibit A (the “Notice”), is approved. Nothing in this order requires Defendants to respond or provide legal advice to any member of the Class, any guardian ad litem or advocate, or any other person or entity in connection with the Settlement Agreement. Defendants may refer any outside inquiries or questions about the Settlement Agreement to Class counsel or a Class member’s guardian ad litem.
On or before August 21, 2019, Defendants shall, at their sole expense, take the following steps to notify Class members and their legal representatives of the proposed Settlement Agreement, as follows:
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a. Defendants shall prominently post a copy of this order and the Notice on the DSS/CD website and maintain that posting on the website until October 23, 2019.
b. Defendants shall transmit a copy of the Notice, and may transmit one or more accompanying letters signed by an authorized representative of DSS or CD (where appropriate, Defendants may request in any letter that recipients share information with Class members in their care, leaving it to recipients to determine what communications are warranted in light of a child’s age, a child’s development, or other circumstances) to the persons and locations listed below. i. Defendants will email to the case management staff of CD a copy of the Notice, along with a link to the Settlement Agreement. ii. Defendants will post the Notice in the CD main office, CD regional offices, and each county office in a conspicuous place. iii. Defendants will send via email (or U.S. Mail if only a mailing address is available) the Notice and any accompanying letter to the Missouri Office of State Court Administrator. iv. Defendants will send via email (or U.S. Mail, if only a mailing address is available) the Notice and any accompanying letter to each contractor providing Foster Care Case Management services to Class members. v. Defendants will send via email (or U.S. Mail, if only a mailing address is available) the Notice and any accompanying letter to the last known email (or mailing) address for the parent(s) of a child for whom their parental rights have not been terminated and to the last known email (or mailing) address of any relative placement of any
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Class member. For purposes of this order, the last known e-mail address or mailing address refers to the address in the records of CD. vi. Defendants will send via email (or U.S. Mail, if only a mailing address is available) the Notice and any accompanying letter to the current email (or mailing) address of record of all placement providers (including, at a minimum, foster, pre-adoptive, and relative caregivers) for children in CD custody. vii. Defendants will send via email (or U.S. Mail, if only a mailing address is available) the Notice and any accompanying letter to the current email (or mailing) address of record of all children in an independent living arrangement or currently enrolled in the Transitional Living Program. c. As to the following, Defendants will send via email (or U.S. Mail, if only a mailing address is available) the Notice, ask that the Notice be disseminated to staff and posted in locations most likely to be seen by Class Members and/or their legal representatives, and ask that the information remain posted until October 23, 2019: i. The Presiding Judge of each Missouri Circuit Court, or if the Circuit has a Family or Juvenile Court, the Presiding Judge of the Juvenile or Family Court; ii. The office of the Chief Juvenile Officer for each Missouri judicial circuit; iii. To each congregate care placement, group home, residential counseling center, residential treatment center, and child placing agency utilized by Defendants; iv. The office of Missouri guardians ad litem, if a formal office exists in a particular judicial circuit; v. The office of Missouri Court Appointed Special Advocates, if a formal office exists in a particular judicial circuit; and
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vi. The Missouri Bar Association. d. Counsel for the Class will submit to the Court all written submissions received from Class
members, their legal representatives, or other interested parties, and any written responses to such submissions, on or before November 6, 2019. e. Defendants will file with the Court, on or before August 28, 2019, an affidavit certifying compliance with the notice requirements of this order.

IT IS SO ORDERED:
Dated: July 15, 2018 Jefferson City, Missouri

s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

M. B., by his next friend ERICKA EGGEMEYER, et al.,
Plaintiffs, v. JENNIFER TIDBALL, et al.,
Defendants.

) ) ) ) ) ) Case No. 17-04102-CV-C-NKL ) ) ) )

REPORT AND RECOMMENDATION Pending before this Court is the parties’ Join Motion for Final Approval of Class Action Settlement and Suggestions in Support. (Doc. #304.) Previously, on July 15, 2019, the Court entered an Order Granting Preliminary Approval of Settlement Agreement, Setting Hearing, and Directing Class Notice. (Doc. #282.) Pursuant to Magistrate Act, 28 U.S.C. § 636, and Local Rule 72.1, the Honorable Nanette K. Laughrey, United States District Judge, referred the matter to the undersigned judge for purposes of conducting the final fairness hearing. (Doc. #309.) On November 20, 2019, the undersigned conducted a final fairness hearing pursuant to Rule 23 of the Federal Rules of Civil Procedure. The Court makes the following findings and recommendations: On June 12, 2017, Plaintiffs filed their Complaint for Injunctive and Declaratory Relief and Request for Class Action. (Doc. #1.) Plaintiffs identified the class as “all children under the age of eighteen who are or will be placed in the foster care custody of the state of Missouri following reports that they have suffered child abuse or neglect.” (Doc. #1 at ¶63.) Plaintiffs alleged violations of Plaintiffs’ substantive and procedural due process rights under the United States Constitution. (Doc. #1 at ¶¶125-134.) An Amended Complaint was filed on July 3, 2017. (Doc. #22.) The class was similarly defined in the Amended Complaint and brought both

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substantive and procedural due process claims as well as an added claim for violation of Plaintiffs’ rights under the Federal Adoption Assistance and Child Welfare Act, 42 U.S.C. §§ 621 et seq., 670 et seq. (Doc. #22, ¶¶67, 130-143.) Plaintiffs sought only declaratory and injunctive relief.
Defendants filed a Motion to Dismiss the First Amended Complaint. (Doc. #33.) On January 8, 2018, the Court issued an order denying Defendants’ motion “as to the substantive due process claim, except that claims relating to informed consent are dismissed without prejudice and denied as to the procedural due process claim. The motion to dismiss is granted with prejudice as to the claim alleging violation of the Child Welfare Act.” (Doc. #91 at 33.) Thereafter, Defendants filed an Answer to the First Amended Complaint and a subsequent Amended Answer. (Doc. ##98, 102.)
After extensive briefing on the motion for class certification (Docs. ##113, 144, 154), the Court issued an order certifying the class on July 19, 2018. (Doc. #183.) The class consists of “all children in Children’s Division foster care custody who presently are, or in the future will be, prescribed or administered one or more psychotropic medications while in state care.” (Doc. #183 at 19.) On August 3, 2018, Defendants filed a Petition for Permission to Appeal Order Granting Class Action Certification, which was granted on August 22, 2018. (Doc. ##192, 199.) The interlocutory appeal is fully briefed and was argued to the Eighth Circuit on April 18, 2019. (Doc. #304 at 6.) The parties notified the Eighth Circuit of the settlement agreement and the Eighth Circuit issued a stay of appeal pending the district court’s decision on the parties’ motion for approval of the settlement agreement. (Doc. #281.) The parties intend to formally dismiss or otherwise resolve the appeal upon final approval of the Settlement Agreement. (Doc. #304 at 2, n. 1.)
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The parties participated in a mediation session in late 2017 with Professor James Levin at the University of Missouri. (Doc. #304 at 2.) On June 14, 2018, the Court entered an order directing the parties to participate in mediation before the Director of the Mediation and Assessment Program, Jill Morris. (Doc. #174.) Under the guidance of Director Morris, the parties engaged in multiple mediation sessions and engaged outside experts to assist in the negotiations. (Doc. #304 at 3; Doc. #312 at 11-12.) The resulting Settlement Agreement is a well-informed, comprehensive agreement with concrete benchmarks. (Doc. #304-1 at 2-35.)
The Settlement Agreement calls for the following: specific training on psychotropic medications for staff and resource providers (Doc. #304-1 at 7-8); medication monitoring (Doc. #304-1 at 9); the development and operation of systems to maintain medical records, as well as to make such records available to the child’s treatment team (Doc. #304-1 at 9-11); a secondary review process for prescriptions of psychotropic medications prescribed to children in the legal custody of the Children’s Division (Doc. #304-1 at 11-15); the development of policies governing informed consent and informed assent (Doc. #304-1 at 15-21); the creation and maintenance of a Psychotropic Medication Advisory Committee (Doc. #304-1 at 21-23); and the development and implementation of excessive dosage guidelines (Doc. #304-1 at 23-24). The Settlement Agreement further provides for data validation, enforcement of the Settlement Agreement and criteria for exit from certain provisions of the Settlement Agreement and for requesting termination of Court jurisdiction over the Settlement Agreement. (Doc. #304-1 at 24-28.) Finally, the Settlement Agreement contemplates dismissal of Plaintiffs’ remaining claims against Defendants with the Court retaining jurisdiction for purposes of enforcing the terms of the Settlement Agreement. (Doc. #304-1 at 4.)
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On July 15, 2019, the Court, in consideration of the parties’ Joint Motion for Preliminary Approval of Class Action Settlement and Suggestions in Support (Doc. #280), entered an order granting preliminary approval of the Settlement Agreement, approving of the Notice of Proposed Class Action Settlement as well as the manner in which notice was to be provided to Class members, and set the date for the final fairness hearing pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. (Doc. #282 at 2.)
On November 6, 2019, the Parties filed a Joint Motion for Final Approval of Class Action Settlement and Suggestions in Support, in which they request that the Court enter final approval of the Settlement Agreement. (Doc. #304.) On November 20, 2019, the undersigned held a final fairness hearing pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.
At the hearing, the undersigned heard argument in support of the Settlement Agreement and heard from ten class members and/or stakeholders. (Doc. #312.) The witnesses conveyed their experience with the child welfare system and the use of psychotropic medication in the system. (Doc. #312 at 21-51.) In response to many of the witnesses, counsel detailed how the Settlement Agreement addressed the witnesses’ concerns. (Doc. #312 at 22-23, 25-26, 31-34, 3740, 42, 44-46, 51-53.) One witness, Al Greimann,1 Executive Vice President, Compass Health Network, President/Chief Executive Officer at Royal Oaks Hospital, and Chair of the Missouri Hospital Association Network of Inpatient Psychiatric Hospitals/Units, testified about his hospital’s experience dealing with juveniles in the custody of Children’s Division who require inpatient psychiatric hospitalization and the use of psychotropic drugs during the hospitalization. (Doc. #312 at 27-30.) Mr. Greimann noted that in recent months he and others have met with the
1 Mr. Greimann provided the undersigned with his written testimony, much of which he read from while testifying. The written testimony has been added as Court Exhibit #1.
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Children’s Division to discuss these issues. (Doc. #312 at 31.) In response, he and other leaders from the Missouri Hospital Association were invited to participate in the Psychotropic Medication Advisory Committee, which was created as a result of the Settlement Agreement. (Doc. #312 at 31.) The undersigned did not hear from anyone opposed to the Settlement Agreement.
At the hearing, the undersigned inquired as to whether the parties wished to waive the 14day period within which to object to a Report and Recommendation, and the parties waived the 14-day period for objection period. (Doc. #312 at 53-54.)
After hearing the evidence and arguments of counsel and reviewing the pleadings and filings, the undersigned recommends that the Court, after making an independent review of the record and applicable law, enter an order:
1. Finding the Settlement Agreement is fair, reasonable, and adequate in light of the benefits to the Class Members, the complexity, expense and probable duration of further litigation, the inherent risk and delay in litigation and the appeals process, and the benefit to the public interest;
2. Approving and executing the Settlement Agreement and enter the Settlement Agreement as a final judgment and order of the Court;
3. Dismissing the action with prejudice; and 4. Retaining jurisdiction for purposes of enforcing the terms as set forth in the Settlement Agreement.
/s/ Lajuana M. Counts LAJUANA M. COUNTS UNITED STATES MAGISTRATE JUDGE
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 EXHIBIT 1
Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 1 of 75

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

M.B. by his next friend Ericka Eggemeyer, et al.,
Plaintiffs, v. Jennifer Tidball, et al.,
Defendants.

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)

Case No. 2:17-cv-04102-NKL

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JOINT SETTLEMENT AGREEMENT

It is hereby agreed, upon the stipulation and agreement of the parties, through the undersigned, that this action is settled, subject to the approval and continuing jurisdiction of the United States District Court for the Western District of Missouri, on the following terms and conditions:

I. Definitions. The following terms are defined as follows for purposes of this Settlement Agreement (“Agreement”):
A. “Case File” or “Case Record” refers to the paper record and/or electronic record established and maintained by the Children’s Division pertaining to a member of the class.
B. The “Case Manager” or “Case Management Staff” refers to the Children’s Division or Foster Care Case Management Agency staff member(s) assigned to manage the case of the child in foster care and/or the Case Manager’s supervisor.
C. “Child” or “Children” refers to all persons under the age of 18 in Children’s Division foster care custody.
D. “Children’s Division” or “CD” refers to the Children’s Division of the Department of Social Services, established by MO. REV. STAT. Chapters 207, 210, 660.
E. “Defendants” as used in this Agreement refers to all defendants in the case of M.B., et al. v. Tidball, et al., Civil Action Number 2:17-cv-04102-NKL, including but not limited to

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Jennifer Tidball, in her official capacity as Acting Director of the Missouri Department of Social Services, and David Kurt, in his official capacity as Director of the Children’s Division (Directors Tidball and Kurt may also be referred to in this Agreement as the “Defendant State Officials”).
F. “Department of Social Services” or “DSS” refers to the Missouri Department of Social Services established under Mo. Const. art. IV, § 37 and MO. REV. STAT. Chapter 660.
G. “Foster Care Case Management” refers to entities contracted with DSS and/or CD pursuant to MO. REV. STAT. Chapter 210.112, to provide case management services to children placed in CD custody pursuant to MO. REV. STAT. Chapters 207.020.1(17), 210.181, by an order of the juvenile or family court pursuant to MO. REV. STAT. Chapter 211.
H. “Missouri Foster Care Program” refers to 24-hour substitute care for children placed away from their parents or placed in CD custody pursuant to MO. REV. STAT. Chapters 207.020.1(17), 210.181, by an order of the juvenile or family court pursuant to MO. REV. STAT. Chapter 211. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency shelters, residential facilities, child care institutions, and preadoptive homes.
I. “MO HealthNet Division” or “MHD” refers to the MO HealthNet Division of DSS established by MO. REV. STAT. Chapter 208 and 660. MO HealthNet is Missouri’s medical assistance program on behalf of needy persons pursuant to the Title XIX, Public Law 89-97, 1965 amendments to the federal Social Security Act, 42 U.S.C. § 301 et seq.
J. “Plaintiffs,” “the Class,” “Class Members,” or “Members of the Class,” as used in this Agreement, refer(s) to “all children in Children’s Division foster care custody who presently are, or in the future will be, prescribed or administered one or more Psychotropic Medications while in state care” as the class certified by Judge Nanette K. Laughrey on July 19, 2018, in the case of M.B., et al. v. Tidball, et al., Civil Action Number 2:17-cv-04102-NKL.
K. “Psychotropic Medication” refers to pharmaceutical drugs included in the following drug classes: (1) Antipsychotics, (2) Antidepressants, (3) Lithium, (4) Stimulants, (5) Alpha agonists (e.g., clonidine or guanfacine), (6) Anxiolytics/hypnotics (e.g., benzodiazepines and nonbenzodiazepines), and (7) Anticonvulsants/mood stabilizers.
L. “Qualified Psychiatrist” refers to a board-certified child and adolescent psychiatrist identified by CD to, among other duties, conduct medication reviews as described in this Agreement. As set forth in this Agreement, the role of the Qualified Psychiatrist may be filled by a board-eligible child and adolescent psychiatrist or a board-certified adult psychiatrist as described in Sections III.D.1-2.
M. “Relative Provider” refers to a grandparent or any other person related to another by blood or affinity or a person who is not so related to the Child but has a close relationship with the Child or the Child’s family. The status of a grandparent shall not be affected by the death or the dissolution of the marriage of a son or daughter.
N. “Resource Provider” refers to individuals providing foster care to children placed in the legal custody of CD in a foster family home or foster family group home. Consistent with
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MO. REV. STAT. Chapters 210.565, 210.660 and 13 C.S.R. Chapters 35-60.010(1), this definition does not apply to residential placements and in-patient hospitals.
O. “Statewide Clinical Consultant” refers to the entity identified by CD to coordinate medical and behavioral aspects of pediatric care for CD, which will include, if available as described elsewhere in this Agreement, a Qualified Psychiatrist.
II. Recitals
A. The provisions of this Agreement resolve all existing disputes in the case of M.B., et al. v. Tidball, et al., Civil Action Number 2:17-cv-04102-NKL and satisfy and resolve the claims of the Named Plaintiffs and the Plaintiff Class for injunctive and declaratory relief in the above-entitled case as of the date of this Agreement.
B. This Court has subject matter jurisdiction and personal jurisdiction over this action and, therefore, the authority to enter an order approving this Agreement.
C. Upon approval of this Agreement, this Court shall have continuing jurisdiction over this action to enforce and ensure compliance with the terms of the Agreement for as long as the Agreement remains in effect, including through the exercise of its contempt power.
D. Any Missouri state agency designated as the Title IV-E agency responsible for the care, protection, and/or supervision of Plaintiff Class Members shall be bound by the provisions of this Agreement to the extent authorized by law. For as long as this Agreement remains in effect, all provisions of this Agreement referring to the “Department of Social Services,” “DSS,” “Children’s Division,” or “CD,” shall apply to any successor Departments, Divisions, or agencies. It is further understood that DSS and/or CD shall include in their contracts with private child placing agencies a provision requiring that private agency Case Managers meet the requirements contained in this Agreement in relation to the Case Manager function and shall monitor their compliance with those contracts.
E. This Agreement, along with any or all of its provisions, is not, and shall not be construed to be, an admission of liability on the part of any Defendant, including DSS, CD, and the Defendant State Officials, concerning any of the claims and allegations in the complaint in this litigation. Defendants expressly reaffirm their position that DSS’s policies and procedures do not violate and have not violated the constitutional rights of the Plaintiff Class as a whole or individual members of the Plaintiff Class as alleged in Plaintiffs’ complaint. Defendants believe that this Agreement is part of a compromise and therefore involves activities, changes to policies, and changes to procedures that are not mandated by, and which go beyond, the requirements of any substantive and procedural components of the Due Process Clause of the United States Constitution. As discussed elsewhere in the Agreement, Defendants reserve the right to raise these issues at any time, including in any proceeding to enforce this Agreement or any proceeding for modification of or relief from this Agreement.
F. All of the terms and conditions of this Agreement are contained herein, and the parties do not intend to create or imply any commitments that are not set forth herein.
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G. CD, from time to time, promulgates and publishes policies relating to its work on behalf of the children in its custody. Defendants may introduce or modify policies and procedures that are necessary for the protection of children and families served by DSS, MHD, and CD consistent with this Agreement, or are otherwise necessary to comply with or implement any changes in federal or state law. In entering this Agreement, Plaintiffs do not endorse any current or future CD policies; rather, this Agreement is a compromise of disputed matters between the parties, the terms and conditions of which are strictly set forth herein.
H. Defendants do not speak for the Missouri Legislature, which has the power under Missouri law to determine the appropriations for the State of Missouri, including Missouri's child welfare and Medicaid programs. However, at least annually after Court approval of this Agreement, and consistent with existing state budgetary practices and legal requirements, Defendants shall request state funds and any federal/special fund authorization Defendants determine sufficient to effect the provisions and outcome measures set forth in this Agreement in connection with any budget, funding, or allocation request to the executive or legislative branches of State government.
I. The parties acknowledge that this Agreement shall be controlled by and implemented in accordance with the United States Constitution and federal law and is subject to federal court supervision and enforcement. The parties further acknowledge that this Agreement will be implemented consistent with the Missouri Constitution and state law insofar as the provisions of the Missouri Constitution and state law do not conflict with controlling federal law.
J. This Agreement shall constitute the entire integrated Agreement of the parties. No prior or contemporaneous communications, oral or written, will be relevant or admissible for purposes of determining the meaning of any provisions herein in this matter or in any other proceeding. Amendments to this Agreement may be made upon mutual agreement and signature of the parties, and approval of the Court.
K. No delay or omission by any party in exercising any of their rights under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by a party on any one occasion is effective only in that instance and will not be construed as a bar or waiver of any right on any other occasion, unless otherwise agreed in writing.
L. The parties and their counsel have mutually contributed to the preparation of this Agreement. Accordingly, no provision of the Agreement shall be construed against any party on the grounds that one of the parties or its counsel drafted the provision.
M. The Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties hereto.
N. DSS may, in its discretion, engage one or more contractors for purposes of conducting the activities set forth in this Agreement. As of the commencement date of this Agreement, DSS, on behalf of CD, has contracted with the University of MissouriColumbia to constitute a Center for Excellence within its Department of Psychiatry to undertake responsibilities which include making recommendations to CD on the development and implementation of policy for conducting certain secondary reviews and to conduct certain secondary reviews, consistent with the terms of this Agreement. The
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contract is attached as Exhibit A for illustrative purposes only. Nothing in this Agreement shall be construed to state or imply that Plaintiffs are third party beneficiaries to the contract or have any right to enforce the contract with the Center for Excellence. Nothing in this Agreement shall be construed to imply that the contract with the Center for Excellence is incorporated by reference in or enforceable through this Agreement.
O. DSS and CD shall maintain sufficient records to document compliance with all of the requirements of this Agreement as provided in the “M.B. vs. Tidball Settlement Agreement: Exit Criteria and Data Sharing Chart.” The chart is attached hereto and incorporated by reference herein as Exhibit B. During the period of this Agreement, DSS and CD shall maintain all records required by or developed under this Agreement. These records may be kept as physical copies or in an electronic format at the discretion of Defendants.
P. The parties agree that Plaintiffs are prevailing parties, at least in part, pursuant to 42 U.S.C. § 1988, provided that this Agreement does not limit or foreclose any argument Defendants may wish to make as to the amount of any award of attorneys’ fees and costs, including but not limited to arguments that the amount of fees or costs should be zero or should otherwise be reduced because of the degree of success Plaintiffs achieved regarding a particular aspect, claim, or component of the case. Plaintiffs’ position is that they meet the definition of prevailing party under the statute and case law as to all aspects, claims or components of the case, and that this Agreement does not limit or foreclose any argument Plaintiffs may wish to make in support of that position. Plaintiffs and Defendants otherwise reserve all rights with respect to expenses in connection with this litigation, including reasonable attorneys’ fees and nontaxable costs, as permitted by 42 U.S.C. § 1988 and Fed. R. Civ. P. 23(h). The parties intend to submit the issue of expenses to the Court for a decision and order in the context of a contested motion.
Q. Nothing in this Agreement shall be construed to authorize or require the parties to release any personal information pertaining to individual Members of the Class, except as permitted by the Protective Order. The provisions of this Agreement are subject to all federal and state laws governing the confidentiality of information pertaining to Class Members and third parties such as parents, guardians, other family members, and resource parents. The Protective Order entered on March 6, 2018, Dkt. No. 106, shall remain in full force and effect for the duration of this Agreement unless amended by written agreement of the parties or modified by the Court.
R. Defendants’ obligation to collect and share medical and other confidential information with third parties is limited by and subject to federal and state laws and policies governing confidentiality, patient privacy, and access to medical records and other protected health information. Nothing in this Agreement shall be construed to require Defendants to collect and distribute health records (including protected health information as defined in the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1320d et seq.) and other confidential records of individuals other than the records of the Child.
S. The parties agree that the provisions of this Agreement are limited in scope to resolving the federal constitutional claims of Plaintiff Children in the case of M.B., et al. v. Tidball,
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et al., Civil Action Number 2:17-cv-04102-NKL, for injunctive and declaratory relief concerning the administration of Psychotropic Medications to Plaintiff Children.
T. This Agreement is intended to provide a class-wide solution to specific issues covered by the Agreement. Nothing in this Agreement is intended to, or shall be construed to provide, an individual right of action to enforce this Agreement to any other governmental entity (including the United States), third party, individual Class Member, individual, or group of Class Members. Nothing in this Agreement is intended to, or shall be construed to imply, any right of action, private or public, to enforce the provisions of Title IV-E of the Social Security Act or any other provision of federal or state law. Nothing in this Agreement shall apply to or shall be construed to provide a remedy in an individual case.
III. Specific Commitments
A. Staff and Training
1. CD shall maintain a full-time employee who shall be solely responsible for overseeing the implementation of policies and procedures concerning the use of Psychotropic Medications for Children in CD foster care.
2. Case Management Staff Training
a. CD shall ensure that all Case Management Staff (within the first six months of service or within six months of entry of this Agreement for all current employees) receive four hours of pre-service training on Psychotropic Medications, including, but not limited to, the definition and classes of Psychotropic Medications; Food and Drug Administration (“FDA”)-approved versus off-label use of such medications; the possible risks, benefits, and interactions of such medications; alternative forms of treatment; and CD’s policies with respect to informed consent, secondary review, and medical records. At least one hour of such training shall be part of the program currently known as Child Welfare Practice Training, or any successor training program. However, no Case Management Staff member will be authorized to provide informed consent unless and until he or she successfully completes this training and the informed consent policy training. Until such time an assigned supervisor shall fulfill the informed consent functions.
b. CD shall ensure that all Case Management Staff receive at least one hour of annual in-service training on Psychotropic Medications, including on any new, relevant developments, policies, and practices, for example, new known adverse effects or combinations of Psychotropic Medications.
c. CD shall ensure that if the training consists of a pre-recorded presentation, a process is in place for staff to be able to submit questions and receive answers to those questions.
d. Attendance at all trainings shall be documented and tracked.
e. Completion of pre-service and in-service trainings shall include successful completion of an examination testing the subject matter included in the training.
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3. Resource Provider Training
a. CD shall require as a condition of licensure that all Resource Providers licensed after the effective date of this Agreement receive two hours of pre-placement training on Psychotropic Medications, including, but not limited to, the definition and classes of Psychotropic Medications; FDA-approved versus off-label use of such medications; the possible risks, benefits, and interactions of such medications; alternative forms of treatment; and CD’s policies with respect to informed consent, secondary review, and medical records.
b. For Resource Providers with a valid license as of the date of this Agreement, CD shall encourage them to complete this training within six months of entry of this Agreement. CD shall further require successful completion of the training as a condition for renewal of the license.
c. CD shall require, as a condition of licensure, all licensed Resource Providers to complete at least one hour of annual in-service training on Psychotropic Medications, including on any new relevant developments, policies, and practices, pertaining to Psychotropic Medications, including but not limited to new, known adverse effects or combinations of Psychotropic Medications. CD shall offer all other, non-licensed Resource Providers the opportunity to attend and participate in the trainings offered in this section.
d. CD shall ensure that if the training consists of a pre-recorded presentation, a process is in place for Resource Providers to be able to submit questions and receive answers to those questions.
e. Completion of pre-placement and ongoing trainings shall include successful completion of an examination testing the subject matter included in the training.
f. Nothing in this Agreement shall be construed to require CD to require or ensure non-licensed Resource Providers complete the training, including Relative Providers who decline to become licensed or Resource Providers designated by order of a court.
g. Nothing in this Agreement shall be construed to require CD to remove a Child from a placement if the Resource Provider does not complete the training.
4. CD shall, as needed but at least twice per year, offer interactive webinar trainings on Psychotropic Medications to the child welfare community serving children in Missouri, including foster care staff, Resource Providers, Court Appointed Special Advocates (“CASA”), guardians ad litem (“GAL”), and attorneys for children and parents.
5. CD shall maintain sufficient Case Management Staff, subject to state budget, appropriations, and authority to increase the number of state full-time employees, to perform the functions assigned to them in CD policy related to Psychotropic Medications, including but not limited to, informed consent and engagement in the secondary review process where indicated. CD shall use the following tools to assess staffing levels:
a. CD shall conduct an annual survey of a statistically representative sample of Case Management Staff to assess their ability to perform the functions assigned to them in CD policy related to Psychotropic Medications. CD will post the results of the
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survey on CD’s website, with notice to Plaintiffs’ Counsel. The results of the survey shall be published on or before February 15 for the previous calendar year.
b. CD shall conduct an annual survey of a statistically representative sample of Resource Providers and prescribers (and others as CD deems appropriate), to assess the availability of Case Managers for the purposes of providing informed consent, getting Children to medical appointments, and engaging in secondary review. CD will post the results of the survey on CD’s website, with notice to Plaintiffs’ Counsel. The results of the survey shall be published on or before February 15 for the previous calendar year.
B. Medication Monitoring
1. Every Child shall have a mental health assessment with a DSM-based diagnosis documented in the Child’s Case File prior to being prescribed a Psychotropic Medication. In the case of a Child who comes into CD foster care with an existing Psychotropic Medication prescription, CD may continue to administer such medication until the necessary evaluations have been made.
2. Every Child prescribed a Psychotropic Medication shall have medical examinations as indicated by the current Bright Futures/American Academy of Pediatrics “Recommendation for Preventive Pediatric Health Care,” or “periodicity schedule,” or more frequently if recommended by the prescriber.
3. Every Child prescribed a Psychotropic Medication for ongoing use (more than a single dose) shall have, documented in the Child’s Case File, monitoring appointments with a prescriber at least every three months, or more frequently if indicated by the prescriber.
4. Every Child prescribed a Psychotropic Medication shall receive concurrent nonpharmacological treatment at the frequency and duration recommended by the prescriber.
C. Medical Records
1. Maintaining Medical Records
a. System-Building and Reporting. Defendants are committed to developing and operating one or more statewide systems for maintaining medical records and/or medical information of each Child in the custody of CD, consistent with federal and state law and CD policy. The parties agree and understand that the system(s) may be developed and/or implemented incrementally in phases. The parties further agree and understand that it may be necessary to test the feasibility and cost-effectiveness of implementing the system(s) or parts of the system(s), through pilot projects. Defendants shall provide semi-annual reports, made available on DSS’s or CD’s website, describing progress made toward this goal and the status of any current or forthcoming efforts. After the Agreement is approved by the Court, the report for the period ending June 30 will be provided no later than August 15 of that year, and the report for the period ending December 31 will be provided no later than February 15 of the following year.
b. Record. CD shall exercise reasonable and diligent efforts to compile and maintain the medical record for each Child in CD foster care. This medical record
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shall include full and accurate medical information and history for each Child in CD custody, including but not limited to the following:
i. Medical and surgical history;
ii. Dental history;
iii. Psychosocial history;
iv. Past mental health and psychiatric history, including medication history and documented benefits and adverse effects;
v. Past hospitalization or residential treatment history;
vi. Allergies;
vii. Immunizations;
viii. Current and past medications, including current dosage and directions for administration;
ix. Family health history;
x. Treatment and/or service plans;
xi. Results of any clinically indicated lab work;
xii. The names and contact information for all of the Child’s current and past mental health, dental, and medical providers; and
xiii. Signed consent forms, including but not limited to those for Psychotropic Medications.
c. Process and Documentation. Efforts by CD staff to obtain the information described in Section III.C.1.b shall be documented in the Child’s Case Record. To the extent applicable, such efforts shall include but not be limited to accessing Medicaid claims data, requesting information from current and past medical care providers known to CD, reaching out to the Child’s health insurance plan, gathering records from past foster care episodes, and gathering records and information from parents (whose rights have not been terminated) or guardians and other family members involved in the Child’s healthcare.
d. Staffing. CD shall maintain an adequate number of full time staff members statewide for the purpose of gathering and maintaining full and accurate medical information and history for each Child. CD will have 12 such staff members at the time this Agreement is executed, and may adjust the number of staff members thereafter, depending on needs and circumstances, with notice to Plaintiffs’ Counsel. So long as this Agreement is in effect, CD shall undertake at least an annual assessment of staffing needs, and will seek funding for “medical record” positions as needed.
2. Access to Medical Records
a. System-Building and Reporting. Defendants are committed to developing and operating one or more systems whereby pertinent medical records and/or medical information of the Child will be made available to appropriate members of the
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Child’s treatment team, consistent with federal and state law and CD policy. Subject to these federal and state laws and policies, including all laws and policies regarding confidentiality, patient privacy, and access to medical records, the Child’s treatment team may include Resource Providers (such as foster parents), a GAL, medical care providers, the Family Support Team (“FST”), parents, Case Managers, and CD staff. Defendants shall provide semi-annual reports, made available on DSS’s or CD’s website, describing progress made towards this goal and the status of any current or forthcoming efforts. The report for the first half of a year will be provided no later than July 31 of that year, and the report for the second half of a year will be provided no later than January 31 of the following year.
b. Initial Placement. Upon initial placement, the assigned Case Manager will ensure that the Health Care Information Summary (CD-264), and the Child/Family Health and Developmental Assessment (CW-103) if provided by the parent or legal guardian, are completed and provided to the Resource Provider within 72 hours when possible, but no later than 30 days following placement. Efforts by the assigned Case Manager (or other staff tasked with gathering medical records) to obtain this information shall be documented in the Child’s Case File.
c. Subsequent Placement. Whenever a placement change occurs, the Case Manager will provide to the new Resource Provider an updated version of CD-264 and a copy of all Monthly Medical Logs (CD-265) for the Child’s prior foster care placements. This information will be made available at the time of placement, but no later than 72 hours following placement. This history shall include all information gathered and provided at the time of initial placement and all additional information maintained by the previous Resource Provider (including information that has been provided to the Case Manager).
D. Secondary Review
1. General. CD will implement and maintain a system for conducting secondary reviews of prescriptions of Psychotropic Medications prescribed to Children in the legal custody of CD. The secondary reviews will be conducted by a board-certified child and adolescent psychiatrist (“Qualified Psychiatrist”) through a Statewide Clinical Consultant as defined in Section I.O, above. Secondary reviews provided for in this Agreement are separate from and in addition to any reviews conducted by MHD.
2. Qualified Psychiatrist. CD will exercise good faith efforts to recruit and retain the services of one or more Qualified Psychiatrists to conduct the secondary reviews. In the event that, despite those efforts, CD is unable to retain a Qualified Psychiatrist for a period of time, the secondary reviews or any other reviews assigned to a Qualified Psychiatrist under this Agreement may be conducted in the interim by a board-eligible child and adolescent psychiatrist or a board-certified adult psychiatrist. For purposes of this Agreement, secondary reviews conducted by a board-eligible child and adolescent psychiatrist or a board-certified adult psychiatrist hired or contracted to conduct secondary reviews in the absence of a Qualified Psychiatrist shall be deemed to have been conducted by a Qualified Psychiatrist.
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3. Reviews Upon Request. CD foster care staff may make a referral for a secondary review of an individual Child’s case if they have concerns about Psychotropic Medications being prescribed to the Child. Other members of the Child’s FST, including the Child’s parents (if their rights have not been terminated) or legal guardian, the Child’s attorney/GAL, the Child’s Resource Provider, and the Juvenile Officer, may also submit a request to CD to refer a case for secondary review of the Child’s Psychotropic Medications. CD shall ensure that all such requests are referred for secondary review, except that, CD may, in its discretion, decline to perform more than one review for a particular Child within the same 60-day period. Any such review shall be in addition to, not a substitute for, the automatic reviews described in Section III.D.4.
4. Automatic Review Criteria. CD and DSS, in consultation with the Statewide Clinical Consultant and the Psychotropic Medication Advisory Committee (“PMAC” or “the Committee”), will establish, consistent with this Agreement, criteria for selecting cases for automatic review. The cases to receive automatic review shall be determined by applying the criteria to a quarterly pull of Medicaid claims data for all Children in foster care.
a. These criteria shall initially include, as of the date that this Agreement is approved by the Court, the following:
i. Use of an antipsychotic or atypical antipsychotic medication in a Child age four or younger; and
ii. For a Child age five or older:
a) Use of five or more concurrent Psychotropic Medications for 90 days or more;
b) Use of two or more concurrent antipsychotic medications for 90 days or more;
c) Multiple prescribers of any Psychotropic Medication for 90 days or more.
b. Within twelve months from the date that this Agreement is approved by the Court, these criteria shall include the following:
i. Use of any Psychotropic Medication for a Child age three or younger;
ii. For a Child age four or older:
a) Use of three or more Psychotropic Medications for 90 days or more;
b) Use of two or more concurrent antipsychotic medications for 90 days or more;
c) Multiple prescribers of any Psychotropic Medication for 90 days or more; and
iii. A Child is prescribed a dose in excess of the guidelines described in Section III.G of this Agreement.
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c. The parties understand and agree that the criteria for identifying cases for automatic review can reasonably be expected to change over time, based on advancements in medical science and health care practice. The parties further understand that Defendants will consult at least annually with their own stakeholder community and medical professionals with respect to the review process and automatic review criteria to be utilized. Defendants may add additional criteria for automatic review at any time.
d. In the event that Defendants wish to alter or discontinue any of the minimum criteria set forth in Sections III.D.4.a-b, except for the dosage criteria, Defendants will submit the proposed changes to the PMAC for study, review, and approval. No changes will be made without the written approval of the PMAC. Defendants may, in consultation with the PMAC, make necessary changes to the parameters of the dosage criteria as needed to reflect advancements in medical science and health care practice. Notice of changes to any of the minimum criteria will be provided to Plaintiffs’ Counsel.
5. Standardized Form or Template. The request or referral to the Statewide Clinical Consultant for a secondary review shall be made in writing or electronically using a standardized form or template, containing fields for the basic information necessary to conduct the review. The standardized form or template will be developed in consultation with the Statewide Clinical Consultant and may be amended or modified from time to time.
6. Records to Be Provided for Review. For secondary reviews conducted under this Agreement, CD shall provide to the Statewide Clinical Consultant access to the information that the Qualified Psychiatrist determines necessary in order to conduct the secondary review, to the extent that the information is reasonably available to CD. This may include the Child’s medical history, including clinically relevant records and information, consistent with Sections III.C.1.b-c.
7. Content of Secondary Reviews. The secondary review conducted by the Qualified Psychiatrist shall include an assessment of:
a. The Child’s diagnosis(es);
b. Appropriateness, efficacy, and potential adverse effects or risks of current Psychotropic Medication(s);
c. The Child’s medication history as it relates to Psychotropic Medications prescribed to the Child;
d. Why the current Psychotropic Medication(s) is/are being used;
e. Whether the medically necessary lab work and/or baseline health screenings have been completed as they relate to Psychotropic Medication(s) prescribed to the Child, and any adjustments indicated by the results of such labwork or screenings;
f. A plan to taper off of Psychotropic Medication(s) where medically appropriate;
g. Whether the documentation supports the diagnosis being treated, recognizing that the Qualified Psychiatrist cannot make a diagnosis; and
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h. Whether other non-pharmacological interventions have been or are currently being provided for the Child.
8. Results of Secondary Review. The findings and recommendations of the Qualified Psychiatrist shall include documentation of the elements set forth above and identify whether all medical records requested by the Qualified Psychiatrist were made available. The findings shall be transmitted to CD. Except as provided in Section III.D.8.a, CD shall distribute a copy of the findings and recommendations of the Qualified Psychiatrist to: the Child’s parent or legal guardian; the individual authorized to provide informed consent for the medication (if different from the Child’s Case Manager, parent or legal guardian); the Child’s Case Manager; the Child’s Resource Provider; and any other person or entity authorized to receive the findings and recommendations by order of a court exercising authority over the Child. CD may provide the Qualified Psychiatrist’s findings and recommendations to any other entities or individuals as determined appropriate by CD, including, when appropriate: the Child’s GAL, the Child’s CASA, other members of the Child’s FST, and the Child’s medical care providers.
a. CD shall have the authority to decline to share the findings and recommendations of the Qualified Psychiatrist in the following circumstances:
i. When a court exercising authority over the Child has entered an order restricting the individual’s or entity’s access to information pertaining to the Child;
ii. Where CD determines that sharing the information may endanger the health, safety, and welfare of the Child or another person, or is otherwise contrary to the best interests of the Child;
iii. Where CD determines that sharing the information may interfere with a child abuse, child neglect, or criminal investigation involving the Child or another Child as a victim; and
iv. Whenever providing the information is otherwise contrary to law.
b. CD shall notify an individual or entity in writing when CD denies access to the secondary review. The letter shall include the reason for the denial and an explanation of the individual’s or entity’s right to seek either:
i. Administrative review of that decision through a service delivery grievance; or
ii. Production of the information through the court process, if the information has been restricted by any court and the individual is a party to the underlying juvenile court proceedings.
9. Workflow and Timeliness of Reviews.
a. For secondary reviews requested pursuant to Section III.D.3 of this Agreement, the reviews shall be completed and the recommendations transmitted to the required parties within five business days for outpatient and three business days for inpatient from the day the Statewide Clinical Consultant receives the written or electronic request or referral or, if requested by the Qualified Psychiatrist, any other necessary information.
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b. For automatic secondary reviews triggered by the criteria set forth in Sections III.D.4.a-b of this Agreement, the Case Manager shall have ten business days from the date of receiving notice that a Child’s case has been flagged for automatic secondary review to collect the materials that the Qualified Psychiatrist requests to complete the review. The Statewide Clinical Consultant shall then have five business days to complete the review.
10. Documentation. Documentation of the request for secondary review and the recommendation shall be included in the Child’s Case File using the standardized form or process. If access to the Qualified Psychiatrist’s secondary review was denied to any individual or entity, a copy of the notification letter described in Section III.D.8.b shall be included in the file.
E. Informed Consent and Assent
1. Informed Consent
a. Policy. CD shall maintain a policy governing informed consent for Psychotropic Medication. This policy shall include, at minimum, the requirements set forth in Sections III.E.1.a-m. CD agrees to modify its existing policy, where necessary, for this purpose.
b. Circumstances. Except in the emergency circumstances set forth in Section III.E.1.l, informed consent must be obtained voluntarily and without undue influence or coercion prior to:
i. The administration of a newly prescribed Psychotropic Medication (to include the continued administration of a Psychotropic Medication administered to a Child under the emergency circumstances set forth in Section III.E.1.l); or
ii. The continued administration of a drug prescribed prior to the Child entering foster care; in which case, the consent must be obtained prior to the expiration of the Child’s current prescription or promptly after the Child’s first medical appointment upon entering foster care, whichever occurs first.
c. Limitations and Dosage. Consent for a specific Psychotropic Medication may not be used to imply consent for a different medication. Consent need not be reobtained for a dosage change unless the prescriber communicates to CD (through a written form or otherwise) that a dosage exceeds (i) current FDA-approved pediatric dosage guidelines, or (ii) if no such guidelines exist, current FDAapproved adult dosage guidelines.
d. Review. Informed consent shall be reviewed by the Child’s Case Manager every three months. This review shall include, among other things, what, if any, adverse effects the Child has experienced and whether the symptoms for which the drug was prescribed have been addressed. This review shall be documented in the Child’s Case File.
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e. Expiration of Informed Consent. Except in cases of a medically significant change in circumstances, informed consent shall expire and must be re-obtained 12 months from the date the consent is provided.
f. Consenting Authority and Process: Prior to Termination of Parental Rights.
i. The assigned Case Manager shall have authority to grant informed consent for the administration of Psychotropic Medication to a Child in CD custody, (a) provided that CD consults with one or more of the Child’s parents, to the extent the parents are available and willing to participate, as discussed in Sections III.E.1.f.ii-iv; and (b) unless another individual or entity is authorized to make the decision by order of the juvenile or family court exercising authority over the Child.
ii. Except as provided in Section III.E.1.f.iii below, and emergency circumstances described in Section III.E.1.l below, (a) every time a healthcare provider recommends the administration of a new Psychotropic Medication, the assigned Case Manager shall make at least two attempts, on different days (which in some circumstances may occur within the same 24-hour period, though still occurring on two different days), to contact a parent (both parents if applicable) to provide notice of the recommendation, unless the parent(s) is already engaged with the healthcare provider; and (b) the Case Manager will attempt to reach the parent(s) by at least two methods (phone, email, in-person, etc.), to the extent two such methods are available for a particular parent. Each attempt by a Case Manager to contact the parent(s) must be documented in FACES or another current case management tool. Contact with the parent(s) shall include a conversation about the recommended treatment, such as diagnosis, purpose, names and dosages of any medications, possible side-effects, required follow-up or monitoring, availability of alternatives, and prognosis without an intervention. Except as provided below, the parent(s) shall be provided the contact information for the Child’s treating healthcare provider in order to communicate with them directly, if the parent(s) so chooses. For every informed consent request, the Case Manager shall also engage the Child’s Resource Provider, and shall notify the Child’s GAL, CASA, and FST in a manner consistent with CD policy.
iii. Notwithstanding any other provision in this Agreement, CD is not required to attempt to notify and/or consult with the parent(s), or give the parent the contact information of the prescribing provider, in the following circumstances:
a) If the parent(s) is unknown, or when CD cannot locate the parent(s) after a good faith search in accordance with CD policy;
b) If the parent(s) has abandoned the Child;
c) If a court exercising authority over the Child has entered an order restricting parental access to information pertaining to the Child;
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d) If CD determines that sharing the information may endanger the health, safety, or welfare of the Child or another person, or is otherwise contrary to the best interests of the Child;
e) If CD determines that sharing the information may interfere with a child abuse, child neglect, or criminal investigation involving the Child or another Child as a victim; or
f) If providing the information is otherwise contrary to law.
iv. If a parent disagrees with a Case Manager’s informed consent decision, the following process will apply:
a) The Case Manager shall, after being informed and confirming that such a disagreement exists, submit the matter to the Statewide Clinical Consultant within five business days.
b) The Statewide Clinical Consultant shall, within five business days of receiving the request for consultation, review the pending prescription and provide an opinion and recommendation as to the appropriateness and timing of the prescription (including but not limited to whether the Child should begin taking the proposed medication immediately).
c) If a parent does not agree with the recommendation from the Statewide Clinical Consultant, the parent may within five business days (i) initiate a service delivery grievance, or (ii) file an appropriate motion with a juvenile court with authority over the Child.
d) If the Statewide Clinical Consultant has recommended immediate administration of a Psychotropic Medication, then the Case Manager may follow that recommendation, regardless of any pending service delivery grievance or juvenile court motion.
e) If the Statewide Clinical Consultant recommends that immediate administration of a Psychotropic Medication is not required, then the Case Manager will not consent to the medication until any service delivery grievance or juvenile court motion has been resolved.
v. If, after two attempts to contact the parent(s), the assigned Case Manager is not able to reach the parent(s), then the Case Manager may consent to or refuse the administration of the Psychotropic Medication at issue. As described above, the Case Manager will document in the Child’s Case File attempts to reach the parent(s), efforts to provide notice, and the decision regarding consent.
g. Consenting Authority and Process: After Termination of Parental Rights. If the parental rights of both parents have been terminated, or the court has otherwise restricted both parents’ access to medical information about the Child, the Case Manager may provide informed consent for the administration of Psychotropic
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Medications without attempting parental notification. The Case Manager remains the consenter until the Child is adopted or until a juvenile court issues an order authorizing an alternate person, such as the pre-adoptive parent, to provide consent. For every informed consent request, the Case Manager shall engage the Child’s Resource Provider, and shall notify the Child’s GAL, CASA, and FST in a manner consistent with CD policy.
h. Alternative Consenters. In the event any member of the FST seeks to serve as the consenting authority for the administration of Psychotropic Medications to a Child, CD will, to the extent permitted by the juvenile court, inform the court and request an opportunity for the proposed alternative consenter to be heard. CD may require, upon appropriate notice, that such a request be in writing with the reasons for the request. CD’s responsibility will be only to inform the juvenile court and the parties of the request, not to support the request. Nothing in this Agreement shall be construed to require CD to support the request or to imply that CD or its legal counsel must provide representation to support the request. Notice of the right to pursue this process shall be provided in writing to all members of the FST.
i. Standardized Form. Informed consent shall be given by the authorized consenting party in writing or in an electronic format on the standardized form attached as Exhibit C. The standardized form may be amended or modified from time to time after consultation with the PMAC. The signed form must be included in the Child’s CD Case File.
j. Information. The authorized consenting party shall ensure that he or she has the following information before consent is provided:
i. The results of the mental health/psychiatric evaluation of the Child including the Child’s diagnosis or diagnoses, along with the target symptoms to be addressed by the medication;
ii. An explanation of the purpose of the medication, the anticipated duration of treatment, and its expected results;
iii. Whether medically necessary metabolic and other screenings (e.g., bloodwork, BMI, weight), as indicated by the prescriber, have been completed;
iv. Whether, according to the prescriber, (i) each medication is FDAapproved for pediatric use, or (ii) there are any limitations on FDAapproval related to the age of the Child and the diagnosis;
v. The short and long-term risks and possible benefits associated with the medication and any combination of medications prescribed, including the nature and possible occurrence of any adverse effects and/or irreversible symptoms;
vi. Alternative non-pharmacological treatments that have not yet been attempted and their risks and benefits;
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vii. Alternative non-pharmacological treatments that were attempted and not successful;
viii. The known allergies of the Child;
ix. The current illnesses of the Child;
x. The psychiatric history and treatments of the Child;
xi. The risks and benefits of not undergoing treatment;
xii. The other medications the Child has received in the past and the Child’s reaction to those drugs; and
xiii. Any other information necessary to provide informed consent relating to the medical treatment of the Child.
k. Mandatory Informed Consent Reviews
i. Before informed consent may be given in the following circumstances, CD shall ensure that a recommendation from a Qualified Psychiatrist as to whether or not consent should be granted is obtained:
a) A Child age three or younger is prescribed any Psychotropic Medication;
b) For a Child age four or older:
a. Prescription of three or more concurrent Psychotropic Medications for 90 days or more;
b. Prescription of two or more concurrent antipsychotic medications for 90 days or more;
c. Multiple prescribers of any Psychotropic Medication within a 90-day period; or
d. No later than 12 months after the Court approves this Agreement, a dose in excess of the guidelines referenced in Section III.G.
ii. Standardized Form or Template. The request or referral to the Statewide Clinical Consultant for a mandatory informed consent review shall be made in writing or electronically using a standardized form or template, containing fields for the basic information necessary to conduct the review. The standardized form or template will be developed in consultation with the Statewide Clinical Consultant and may be amended or modified from time to time.
iii. For mandatory informed consent reviews conducted under this Agreement, CD shall provide to the Statewide Clinical Consultant access to the information that the Qualified Psychiatrist determines necessary in order to conduct the secondary review, to the extent that the information is reasonably available to CD. This may include the Child’s medical history, including clinically relevant records and information, consistent with Sections III.C.1.b-c.
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iv. The recommendation of the Qualified Psychiatrist shall be communicated in writing to the consenter within five business days for outpatient and three business days for inpatient from the day the Statewide Clinical Consultant receives the written or electronic request or referral or, if requested by the Statewide Clinical Consultant, any other necessary information.
v. Documentation of the request and recommendation shall be included in the Child’s Case File using the standardized form or process.
vi. Although the authorized consenter is not bound by the recommendation of the Qualified Psychiatrist, consent may not be given in any of the circumstances identified in Sections III.E.1.k.i.a-b unless and until such recommendation has been provided.
l. Emergencies. Notwithstanding any other provision in this Agreement, Psychotropic Medications may be administered by a qualified prescriber without informed consent in an emergency situation. An emergency situation occurs when the purpose of the medication is to protect the life, safety, or health of the Child; to protect the life, safety, or health of others; to prevent serious harm to the Child or others; or to treat current or imminent substantial suffering.
i. In instances of emergency, notification shall be provided to the authorized consenting party as soon as practicable. For a Child in a residential setting pursuant to a contract with CD, CD shall include in its contract a requirement that the contractor shall provide notice to the authorized consenting party within 24 business hours after the emergency administration of the medication. For a Child in a hospital setting, the Child’s Case Manager shall inquire within two business days of the Child’s hospital discharge to determine whether any Psychotropic Medications were administered on an emergency basis.
m. Tracking. CD shall develop and maintain policies and systems that allow for the tracking of informed consent both at an individual-case and aggregate level. CD will track implementation of CD’s informed consent policy to evaluate its effectiveness.
2. Informed Assent
a. Policy. CD shall maintain a policy governing informed assent to Psychotropic Medication. This policy shall include, at minimum, the requirements set forth in Section III.E.2.a-e. CD agrees to modify its existing policy, where necessary, for this purpose.
b. Process. Before providing informed consent for a Psychotropic Medication, the CD Case Manager or supervisor (in coordination with the alternative consenter, if applicable) must seek to obtain informed assent from the youth, consistent with the following:
i. In partnership with the Child’s treating healthcare provider, ensure that the Child is informed, in an age and developmentally appropriate manner, of
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the recommendation for prescribed medication(s) as part of the Child’s treatment plan.
ii. In partnership with the Child’s treating healthcare provider, ensure the Child is provided an opportunity to voice his or her reactions or concerns regarding prescribed medication(s).
iii. Ensure that the Child (age 12 and over) and the Child’s attorney/GAL (for a Child of any age), is provided notice in writing of:
a) All rights set forth in CD 24.3.9 or subsequent (and/or renumbered) versions of this provision in the Child Welfare Manual, along with the right to file a service delivery grievance or to file a motion with the juvenile court;
b) The right to speak privately with the healthcare provider regarding any proposed Psychotropic Medication;
c) The right to seek a second opinion from a different healthcare provider regarding any Psychotropic Medication; and
d) The right for Children age 12 and over to request that their refusal to assent to the administration of a Psychotropic Medication be reviewed by the Statewide Clinical Consultant. The request will follow the same timeline and requirements set forth in Sections III.E.1.f.iv.a-e.
iv. Give the Child the opportunity to sign a copy of the standardized consent form that has been filled out by the healthcare provider and authorized consenting party, and ensure that the signed form is placed in the Child’s Case File.
c. Expiration of Assent. Except in cases of a medically significant change in circumstances, informed assent shall expire and must be re-sought 12 months from the date the assent is provided or withheld.
d. Emergencies. Notwithstanding any other provision in this Agreement, Psychotropic Medications may be administered by a prescribing physician without seeking informed assent in an emergency situation. An emergency situation occurs when the purpose of the medication is to protect the life, safety or health of the Child; to protect the life, safety or health of others; to prevent serious harm to the Child or others; or to treat current or imminent substantial suffering.
e. Tracking. CD shall develop and maintain policies and systems that track the implementation of the provisions set forth in this Section of the Agreement.
F. Psychotropic Medication Advisory Committee
1. Defendants will appoint and maintain a Psychotropic Medication Advisory Committee to provide professional and technical consultation and policy advice to DSS, including MHD and CD, on the development and implementation of policy pertaining to the administration of Psychotropic Medications to children in foster care. This Committee may, at Defendants’ discretion, be a sub-committee of an existing Board, Commission,
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workgroup, or Committee, or it may be a stand-alone committee. The Director of DSS shall appoint a Chairperson and Co-chair of the Committee. In addition to the Chair and Co-Chair of the Committee, the membership of the Committee will include:
a. The Director of CD and/or such staff members of CD as appropriate;
b. The Director of MHD and/or such staff members of MHD as appropriate;
c. A representative or representatives of the Statewide Clinical Consultant;
d. A child and adolescent psychiatrist, who may also be an employee of the Statewide Clinical Consultant;
e. A child and adolescent psychiatrist who is not an employee of the Statewide Clinical Consultant (and who may be located outside of the state);
f. A licensed psychologist or other mental health provider with experience working with children and adolescents, who may also be an employee of the Statewide Clinical Consultant;
g. A pediatrician;
h. A representative appointed by the Director of the Missouri Department of Mental Health;
i. An individual with expertise in management of electronic health records;
j. At least three foster children above the age of 13;
k. A current Resource Provider;
l. An attorney who represents children in CD foster care;
m. An attorney who represents parents of children in CD foster care;
n. A pharmacist and/or a pharmacologist with expertise in Psychotropic Medication; and
o. Any other person or representative of any other entity who the Director of DSS determines to have information and/or expertise to contribute to the work of the Committee.
2. The Committee shall meet on at least a quarterly basis, but shall meet as the Committee determines appropriate. The Committee may appoint sub-committees and workgroups as the Committee deems appropriate. Members of the sub-committees or workgroups do not necessarily need to be members of the full committee.
3. The members of the Committee, sub-committees, or workgroups shall serve without additional compensation for their services serving on this Committee, other than expenses actually incurred in the performance of their official duties.
4. The Committee shall prepare an annual report on the work of the Committee and the progress of the Department in implementing these goals. The Committee shall submit the report to the Director of DSS no later than February 15 of each calendar year beginning with February 1 after this Agreement is approved by the Court. A copy of the annual report shall be published on DSS’s website.
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5. DSS may, in its discretion, withhold and/or redact from the report any information that it determines may be proprietary, confidential or otherwise prohibited from disclosure by federal or state law. This includes, but is not limited to: protected health information of children and families, information that DSS determines may compromise the security of the information systems, information that may be closed or confidential during the contract procurement process, software, proprietary information, and information covered by copyright and/or trademark.
6. The meetings of the Committee shall be governed by the requirements of the Missouri Sunshine Law. MO. REV. STAT. Chapter 610.
G. Excessive Dosage Guidelines
1. Medical and Clinical Guidelines. As described in Sections III.D.4.a-b and III.E.1.k.i.a-b, this Agreement provides for review of prescriptions for Psychotropic Medications that exceed certain guidelines. The parties agree that the development and implementation of these guidelines require advice from and consultation with medical and clinical experts. The parties further agree that these guidelines will change from time to time based on advancements in medical science, the development of new medications, changing clinical practice, and other considerations.
2. Referrals. The parties agree that in some individual cases, generally accepted standards of medical practice may include the prescription of medications on an off-label basis, or the prescription of medications at dosages greater than guidelines specify. The parties agree that if and when this happens, these cases will be referred to the Statewide Clinical Consultant for secondary review.
3. Excessive Dosage Criteria. For purposes of this Agreement, for Psychotropic Medications with FDA-approved pediatric dosage guidelines, an excessive dose is one that exceeds the maximum under those pediatric guidelines. For Psychotropic Medications without FDA-approved pediatric dosage guidelines, an excessive dose is one that exceeds the maximum under adult dosage guidelines for approved indications. For medications without FDA-approved pediatric or adult dosage guidelines, or for those prescribed for an off-label use, a prescription will be subject to automatic secondary review if it exceeds the guidelines adopted or created by the Psychotropic Medication Advisory Committee’s clinical sub-committee (the “Excessive Dosage Criteria”), as described below.
4. Clinical Sub-Committee. Defendants will convene a clinical sub-committee of the PMAC to develop the Excessive Dosage Criteria for use under this Agreement and to generally review the dosage guidelines Defendants are utilizing pursuant to Sections III.D.4.a-b and III.E.1.k.i.a-b.
a. The clinical sub-committee shall include a Qualified Psychiatrist, a pharmacist and/or pharmacologist, a representative of the Statewide Clinical Consultant, a pediatrician, and a licensed psychologist or other mental health provider with experience working with children and adolescents.
b. The clinical sub-committee shall develop the Excessive Dosage Criteria in consultation with MHD and CD and their designated experts in computer systems
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and child welfare practice, to ensure that the criteria can be implemented in a cost-effective and practical manner.
c. The clinical sub-committee shall review the Excessive Dosage Criteria at least annually.
d. Defendants shall publish the Excessive Dosage Criteria utilized under this Agreement on one or more of DSS’s or CD’s websites.
5. Defendants shall implement the Excessive Dosage Criteria within 12 months of the effective date of this Agreement.
IV. Data Validation, Enforcement and Exit
A. Data Validation
1. The parties agree that Defendants shall retain the services of a Data Validator for purposes of verifying and reporting on a semi-annual basis Defendants’ compliance with the exit criteria identified in this Agreement. The Data Validator shall be a third party contractor of the State of Missouri that has had prior experience conducting data validation services for state child welfare agencies. The Plaintiffs agree and understand that the services of a Data Validator will have to be retained in compliance with federal and state law governing procurement of contracts. Defendants will make best efforts to complete this process within four months from the date of this Agreement.
2. The Data Validator shall issue written reports pursuant to the schedule set forth below. The reports shall describe the measurable progress made by Defendants in relation to each of the exit criteria and reportable data elements contained in this Agreement for each six-month reporting period, as well as any issues or challenges encountered or observed by the Data Validator regarding the collection of performance data or its application to the exit criteria and data elements.
3. Sampling, data, and data analysis will be subject to review and approval by the Data Validator. Promptly after the Data Validator is retained, the parties shall work with the Data Validator to determine the appropriate means for measuring and reporting performance on each of the exit criteria and data sharing items, including ensuring that any case reviews conducted for purposes of measuring performance are based on a statistically valid, representative, random sample of Class Members. Data will be provided from the data source identified in Exhibit B. The sample files shall be drawn, without replacement, from Class Members (as opposed to all children in CD custody). The parties agree that a sample is representative if, given the population size, the case review delivers a measurement with a 5% margin of error at the 90% confidence level. A non-exclusive example of a collection or measurement issue the parties must address and resolve with the Data Validator is excluding or limiting the use of Children or employees who “straddle” relevant time periods.
4. The Data Validator shall prepare and provide to the parties an agreed upon template that provides the format for data elements and reporting at the close of each Reporting Period on: (a) Defendants’ performance on each exit criterion and (b) Defendants’ performance on all data elements specified in this Agreement.
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5. Once the parties and the Data Validator have completed the requirements of paragraphs 3 and 4 above, the parties and the Data Validator shall establish the beginning date for the commencement of the first six-month Reporting Period.
6. As specified in Exhibit B, the parties have agreed to percentage-based ranges for measuring compliance with exit criteria. Upon conclusion of the first Reporting Period, performance data on all of the Exit Criteria and Data Sharing items, using the methodology set forth by the Data Validator as described in Section IV.A.3, shall be provided to the Data Validator for purposes of setting the current baseline for performance in each area. The Data Validator shall prepare a report for the first Reporting Period that sets forth these baselines.
7. Upon receipt of the baseline performance data for all of the Exit Criteria and Data Sharing items, the parties shall work with the Data Validator to try to reach agreement on the ultimate percentage for each exit criterion within each range specified in this Agreement. If the parties cannot reach agreement on the ultimate percentage for any exit criterion within 60 days, the Data Validator shall issue a report and specify the percentage within the agreed upon percentage-based ranges.
8. Within 60 days of the end of each Reporting Period, Defendants shall provide to the Data Validator all data, reports, and other information that the Data Validator deems necessary to verify the measure of the agency’s performance on each of the exit criteria and reportable data elements in this Agreement. The Data Validator and Defendants may communicate regarding the data and information to be furnished. The parties shall have access, through the Data Validator, to all information made available by Defendants to the Data Validator under the terms of this Agreement.
9. Should the Data Validator need additional documents or information to verify Defendants’ performance in any Reporting Period, it shall send a letter to Defendants requesting such documents or information, and the Data Validator shall provide a copy of the request to Plaintiffs’ Counsel.
10. Should the Data Validator encounter or identify any issues regarding the collection or measurement of performance data that might bear on Defendants’ statistical ability to achieve the performance standard set forth for any of the exit criteria, the Data Validator shall bring the matter to the parties’ attention for discussion. If necessary, the matter shall be resolved pursuant to the Dispute Resolution processes set forth in Sections IV.B.1-4.
11. The Data Validator shall issue a draft report setting forth Defendants’ progress in relation to each of the exit criteria and identified data elements within four months of the close of the reporting period. The Data Validator may request an extension of time to complete the report, which shall not be unreasonably denied. After receipt of the draft report, the parties shall have 21 days to submit comments to the Data Validator on its findings. Thereafter, within 30 days, the Data Validator shall issue a final report, which shall be a public document, subject to the provisions of Section IV.A.12, below.
12. All non-public information obtained by the Data Validator shall be maintained in a confidential manner. The Data Validator’s reports shall be public documents, except that any individually-identifying information and other confidential information protected from disclosure shall be redacted from any public report in accordance with the
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Confidentiality Order entered by the Court. The Data Validator’s redacted reports shall be published on Defendants’ website.
13. The Data Validator shall be permitted to speak separately with all parties.
14. The cost of the Data Validator shall be borne by Defendants.
B. Enforcement
1. Informal Dispute Resolution. A party that believes the other party is not or may not be in compliance with any provision of the Agreement shall send written notice to the other party specifying the nature of the concern and requesting an opportunity to meet and confer. Both parties shall schedule a mutually convenient time, place, and manner to confer, within 14 business days, to try and resolve the concern. The parties will utilize this informal dispute resolution requirement before taking other actions to enforce the Agreement. To facilitate open discussion, the parties’ communications and all information exchanged during this informal dispute resolution process shall be deemed to be part of confidential settlement negotiations and shall not be disclosed or utilized by one party against the other unless mutually agreed, in writing, between the parties. Any agreement generated by this informal dispute resolution process to resolve an issue of concern shall, when appropriate, be reduced to writing.
2. Corrective Action Plan. With respect to any of the exit criteria in this Agreement that Defendants have not met for two consecutive six-month Reporting Periods, following the meeting of the parties described above, Defendants will develop a corrective action plan setting forth strategies for bringing performance into compliance. Defendants shall supply the corrective action plan to Plaintiffs’ Counsel within 45 days of receiving the Data Validator’s report for the second consecutive six-month Reporting Period showing non-compliance with the exit criteria that has not been achieved. The corrective action period shall continue until either the exit criteria are met or six months have elapsed, whichever comes first.
3. Mediation. Should the corrective action plan(s) referenced above in Section IV.B.2 not result in the exit criteria being met, the parties shall within 30 days submit the matter to the PMAC and the Data Validator (if applicable) for consultation and comment. In consultation with the PMAC and, if either party so chooses, with the Director of the Mediation and Assessment Program of the United States District Court for the Western District of Missouri, the parties shall endeavor to reach accord on actionable steps to be implemented by Defendants to bring the exit criteria into compliance. The mediation period shall be completed within 60 days unless an extension is mutually agreed upon by the parties. The actionable steps identified in the mediation shall be implemented within six months or such other time frame as mutually agreed by the parties.
4. Court Intervention. Should the actionable steps identified in the mediation referenced above in Section IV.B.3 not result in the exit criteria being met, or if a party seeks to modify the exit criteria, either party may choose to request Court intervention. If a party chooses to request Court intervention, that party shall provide the other party with notice of intent to seek Court intervention prior to filing. Such notice shall describe with particularity the issues for which the party is seeking Court intervention. Within ten business days, the receiving party shall have an opportunity to address those issues prior
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to the moving party seeking Court intervention. Any relief or modification sought shall be limited to a request for specific performance or specific modification of the provision at issue. Any initial filing with the Court shall not seek any contempt remedy.
5. Emergency Court Intervention. If Plaintiffs can show just cause to believe that Defendants have failed to comply with any exit criteria in this Agreement and that this failure has caused or is likely to cause immediate and irreparable injury to the health and safety of the Plaintiff Class, Plaintiffs may seek immediate emergency relief from the Court, bypassing the enforcement provisions in Sections IV.B.1-3. Before seeking such emergency relief from the Court:
a. Plaintiffs shall give written notice to Defendants of the alleged failure, specifying any such alleged harm or risk of imminent harm. This notice shall include, but is not limited to, all documentation that Plaintiffs rely on to support their decision to seek emergency relief; and
b. Upon Plaintiffs giving written notice, the parties shall meet and confer to resolve the matter for a period not to exceed 15 business days, unless extended by agreement of the parties.
c. Plaintiffs shall also contemporaneously submit the notice to seek emergency judicial relief to the Data Validator. The Data Validator shall determine within the 15-day period referenced in Section IV.B.5.b, above, whether the alleged failure noticed by Plaintiffs is contradicted by available, validated performance data. The Data Validator may seek an extension of this 15-day time period, but not greater than 30 days, which may be granted by agreement of the parties. The Data Validator shall provide written notification to the parties stating whether the alleged failure noticed by Plaintiffs is contradicted by available, validated performance data. A decision by the Data Validator that the alleged failure noticed by Plaintiffs is contradicted by available, validated performance data shall foreclose Plaintiffs from seeking emergency Court intervention.
d. If the parties are unable to resolve the matter during the meet and confer period set forth in Section IV.B.5.b and the Data Validator has not made a determination foreclosing Plaintiffs from seeking relief from the Court, Plaintiffs may seek Court intervention. Upon Plaintiffs’ filing a request for Court intervention, the Court will act on a schedule to be determined by the Court. Should Plaintiffs decide to seek Court intervention, they shall file a motion requesting specific performance, as the Court deems just and appropriate, to achieve compliance with the exit criteria at issue. Any initial emergency filing with the Court shall not seek a contempt remedy.
6. Enforcement of Provisions of the Agreement That Are Not Exit Criteria. Whenever a party to this Agreement believes that the other party is not or may not be in compliance with any provision of this Agreement other than an exit criterion: (a) The parties shall follow the informal dispute resolution process specified in Section IV.B.1. (b) The responding party shall be given an opportunity to develop and implement a corrective action plan. (c) If the responding party fails to successfully implement a corrective action plan within six months, then either party may seek mediation as provided in Section
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IV.B.3. (d) If the parties are unable to resolve their dispute through mediation, the moving party may seek Court intervention pursuant to Section IV.B.4.
7. Each party shall designate a specific individual to be the point of contact for all correspondence and service of notices to each other under this Agreement. The designation shall include the individual’s name, address, e-mail address, fax, and voice telephone number. Each party shall promptly notify the other of any changes in the point of contact.
8. The service of notice shall be either by e-mail or by United States Mail. Any notices served by e-mail shall be deemed served at the date and time that the e-mail is sent to the designated point of contact at the designated e-mail address. Any notices served by United States Mail shall be deemed served on the date that they are received by the point of contact for the party at the designated mailing address. Legal notices under this Agreement that are sent by United States Mail shall be sent by certified mail, return receipt requested. The official return receipt acknowledging service shall be deemed sufficient proof to establish receipt. The party claiming that it did not receive service of a notice shall have the burden to establish that the notice was not received if the notice was served in the manner provided under this Agreement.
9. Defendants’ compliance with an order of a juvenile or family court exercising authority over a Class Member or group of Class Members in a specific case or specific cases shall not be deemed material non-compliance with this Agreement, even if such court order does not conform to the provisions of this Agreement.
C. Exit
1. The parties agree that the chart entitled “M.B. vs. Tidball Settlement Agreement: Exit Criteria and Data Sharing,” attached as Exhibit B, contains the Exit Criteria and other Data Sharing items for this Agreement. The chart also identifies two Exit Groups.
2. Once Defendants achieve the performance standard for all exit criteria within a designated Exit Group for three consecutive six-month Reporting Periods and comply with any enforcement orders entered by the Court, Defendants shall be entitled to exit from the provisions of the Agreement included within that Exit Group. During the third consecutive Reporting Period demonstrating compliance for purposes of exit, Defendants will be compliant so long as performance on all exit criteria stays within 5% of the original performance target. The parties shall jointly seek an order terminating Court jurisdiction over the Agreement. In the event that Plaintiffs decline to join in such a motion, Defendants may file the motion individually.
3. Without limiting or displacing any other available rights or remedies under this Agreement, the Federal Rules of Civil Procedure, or any other applicable laws or rules, Defendants will exit the Agreement, and the Agreement will terminate:
a. If the exit criteria have been met at the level and for the duration specified in the Agreement.
b. In accordance with an order of the Court entered following a motion of either party pursuant to Federal Rule of Civil Procedure 60(b)(5).
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FOR THE PLAINTIFFS Morgan, Lewis & Bockius LLP Scott T. Schutte 77 West Wacker Drive, 5th Floor Chicago, IL 60601 (312) 324-1000 scott.schutte@morganlewis.com
Date: (;/&/1 9
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IT IS SO ORDERED. _______________________ Nanette K. Laughrey, United States District Judge for the Western District of Missouri Date: ______________
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Exhibit A
Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 37 of 75

Contract For Services Contract#: AOC_1_9__3_8__0_0__1_1_______

Missouri Department of Social Services
Division of Finance & Administrative Services Procurement Unit P.O. Box 1643 Jefferson City, MO 65102

Title: Missouri Center of Excellence Contract Period: Date of Award through Ju͵ͳ, 2021

The Department of Social Services desires to contract for the services described herein. All terms, conditions, and prices contained herein shall govern the performance of this contract.

Contractor Information:

Contractor Name:
Mailing Address: City, State Zip:

The Curators of the University of Missouri on behalf of The University of Missouri – Columbia, University of Missouri, Department of Psychiatry 1 Hospital Drive #DC067.00 Columbia, MO 65212

Contact Person Name and Title: .JDIFMMF--FBUPO]"TTJTUBOU1SF"XBSE.BOBHFS041"
Contact Person E-Mail Address: HSBOUTED!NJTTPVSJFEV
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
I / We hereby agree to provide the services and/or items, at the price(s) stated, pursuant to the requirements of this document and further agree that when this document is countersigned by an authorized official of the Missouri Department of Social Services a binding contract shall exist between the contractor and the Department of Social Services, subject to the approval and acceptance of the Division of Purchasing and Materials Management. The authorized signer of this document certifies that the contractor (named below) and each of its principals (as defined by 45 CFR 76) are not suspended or debarred by the federal government.
In witness thereof, the parties below hereby execute this contract.

_________________________________________________________________________
Authorized Signature for the Contractor:
Digitally signed by Craig David
@C@@r@a@i@g@@@D@@a@v@i@d@@@@@@@@@@@@@@@@@@@@@@@ DN: cn=Craig David, o=University of Missouri, ou=Office of Sponsored Programs Administration, email=DavidCr@Missouri.edu, c=US Date: 2018.07.09 14:24:23 -05'00'
$SBJH%BWJE%JSFDUPS041"
pm __________________________________________________________________________
Authorized Signature for the Department of Social Services

.JDIFMMF--FBUPO]1SF"XBSE.BOBHFS041"
_______________________________________________________________________________

__7____0_9___________________

Name and Title:

Date

@@@@7@/@9@/@1@8@@@@@@@@@@@@
%BUF

__J___u__l_y____1___2__,___2__0___1__8_______
Date

.61SPKFDU2Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 38 of 75

1 Introduction and Background Information

1.1 The Missouri Department of Social Services hereinafter referred to as the Department hereby enters into this contract with the Curators of the University of Missouri on behalf of the University of Missouri, Department of Psychiatry hereinafter referred to as the contractor for the purchase of services for The Missouri Center of Excellence in Children’s Health Integration, Learning, and Development (Mo-CHILD), hereinafter referred to as the center.

1.2 The center will lead the nation in child welfare, health, and mental health integration. The center will develop and implement innovative multi-system strategies to increase the safety and wellbeing of children and youth involved in child welfare and other related child and family serving systems.

a. The goals of the center will be achieved through simultaneous, integrated, and evolving activities supported by multiple schools within the University of Missouri working collaboratively with each other and with the Missouri Department of Social Services, Children’s Division, MO HealthNet Division, Division of Youth Services, Missouri Department of Mental Health and other partners as appropriate.

1.3 The mission of the Missouri Department of Social Services (DSS) is to lead the nation in building the capacity of individuals, families, and communities to secure and sustain healthy, safe, and productive lives.

1.4 The mission of the Children’s Division (CD) is to protect Missouri children from abuse and neglect; assuring their safety and wellbeing by partnering with families, communities and government in an ethically, culturally and socially responsible manner.

1.5 The mission of the MO HealthNet Division (MHD) is to purchase and monitor health care services for low income and vulnerable citizens of the State of Missouri. The agency assures quality health care through development of service delivery systems, standards setting and enforcement, and education of providers and participants. We are fiscally accountable for maximum and appropriate utilization of resources.

1.6 The mission of the Division of Youth Services (DYS) is to enable youth to fulfill their needs in a responsible manner within the context of and with respect for the needs of the family and the community.

1.7 The mission of the Missouri Department of Mental Health (DMH) is Prevention, Treatment, and Promotion of Public Understanding for Missourians with mental illnesses, developmental disabilities, and addictions.
1.8 The contract period shall be date of award through Ju 3ͳ, 2021.

2 General Performance Requirements

2.1 The contractor shall provide services in accordance with the provisions and requirements stated herein. Services purchased by the Department shall consist only of those services described herein.

2.2 Coordination

2.2.1 The contractor shall coordinate all contract activities with designated representatives of the Department.

2.2.2 The contractor shall attend and/or participate in trainings, meetings and conferences, as required by the Department.

2.2.3 In the course of providing the services required herein, the contractor shall collaborate with other agencies and, resources to ensure streamlined and unduplicated services.

2.3 Correspondence

2.3.1 Within five (5) business days of contract award, the contractor shall provide the Department with the name, address, electronic mail (e-mail) address, and telephone number of the contractor’s representative servicing the contract.

2.3.2

Electronic mail (e-mail) will be used to transmit contract documents and other correspondence from the Department to the contractor. Emails from the Department to the contractor which contain information confidential by law shall be encrypted to protect such from unauthorized disclosure. The contractor shall ensure the timely review and response to e-mailed documents and information.

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2.3.3 2.4 2.4.1
2.4.2
2.5 2.6

The contractor shall encrypt any electronic correspondence containing protected information confidential by law. The contractor shall use alternative means of protecting confidential information, such as the use of password-protected attachments, as an “equivalent safeguard” to satisfy that requirement of the contract.
Contractor’s Personnel
The contractor shall only employ personnel authorized to work in the United States in accordance with applicable federal and state laws. This includes but is not limited to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), P.L. 104-208, 110 Stat. 3009, and INA Section 274A (8 U.S.C. §1324a).
a. If the contractor is found to be in violation of this requirement or the applicable state, federal and local laws and regulations, and if the State of Missouri has reasonable cause to believe that the contractor has knowingly employed individuals who are not eligible to work in the United States, the state shall have the right to cancel the contract immediately without penalty or recourse and suspend or debar the contractor from doing business with the state. The state may also withhold up to twenty-five percent (25%) of the total amount due to the contractor.
b. The contractor shall fully cooperate with any audit or investigation from federal, state or local law enforcement agencies.
If the contractor meets the definition of a business entity as defined in section 285.525, RSMo pertaining to section 285.530, RSMo the contractor shall maintain enrollment and participation in the E-Verify federal work authorization program with respect to the employees hired after enrollment in the program who are proposed to work in connection with the contracted services included herein. If the contractor’s business status changes during the life of the contract to become a business entity as defined in section 285.525, RSMo pertaining to section 285.530, RSMo then the contractor shall, prior to the performance of any services as a business entity under the contract:
a. Enroll and participate in the E-Verify federal work authorization program with respect to the employees hired after enrollment in the program who are proposed to work in connection with the services required herein; and
b. Provide to the Department the documentation required in the exhibit titled, Business Entity Certification, Enrollment Documentation, and Affidavit of Work Authorization affirming said company’s/individual’s enrollment and participation in the E-Verify federal work authorization program; and
c. Submit to the Department a completed, notarized Affidavit of Work Authorization provided in the exhibit titled, Business Entity Certification, Enrollment Documentation, and Affidavit of Work Authorization.
Subcontractors: Pursuant to subsection 1 of section 285.530, RSMo, no contractor or subcontractor shall knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the state of Missouri. In accordance with sections 285.525 to 285.550, RSMo a general contractor or subcontractor of any tier shall not be liable when such contractor or subcontractor contracts with its direct subcontractor who violates subsection 1 of section 285.530, RSMo, if the contract binding the contractor and subcontractor affirmatively states that:
a. the direct subcontractor is not knowingly in violation of subsection 1 of section 285.530, RSMo, and
b. shall not henceforth be in such violation, and
c. the contractor or subcontractor receives a sworn affidavit under the penalty of perjury attesting to the fact that the direct subcontractor’s employees are lawfully present in the United States.
Affidavit of Work Authorization and Documentation: Pursuant to section 285.530, RSMo, if the contractor meets the section 285.525, RSMo definition of a “business entity” (http://www.moga.mo.gov/mostatutes/ChaptersIndex/chaptIndex285.html), the contractor must affirm the contractor’s enrollment and participation in the E-Verify federal work authorization program with respect to the employees hired after enrollment in the program who are proposed to work in connection with the services requested herein. The contractor shall complete applicable portions of Exhibit # 1,

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2.7 2.7.1
2.7.2 2.8 2.8.1
2.8.2 3 3.1 3.1.1
3.1.2

Business Entity Certification, Enrollment Documentation, and Affidavit of Work Authorization. The applicable portions of Exhibit #1 must be submitted prior to an award of a contract.
Debarment Certification
The contractor certifies by signing the signature page of this original document and any amendment signature page(s) that the contractor is not presently debarred, suspended, proposed for debarment, declared ineligible, voluntarily excluded from participation, or otherwise excluded from or ineligible for participation under federal assistance programs.
The contractor must complete and submit Exhibit #2, Certification Regarding Debarment, prior to award of contract.
HIPAA
The Department is subject to and must comply with applicable provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH) (PL-111-5) (collectively, and hereinafter, HIPAA) and all regulations promulgated pursuant to authority granted therein.
The contractor shall be a “Business Associate” of the Department, as defined in the Code of Federal Regulations (CFR) at 45 CFR 160.103, and shall comply with the provisions of the Business Associate Agreement attached hereto as Attachment A.
Specific Performance Requirements
Responsibilities of the Contractor
The contractor shall provide full time equivalent (FTE) clinical and support staff, members including a minimum as follows:
a. 1.0 center director; b. 1.0 psychiatrist; c. 0.8 licensed psychologists; d. 2.0 nurse case managers; and e. 1.0 support administrator.
The contractor shall perform on an as needed basis the duties specified herein to monitor capacity based on workload demands, and work with the Department to adjust staffing levels and funding to ensure the required services are accomplished as follows:
a. Provide active and ongoing review of PROACT reports to identify children in state custody who have hit identified prescribing benchmarks, require lab work or have other health and behavioral health concerns;
b. Provide psychiatric consultation to practitioners on best practice indicators for the use of psychotropic medications with children and youth;
c. Provide psychiatric or behavioral health peer-to-peer consultation regarding treatment plans for specific children;
d. Provide psychiatric or behavioral health consultation to Department caseworkers and supervisors regarding behavioral health needs and issues of children, including but not limited to psychotropic medications and alternative or simultaneous interventions;
e. Utilize telehealth to provide direct psychiatric services as needed in identified areas based on quality and capacity issues in regions of the state and as allowed through technology access in the state and staffing levels outlined in the contract;
f. Provide consultation services as requested by the Department to professionals involved with supporting children in person or via telehealth;
g. Review of aggregate reports through PROACT on children to identify trends and support ongoing program improvement; Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 41 of 75

3.1.3

h. Provide monthly reports regarding the amount of consultations or other services provided to children as well as any issues/trends identified;
i. Work jointly with the Department to develop strategies to address issues/trends related to the following:
1) Psychiatric and/or behavioral health issues;
2) Education and training of state and contracted staff regarding substance abuse; and
3) Mental health issues of children and parents.
j. Adhere to best practices and clinical guidelines promulgated by professional bodies such as the American Academy of Child and Adolescent Psychiatry, American Academy of Pediatrics, American Psychiatric Association, and the American Psychological Association.
The contractor shall work with the University of Missouri, Child Health Department and other related programs to build additional capacity within the center to include clinical and support staff to provide one (1) FTE Pediatrician and one (1) FTE Pediatric Nurse to perform the following responsibilities shall be implemented within six (6) to twelve (12) months of the begin date of the contract:
a. Coordinate medical and behavioral aspects of pediatric care with Department staff;
b. Work with Department clinical staff to quantify the prevalence and distribution of medical and behavioral health conditions among the Medicaid population;
c. Work with Department clinical staff to risk stratify the population by medical and behavioral health conditions in the population (e.g., identify the subgroups of medically fragile and Serious Mental Illness (SMI);
d. Assist in sorting and managing the population according to acuity and according to the intensity of coordination and management required by the acuity of disease;
e. Follow established preventive schedules such as those promulgated by the American Academy of Pediatrics and monitor the population to assure that the population in aggregate is receiving timely routine preventive visits. Early and Periodic Screening Diagnostic and Treatment (EPSDT) screening, vaccinations, etc., identify outliers, and work with Department clinical and research staff to identify causes and develop solutions to address outliers;
f. Use available electronic medical records to sort the population by medication profiles/drug classes; assess polypharmacy and appropriateness of prescribed medications, including psychotropics and antipsychotics; and monitor adherence;
g. Facilitate coordination of care of the population with local physicians or providers, including specialists;
h. Provide clinical decision making tools, algorithms, and consultation for common conditions for Department staff;
i. As needed, provide medical consultation to Department caseworkers and supervisors regarding medical needs;
j. As needed, provide peer-to-peer consultation regarding treatment plans for specific children;
k. Provide monthly reports to the Department regarding amount of consultations or other services that were provided to children as well as any issues/trends identified;
l. Work jointly with the Department to develop strategies to address issues/trends related to physical and/or mental health issues;
m. As needed, provide consultation regarding decision making for and management of the medically fragile and SMI populations and other complex medical needs with local physicians and providers;
n. Monitor outcomes and perform surveillance of the population with available tools and MHD research staff and provide quarterly updates to the Department;

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o. Work with Department clinical staff on identifying system based issues in the care of the pediatric population which Medicaid can affect;
p. Adhere to best practices and clinical guidelines promulgated by professional bodies such as the American Academy of Child and Adolescent Psychiatry, American Academy of Pediatrics, American Psychiatric Association, and the American Psychological Association.
q. The Pediatrician will also provide the following for the Department;
1) Review of best practices for evaluation and treatment of children in state custody;
2) Integration of clinical knowledge into policy;
3) Consultation on major medical issues;
4) Development and implementation of medical consent policy;
5) Education and training of state and contracted staff, and foster parents to allow informed decision making, consent and medication monitoring;
6) Education and training of medical providers to understand unique needs of children in foster care and state custody;
7) Promulgation of trauma informed care policy and practice to peers for incorporation into behavioral health and medical practices and systems;
x Relationship building with medical providers statewide;
x Participate in second level review process of prescription medications;
x Review and analyze data and reports generated by health information systems.
3.1.4 The contractor shall also provide consultation for specific cases as well as policy planning for the following specialty areas (maximum ten (10) hours per month):
a. Psychiatric Pharmacist;
b. Geneticist; and
c. Medical Ethicist
3.2 Responsibilities of the Department
3.2.1 The Department shall provide the following:
a. Authorization for Relias to release a monthly PROACT report to the center identifying aggregate data as well as unique data on individual children prescribed psychotropic medications;
b. Authorization for Relias to work in collaboration with the center in regards to obtaining and formatting data reports;
c. Funding to support staffing and administrative costs of the center to achieve the contract requirements; d. Permission to work with the Department staff in Central Office as well as across the state to address the
needs of individual children or the state child welfare system regarding behavioral health issues;
e. Opportunities to provide training or other educational services to Department staff regarding behavioral health issues as identified jointly through the center and the Department; and
f. Coordination with the center in regards to telehealth or other formats to provide consultation and other services across the state.
3.3 Potential Expansion
3.3.1 The Department may conduct quarterly reviews with the center to determine the potential need for additional staff to manage the growing caseload of children on psychotropic medication including possible areas of expansion as follows;
a. psychiatric consultation (child psychiatrist);
b. clinical consultation (psychologist); and Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 43 of 75

c. level of nurse case management (NCM);

d. expansion of in person services.

3.3.2 In order to effectively reduce psychotropic medications, the Department and the center may review other areas of development or enhancement such as:

a. access to therapies and adjunctive therapies;

b. trauma,

c. attachment;

d. transition youth;

e. use of residential and inpatient settings, and

f. expansion of therapeutic home settings.

4. General Contractual Requirements

4.1 General

4.1.1 The contract shall consist of the original contract document and any subsequent amendment to the contract.

4.1.2 The Department enters into this contract by the authority of its director. The contractor enters into this contract by the authority of the Curators of the University of Missouri.

4.1.3

The contract shall be interpreted according to the laws of the State of Missouri. To the extent that a provision of the contract is contrary to the Constitution or laws of the State of Missouri or of the United States, the provision shall be void and unenforceable. However, the balance of the contract shall remain in force between the parties unless terminated by consent of both the contractor and the state.

a. The contract will be read and enforced as though every provision of law and clause required by law to be inserted herein were included. If any such provision is not inserted, then upon the notification of either party the contract will be amended to make such correction.

4.1.4

This contract shall constitute an assignment by the contractor to the State of Missouri of all rights, title and interest in and to all causes of action that the contractor may have under the antitrust laws of the United States or the State of Missouri for which causes of action have accrued or will accrue as the result of or in relation to the particular goods or services purchased or procured by the contractor in the fulfillment of the contract.

4.1.5 The exclusive venue for any legal proceeding relating to or arising out of the contract shall be in the Circuit Court of Cole County, Missouri.

4.1.6 Neither party shall transfer or assign any interest in the contract without the prior written consent of the other party.

4.1.7 Unless otherwise specified, the contractor shall be responsible for furnishing all materials, labor, facilities, equipment and supplies necessary to perform the services required herein.

4.1.8 The contractor shall represent itself to be an independent contractor and shall not represent itself or its employees as employees of the Department.

4.1.9 The contractor shall notify the Department of any change of the contractor's official name, address, telephone number, or IRS taxpayer identification number (TIN).

4.2 Amendment, Termination and Renewal

4.2.1 The contract shall not bind, nor purport to bind, the Department for any commitment in excess of the original contract period.

4.2.2

Funding for the contract must be appropriated by the Missouri General Assembly for each fiscal year included within the contract period. Therefore, the contract shall not be binding upon the Department for any period in which funds have not been appropriated, and the Department shall not be liable for any costs associated with termination caused by lack of appropriations.
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4.2.3 4.2.4
4.2.5
4.2.6 4.2.7 4.3 4.3.1 4.3.2 4.3.3 4.4 4.4.1
4.4.2 4.4.3 4.5 4.5.1

a. The Department reserves the right to terminate the contract, without penalty or termination costs, if such funds are not appropriated or available.
b. In the event funds are not appropriated or available for the contract, the contractor shall not prohibit or limit the Department's right to pursue alternate contracts, as necessary, to conduct state governmental affairs.
c. The provisions of the above paragraphs shall apply to any amendment to the contract.
Any change to the contract shall require a formal, written contract amendment executed by both parties. This contract shall not be amendable by implication by course of dealing or by informal agreements between the parties confirmed by letter, e-mail or otherwise.
The Department shall have the right, with the consent of the contractor, to renew or extend the contract. In the event the contract is renewed or extended, all terms, conditions and provisions of the original contract and any subsequent amendments shall remain in effect and shall apply during the renewal/extension period.
The contract may be terminated by either party, by giving thirty (30) days advance written notice to the other party at its principal address. The termination shall be effective thirty (30) days from the date of notice or the date specified in the notice. Upon the mutual consent of both parties the contractor shall be reimbursed for all work satisfactorily completed and any non-cancelable obligations incurred prior to the effective date of the termination.
Either party may terminate the contract for breach of contract by providing the other party with a written notice of termination. The termination shall become effective on the date specified in the notice. Payments for project activities or for services shall not be made beyond the date of termination.
Any written notice to the contractor shall be deemed sufficient when deposited in the United States mail postage prepaid, transmitted by facsimile, electronic mail, or hand-delivered to an authorized employee of the contractor.
Business Compliance
The contractor shall comply with all applicable local, state and federal laws and regulations related to the performance of the contract.
The contractor must be in compliance with applicable laws regarding conducting business in the State of Missouri and certifies by signing this contract that it and any subcontractors are presently, and will remain, in compliance with such laws.
The contractor must timely file and pay all Missouri sales, withholding, corporate and any other required Missouri tax returns and taxes, including interest and additions to tax, to the extent required by law.
Subcontracting
The contractor may subcontract for the good(s)/services required herein, with notification to the Department. The Department reserves the right to reject a subcontractor, with cause. Any subcontract shall include appropriate provisions to ensure fulfillment of all contractual obligations between the contractor and the Department.
The contractor’s utilization of a sub-contractor shall not relieve the contractor of the responsibility for providing the goods/services required herein.
The contractor shall be solely responsible for all legal and financial responsibilities related to the execution of any subcontract.
Personnel and Staffing
By signing this document, the contractor certifies the following:
a. The contractor shall only utilize personnel authorized to work in the United States in accordance with applicable federal and state laws. This includes but is not limited to the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and INA Section 274A.

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4.5.2
4.6 4.6.1 4.6.2 4.6.3
4.6.4 4.6.5 4.6.6 4.6.7
4.6.8

b. If the contractor is found to be in violation of this requirement or the applicable laws of the state, federal and local laws and regulations, and if the State of Missouri has reasonable cause to believe that the contractor has knowingly employed individuals who are not eligible to work in the United States, the state shall have the right to cancel the contract immediately without penalty or recourse and suspend or debar the contractor from doing business with the state.
c. The contractor shall fully cooperate with any audit or investigation from federal, state or local law enforcement agencies and civil authorities, including the Department.
The contract is predicated, in part, on the utilization of the specific resources, individuals and/or personnel qualifications as identified in the contract. Therefore, the contractor shall ensure:
a. no personnel will be utilized in the performance of the contract who fail to meet specific required qualifications;
b. no substitution of personnel qualifications will be made by the contractor without prior written approval of the Department; and
c. substitutions of personnel made pursuant to this paragraph will be equal to or better than those originally identified.
Financial/Recordkeeping Requirements
The availability of funding for this contract shall be solely determined by the Department and such determination shall be final and without recourse by the contractor.
Monies received from the Department under this contract shall not be used to supplant local funds or subsidize services provided to other agencies, organizations, or individuals.
Payments due under the terms of the contract shall be made by the Department upon receipt of a properly itemized invoice. a. The contractor shall submit their invoices in a timely fashion and no later than the time period
specified in 33.120 RSMo, unless more restrictive requirements are established by state or federal law or regulation.
b. The contractor shall not invoice federal, state, or local tax.
The Department reserves the right to audit all invoices and to reject any invoice for good cause.
The Department reserves the right to deduct from an invoice any overpayment made by the Department.
The Department reserves the right to make invoice corrections and/or changes with appropriate written notification to the contractor.
The contractor shall maintain auditable records for all activities performed under this contract. Financial records shall conform to Generally Accepted Accounting Principles (GAAP).
a. The contractor shall allow the Department or its authorized representative to inspect and examine any and all of the contractor's records related to the performance of the contract. Such inspection/examination shall occur at reasonable times during normal contractor business hours. The Department shall provide advance notice to the contractor of the contract period(s) to be reviewed.
b. The contractor shall submit reports, records and other information related to the performance of the contract at the reasonable request of the Department.
In the event federal funds are utilized for the contract, the contractor shall arrange for the contract to be included within the scope of its annual or biennial audit as prescribed in OMB Circular A-133 (Audits of Institutions or Higher Education and other Nonprofit Institutions). A copy of the contractor’s completed A133 audit report shall be provided to the Department upon completion.
a. In the event federal funds are not utilized for contract, the contractor shall provide to the Department a copy of its annual report or statement on compliance and on internal control prepared by its external, independent public accounting firm.

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4.6.9 4.7 4.7.1 4.7.2 4.7.3 4.7.4
4.8 4.8.1 4.8.2
4.9 4.9.1

The contractor shall retain all records pertaining to the contract for five (5) years after the close of the contract year unless audit questions have arisen within the five (5) year limitation and have not been resolved. The contractor shall retain all records until all audit questions have been resolved. After the required five year period has expired the contractor shall transfer pertinent records to the Department upon written notification to the contractor.
Confidentiality
All discussions with the contractor and all information gained by the contractor as a result of the contractor’s performance under the contract shall be confidential, to the extent required by law.
The contractor shall release no reports, documentation or material prepared pursuant to the contract to the public without the prior written consent of the Department, unless such disclosure is required by law.
If required by the Department, the contractor and any required contractor personnel shall sign specific documents regarding confidentiality, security, or other similar documents.
The contractor shall use appropriate administrative, physical and technical safeguards to prevent use or disclosure of any information confidential by law that it creates, receives, maintains, or transmits on behalf of the Department other than as provided for by the contract. Such safeguards shall include, but not be limited to:
a. Encryption of any portable device used to access or maintain confidential information or use of equivalent safeguard;
b. Encryption of any transmission of electronic communication containing confidential information or use of equivalent safeguard;
c. Workforce training on the appropriate uses and disclosures of confidential information pursuant to the terms of the contract;
d. Policies and procedures implemented by the State Auditor’s Office (SAO) to prevent inappropriate uses and disclosures of confidential information by its workforce, if applicable; and
e. Any other safeguards necessary to prevent the inappropriate use or disclosure of confidential information.
Insurance
To the extent permitted by Missouri law and not inconsistent with the doctrine of sovereign immunity, the contractor shall be responsible for all injury or damage which occurs as a result of contract activities or services rendered under the terms and conditions of the contract including liability based upon personal injury, bodily injury (including death) or property damage suffered as a result of the contractor's performance under the contract.
The contractor shall maintain adequate liability insurance or self-insurance in the form(s) and amount(s) sufficient to protect the Department and the State of Missouri against any loss, damage and/or expense related to the contractor’s performance under the contract.
a. The contractor shall maintain automobile liability insurance or self-insurance for the operations of any motor vehicle if the terms of the contract require any form of transportation services.
b. The contractor shall maintain adequate liability insurance or self-insurance to cover all medical services rendered if the contract requires the performance of any type of medical service.
c. The contractor shall provide proof of insurance or self-insurance coverage upon request. Proof of the insurance coverage shall include, but not be limited to, effective dates of coverage, limits of liability, insurers' names, policy numbers, company, etc. Proof of self-insurance coverage or another alternative risk financing mechanism may be utilized provided that such coverage is verifiable and irrevocably reliable.
Miscellaneous
All documents, data, reports, and accomplishments prepared, furnished or completed by the contractor pursuant to the terms of the contract shall become the property of the Department.
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4.9.2

Unless otherwise specified herein all discussions with the contractor and all information gained by the contractor as a result of the contractor’s performance under the contract shall be confidential; and no reports, documentation or material prepared under the contract shall be released to the public without the prior written consent of the Department, unless required by law.

4.9.3 The contractor shall be authorized to use documents, data, reports and accomplishments prepared, developed or acquired pursuant to the contract for internal and/or scholarly publication purposes.

a. In the event the contractor creates a scholarly publication resulting from information gained pursuant to the contract, the contractor shall:

1) include the Department in the publication review process;

2) maintain the confidentiality of client-specific data to the maximum extent required by federal and state law; and

3) give proper attribution in the publication, to the Department, as the source of funding for the project, as follows:

"This project has been funded (in part) by the Missouri Department of Social Services under a contract awarded to the University of Missouri. The contents do not necessarily reflect the views and policies of the Missouri Department of Social Services, nor does mention of trade names or commercial products constitute endorsement or recommendation for use.”

b. Nothing in this contract shall be construed to require the Department's prior approval of scholarly publications.

5 Invoicing and Payments to the Contractor

5.1 The contractors shall be paid on a monthly basis, one-twelfth (1/12th) of the guaranteed not-to-exceed total annual price for services provided, in accordance with the project budget, attached hereto as Attachment B.

5.1.1

The maximum annual contract amount shall be as follows: x Date of Award through Ju 3ͳ, 2019 - $1,251,376 x August 1, 2019 through ͵ͳ, 2020 - $1,276,340 x August 1, 2020 through ͵ͳ, 2021 - $1,302,128

5.1.2 No other payments or reimbursements shall be made to the contractor other than those specified above. In no event shall the total payments to the contractor exceed the total amount allocated to the contractor by the Department.

5.1.3 The contractor shall submit the monthly invoice by the fifteenth (15th) of the following month, to the address listed below:

Department of Social Services Children’s Division Central Office P.O. Box 88 Jefferson City, MO. 65103

a. The contractor must indicate on the invoices the month for which the invoice is being submitted.

b. Each invoice shall have a unique identifier as an invoice number. Invoice numbers must not be duplicated in the same fiscal year.

c. Final invoices are due by no later than thirty (30) calendar days after the expiration of the contract. The Department shall have no obligation to pay any invoice submitted after the due date.

5.1.5 Failure of the contractor to submit required reports when due, may result in withholding or rejection of payment under the contract. The Department shall reject payment due to the contractor’s failure to perform or deliver the required work.

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5.1.6 5.2.

The Department, at its sole discretion, may:
a. audit all invoices, in a manner determined by the Department;
b. reject any invoice for good cause;
c. make invoice corrections and/or changes with appropriate notification to the contractor;
d. deduct from an invoice any overpayment made by the Department; and
e. recover from the contractor any funds for which adequate verification and documentation of expenditures, if required, is not maintained.
The Department reserves the right to make payments to the contractor through electronic funds transfer (EFT). Therefore, prior to any payments becoming due under the contract, the contractor must register in the State’s MissouriBUYS website at https://missouribuys.mo.gov.

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Attachment A – Business Associate Agreement
(Health Insurance Portability and Accountability Act of 1996, as amended)

(rev 08-29-13)

1. Health Insurance Portability and Accountability Act of 1996, as amended - The Department and the contractor are both subject to and must comply with provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH) (PL-111-5) (collectively, and hereinafter, HIPAA) and all regulations promulgated pursuant to authority granted therein. The contractor constitutes a “Business Associate” of the Department. Therefore, the term, “contractor” as used in this section shall mean “Business Associate.”
2. The contractor agrees that for purposes of the Business Associate Provisions contained herein, terms used but not otherwise defined shall have the same meaning as those terms defined in 45 CFR Parts 160 and 164 and 42 U.S.C. §§ 17921 et. seq. including, but not limited to the following:
a. “Access”, “administrative safeguards”, “confidentiality”, “covered entity”, “data aggregation”, “designated record set”, “disclosure”, “hybrid entity”, “information system”, “physical safeguards”, “required by law”, “technical safeguards”, “use” and “workforce” shall have the same meanings as defined in 45 CFR 160.103, 164.103, 164.304, and 164.501 and HIPAA.
b. “Breach” shall mean the unauthorized acquisition, access, use, or disclosure of Protected Health Information which compromises the security or privacy of such information, except as provided in 42 U.S.C. § 17921. This definition shall not apply to the term “breach of contract” as used within the contract.
c. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean the contractor.
d. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 CFR 160.103, and in reference to the party to this agreement, shall mean the Department.
e. “Electronic Protected Health Information” shall mean information that comes within paragraphs (1)(i) or (1)(ii) of the definition of Protected Health Information as specified below.
f. “Enforcement Rule” shall mean the HIPAA Administrative Simplification: Enforcement; Final Rule at 45 CFR Parts 160 and 164.
g. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Part 160 and Part 164.
h. “Individual” shall have the same meaning as the term “individual” in 45 CFR 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR 164.502 (g).
i. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
j. “Protected Health Information” as defined in 45 CFR 160.103, shall mean individually identifiable health information:
1) Except as provided in paragraph (2) of this definition, that is: (i) Transmitted by electronic media; or (ii) Maintained in electronic media; or (iii) Transmitted or maintained in any other form or medium.
2) Protected Health Information excludes individually identifiable health information in (i) Education records covered by the Family Educational Rights and Privacy Act, as amended, 20 U.S.C. 1232g; (ii) Records described at 20 U.S.C. 1232g(a)(4)(B)(iv); and (iii) Employment records held by a covered entity (Department) in its role as employer.
k. “Security Incident” shall be defined as set forth in the “Obligations of the Contractor” section of the Business Associate Provisions.
l. “Security Rule” shall mean the Security Standards for the Protection of Electronic Protected Health Information at 45 CFR Part 164, Subpart C.

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m. “Unsecured Protected Health Information” shall mean Protected Health Information that is not secured through the use of a technology or methodology determined in accordance with 42 U.S.C. § 17932 or as otherwise specified by the secretary of Health and Human Services.
3. The contractor agrees and understands that wherever in this document the term "Protected Health Information" is used, it shall also be deemed to include Electronic Protected Health Information.
4. The contractor must appropriately safeguard Protected Health Information which the contractor receives from or creates or receives on behalf of the Department. To provide reasonable assurance of appropriate safeguards, the contractor shall comply with the business associate provisions stated herein, as well as the provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH) (PL-111-5) and all regulations promulgated pursuant to authority granted therein.
5. The Department and the contractor agree to amend the contract as is necessary for the parties to comply with the requirements of HIPAA and the Privacy Rule, Security Rule, Enforcement Rule, and other rules as later promulgated (hereinafter referenced as the regulations promulgated thereunder). Any ambiguity in the contract shall be interpreted to permit compliance with the HIPAA Rules.
6. Permitted Uses and Disclosures of Protected Health Information by the Contractor
6.1 The contractor may not use or disclose Protected Health Information in any manner that would violate Subpart E of 45 CFR Part 164 if done by the Department, except for the specific uses and disclosures in the contract.
6.2 The contractor may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, the Department as specified in the contract, provided that such use or disclosure would not violate HIPAA and the regulations promulgated thereunder.
6.3 The contractor may use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with 45 CFR 164.502(j)(1) and shall notify the Department by no later than ten (10) calendar days after the contractor becomes aware of the disclosure of the Protected Health Information.
6.4 If required to properly perform the contract and subject to the terms of the contract, the contractor may use or disclose Protected Health Information if necessary for the proper management and administration of the contractor’s business.
6.5 If the disclosure is required by law, the contractor may disclose Protected Health Information to carry out the legal responsibilities of the contractor.
6.6 If applicable, the contractor may use Protected Health Information to provide Data Aggregation services to the Department as permitted by 45 CFR 164.504(e)(2)(i)(B).
6.7 The contractor may not use Protected Health Information to de-identify or re-identify the information in accordance with 45 CFR 164.514(a)-(c) without specific written permission from the Department to do so.
6.8 The contractor agrees to make uses and disclosures and requests for Protected Health Information consistent with the Department’s minimum necessary policies and procedures.
7. Obligations and Activities of the Contractor
7.1 The contractor shall not use or disclose Protected Health Information other than as permitted or required by the contract or as otherwise required by law, and shall comply with the minimum necessary disclosure requirements set forth in 45 CFR § 164.502(b).
7.2 The contractor shall use appropriate administrative, physical and technical safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by the contract. Such safeguards shall include, but not be limited to:
a. Workforce training on the appropriate uses and disclosures of Protected Health Information pursuant to the terms of the contract;
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b. Policies and procedures implemented by the contractor to prevent inappropriate uses and disclosures of Protected Health Information by its workforce and subcontractors, if applicable;
c. Encryption of any portable device used to access or maintain Protected Health Information or use of equivalent safeguard;
d. Encryption of any transmission of electronic communication containing Protected Health Information or use of equivalent safeguard; and
e. Any other safeguards necessary to prevent the inappropriate use or disclosure of Protected Health Information.
7.3 With respect to Electronic Protected Health Information, the contractor shall use appropriate administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the Electronic Protected Health Information that contractor creates, receives, maintains or transmits on behalf of the Department and comply with Subpart C of 45 CFR Part 164, to prevent use or disclosure of Protected Health Information other than as provided for by the contract.
7.4 In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), the contractor shall require that any agent or subcontractor that creates, receives, maintains, or transmits Protected Health Information on behalf of the contractor agrees to the same restrictions, conditions, and requirements that apply to the contractor with respect to such information.
7.5 By no later than ten (10) calendar days after receipt of a written request from the Department, or as otherwise required by state or federal law or regulation, or by another time as may be agreed upon in writing by the Department, the contractor shall make the contractor’s internal practices, books, and records, including policies and procedures and Protected Health Information, relating to the use and disclosure of Protected Health Information received from, created by, or received by the contractor on behalf of the Department available to the Department and/or to the Secretary of the Department of Health and Human Services or designee for purposes of determining compliance with the HIPAA Rules and the contract.
7.6 The contractor shall document any disclosures and information related to such disclosures of Protected Health Information as would be required for the Department to respond to a request by an individual for an accounting of disclosures of Protected Health Information in accordance with 42 USCA §17932 and 45 CFR 164.528. By no later than five (5) calendar days of receipt of a written request from the Department, or as otherwise required by state or federal law or regulation, or by another time as may be agreed upon in writing by the Department, the contractor shall provide an accounting of disclosures of Protected Health Information regarding an individual to the Department. If requested by the Department or the individual, the contractor shall provide an accounting of disclosures directly to the individual. The contractor shall maintain a record of any accounting made directly to an individual at the individual’s request and shall provide such record to the Department upon request.
7.7 In order to meet the requirements under 45 CFR 164.524, regarding an individual’s right of access, the contractor shall, within five (5) calendar days following a Department request, or as otherwise required by state or federal law or regulation, or by another time as may be agreed upon in writing by the Department, provide the Department access to the Protected Health Information in an individual’s designated record set. However, if requested by the Department, the contractor shall provide access to the Protected Health Information in a designated record set directly to the individual for whom such information relates.
7.8 At the direction of the Department, the contractor shall promptly make any amendment(s) to Protected Health Information in a Designated Record Set pursuant to 45 CFR 164.526.
7.9 The contractor shall report to the Department’s Security Officer any security incident immediately upon becoming aware of such incident and shall take immediate action to stop the continuation of any such incident. For purposes of this paragraph, security incident shall mean the attempted or successful unauthorized access, use, modification or destruction of information or interference with systems operations in an information system. This does not include trivial incidents that occur on a daily basis, such as scans, “pings,” or unsuccessful attempts that do not penetrate computer networks or servers or result in interference with system operations. By no later than five (5) days after the contractor becomes Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 52 of 75

aware of such incident, the contractor shall provide the Department’s Security Officer with a description of any remedial action taken to mitigate any harmful effect of such incident and a proposed written plan of action for approval that describes plans for preventing any such future security incidents.
7.10 The contractor shall report to the Department’s Privacy Officer any unauthorized use or disclosure of Protected Health Information not permitted or required as stated herein immediately upon becoming aware of such use or disclosure and shall take immediate action to stop the unauthorized use or disclosure. By no later than five (5) calendar days after the contractor becomes aware of any such use or disclosure, the contractor shall provide the Department’s Privacy Officer with a written description of any remedial action taken to mitigate any harmful effect of such disclosure and a proposed written plan of action for approval that describes plans for preventing any such future unauthorized uses or disclosures.
7.11 The contractor shall report to the Department’s Security Officer any breach immediately upon becoming aware of such incident and shall take immediate action to stop the continuation of any such incident. By no later than five (5) days after the contractor becomes aware of such incident, the contractor shall provide the Department’s Security Officer with a description of the breach, the information compromised by the breach, and any remedial action taken to mitigate any harmful effect of such incident and a proposed written plan for approval that describes plans for preventing any such future incidents.
7.12 The contractor’s reports required in the preceding paragraphs shall include the following information regarding the security incident, improper disclosure/use, or breach, (hereinafter “incident”):
a. The name, address, and telephone number of each individual whose information was involved if such information is maintained by the contractor;
b. The electronic address of any individual who has specified a preference of contact by electronic mail;
c. A brief description of what happened, including the date(s) of the incident and the date(s) of the discovery of the incident;
d. A description of the types of Protected Health Information involved in the incident (such as full name, Social Security Number, date of birth, home address, account number, or disability code) and whether the incident involved Unsecured Protected Health Information; and
e. The recommended steps individuals should take to protect themselves from potential harm resulting from the incident.
7.13 Notwithstanding any provisions of the Terms and Conditions attached hereto, in order to meet the requirements under HIPAA and the regulations promulgated thereunder, the contractor shall keep and retain adequate, accurate, and complete records of the documentation required under these provisions for a minimum of six (6) years as specified in 45 CFR Part 164.
7.14 The contractor shall not directly or indirectly receive remuneration in exchange for any Protected Health Information without a valid authorization.
7.15 If the contractor becomes aware of a pattern of activity or practice of the Department that constitutes a material breach of contract regarding the Department's obligations under the Business Associate Provisions of the contract, the contractor shall notify the Department’s Security Officer of the activity or practice and work with the Department to correct the breach of contract.
7.16 The contractor shall to the extent permitted by Missouri law and without waiving sovereign immunity indemnify the Department from any liability resulting from any violation of the Privacy Rule or Security Rule or Breach arising from the conduct or omission of the contractor or its employee(s), agent(s) or subcontractor(s). The contractor shall reimburse the Department for any and all actual and direct costs and/or losses, including those incurred under the civil penalties implemented by legal requirements, including but not limited to HIPAA as amended by the Health Information Technology for Economic and Clinical Health Act, and including reasonable attorney’s fees, which may be imposed upon the Department under legal requirements, including but not limited to HIPAA’s Administrative Simplification Rules, arising from or in connection with the contractor’s negligent or wrongful actions or inactions or violations of this Agreement.
Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 53 of 75

8. Obligations of the Department 8.1 The Department shall notify the contractor of limitation(s) that may affect the contractor’s use or
disclosure of Protected Health Information, by providing the contractor with the Department’s notice of privacy practices in accordance with 45 CFR 164.520. 8.2 The Department shall notify the contractor of any changes in, or revocation of, authorization by an Individual to use or disclose Protected Health Information. 8.3 The Department shall notify the contractor of any restriction to the use or disclosure of Protected Health Information that the Department has agreed to in accordance with 45 CFR 164.522. 8.4 The Department shall not request the contractor to use or disclose Protected Health Information in any manner that would not be permissible under HIPAA and the regulations promulgated thereunder. 9. Expiration/Termination/Cancellation: Except as provided in the subparagraph below, upon the expiration, termination, or cancellation of the contract for any reason, the contractor shall, at the discretion of the Department, either return to the Department or destroy all Protected Health Information received by the contractor from the Department, or created or received by the contractor on behalf of the Department, and shall not retain any copies of such Protected Health Information. This provision shall also apply to Protected Health Information that is in the possession of subcontractor or agents of the contractor. a. In the event the Department determines that returning or destroying the Protected Health Information
is not feasible, the contractor shall extend the protections of the contract to the Protected Health Information for as long as the contractor maintains the Protected Health Information and shall limit the use and disclosure of the Protected Health Information to those purposes that made return or destruction of the information infeasible. If at any time it becomes feasible to return or destroy any such Protected Health Information maintained pursuant to this paragraph, the contractor must notify the Department and obtain instructions from the Department for either the return or destruction of the Protected Health Information. 10. Breach of Contract: In the event the contractor is in breach of contract with regard to the business associate provisions included herein, the contractor agrees that in addition to the requirements of the contract related to cancellation of contract, if the Department determines that cancellation of the contract is not feasible, the State of Missouri may elect not to cancel the contract, but the Department shall report the breach of contract to the Secretary of the Department of Health and Human Services.
Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 54 of 75

Attachment B: Center of Excellence Budget (FY19)

Position Center Director
Child Psychiatrist or Fellow
Licensed Clinical or Counseling Psychologist
Pediatrician

Time 1.0 1.000
0.80
1.0

Annual Salary $85,000 x
x x x x x $200,000 x x x x x x x x x
$85,000 x x x x x
x x
x
$150,000 x

Responsibilities
Coordinate and ensure appropriate staffing Serve as liaison to DSS, CD, MHD, DMH, DYS, and partners Develop and implement operational protocols Facilitate ongoing planning and program improvement Monitor outcomes and prepare and present performance reports Develop resources and strategic initiatives Review of information provided by psychologist or NCM Consultation with prescribers Consultation with non-prescribers Consultation with non-physician staff of center Administrative planning meetings as needed Provision of training as requested by DSS Limited direct services as requested by DSS Reports to Director of Child Psychiatry Maintain up to date information regarding the use of psychotropic medications in children and youth as well as issues that impact children in state custody such as trauma Timely review of PROACT reports to identify needs of individual children Timely review of PROACT to identify trends and issues Consultation with center psychiatric staff Consultation with non-physician center staff Consultation/meeting with DSS staff to discuss trends and issues and explore policies and protocols Provision of training as requested by DSS Administrative Oversight/Coordinator of center, reporting to Director of Child Psychiatry. This includes provision of monitoring and data reports Maintain up to date information regarding child welfare and mental health policy and practice issues. Maintain knowledge of mental health and child welfare system in MO As above

FTE Adjustment $85,000 $189,600
$68,000
$150,000

Fringe $27,761 $55,913
$22,209
$46,230

Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 55 of 75

Pediatric Nurse 1.0

Nurse Case

2.0

manager

(preferred)

Social Worker

Specialized

120

Consultation hrs.

$75,000 $75,000 (BSN)
$18,000

x As above Case Management Services children in state custody prescribed psychotropic medications which includes but not specifically limited to: x Identification and obtainment of
information needed by center staff to assess child’s specific services and issues x Provision of information to DSS staff and contractors as identified by DSS regarding a child’s specific issues/needs in person, over the phone/WebEx or via telehealth x Coordination with other health providers and insurance companies including but not limited to Medicaid managed care organizations x Documentation of consultation and other services x Maintain knowledge of MO’s child welfare and mental health systems x Identification and reporting of trends and issues to Coordinator x Psychiatric Pharmacist x Geneticist x Medical Ethicist

$75,000 $150,000
$18,000

$24,495 $48,990

Administrative 1.0 Support
Technology Supplies Office Space Travel Recruiter Total

$40,000
$16,000 $5,000 $68,763 $2,500 $25,000

x Develop and maintain data system in regards to children reviewed, issues identified, contacts and recommendations
x Assist in setting meetings and appointments via in person, phone/WebEx or telehealth
x Provide administrative support to clinical staff
x Laptop/tech support for each person on team ($2000 each)
x x x Mileage to meetings with DSS x Recruitment for Child Psychiatrist
Salary & Fringe

$40,000
$16,000 $5,000 $68,763 $2,500 $25,000 $892,863

$13,064
$238,662 $996,262

Expenses (Travel, Technology, Supplies, Office Space, Specialized Consultation, Recruitment) $135,263

Indirect Rate Total

12%

$119,851 $1,251,376

Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 56 of 75

Attachment B: Center of Excellence Budget (FY20)

Position Center Director
Child Psychiatrist or Fellow
Licensed Clinical or Counseling Psychologist
Pediatrician

Time 1.0 1.000
0.80
1.0

Annual Salary $86,700 x
x x x x x $204,000 x x x x x x x x x
$86,700 x x x x x
x x
x
$153,000 x

Responsibilities
Coordinate and ensure appropriate staffing Serve as liaison to DSS, CD, MHD, DMH, DYS, and partners Develop and implement operational protocols Facilitate ongoing planning and program improvement Monitor outcomes and prepare and present performance reports Develop resources and strategic initiatives Review of information provided by psychologist or NCM Consultation with prescribers Consultation with non-prescribers Consultation with non-physician staff of center Administrative planning meetings as needed Provision of training as requested by DSS Limited direct services as requested by DSS Reports to Director of Child Psychiatry Maintain up to date information regarding the use of psychotropic medications in children and youth as well as issues that impact children in state custody such as trauma Timely review of PROACT reports to identify needs of individual children Timely review of PROACT to identify trends and issues Consultation with center psychiatric staff Consultation with non-physician center staff Consultation/meeting with DSS staff to discuss trends and issues and explore policies and protocols Provision of training as requested by DSS Administrative Oversight/Coordinator of center, reporting to Director of Child Psychiatry. This includes provision of monitoring and data reports Maintain up to date information regarding child welfare and mental health policy and practice issues. Maintain knowledge of mental health and child welfare system in MO As above

FTE Adjustment $86,700 $189,600
$69,360
$153,000

Fringe $29,166 $57,600
$23,333
$48,562

Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 57 of 75

Pediatric Nurse 1.0

Nurse Case

2.0

manager

(preferred)

Social Worker

Specialized

120

Consultation hrs.

$76,500 $76,500 (BSN)
$18,000

x As above Case Management Services children in state custody prescribed psychotropic medications which includes but not specifically limited to: x Identification and obtainment of
information needed by center staff to assess child’s specific services and issues x Provision of information to DSS staff and contractors as identified by DSS regarding a child’s specific issues/needs in person, over the phone/WebEx or via telehealth x Coordination with other health providers and insurance companies including but not limited to Medicaid managed care organizations x Documentation of consultation and other services x Maintain knowledge of MO’s child welfare and mental health systems x Identification and reporting of trends and issues to Coordinator x Psychiatric Pharmacist x Geneticist x Medical Ethicist

$76,500 $153,000
$18,000

$25,735 $51,470

Administrative 1.0 Support
Technology Supplies Office Space Travel Recruiter Total

$40,800
$16,000 $5,000 $68,763 $2,500 $25,000

x Develop and maintain data system in regards to children reviewed, issues identified, contacts and recommendations
x Assist in setting meetings and appointments via in person, phone/WebEx or telehealth
x Provide administrative support to clinical staff
x Laptop/tech support for each person on team ($2000 each)
x x x Mileage to meetings with DSS x Recruitment for Child Psychiatrist
Salary & Fringe

$40,800
$16,000 $5,000 $68,763 $2,500 $25,000 $904,223

$13,725
$249,591 $1,018,551

Expenses (Travel, Technology, Supplies, Office Space, Specialized Consultation, Recruitment) $135,263

Indirect Rate Total

12%

$122,526 $1,276,340

Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 58 of 75

Attachment B: Center of Excellence Budget (FY21)

Position Center Director
Child Psychiatrist or Fellow
Licensed Clinical or Counseling Psychologist
Pediatrician

Time 1.0 1.000
0.80
1.0

Annual Salary $88,434 x
x x x x x $208,080 x x x x x x x x x
$88,434 x x x x x
x x
x
$156,060 x

Responsibilities
Coordinate and ensure appropriate staffing Serve as liaison to DSS, CD, MHD, DMH, DYS, and partners Develop and implement operational protocols Facilitate ongoing planning and program improvement Monitor outcomes and prepare and present performance reports Develop resources and strategic initiatives Review of information provided by psychologist or NCM Consultation with prescribers Consultation with non-prescribers Consultation with non-physician staff of center Administrative planning meetings as needed Provision of training as requested by DSS Limited direct services as requested by DSS Reports to Director of Child Psychiatry Maintain up to date information regarding the use of psychotropic medications in children and youth as well as issues that impact children in state custody such as trauma Timely review of PROACT reports to identify needs of individual children Timely review of PROACT to identify trends and issues Consultation with center psychiatric staff Consultation with non-physician center staff Consultation/meeting with DSS staff to discuss trends and issues and explore policies and protocols Provision of training as requested by DSS Administrative Oversight/Coordinator of center, reporting to Director of Child Psychiatry. This includes provision of monitoring and data reports Maintain up to date information regarding child welfare and mental health policy and practice issues. Maintain knowledge of mental health and child welfare system in MO As above

FTE Adjustment $88,434 $189,600
$70,747
$156,060

Fringe $30,642 $59,326
$24,514
$51,016

Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 59 of 75

Pediatric Nurse 1.0

Nurse Case

2.0

manager

(preferred)

Social Worker

Specialized

120

Consultation hrs.

$78,030 $78,030 (BSN)
$18,000

x As above Case Management Services children in state custody prescribed psychotropic medications which includes but not specifically limited to: x Identification and obtainment of
information needed by center staff to assess child’s specific services and issues x Provision of information to DSS staff and contractors as identified by DSS regarding a child’s specific issues/needs in person, over the phone/WebEx or via telehealth x Coordination with other health providers and insurance companies including but not limited to Medicaid managed care organizations x Documentation of consultation and other services x Maintain knowledge of MO’s child welfare and mental health systems x Identification and reporting of trends and issues to Coordinator x Psychiatric Pharmacist x Geneticist x Medical Ethicist

$78,030 $156,060
$18,000

$27,037 $54,074

Administrative 1.0 Support
Technology Supplies Office Space Travel Recruiter Total

$41,616
$16,000 $5,000 $68,763 $2,500 $25,000

x Develop and maintain data system in regards to children reviewed, issues identified, contacts and recommendations
x Assist in setting meetings and appointments via in person, phone/WebEx or telehealth
x Provide administrative support to clinical staff
x Laptop/tech support for each person on team ($2000 each)
x x x Mileage to meetings with DSS x Recruitment for Child Psychiatrist
Salary & Fringe

$41,616
$16,000 $5,000 $68,763 $2,500 $25,000 $915,810

$14,420
$261,029 $1,041,576

Expenses (Travel, Technology, Supplies, Office Space, Specialized Consultation, Recruitment) $135,263

Indirect Rate Total

12%

$125,289 $1,302,128

Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 60 of 75

Exhibit # 1 (continued)
(Complete the following if you have the E-Verify documentation and a current Affidavit of Work Authorization already on file with the State of Missouri. If completing Box C, do not complete Box B.)
BOX C – Affidavit on File - Current Business Entity Status
I certify that _5__I__F_$__V__S_B_U_P_S_T__P_G_U_I__F_6__O__JW__F_S_T_J_UZ__P__G_.__J_T_T_P__V_S_J___________ (Business Entity Name) MEETS the definition of a business entity as defined in section 285.525, RSMo, pertaining to section 285.530, RSMo, and have enrolled and currently participates in the E-Verify federal work authorization program with respect to the employees hired after enrollment in the program who are proposed to work in connection with the services related to contract(s) with the State of Missouri. We have previously provided documentation to a Missouri state agency or public university that affirms enrollment and participation in the E-Verify federal work authorization program. The documentation that was previously provided included the following.
9 The E-Verify Employment Eligibility Verification page OR a page from the E-Verify Memorandum of Understanding (contract) listing the contractor’s name and the contract signature page completed and signed by the contractor and the Department of Homeland Security – Verification Division
9 A current, notarized Affidavit of Work Authorization (must be completed, signed, and notarized within the past twelve months).
Name of Missouri State Agency or Public University* to Which Previous E-Verify Documentation Submitted: __.__J_T_T_P_V__S_J_0__G_G_JD__F_P__G_"__E_N___JO__J_T_US_B__UJ_P_O__________________________________________________
*Public University includes the following five schools under chapter 34, RSMo: Harris-Stowe State University – St. Louis; Missouri Southern State University – Joplin; Missouri Western State University – St. Joseph; Northwest Missouri State University – Maryville; Southeast Missouri State University – Cape Girardeau. Date of Previous E-Verify Documentation Submission: ______________________
Previous Bid/Contract Number for Which Previous E-Verify Documentation Submitted: ___________________ (if known)

.JDIFMMF--FBUPO
Authorized Business Entity Representative’s Name (Please Print)

Authorized Business Entity Representative’s Signature

 E-Verify contract Company ID Number
5IF$VSBUPSTPGUIF6OJWFSTJUZPG.JTTPVSJ Business Entity Name FOR STATE USE ONLY Documentation Verification Completed By:
pm
Buyer

HSBOUTED!NJTTPVSJFEV E-Mail Address
07/09 Date
7/12/18 Date

.61SPKFDUCase 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 61 of 75

Exhibit #2 - Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered Transactions

This certification is required by the regulations implementing Executive Order 12549, Debarment and Suspension, 29 CFR Part 98 Section 98.510, Participants' responsibilities. The regulations were published as Part VII of the May 26, 1988, Federal Register (pages 19160-19211).

(BEFORE COMPLETING CERTIFICATION, READ INSTRUCTIONS FOR CERTIFICATION)

(1) The prospective recipient of Federal assistance funds certifies, by submission of this proposal, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.

(2) Where the prospective recipient of Federal assistance funds is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.

The Curators of the University of Missouri
Company Name

153890272
DUNS #

Michelle L. Leaton
Authorized Representative’s Printed Name

Assistant Pre-Award Manager, OSPA
Authorized Representative’s Title

Authorized Representative’s Signature

7/10/2018
Date

Instructions for Certification
1. By signing and submitting this proposal, the prospective recipient of Federal assistance funds is providing the certification as set out below.
2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective recipient of Federal assistance funds knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the Department of Labor (DOL) may pursue available remedies, including suspension and/or debarment.
3. The prospective recipient of Federal assistance funds shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective recipient of Federal assistance funds learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "person," "primary covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations.
5. The prospective recipient of Federal assistance funds agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the DOL.
6. The prospective recipient of Federal assistance funds further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transactions," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may but is not required to check the List of Parties Excluded from Procurement or Nonprocurement Programs.
8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntary excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the DOL may pursue available remedies, including suspension and/or debarment.

MU ProjectC0a00s6e322:2117-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 62 of 75

Exhibit B
Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 63 of 75

M.B. v. Tidball Settlement Agreement: Exit Criteria and Data Sharing

Practice Area No. Agreement Exit Criteria Reference
Exit Group 1 – Medication Monitoring, Medical Records

Medication

1

III.B.1

Monitoring

Did every Child have a mental health assessment with a DSM-based diagnosis documented in the Child’s Case File prior to being prescribed a Psychotropic Medication?

Data Sharing – Results to be shared with Plaintiffs’ Counsel every six months

2

III.B.2

Exit Criteria – response is yes for 75% to 85% of cases reviewed1 Did every Child prescribed a Psychotropic Medication have medical examinations as indicated by the current Bright Futures/American Academy of Pediatrics “Recommendation for Preventive Pediatric Health Care,” or “periodicity schedule,” or more frequently if recommended by the prescriber?

If the examinations did not occur within the required timelines, what was the reason?

3

III.B.3

Exit Criteria – response is yes for 75% to 85% of cases reviewed Did every Child prescribed a Psychotropic Medication for ongoing use (more than a single dose) have monitoring appointments with a prescriber at least every three months, or more frequently if indicated by the prescriber, documented in the Child’s Case File?

If the appointments did not occur within the required timelines, what was the reason?

4

III.B.4

Exit Criteria – response is yes for 75% to 85% of cases reviewed Did every Child prescribed a Psychotropic Medication receive concurrent non-

1 For each exit criteria, the exact percentage will be determined by the Data Validator and the parties pursuant to Section IV.7.

Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 64 of 75

Data Source Case Review Case Review
Case Review Case Review

Practice Area No. Agreement Exit Criteria

Data Sharing – Results to be shared with

Reference

Plaintiffs’ Counsel every six months

pharmacological treatment at the frequency and

duration recommended by the prescriber?

Data Source

Medical Records

5

III.C.1

Exit Criteria – response is yes for 75% to 85% of cases reviewed Were reasonable and diligent efforts (including the steps set forth in Section III.C.1.c) made by the Child’s Case Manager (or other CD staff) to compile and maintain all available medical records listed in Section III.C.1.b?

Case Review

Exit Criteria – response is yes for 75% to 85%

of cases reviewed

6

III.C.2.b

Was a completed copy of the Health Care

In how many of the cases reviewed was the CD-264 Case Review

Information Summary (CD-264) given to the provided within 72 hours following initial

current Resource Provider within 72 hours

placement?

following initial placement?

In how many of the cases reviewed was the CD-264

If not possible, was this document provided no provided within 30 days following initial

later than 30 days following initial placement? placement?

Exit Criteria – response is yes for 75% to 85%

of cases reviewed

7

III.C.2.b

Was a completed copy of the Child/Family

In how many of the cases reviewed was the CW-103 Case Review

Health and Developmental Assessment (CW- provided within 72 hours following initial

103), if provided by the parent or legal

placement?

guardian, given to the current Resource

Provider within 72 hours following initial

In how many of the cases reviewed was the CW-103

placement?

provided within 30 days following initial placement?

If not possible, was this document provided no later than 30 days following initial placement?

2 Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 65 of 75

Practice Area No. Agreement Exit Criteria

Data Sharing – Results to be shared with

Reference

Plaintiffs’ Counsel every six months

Exit Criteria – response is yes for 80% to 90%

of cases reviewed

8

III.C.2.c

Was an updated version of the Health Care

Information Summary (CD-264) for the Child’s

prior foster care placements given to the current

Resource Provider within 72 hours following

subsequent placement?

Exit Criteria – response is yes for 75% to 85%

of cases reviewed

9

III.C.2.c

Were completed copies of all Monthly Medical

Logs (CD-265) for the Child’s prior foster care

placements given to the current Resource

Provider within 72 hours following subsequent

placement?

Exit Criteria – response is yes for 75% to 85%

of cases reviewed

III.C.1.a and

2.a.

Exit Group 2 – Training, Secondary Review, Informed Consent/Assent

Training

10 III.A.2.a

What percentage of foster care staff

successfully completed the pre-service training

on Psychotropic Medications (including the

informed consent policy training)?

Semiannual reporting on system building set forth in Sections III.C.1.a and 2.a.

11 III.A.2.b

Exit Criteria – response is 80% to 90% What percentage of foster care staff successfully completed the annual in-service training on Psychotropic Medications?

12 III.A.3.a

Exit Criteria – response is 80% to 90% What percentage of licensed Resource Providers successfully completed the pre-

Data Source Case Review
Case Review
n/a Aggregate Data
Aggregate Data Aggregate Data

3 Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 66 of 75

Practice Area No. Agreement Exit Criteria Reference placement training on Psychotropic Medications?

Data Sharing – Results to be shared with Plaintiffs’ Counsel every six months

Data Source

13 III.A.3.c

Exit Criteria – response is 75% to 85% What percentage of licensed Resource Providers successfully completed the annual inservice training on Psychotropic Medications?

Aggregate Data

Secondary Review

III.A.5.a III.A.5.b
III.D.3 14 III.D.4

Exit Criteria – response is 75% to 85%
Was a secondary review requested by the Statewide Clinical Consultant (“SCC”) when required using the automatic review criteria set forth in Section III.D.4.a and, 12 months from the entry of the Agreement, using the criteria set forth in Section III.D.4.b?

Results of an annual survey of Case Management Staff to assess their ability to perform the functions assigned to them in CD policy related to Psychotropic Medications. Results of an annual survey of Resource Providers and prescribers (and others as CD deems appropriate) regarding the experience of foster parents with respect to Children in their care being administered Psychotropic Medications. How many secondary reviews were requested pursuant to Section III.D.3?

n/a
n/a
Aggregate Data from SCC Aggregate Data from MHN and SCC

Exit Criteria – response is yes for 75% to 85% of all cases where review was required 15 III.D.5 and 6 For all secondary reviews requested from the SCC, was the standardized request form or template filled out and, if applicable, all reasonably available additional information

Case Review

4 Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 67 of 75

Practice Area No. 16 17

Informed

18

Consent/Assent

Agreement Reference

Exit Criteria
requested by the Qualified Psychiatrist provided?

Data Sharing – Results to be shared with Plaintiffs’ Counsel every six months

Data Source

III.D.9

Exit Criteria – response is yes for 75% to 85% of all cases where review was required For all secondary reviews requested from the SCC, was the review timely completed?

Case Review

III.D.10

Exit Criteria – response is yes for 75% to 85% of all cases where review was required Was the completed secondary review request/recommendation form placed in the Child’s Case File?

Case Review

III.D.4.a III.E.1

Exit Criteria – response is yes for 75% to 85% of all cases where review was required
When informed consent was required for the administration of Psychotropic Medication, was informed consent obtained consistent with the terms set forth in Section III.E.1?

How many reviews were required for each of the automatic review criteria set forth in Sections III.D.4.a? When a review was initiated, did the Case Manager open the email from the SCC within three business days? Did the Case Manager follow up with the prescriber as per the recommendation of the secondary review? If yes, what were the outcomes? If no, why was contact not made?

Aggregate Data from SCC Aggregate data from SCC Case Review
Case Review

Exit Criteria – response is yes for 75% to 85% of cases reviewed

5 Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 68 of 75

Practice Area No. Agreement Exit Criteria

Data Sharing – Results to be shared with

Data Source

Reference

Plaintiffs’ Counsel every six months

III.E.1.f

If the Child’s parents’ parental rights have not been Case Review

terminated, was the parent engaged consistent with

Section III.E.1.f?

III.E.1.f.iv

How many cases were referred to the SCC as a

Aggregate

result of a parent’s objection to the consenting

Data from

decision consistent with Section III.E.1.f.iv? What SCC

were the results of those reviews?

III.E.1.f.ii, g

Did any member of the Child’s FST object to the Case Review

and h

Child’s being administered Psychotropic

Medication? If yes, how has this been addressed

and/or resolved?

III.E.1.h

If the individual sought to be appointed as the

Case Review

consenting authority, was that matter raised to the

juvenile court? If yes, how has this been addressed

and/or resolved?

III.E.1.l.i

If a Child in a residential setting was administered a Case Review

Psychotropic Medication on an emergency basis, as

set forth in Section III.E.1.l.i, was notice provided

to the consenting party within 24 business hours?

III.E.1.l.i

If a Child in a hospital setting was administered a Case Review

Psychotropic Medication on an emergency basis, as

set forth in Section III.E.1.l.i, did the Child’s Case

Manager inquire within two business days of the

Child’s hospital discharge to determine whether any

Psychotropic Medications were administered on an

emergency basis?

19 III.E.1.i

When informed consent was required for the

Case Review

administration of Psychotropic Medication, was

the standardized form filled out and included in

the Child’s Case File?

Exit Criteria – response is yes for 75% to 85% of cases reviewed

6 Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 69 of 75

Practice Area No. Agreement Exit Criteria

Data Sharing – Results to be shared with

Reference

Plaintiffs’ Counsel every six months

20 III.E.1.k.i Was a mandatory informed consent review

requested from the Qualified Psychiatrist when

indicated by Section III.E.1.k.i?

Exit Criteria – response is yes for 75% to 85%

of cases reviewed

21 III.E.1.k.ii For all informed consent reviews requested

and k.iii

from the SCC, was the standardized request

form or template filled out and, if applicable,

all additional information requested by the

Qualified Psychiatrist provided?

Exit Criteria – response is yes for 75% to 85% of all cases where review was required 22 III.E.1.k.iv For all informed consent reviews requested from the SCC, was the review timely completed?

Exit Criteria – response is yes for 75% to 85% of all cases where review was required 23 III.E.1.k.v Was documentation of the informed consent review request and recommendation placed in the Child’s Case File?

III.E.1.k 24 III.E.2

Exit Criteria – response is yes for 75% to 85% of all cases where review was required
If a Child is on Psychotropic Medication, was informed assent sought and documented on the standardized form in the Child’s Case File consistent with the terms set forth in Section III.E.2?

How many reviews were required for each of the mandatory informed consent review criteria set forth in Section III.E.1.k?

Data Source Case Review
Case Review
Case Review
Case Review
Aggregate Data from SCC Case Review

7 Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 70 of 75

Practice Area No. Agreement Exit Criteria Reference

Data Sharing – Results to be shared with Plaintiffs’ Counsel every six months

Data Source

Exit Criteria – response is yes for 75% to 85% of cases reviewed III.E.2.b.iii.d
System-wide Utilization Data n/a

How many cases were referred to the SCC as a result of a Child’s objection to the administration of the medication? What were the results of those reviews?

Aggregate Data from SCC

For the duration of the Agreement, Defendants shall Aggregate publish the following data points on the DSS or CD Data website on a semi-annual basis:

1. Number of children in foster care currently prescribed a Psychotropic Medication compared to the overall number of children in foster care.
2. Percent of children in foster care currently prescribed a Psychotropic Medication.
3. Number of children in foster care identified by each of the following reporting criteria: a. Use of any Psychotropic Medication for a Child age three or younger; b. For a Child age four or older: i. Use of three or more Psychotropic Medications for 90 days or more; ii. Use of two or more concurrent antipsychotic medications for 90 days or more; and iii. Multiple prescribers of any Psychotropic Medication for 90 days or more.
4. Data on the following Child Health Insurance Plan (CHIP) Child Core Set Measures per Healthcare Effectiveness Data and Information Set (HEDIS) specifications:

8 Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 71 of 75

a. Follow-up care for Children prescribed Attention-Deficit/Hyperactivity Disorder (ADHD) Medication and
b. Use of first-line psychosocial care for Children and adolescents on antipsychotics.
9 Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 72 of 75

Exhibit C
Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 73 of 75

MISSOURI DEPARTMENT OF SOCIAL SERVICES CHILDREN’S DIVISION Informed Consent For Psychotropic Medication
PART A: To be completed by the case manager – prior to appointment with prescriber Name of child

Name of prescriber

Prescriber office name and address

Purpose of visit: Other

New Start

Monitoring Appointment

Yearly Consultation

Was the youth given medications due to an emergency?

Yes

No

If yes, please explain the situation below:

Child's date of birth (month, day, year)
Date of office visit Prescriber contact number ( ) Date of diagnosis (month, day, year)

Is the youth currently prescribed other non-psychotropic medications? Yes

No

If yes, list:

List any side effects/adverse reactions to previously prescribed psychotropic and non-psychotropic medications:

Part B: To be completed by case manager in conjunction with prescriber

List of Psychotropic Medications
Medication Name

Dosage Duration

Side Effects

The benefits of usage and non-usage were discussed. Yes No Is this dosage outside best practice guidelines? Yes No If yes, explain. Also comment on any off label usage:

Reason for Medication

New Medication
Yes No

No Changes Made

Yes No

Yes No

Yes No

Yes No

Potential side effects and/or adverse reactions for each medication listed were discussed with the prescriber. Yes No

5Page | 1

Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 74 of 75

(CD‐275 Rev5/19)

Alternate treatment options were discussed. Yes No (check all that apply)

Individual Therapy Family Therapy Group Therapy Healthy Eating Weight/Exercise Sleep Hygiene Light Therapy Other ________________

Will lab work be needed while the youth is on this medication? and after)

Yes No (list medication below and check all that are required – before, during

Medication: Lipids EKG TSH/T4 CBC CMP A1C Medication levels

Medication: Lipids EKG TSH/T4 CBC CMP A1C Medication levels

Medication: Lipids EKG TSH/T4 CBC CMP A1C Medication levels

Potential interactions with other non-psychotropic medications the youth takes was discussed. Yes No
Parental Notification: Legal parent(s) were contacted regarding a recommendation for psychotropic medications: Yes No Comments (Indicate whether the parent(s) were in agreement with the recommendation for medication and/or attempts made to discuss):

Youth Assent (to be completed by youth age 12 -17 years of age):
My rights have been explained to me (the prescriber talked to me about the above medications, and I have had the chance to ask questions): Yes No
Comments:

Signature of youth

Date

Case Manager participated in person or by phone with youth

Center for Excellence Referral:

If necessary, was a referral made to the Center for Excellence? Yes No N/A Date of Referral Authorization for administration of psychotropic medications:

By signing below, I give consent for

to receive the following medications

, as recommended by his/her healthcare provider.

By signing below, I do not give consent for

to receive the following medications

(If authorization is denied, reason must be provided below.)

Reason authorization denied:

, as recommended by his/her healthcare provider.

Signature of Children’s Division Case Manager or designee Print Name

Date

Phone Number (accessible in emergencies)

5Page | 2

Case 2:17-cv-04102-NKL Document 304-1 Filed 11/06/19 Page 75 of 75 (CD‐275 Rev5/19)

 
 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

M.B., et al.,

Plaintiffs,

v. Jennifer Tidball, et al.,

Case No. 2:17-cv-4102-NKL

Defendants.

ORDER

I. INTRODUCTION

This class action was brought on behalf of children in foster care who alleged that

Defendants, the Acting Director of the Missouri Department of Social Services and the Director

of the Children’s Division of the Missouri Department of Social Services, had failed to implement

a system of safeguards and oversight with respect to the administration of psychotropic drugs to

children in their custody. The Court certified a class consisting of “all children in Children’s

Division foster care custody who presently are, or in the future will be, prescribed or administered

one or more psychotropic medications while in state care.” Before dispositive motions were filed,

however, the parties engaged in extensive mediation and ultimately reached an agreement settling

the case. The settlement agreement includes specific “Commitments” by the state agencies with

regard to training, monitoring, maintenance of medical records, review, informed consent,

oversight, and enforcement. Doc. 280-1 (Settlement Agreement).

Plaintiffs’ counsel, consisting of attorneys from various non-profit organizations and one

major law firm, have moved for an award of $3,894,975.22 in fees (for 11,417.6 hours of work)

and $132,907.56 in expenses. Plaintiffs’ attorneys’ work involved not only investigations and

research undertaken before the case was filed, but also motion practice—some of which was

Case 2:17-cv-04102-NKL Document 326 Filed 04/03/20 Page 1 of 42

peculiarly necessitated by Defendants’ decisions to move to dismiss the case, to appeal the Court’s class certification decision, and to seek to stay the litigation in this Court pending resolution of their appeal from the class certification decision, as well as more minor matters such as oppositions to motions for appointment of Next Friends for the minor children and the voluntary withdrawal of a Named Plaintiff, as well as the filing of a discovery motion aimed at procuring private therapy notes for a child that the Court found were protected by the psychotherapist-patient privilege. No less important was the work Plaintiffs undertook to reach a comprehensive settlement with respect to complicated issues surrounding the administration of psychotropic drugs to children in Missouri’s foster care system.
For the reasons, discussed below, Plaintiffs’ motion for fees, Doc. 285, is granted in part.
II. BACKGROUND a. Pre-Filing Investigation
Before filing this lawsuit in 2017, Plaintiffs’ counsel conducted a nearly-two-year investigation into the oversight and monitoring of psychotropic medications in the Missouri child welfare system. Declaration of Samantha Bartosz in Support of Plaintiffs’ Motion for Fees and Expenses (Doc. 285-2, “Bartosz Decl.”) ¶ 29. During the investigation, Plaintiffs’ counsel collected and reviewed publicly available information; researched applicable case law, statutes, and regulations; conducted extensive outreach to knowledgeable stakeholders, including through both telephonic and in-person interviews; and identified representative Named Plaintiffs and suitable Next Friends. Id. ¶ 30.
b. Commencement of Lawsuit On June 12, 2017, Plaintiffs, by their Next Friends and through counsel, commenced this action—which they say is the first of its kind—against the Director of the Children’s Division
2 Case 2:17-cv-04102-NKL Document 326 Filed 04/03/20 Page 2 of 42

(“CD”) of the Department of Social Services (“DSS”) and the Acting Director of the Department of Social Services, each in their official capacities. Doc. 1. The complaint was over 45 pages in length. As amended on July 3, 2017, the complaint alleged substantive and procedural due process violations and sought declaratory and injunctive relief regarding at least three alleged deficiencies in Defendants’ policies, procedures, practices, and customs with respect to the administration of psychotropic drugs: (1) failure to maintain, and to furnish to caregivers and prescribing physicians, up-to-date medical records detailing each child’s physical and mental health history; (2) failure to ensure informed consent to the administration of psychotropic medication, both at the outset and as treatment continues; and (3) failure to ensure secondary review of all outlier prescriptions by a qualified, independent child psychiatrist. Doc. 22.
c. Motion to Dismiss On August 21, 2017, Defendants filed a motion to dismiss on the grounds of failure to state a claim and on the basis of the federal abstention doctrine articulated in Younger v. Harris, 401 U.S. 37 (1971). Doc. 33. After the matter was fully briefed (Docs. 35, 57, 67), the Court scheduled oral argument. Doc. 76. On January 8, 2018, the Court granted in part and denied in part the motion to dismiss, concluding that: (1) the Younger abstention doctrine did not apply; (2) Plaintiffs stated a plausible procedural due process claim; (3) Plaintiffs stated a plausible substantive due process claim, except that claims relating to informed consent in that cause of action were dismissed without prejudice; and (4) the claim for violation of the Federal Adoption Assistance and Child Welfare Act required dismissal because the statutes at issue did not confer a private right of action. Doc. 91.
3 Case 2:17-cv-04102-NKL Document 326 Filed 04/03/20 Page 3 of 42

d. Motions Concerning Appropriate Parties Separately, Defendants moved to dismiss certain unknown plaintiffs on the grounds that those plaintiffs were unidentifiable. Doc. 34. Plaintiffs opposed that motion. Doc. 46. Upon learning the identities of those Named Plaintiffs, however, Defendants subsequently moved to withdraw their motion to dismiss those plaintiffs. Doc. 48. On August 23, 2017, Plaintiffs filed a motion to appoint Next Friends for the Named Plaintiffs. Doc. 36. Defendants filed a response in partial opposition, challenging the appointment of two of the Plaintiffs’ proposed Next Friends. Doc. 45. After fully briefing Defendants’ motion, including through a supplemental response in opposition filed by Defendants, Doc. 59, and a surreply filed by Plaintiffs, Doc. 66, the parties filed stipulations agreeing to the appointment of all Next Friends. Docs. 50, 56, 61, 68. The Court appointed Next Friends for the Named Plaintiffs per the stipulations. Doc. 69. Defendants also challenged Plaintiffs’ motion to dismiss a Named Plaintiff who inadvertently had been joined to the suit. Docs. 111, 124. After that motion was fully briefed (see Doc. 133), the Court granted Plaintiffs’ motion for dismissal of the Named Plaintiff. Doc. 168.
e. Class Certification and Interlocutory Appeal On March 16, 2018, Plaintiffs filed their motion for class certification. Doc. 113. Defendants opposed the motion, challenging Plaintiffs’ arguments regarding commonality, typicality, and adequacy as to each proposed class representative, including on the basis of each minor child’s trauma history. Doc. 144. On July 19, 2018, following full briefing and oral argument, the Court granted Plaintiffs’ motion for class certification, certifying a class consisting of “all children in Children Division foster care custody who presently are, or in the future will be,
4 Case 2:17-cv-04102-NKL Document 326 Filed 04/03/20 Page 4 of 42

prescribed or administered one or more psychotropic medications while in state care.” Doc. 183, p. 19.
On August 2, 2018, Defendants requested permission from the Eighth Circuit to appeal the class certification order. Doc. 192-1. Plaintiffs timely opposed Defendants’ efforts to challenge class certification. Still, the Eighth Circuit granted Defendants’ petition for interlocutory appeal. Doc. 195 (Order, M.B. v. Corsi, No. 18-8009 (8th Cir. Aug. 22, 2018)).
Thereafter, Defendants moved to stay all proceedings and deadlines in this Court pending the Eighth Circuit’s ruling on their forthcoming appeal of the class certification decision. Doc. 201. Defendants argued that they would be irreparably harmed absent a stay because “the enormous amount of work that [would need to] be done to complete discovery and get ready for trial [would] be wasted if the Eighth Circuit decide[d] to decertify or narrow the proposed class,” and that, in contrast, “Plaintiffs have not shown a stay will inflict irreparable harm.” Doc. 202, pp. 7-8. In response, Plaintiffs’ counsel identified specific examples of class members—children in Defendants’ custody—who had experienced and would continue to experience direct harm as a result of Defendants’ alleged policies or procedures, or lack thereof. Doc. 210. After the motion was fully briefed, and after oral argument (Doc. 223), the Court denied Defendants’ motion for a stay, finding that Defendants failed to show a likelihood of success on the appeal, failed to establish that they would be irreparably harmed absent a stay, failed to overcome Plaintiffs’ showing that a stay would subject Plaintiffs to a greater risk of harm, and failed to show that a stay was in the public interest. Doc. 226.
Beginning on November 1, 2018 and continuing for three months, the parties fully briefed the appeal in the Eighth Circuit from the Court’s class certification decision. M.B. v. Corsi, No. 18-2798 (8th Cir.). Per Defendants’ formal request, the case was set for oral argument. Plaintiffs’
5 Case 2:17-cv-04102-NKL Document 326 Filed 04/03/20 Page 5 of 42

attorneys traveled to St. Louis for the oral argument on April 18, 2019. Attorney Schuster argued the case on behalf of the Plaintiffs-Appellees.
f. Fact Discovery In the interim, discovery continued. Defendants produced approximately 1.5 million pages of documents, which Plaintiffs reviewed. Bartosz Decl. ¶ 31. Many of the pages were maintained in hard copy and produced in formats that were not easily searched. Id. Moreover, the productions were disorganized, duplicative, and nonsequential. Id. Many of the files were produced as pages spanning hundreds or thousands of pages that needed to be manually disaggregated for review. Id. Plaintiffs also obtained and analyzed tens of thousands of pages produced from third parties. Id. Plaintiffs reviewed and produced approximately 50,000 pages of documents to Defendants. Id. ¶ 34. For the fifty-four interrogatories (not including subparts) that Defendants propounded, Plaintiffs’ drafted approximately one-hundred pages of responses. Id. Plaintiffs took 15 depositions—six 30(b)(6) depositions and 9 other fact depositions—on topics including medical records, informed consent, and secondary review of psychotropic medications. Id. ¶ 35. Plaintiffs also defended the depositions of three Next Friends. Id. Counsel for both sides participated in dozens of meet-and-confer conference calls to address such topics as the selection of email search terms and custodians as well as what Plaintiffs describe as “numerous delays and deficiencies in Defendants’ responses to Plaintiffs’ discovery requests,” including “Defendants’ fail[ure] to timely produce . . . clearly responsive emails for one of the Named Plaintiff’s case managers.” Id. ¶ 34. Defendants sought the Court’s intervention to compel the production of notes of confidential therapy sessions conducted between Named Plaintiff A.H. and her Next Friend, her
6 Case 2:17-cv-04102-NKL Document 326 Filed 04/03/20 Page 6 of 42

psychotherapist, after the parties’ efforts to confer on the subject were unsuccessful. Doc. 127. Upon oral argument, the Court denied Defendants’ request, holding that the psychotherapistpatient privilege applied and was not waived, and that any probative value in the material sought would be outweighed by the very serious harm to the child if the material were disclosed. Id. Following the ruling, Defendants availed themselves of the opportunity that the Court afforded (see id.) to submit limited briefing further arguing the issue. Doc. 138. Defendants also concurrently filed a motion for leave to create an appellate record regarding their request to compel production of A.H.’s therapy notes. Doc. 136. Both motions were fully briefed. Docs. 148, 151, 152, 153.
The Court denied Defendants’ motion to compel production of the therapy notes in full, in two parts. First, the Court denied the motion to compel production of the therapy notes, except that the Court ordered Plaintiffs to furnish for in camera inspection notes from three specific dates. Doc. 161. Following its in camera review of those documents, the Court denied Defendants’ motion to compel in full. Doc. 164. The Court granted in part and denied in part Defendants’ motion to create an appellate record. Doc. 160.
g. Expert Discovery To bolster their case, Plaintiffs retained four experts in the fields of child and adolescent psychiatry and pharmaceutical sciences. Bartosz Decl. ¶ 47. Each expert produced a detailed report covering topics of informed consent, oversight of psychotropic medication, medical records, and an in-depth review of voluminous Named-Plaintiff case files. Id. ¶ 38. Collectively, the Plaintiffs’ experts’ reports totaled more than one-hundred pages. Id. Plaintiffs’ attorneys and paralegals gathered relevant materials for the experts to review, conferred in person and by
7 Case 2:17-cv-04102-NKL Document 326 Filed 04/03/20 Page 7 of 42

telephone with the experts to discuss their opinions, reviewed draft reports, and prepared the accompanying productions—thousands of pages of reliance materials and communications. Id.
h. Settlement Efforts The parties first undertook mediation efforts, in accordance with the Notice of Inclusion in the Mediation and Assessment Program (“MAP”), with Professor James Levin at the University of Missouri School of Law in Columbia, Missouri, on October 2, 2017. Doc. 3. Although Plaintiffs prepared settlement proposals and materials in anticipation of the meeting, that first mediation session ultimately was not productive. Id. ¶ 40. On June 14, 2018, this Court directed the parties to participate in mediation with Jill Morris, the Director of MAP for the Western District of Missouri. Doc. 174. Thereafter, under Director Morris’s guidance, through four in-person meetings in Kansas City and dozens of telephone conferences between Plaintiffs’ counsel on the one hand and Defendants, DSS, and CD staff on the other, the parties engaged in extensive mediation efforts over the course of nearly a year, covering every issue raised in the Complaint. Bartosz Decl. ¶ 41. Plaintiffs also held several internal meetings to review settlement proposals and discuss strategy. Id. Both sides brought in subject matter experts at various points to help address some of the clinical and technical aspects of the Agreement, and Plaintiffs’ counsel expended time and effort consulting with these experts. Id. ¶ 42. The telephonic and in-person negotiation sessions typically included one or more counsel from the Missouri Attorney General’s Office and one or more counsel from DSS’s General Counsel’s Office as well as at least two members of the DSS and CD leadership team. Id. ¶ 43. The parties exchanged approximately thirty drafts of various sections of the settlement agreement. Id. Finally, the parties reached a comprehensive Settlement Agreement. Id.
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On May 28, 2019, the parties notified the Court that they had reached an agreement in
principle to settle the case. Doc. 270. The Settlement Agreement, which resolves the remaining
substantive and procedural due process claims that Plaintiffs and class members brought under the
Fourteenth Amendment of the U.S. Constitution, was executed by the parties as of June 10, 2019.
Doc 280-1. The Court preliminarily approved the Settlement Agreement on July 15, 2019. Doc.
282.
The parties notified the Eighth Circuit that a settlement agreement had been reached,
resulting in an order from the Eighth Circuit staying the appeal pending this Court’s decision on
approval of the Settlement Agreement. Order, M.B. v. Corsi, No. 18-2798 (8th Cir. July 9, 2019).
The Court entered an order finally approving the class action settlement in December 2019.
Docs. 317, 320. On January 31, 2020, the Eighth Circuit entered judgment dismissing the appeal
in light of the settlement. Doc. 324.
i. Terms of the Settlement Through the Settlement Agreement, Defendants made substantive commitments in the
following areas:
 Initial and ongoing training of case management staff and resource providers;  Medication monitoring, including regular mental health assessments, medical
examinations, and concurrent non-pharmacological treatment for Class members;  Medical records, including system and reporting capabilities and commitments to
comply with CD policy on the collection and distribution of medical and mental health records;  Secondary review of designated prescriptions of psychotropic medications to Class members by a qualified, independent child and adolescent psychiatrist to ensure safety and appropriateness;  Informed consent and youth assent to the administration of psychotropic medications to Class members, including specific policies and processes governing the provision of consent and assent and periodic review of consent;
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 Establishment of a Psychotropic Medication Advisory Committee to provide professional and technical consultation and policy advice to DSS, CD, and the MO HealthNet Division of DSS on issues related to psychotropic medication; and
 Establishment of excessive dosage guidelines based on advice from and consultation with medical and clinical experts.
Doc. 280-1 (Settlement Agreement). Plaintiffs’ counsel states that the Settlement Agreement “fully address[es] the concerns set forth in the Amended Complaint.” Bartosz Decl. ¶ 44.
III. ANALYSIS The Court may allow “the prevailing party” in certain civil rights actions to recover “a
reasonable attorney’s fee . . . .” 42 U.S.C. § 1988. A litigant is a “prevailing party” for attorneys’ fees purposes “if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit . . . .” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also Jenkins by Jenkins v. State of Mo., 127 F.3d 709, 714 (8th Cir. 1997) (“It is generally true that status as a prevailing party is determined on the outcome of the case as a whole, rather than by piecemeal assessment of how a party fares on each motion along the way.”). Because Plaintiffs have prevailed on significant issues in this litigation they are entitled to attorneys’ fees.
Defendants argue that the amount of the fees and expenses that Plaintiffs seek is unreasonable1 The Court therefore turns to the issue of reasonableness.
a. Fees The basis for any fee award under § 1988 is the lodestar calculation, the product of a reasonable hourly rate and the number of hours reasonably expended on the litigation. See Hensley, 461 U.S. at 433 (“The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a
1 Defendants reserved their right to contest the amount of the fees. Settlement Agreement, Section II.P.
10 Case 2:17-cv-04102-NKL Document 326 Filed 04/03/20 Page 10 of 42

reasonable hourly rate.”); Hanig v. Lee, 415 F.3d 822, 825 (8th Cir. 2005) (“The starting point in determining attorney fees is the lodestar, which is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rates.”). Thus, to determine whether the fees that Plaintiffs seek are reasonable, the Court must determine (1) a reasonable rate for the attorneys’ time and (2) the number of hours reasonably expended on the litigation.
1. Reasonable Hourly Rates A. Applicable Law
In the Eighth Circuit, “a reasonable hourly rate generally means the ordinary fee for similar work in the community.” Little Rock Sch. Dist. v. State Ark. Dep’t of Educ., 674 F.3d 990, 997 (8th Cir. 2012) (quotation marks and citations omitted). The goal of the lodestar method is to “roughly approximate[] the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.” Perdue v. Kenny A., 559 U.S. 542, 551 (2010).
The burden of establishing the appropriate rate rests on the fee applicant. See Blum v. Stenson, 465 U.S. 886, 895 n.11, 104 S. Ct. 1541, 1547 (1984) (“To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence— in addition to the attorney’s own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.”).
B. The Rates Proposed The parties dispute whether Plaintiffs’ proposed rates are in keeping with local rates. The rates that Plaintiffs request and those that Defendants propose are shown below, from highest to lowest:
11 Case 2:17-cv-04102-NKL Document 326 Filed 04/03/20 Page 11 of 42

Attorneys
Samantha Bartosz Bill Grimm Scott T. Schutte Leecia Welch John Ammann Stephen Dixon Elizabeth Gretter Poonam Juneja Aaron Finch Catherine Frizell Jonathan King Courtney J. McCormick Stephanie Schuster Daniele Girard Freya Pitts Danielle Rosenthal Ning He Amanda Grill Erin McGuinness Jacqueline Stolzenberg
Paralegals
Genevieve Caffrey Hailey Cherepon Meghan Kacsmar Kira Setren

Plaintiffs’ Requested
Rate $500 $500 $500 $450 $400 $375 $375 $375 $325 $325 $325 $325 $325 $300 $300 $300 $275 $225 $225 $225
Plaintiffs’ Requested
Rate $150 $150 $150 $150

Defendants’ Proposed Rate
$382 $382 $382 $338 $300 $281 $281 $281 $244 $244 $244 $244 $244 $225 $225 $225 $206 $169 $169 $169 Defendants’
Proposed Rate
$134 $134 $134 $134

In short, Plaintiffs seek rates between $400 and $500 per hour for their most senior litigators, rates between $225 and $375 per hour for associates and staff attorneys, and the rate of $150 per hour for paralegals. Defendants seek to cap the attorney rates at $382 per hour and to reduce the other rates correspondingly.
C. Comparable Rates and Other Evidence In support of their position that their proposed rates are reasonable, Plaintiffs cite the Missouri Lawyers Weekly publication regarding billing rates. In August 2018, the publication

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showed that the median rate for partners across all practice areas was $440 per hour in Kansas City and $380 per hour in St. Louis, with the highest rate for partners at $865 in Kansas City and $660 in St. Louis. Doc. 285-4. For civil rights and class action litigation specifically, the rates listed in the publication for partners range from $350 to $865 in Kansas City. Id. Of course, a partner might have just ten years of experience, while many of the plaintiffs’ attorneys in this case have more than 30 years of experience.
For associates, the Missouri Lawyers Weekly study shows that the median rate across all practice areas was $333 per hour in Kansas City and $225 in St. Louis, with the highest rate at $475 per hour in Kansas City and $300 in St. Louis. Id. For civil rights and class action litigation, the rates listed in the publication for associates range from $290 to $475 in Kansas City. Id. The 2019 publication concerning rates shows that attorneys practicing “public interest class action” charged between $320 and $770 per hour, depending on their experience, and attorneys practicing class action/MDL charge rates ranging from $225 to $495. Doc. 299-2 (Supplemental Declaration of John J. Ammann), Ex. A. The median rate for attorneys (not broken down by partners and associates) for the entire state is $318. Doc. 285-4.
For support staff, the median rate in 2018 was $120 throughout the state, with the highest rate at $275. Doc. 285-4. Notably, however, the broad term “support staff” includes not just paralegals, but also administrative or legal assistants. Rates listed for paralegals who work on class action or civil rights cases specifically are between $215 and $275. Id.
Plaintiffs also submit declarations of local attorneys attesting that their proposed rates are within the range of fees that local attorneys charge for comparable civil rights class action litigation. John M. Kilroy, Jr., an attorney with more than forty years of experience, including in numerous class actions, who retired from Polsinelli, P.C. in 2019, states that he has “been involved
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in many class action lawsuits . . . and in fairness hearings on reasonable rates charged by other lawyers in Kansas City and in other jurisdictions around the country,” and also has “been involved in setting the rates charged by lawyers” at the two law firms at which he worked. Kilroy Declaration ¶¶ 2-6. Mr. Kilroy states that “[t]he standard hourly rate for lawyers and paralegals at Polsinelli, P.C. of similar years of experience is higher than the rates sought by plaintiffs.” Id. ¶ 10. His own rate prior to his 2018 retirement was $585 per hour. Id. Mr. Kilroy further states that he “believe[s] the rates submitted by lawyers and paralegals with St. Louis Legal Clinic, the National Center for Youth Law, Children’s Rights and Morgan Lewis & Bockius to be reasonable and consistent with standard rates charged by lawyers and paralegals of similar age and experience in the Kansas City area.” Id. ¶ 11.
Similarly, Thomas Kennedy, an attorney with more than forty years of experience in civil rights, education rights, and public benefits cases in both Missouri and Illinois, states that his firm charges between $400 and $450 per hour for his time, between $300 and $350 for a partner with seven years of experience, $200 per hour for associates with one year of experience, and $125 to $150 for paralegals. His firm charges higher rates in contingent-fee cases because the attorney assumes the risk (as Plaintiffs’ counsel did here) that he will not be compensated if the suit is unsuccessful. Mr. Kennedy’s rates also, he says, are lower than those charged by Missouri lawyers because rates in Southern Illinois, where half of his firm’s work is done, are lower than those in Missouri.
Plaintiffs also point out that courts have approved comparable or even higher rates in class actions and civil rights suits. See Pollard v. Remington Arms Co., LLC, 320 F.R.D. 198 (W.D. Mo. Mar. 14, 2017) (finding “average hourly fees” for class counsel that ranged from $261 to $897 to be reasonable because, although high, they were “not dissimilar to those hourly rates charged in
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the Kansas City area” and were “indicative of counsel’s extensive national experience in class action lawsuits”), aff’d, 896 F.3d 900 (8th Cir. 2018); Albright v. Bi-State Dev. Agency of MissouriIllinois Metro. Dist., No. 11CV01691 AGF, 2013 WL 4855304, at **8-9 (E.D. Mo. Sept. 11, 2013) (setting rates in class action at $500 per hour for each of the three lead counsel, $245 to $395 per hour for other attorneys, and $150 per hour for paralegals); D.L. v. St. Louis City Pub. Sch. Dist., No. 17 CV 1773 RWS, 2019 WL 1359282, at *2 (E.D. Mo. Mar. 26, 2019) (approving rates of $300 and $400 where plaintiff had submitted evidence “demonstrating billing rates of $200-$350 for ‘attorneys’ or ‘associates’ practicing employment or civil rights law in the St. Louis metropolitan area and billing rates of $350-$500 for ‘partners’ practicing employment or civil rights law in the St. Louis metropolitan area”) (citation omitted)).
Defendants have not submitted any declarations by local attorneys who deem Plaintiffs’ fees unreasonably high. Cf. Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 2:13-cv4022-NKL, 2018 U.S. Dist. LEXIS 190824, at *15 (W.D. Mo. Nov. 7, 2018) (discussing declaration submitted by counsel for the defendants who had argued before the U.S. Supreme Court showing that his rates in private practice were substantially lower than those proposed by plaintiffs’ counsel).
Defendants’ argument that the Court should use rates from 2017 to determine the appropriate rates for Plaintiffs’ counsel in this case because most of the litigation was conducted in 2017 ignores the facts and the law. First, the parties were litigating—including by briefing and arguing the class certification motion and then the appeal from the class certification decision, conducting discovery, and taking depositions—and actively negotiating the very complex settlement between 2017 and 2019. Indeed, the active litigation and negotiation post-dating 2017 is evidenced by the stark difference in hours billed before and after December 31, 2017. Plaintiffs
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seek compensation for 3,116.0 hours of work in 2016 and 2017 and, in contrast, 8,301.6 hours of work in 2018 and 2019.
Moreover, the Supreme Court has noted that “compensation received several years after the services were rendered—as it frequently is in complex civil rights litigation—is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed,” Missouri v. Jenkins, 491 U.S. 274, 283 (1989), and paying current rates compensates for this different in dollar value. See id. at 283-84 (“We agree, therefore, that an appropriate adjustment for delay in payment—whether by the application of current rather than historic hourly rates or otherwise—is within the contemplation of the statute.”); Tussey v. ABB Inc., No. 06-CV-04305NKL, 2015 WL 8485265, at *7 (W.D. Mo. Dec. 9, 2015) (“The Supreme Court has recognized that where there is a delay in an award of fees, ‘[c]ompensation for this delay is generally made “either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value.”’” (quoting Perdue, 559 U.S. at 556)), vacated and remanded on other grounds, 850 F.3d 951 (8th Cir. 2017).
Not only do Defendants ask for application of an older set of rates in this case, but they also ask the Court “to use the average rates of Missouri attorneys to cap Plaintiffs’ counsels’ maximum hourly rate.” Doc. 298, pp. 5-6 (emphasis added). Defendants do not explain why the average rate—which encompasses the rates of those with extensive experience and specialized knowledge and those who are fresh law school graduates—should be the ceiling for multiple attorneys who have more than 30 years of experience and, as discussed further below, specialized knowledge concerning children’s and youth law, the complicated field of psychotropic drugs, and complex class action litigation. Defendants’ argument for application of the average rate as a ceiling is contrary to the law on the subject. See Hendrickson v. Branstad, 934 F.2d 158, 164 (8th
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Cir. 1991) (“In determining whether a fee is reasonable, ‘the special skill and experience of counsel should be reflected in the reasonableness of the hourly rates.’”) (citation omitted). The Court therefore will not cap rates at the “average” Missouri rate, but will consider each attorney’s rate in light of his or her experience and Missouri fees for civil rights and class action litigation.
D. Challenges in the Case Requiring Special Knowledge, Expertise, and Additional Resources
Plaintiffs’ counsel argue that they would have been justified in seeking out-of-state, specialist rates for their work in this litigation. Determination of the appropriate rate by reference to “a national market or a market for a particular legal specialization” is permitted where local community rates would “not be ‘sufficient to attract experienced counsel’ in a specialized legal field . . . .” Perdue, 559 U.S. at 551. However, if “a local lawyer, adequately versed in civil rights litigation, would have sufficed to attain the result that [the party’s attorney] received while charging the ordinary [local] rate,” or if the party’s attorney “did not display the excellence, or achieve the time savings, implied by [his] higher rate,” the Court would be justified in basing a fee award on local market rates. Id.
While acknowledging that Missouri counsel was involved in the litigation, Plaintiffs argue that counsel specializing in representing children in the custody of state child welfare systems and with knowledge of psychotropic drugs, including its effects on children and oversight of the administration of the drugs, was critical. Local counsel, Attorney John Ammann of the St. Louis University School of Law, has attested that the law school had neither the resources nor the expertise to undertake this litigation on its own: specialized co-counsel was necessary. Doc. 2854 (Declaration of John J. Ammann (“Ammann Decl.”)) ¶¶ 9-10.
Mr. Ammann’s co-counsel included attorneys from Children’s Rights (“CR”), based in New York, New York, and the National Center for Youth Law (“NCYL”), based in Oakland,
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California, each a nonprofit organization recognized as having a wealth of experience representing children in the custody of state child welfare systems. See Bartosz Decl. ¶¶ 2-4; Doc. 285-3 (Declaration of Leecia Welch in Support of Plaintiffs’ Motion for Fees and Expenses (“Welch Decl.”)) ¶¶ 2-4. In granting Plaintiffs’ motion for class certification, the Court stated that “Plaintiffs’ counsel . . . are qualified and experienced, including with respect to issues surrounding children’s rights and class actions.” Doc. 183, p. 17. Both organizations have successfully prosecuted numerous federal class action suits aimed at large-scale reform to ensure that child welfare systems are properly serving the needs of children in their care. CR and NCYL also have been among the leading advocates in the country focused on ensuring that children in foster care who are prescribed psychotropic medications are treated safely and are protected from the harmful effects of overmedication. Welch Decl. ¶¶ 4, 9-10, 30; Bartosz Decl. ¶ 3. CR has resolved multiple cases through settlements that directly address, among other issues, the oversight of psychotropic medications for foster youth. Bartosz Decl. ¶¶ 3-4. NCYL has led efforts to enact numerous laws increasing oversight in this area. Welch Decl. ¶ 9. NCYL also has used class action litigation to enforce children’s rights regarding oversight of psychotropic medications in other custodial settings, including in immigration detention. See Flores v. Sessions, Case No. 85-CV-4544 (C.D. Cal. July 30, 2018), Doc. 470 (Order re: Plaintiffs’ Motion to Enforce Class Action Settlement); Lucas R. v. Azar, 18-cv-5741 (C.D. Cal. Sept. 7, 2018), Doc. 81 (First Amended Complaint).
Local counsel, Mr. Ammann, states that “[t]he level of expertise that the attorneys from Children’s Rights and the National Center for Youth Law have in issues involving children in foster care is unmatched in the country.” Amman Decl. ¶ 8. He further states that “[n]one of the attorneys in our Clinic, including me, had the expertise in psychotropic medication to have undertaken this action without assistance from the other law offices.” Id. ¶ 10. Similarly, counsel
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from the law firm of Morgan Lewis stated that he “would not have felt comfortable prosecuting a case of this complexity without the subject matter expertise of [his] co-counsel from [CR] and [NCYL] as well as the expertise of John Ammann from the St. Louis University School of Law.” Schutte Decl. ¶ 11.
Mr. Kennedy, the attorney unaffiliated with this case who has more than forty years of experience in civil rights, education rights, and public benefits cases in Missouri, attested that he is “aware of no law office in Missouri[] which could have brought this action without partnering with attorneys who have substantial experience in representing children in foster care and addressing systemic issues with child welfare systems.” Kennedy Decl. ¶ 10.
Despite their expertise, the rates that the attorneys from each of these organizations propose to charge are lower than the rates they could reasonably claim in their home markets. See, e.g., Welch Decl. ¶¶ 25-29 (noting that in 2014, a federal court approved the rate of $695 per hour for a NCYL attorney with 29 years of experience and $450 for an attorney with 6 years of experience, and collecting information regarding reasonable market rates in the San Francisco Bay Area); Bartosz Decl. ¶¶ 27-28 (noting that the National Law Journal’s survey of billing rates shows national and New York City rates ranging from an average of $295 to $1,320 for partners and an average of between $200 and $1,025 for associates). Defendants’ argument that Plaintiffs’ counsel should not be permitted to “recruit” Missouri clients and then demand out-of-state rates (Doc. 298, p. 5) is not logical because Plaintiffs are not demanding out-of-state rates.
Because of the limited time and monetary resources at the disposal of the law clinic and nonprofit counsel and the burdens of class action litigation, Plaintiffs’ counsel made efforts to partner with a private law firm capable of devoting additional time and resources to successfully litigate the case. Welch Decl. ¶ 31; Ammann Decl. ¶ 9. However, Plaintiffs’ efforts to secure
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counsel in Missouri or nationally that would take this case on either a pro bono or contingency basis were unavailing. Bartosz Decl. ¶ 53; Welch Decl. ¶ 31; see also Kennedy Decl. ¶¶ 10-11 (attesting that his firm was not available for this litigation and noting that the high demands for resources and time in this case, including expert costs that could not be recovered, made it highly undesirable from the perspective of private, for-profit law firms); cf. Trinity Lutheran, 2018 U.S. Dist. LEXIS 190824, at *9 (rejecting argument that plaintiffs’ counsel were entitled to national, rather than local, rates where there was no suggestion that plaintiffs tried and failed to obtain local counsel). Ultimately, Plaintiffs retained the national firm of Morgan, Lewis & Bockius, through a partner based in Chicago, Illinois, as co-counsel. The Morgan Lewis attorneys propose rates for their time that are substantially lower than the rates they charge private clients. Declaration of Scott T. Schutte (Doc. 285-5) ¶¶ 17, 18.2
In light of the uniquely technical and complex issues involving science, policy and governance, civil rights law, and class action lawsuits that this case involved, it was not only reasonable, but appropriate for Plaintiffs to utilize counsel with specialized experience and knowledge in these areas, and it therefore is appropriate for that counsel to be compensated in accordance with the value they brought to the case. See Stallsworth v. Staff Mgmt. SMX, LLC, No. 17-CV-4178-NKL, 2018 WL 2125952, at *3 (W.D. Mo. May 8, 2018) (“The rate charged should also take into account the experience, skill, and expertise of the attorneys as well as the complexity, significance, and undesirability of the case”). Counsel without adequate resources, expertise, and experience would not have been able to reach the comprehensive settlement that Plaintiffs’ counsel
2 Retaining Morgan Lewis also came with some cost-savings, as the law firm provided infrastructure that Plaintiffs’ counsel used to house, organize, and review the massive document productions in this case. Schutte Decl. ¶ 14. Morgan Lewis is not seeking reimbursement for those costs. Id.
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reached here—a settlement that will improve the processes by which children in foster care are administered psychotropic drugs, reducing the risk of inappropriate and excessive medication. Thus, although the Court’s rulings regarding rates will be in keeping with Missouri rates, they will take into account any unique experience, knowledge, or specialization that a given attorney brought to bear on this case.
E. Rulings on Attorneys’ and Paralegals’ Reasonable Rates Attorney Samantha Bartosz has more than 30 years of litigation experience. Currently CR’s Deputy Director of Litigation Strategy, her experience includes serving as General Counsel of the Office of Administration within the Executive Office of the President and as a partner in the Chicago litigation firm Cahill, Christian & Kunkle Ltd. She has worked at CR, where her practice focuses exclusively on child welfare cases, for more than 16 years. She has served as counsel in a number of class actions alleging constitutional and federal statutory violations. Given her experience and expertise, and in light of the information presented regarding local rates in civil rights and class action matters—particularly the fact that partners working on class action suits I Missouri command over $550 an hour, and other federal courts in Missouri have awarded fees of $500 in class actions (see Pollard, 320 F.R.D. at 198; Albright, 2013 WL 4855304, at *8)—the Court finds Attorney Bartosz’s proposed rate of $500 reasonable. See Trinity Lutheran (adopting Missouri Attorney General’s proposed rate of $450 for opposing First Amendment litigator with 21 years of experience). Attorney Bill Grimm was part of the “core team” from NCYL to work on this case. He was admitted to practice law in 1975, and thereafter worked for the Maryland Legal Aid Bureau, where he created a specialized child advocacy unit and served as director of the statewide program. He joined NCYL in 1988. He represented foster children in both individual juvenile court dependency proceedings and child welfare class action litigation, in federal district and appellate
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courts. He was recognized as one of the preeminent children’s law attorneys in the country. He was a leading advocate focused on ensuring that children in foster care are safely prescribed psychotropic medication and protected from the harmful effects of overmedication. He led multiple projects relating to psychotropic medication policy, resulting in the State of California enacting five NCYL-sponsored bills. In 2019, he was awarded the Mark Hardin Award by the American Bar Association Center on Children and The Law. In light of his depth of experience and expertise, Mr. Grimm’s proposed rate of $500 is eminently reasonable.
Attorney Scott T. Schutte has been practicing law for nearly 25 years. After completing a federal district court clerkship, he worked at Jenner & Block and then Howrey LLP before joining Morgan Lewis in 2011. He has spent much of his legal career handling class actions and other complex litigation. He frequently lectures on issues relating to Federal Rule of Civil Procedure 23 and state law analogs. He and two of his partners co-authored the American Bar Association’s “Practitioner’s Guide to Class Actions.” Given his experience and expertise, but in light of the fact that Mr. Schutte is not as experienced as the two most senior attorneys in this case, the Court finds that a rate of $475—which is markedly lower than his standard rate of $935—reasonable.
Attorney Leecia Welch is the Senior Director of Child Welfare and Legal Advocacy at NCYL. She graduated from law school in 1996. Prior to joining NCYL in 2004, she worked as a senior associate at Morrison & Foerster LLP in San Francisco, California, and as an associate at Perkins Coie in Seattle, Washington. She has spent most of her career representing children and youth in cases enforcing their statutory and constitutional rights. She has been lead or co-counsel in multiple federal court class actions. She has received court-approved legal fees in a class action filed in the United States District Court for the Western District of Washington at the rate of $595. She is part of the “core team” at NCYL to have worked on this case. In light of her extensive
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experience and expertise in children’s law and class actions, and in view of Missouri rates for partners in class action and civil rights litigation, Ms. Welch’s proposed rate of $450—which is significantly lower than the $595 court-approved rate at which she was compensated in another case—is reasonable.
Attorney John Ammann has practiced litigation for more than 30 years. He completed two state appellate court clerkships after law school before working as a staff attorney with Land of Lincoln Legal Assistance Foundation in Illinois. He worked as a supervisor for 25 years and served as Director for 17 years in the Legal Clinic at Saint Louis University School of Law, which has five full-time attorney faculty members and 200 law students each year. Until his recent retirement, he served as the McDonnell Professor of Justice in America Society, a chaired full professorship, at the university. He has been co-counsel for plaintiffs in numerous civil rights cases, most of which sought injunctive relief, in both federal and state court. Given his lengthy civil litigation experience and qualifications, his proposed rate of $400, which is around the median rate for St. Louis partners, and lower than the median rate for Kansas City partners, is reasonable.
Attorney Stephen Dixon has practiced law for over 30 years, including more than ten years with CR. He has worked as an adjunct professor, having co-founded the juvenile law clinic at the Louisiana State University Law Center. However, his efforts in this case were directed primarily at recruiting, retaining, and maintaining relationships with the Named Plaintiffs and their Next Friends. As such, although his years of experience would suggest a higher rate, Plaintiffs have proposed a rate of $375 per hour for Mr. Dixon’s time. Although Mr. Dixon’s efforts may have been important to Plaintiffs’ success, given that his work involved more client relations than pure litigation, the Court finds that $300 is an appropriate hourly rate for his time. See Gonzales v. United States, No. 00-CV-60 WPJ/RS ACE, 2006 WL 8444388, at *13 (D.N.M. Mar. 13, 2006)
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(reducing attorney’s rate where “she was primarily doing client development work”); Trinity Lutheran, 2018 U.S. Dist. LEXIS 190824, at *22 (finding $300 rate appropriate for attorney who focused principally on public relations matters rather than litigation).
Attorney Elizabeth Gretter has practiced litigation for over ten years, first at Bingham McCutchen LLP in New York, New York, and then, since 2011, with CR. At CR, she has litigated federal civil rights cases and negotiated multiple settlements and worked with public officials to design, monitor, and measure systemic reform. Given her experience and expertise, and prevailing rates for civil rights attorneys in Missouri, the Court finds a rate of $350 reasonable for Ms. Gretter’s time.
Attorney Poonam Juneja is part of the “core team” from NCYL to work on this case. Including federal district court and appellate clerkships, she has been practicing law for more than ten years, focusing on class action litigation. Prior to joining NCYL, she worked at Public Counsel and the Southern Poverty Law Center. Ms. Juneja received court-approved legal fees in a class action filed in the United States District Court for the Western District of Washington at the rate of $425. Given Ms. Juneja’s experience and expertise, and rates charged by civil rights and class action attorneys in Missouri, the Court finds that the rate of $350—which is lower than the courtapproved $425 rate she received in another case—is reasonable for Ms. Juneja’s time.
Attorney Stephanie Schuster has been practicing law for eight years. Since the filing of the motion for attorneys’ fees, Ms. Schuster has been promoted to partner in Morgan Lewis’s Appellate Practice Group. Her practice covers complex appellate, class action and regulatory matters. She has worked on appeals in the Second, Fourth, Fifth, Eighth, Ninth, and Eleventh Circuits. Her primary role in this litigation was to work on Defendants’ interlocutory appeal of the Court’s class certification ruling. She argued the appeal in this case before the Eighth Circuit.
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Given her appellate practice expertise and the fact that her role was limited to appellate work, her proposed rate of $325—which is far lower than her standard rate of $700 per hour—is reasonable.
Attorney Aaron Finch has practiced law for more than seven years with CR, litigating federal civil rights class actions and negotiating and monitoring settlements. Given his experience and specialization, and the fact that the median rate across all practice areas in Kansas City was $333 per hour and rates in civil rights and class action litigation range from $225 to $475 per associate, the Court finds that a rate of $300 is reasonable for Mr. Finch’s time.
Attorney Catherine Frizell also has been practicing law for more than seven years, including more than six years as a staff attorney for the Legal Aid Society in Brooklyn, where she has represented children and young adults in family court proceedings and monitored agency compliance with court orders. In light of her experience and specialization in law relating to children and youth, but considering the range of associates’ rates in civil rights and class action matters, the Court finds that a rate of $300 is reasonable for Ms. Frizell’s time.
Attorney Jonathan King has practiced law for more than six years, with five years of experience at the New York office of Venable LLP. Mr. King also has a Master’s Degree in Childhood Education. He has worked at Children’s Rights since 2018. In light of his years of experience in legal practice and his special knowledge of children’s issues, the Court finds that a rate of $300 is reasonable for Mr. King’s time.
Immediately after attorney Daniele Girard graduated from law school in 1989, she practiced law at Cravath, Swaine & Moore LLP in New York, New York. She then worked as a staff attorney at North Carolina Prisoner Legal Services, Inc., where she litigated class action and civil rights claims. Since 2016, she has worked as a staff attorney with CR. Because she did not actively practice law for several years, Plaintiffs have reduced her rate relative to her years since
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graduation from law school. In light of Ms. Girard’s qualifications and prevailing rates in Missouri, the Court finds Ms. Girard’s proposed rate of $300 to be reasonable.
Attorney Freya Pitts is part of the “core team” from NCYL to have worked on this case. She began her legal career clerking for federal district and appellate court judges. She has been practicing law since for more than six years, focusing on class action litigation. Prior to joining NCYL, she worked at Disability Rights Advocates, where she sought to advance the rights of children and youth with disabilities through impact litigation. Given her experience and expertise, her proposed rate of $300 is reasonable.
Attorney Danielle Rosenthal completed federal district court and appellate clerkships following her 2013 graduation before practicing appellate and trial litigation in Washington, D.C., for three years. Since she joined CR in 2018, she has worked on investigations and class actions on behalf of foster-care children. Given her experience, the Court finds Ms. Rosenthal’s proposed rate of $300 reasonable.
Attorney Courtney J. McCormick has practiced law for nine years. She practices primarily in Morgan Lewis’s toxic tort defense practice. Because her role in this litigation involved primarily document review and deposition preparation, the Court finds that a rate of $275—which is lower than the $375 rate she ordinarily commands, as well as the $325 rate Plaintiffs propose—is reasonable for Ms. McCormick’s time.
Attorney Ning He graduated from law school in 2015. He practices primarily in Morgan Lewis’s Securities Enforcement and Litigation Group, managing complex government investigations. He was the lead Morgan Lewis associate in this litigation. Given his experience and in light of prevailing rates for Missouri civil rights and class actions, the Court finds that a rate
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of $250—which is significantly lower than his standard rate of $550—is reasonable for Mr. He’s time.
Attorney Erin McGuinness graduated from law school in 2012. She also has a Master’s Degree in Public Administration. Prior to joining CR in 2016, she worked as a staff attorney for the Frank H. Hiscock Legal Aid Society in Syracuse, New York, and also worked in private practice. Because Plaintiffs have already reduced her proposed rate in light of the fact that, although she uses her skills in active litigation, she works principally as a senior policy analyst, and in light of her legal experience, her proposed rate of $225 is reasonable.
Attorney Amanda Grill has been practicing law since 2017, when she joined NCYL. As a law student, she participated in the Child Advocacy Law Clinic, working as guardian ad litem for parents and youth in Child Protective Services cases. Before her legal career, she worked as a high school teacher through Teach for America. Because Ms. Grill’s legal experience is not extensive, the Court reduces her rate to $200.
Attorney Jacqueline Stolzenberg has worked at NCYL since her 2018 graduation. In law school, she was a Bergstrom Child Welfare Law Fellow and participated in several clinics focused on protecting the rights of children and families. Although Ms. Stolzenberg has some experience in children’s law, because she has practiced law for less than two years, the Court reduces her rate to $200.
Because The 2018 Missouri Lawyers Weekly survey concerning billing rates shows that paralegals who work on class action or civil rights cases specifically receive between $215 and $275 and hour, and because the median rate of $120 for support staff in Missouri includes not only paralegals but other types of support staff that may be less skilled, the Court finds that Plaintiffs’ proposed rate of $150 for each paralegal is reasonable.
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The table below shows the Court’s rulings concerning the rates for each biller:

Name Samantha Bartosz Bill Grimm Scott T. Schutte Leecia Welch John Ammann Elizabeth Gretter Poonam Juneja Stephanie Schuster Stephen Dixon Aaron Finch Catherine Frizell Jonathan King Daniele Gerard Danielle Rosenthal Freya Pitts Courtney J. McCormick Ning He Erin McGuinness Amanda Grill Jacqueline Stolzenberg Genevieve Caffrey Hailey Cherepon Meghan Kacsmar Kira Setren

Law School Grad. Year 1986 1975 1995 1996 1984 2009 2009 2011 1987 2012 2012 2012 1990 2013 2013 2010 2015 2012 2017 2018 Paralegal Paralegal Paralegal Paralegal

Requested Rates Set Hourly Rate by Court

$500

$500.00

$500

$500.00

$500

$475.00

$450

$450.00

$400

$400.00

$375

$350.00

$375

$350.00

$325

$325.00

$375

$300.00

$325

$300.00

$325

$300.00

$325

$300.00

$300

$300.00

$300

$300.00

$300

$300.00

$325

$275.00

$275

$250.00

$225

$225.00

$225

$200.00

$225

$200.00

$150

$150.00

$150

$150.00

$150

$150.00

$150

$150.00

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2. Whether the Hours Expended Were Reasonable The Court next must review the hours expended by the attorneys to ensure that they are reasonable. “The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed.” Hensley, 461 U.S. at 433. Inadequate documentation requires reduction of the fee award. Id. Furthermore, the Court “should exclude from this initial fee calculation hours that were not ‘reasonably expended.’ Cases may be overstaffed, and the skill and experience of lawyers vary widely.” Id., at 434 (citation omitted). “Billing judgment” is just as important here as it is in the private sector. Id. (stating movant must make “a good faith effort to exclude from [the] fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission”) Hensley, 461 U.S. at 434. “Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Id. Here, Plaintiffs have made several efforts to ensure that the time for which they seek compensation is neither redundant nor unreasonable. They engaged outside consultant Sterling Analytics, at their own expense, to assess and audit the fees they billed in order to try to submit “only those fees and costs that would be considered reasonable in accordance with the Model Rules of Professional Conduct, ABA Formal Opinions, and judicial decisions from the state of Missouri and the Eighth Circuit.” Declaration of Sterling Analytics, Doc. 285-1 ¶ 1. Even prior to submitting time and expense slips to Sterling, Plaintiffs’ attorneys “removed a significant number of hours and expenses from their slips based on their own professional knowledge and sound judgment regarding a reasonable fee submission and billing practices.” Id. ¶ 4. CR removed over 2,500 hours, amounting to $616,341 in billing entries, from its time and travel slips. Id. For example, Attorney Frizell reviewed a class certification memo drafted by an
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intern, but the intern’s time has not been billed. Doc. 285-1, p. 46. Attorney Amman removed entries for time he spent on regular team phone calls to reduce overstaffing concerns. NCYL did not bill for several timekeepers and reduced its timeslips by approximately 275 hours.
Plaintiffs’ counsel also encouraged paralegals to do work that even a lower-level attorney might have been asked to complete, such as cite-checking drafting of purely administrative filings, such as motions for extensions, and even research.
Because Plaintiffs did not know if they would be compensated for their efforts in this case, they had an incentive to be efficient. See Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“It must also be kept in mind that lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee. It would therefore be the highly atypical civil rights case where plaintiff’s lawyer engages in churning. By and large, the court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker.”); Tussey v. ABB, Inc., Case No. 06-4305-NKL, 2019 WL 3859763, at *5 (W.D. Mo. Aug. 16, 2019) (“Class Counsel brought this case without guarantee of reimbursement or recovery, so they had a strong incentive to keep costs to a reasonable level, and they did so.”).
Still, Defendants raise multiple issues in arguing for a reduction in the hours. The Court considers these arguments below.
A. The Number of Attorneys Defendants argue that Plaintiffs’ hours should be reduced because they seek compensation for twenty attorneys from four organizations, which “reflects significant overstaffing, inefficiency and redundancy of effort.” Doc. 298, p. 7. However, after Defendants’ counsel suggested at oral argument that Plaintiffs had employed far more attorneys to work on this case than had Defendants,
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Defendants acknowledged in a supplemental response that more than 30 attorneys worked on this matter in some capacity on behalf of one or more of the Defendants. Doc. 310. Defendants argue that that number was inflated because of turnover at the office, that most of their attorneys participated to only a “limited” extent, and that only four attorneys “actively” worked on this case at a time. Id. However, the fact that Defendants had five “temporary document review attorneys,” five other Assistant or Deputy Attorneys General who were involved with depositions, discovery disputes, answering the complaint, and details of the settlement agreement, and eleven additional attorneys who served as representatives and “subject matter experts” for the defendants demonstrates that this case was sufficiently complicated and time-intensive as to warrant the participation of numerous attorneys, including several who were “experts” in the relevant issues and fields.
Nonetheless, while staffing a case with multiple attorneys across multiple organizations is not unreasonable, it necessarily carries inefficiencies that should be addressed through the exercise of billing judgment. One of the natural consequences of so many lawyers working on a single case is a large volume of times entries for coordination between and consultation among counsel. Plaintiffs conducted team teleconferences, including attorneys from each of the organizations representing Plaintiffs, weekly. Defendants’ complain that these meetings are an example of Plaintiffs’ spending “excessive” hours discussing case status and strategy.
Plaintiffs’ counsel also have billed time spent preparing attorney engagement agreements and co-counsel agreements. See, e.g., Doc. 285-2, p. 52; Doc. 285-3, p. 42. New attorneys brought into the case spent time getting up to speed on the facts. See, e.g., Doc. 285-3, p. 42 (multiple time entries discussing the review of background materials); Doc. 285-5, p. 10 (same).
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Because of these inefficiencies inherent in cases that are staffed by multiple attorneys from multiple organizations—inefficiencies reflected in the time entries—the Court applies a 10% reduction to the hours (outside of time spent traveling) of the attorneys alone.3 See Quigley v. Winter, 598 F.3d 938, 958–59 (8th Cir. 2010) (reducing hours by one third for “duplicative work, in part caused by transitions in the attorneys of record”); Albright v. Bi-State Dev. Agency of Missouri-Illinois Metro. Dist., No. 11CV01691 AGF, 2013 WL 4855304, at *4 (E.D. Mo. Sept. 11, 2013) (reducing hours “to account for the inefficiencies engendered by the involvement of three law firms in the case”).
B. Attorney Stephen Dixon’s Time Entries Defendants object to being billed for the 378.1 hours, including approximately 80 hours of travel time, that Attorney Dixon billed to this matter, which time largely was spent recruiting, retaining, and maintaining Named-Plaintiff and Next-Friend relationships. Plaintiffs reply that Attorney Dixon’s work was “vital,” ranging from “(a) initially being retained by the Named Plaintiffs and their Next Friends and capturing the facts surrounding their experiences, (b) countering legal challenges by Defendants to the adequacy of the Named Plaintiffs or Next Friends to appear in this litigation on behalf of the class, (c) addressing Defendants’ unilateral decision to deny certain of the Next Friends access to the child on whose behalf they appeared and ameliorating the potential harmful impact of that state action, (d) preparing certain Next Friends for their appearances at depositions and mediation sessions, (e) continually apprising the Next Friends of the status of ongoing mediation efforts and proposals, consulting on strategy, and obtaining authority as needed along the way to reach agreement on terms, and (f) routinely advising and consulting with the Next Friends as to the status of the litigation and strategic
3 Because Attorney Ammann stated that he did not bill for the weekly team conferences, the Court will not reduce his time on this basis.
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decisions being made to propel it forward.” Plaintiffs argue that “skilled interviewing and trust building is vital to creating and maintaining relationships with Next Friends in this type of litigation involving sensitive knowledge and the power of the state,” and that in-person meetings and phone calls are required for these purposes.
Given the sensitive nature of the issues at the center of this litigation—including not only children’s health and the often-taboo subject of psychiatric and psychological issues, but also complicated and even fragile relationships between, on the one hand, “stakeholders,” whether they are foster care givers, healthcare providers, family members, or case managers—and, on the other hand, the State, which holds the power to sever the relationships between the adults and the vulnerable children for whom they care, Plaintiffs’ efforts to meet with “stakeholders” in person to gain their trust and collect information relevant to this lawsuit were reasonable and appropriate.
Because the Court has already reduced Mr. Dixon’s proposed hourly rate to account for the fact that he spent most of his time on client development and management efforts, the Court sees no need to reduce on the same basis the number of hours he worked.
Nonetheless, several of Mr. Dixon’s time entries are vague. See, e.g., Doc. 285-2, p. 67 (“Electronic mail to MO legal team”), p. 96 (“Electronic mail with client”), p. 105 (“Telephone call with client”), p. 115 (same), p. 121 (“Legal analysis and email to team”), p. 140 (“Electronic mail to co-counsel”), p. 141 (“Telephone call with team”), p. 144 (“Electronic mail to cocounsel”). Because Plaintiffs bear the burden of establishing that the fees they seek are reasonable, failure to submit sufficiently detailed descriptions for such entries warrants reducing the associated time. See, e.g., Trinity Lutheran, 2018 U.S. Dist. LEXIS 190824, at *41 (reducing hours where “multiple time entries . . . reference[d] communications with other attorneys without specifying the subject”); Craig v. District of Columbia, 197 F. Supp. 3d 268, 280 (D.D.C. 2016) (finding
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“insufficiently detailed” “many entries perfunctorily stat[ing] that counsel ‘e-mailed’ or sent an ‘email to’ someone, had a ‘phone discussion w/’ someone, or ‘reviewed and responded to’ an email or a document”) (citations omitted). Accordingly, the Court reduces Attorney Dixon’s hours by 25%.
C. Travel Time Defendants argue that the Court should disallow the New York and California attorneys’ 814.4 hours spent traveling to and from Missouri. Plaintiffs seek only half of their proposed rates for their travel time. Still, the travel time alone, according to Defendants, amounts to $158,822.88. Defendants argue that “it was unnecessary for out-of-state attorneys to litigate this wholly Missouri case” and that the out-of-state attorneys should have relied on local counsel to take the numerous depositions conducted in Missouri. Because this case involved complicated and sensitive factual matters involving science, including medicine, psychiatry, pharmacology, psychology, behavioral sciences, and health, as well as privacy, children’s and youth-related issues, social services, and public policy, Plaintiffs’ attorneys’ decisions to rely on attorneys from the organizations with experience and expertise in these topics was reasonable. Nor could local counsel at Saint Louis University reasonably have been expected to singlehandedly take some fifteen depositions. Moreover, Plaintiffs have limited their fee and expense reimbursement requests to no more than two attorneys for each deposition. CR indicates that it is “customary and routine” for its attorneys to devote travel time to preparing for or following up on the work that they traveled to Missouri to complete. See Supplemental Declaration of Samantha M. Bartosz (Doc. 299-4) ¶ 6. Still, if travel time were devoted to other case-related tasks, the Court would expect that the billing entries would so reflect. On the other hand, some portion of the travel time—such as passing through security, checking into flights or hotels, or car travel to or from airports—will not be conducive to working
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at all and the attorney should be compensated for the time that she is not able to devote to legal work.
The Eighth Circuit has “long recognized a presumption that a reasonable attorney’s fee includes reasonable travel time billed at the same hourly rate as the lawyer’s normal working time, absent a showing the award would be unreasonable, for example, because the lawyer did not customarily charge clients for travel time.” Ludlow v. BNSF Ry. Co., 788 F.3d 794, 803-04 (8th Cir. 2015) (internal quotation marks and citations omitted). Similarly, the Eighth Circuit recently stated that where, as here, “out-of-state counsel have their fees reduced to a local rate, such a rate may be awarded for all legal work including travel time when that is the practice in the relevant market.” Safelite Grp., Inc. v. Rothman, 759 F. App’x 533, 536 (8th Cir. 2019). Defendants have not presented evidence that local attorneys do not bill for travel time. See id.
In light of the fact that Plaintiffs have already halved their bill rate for travel time, and their consultant has reduced the number of travel-related hours for which they seek compensation, the Court finds that no additional reduction in travel time is warranted.
D. Block Billing and Vague Entries Defendants argue that, “even after Sterling Analytics recommended various eliminations, reductions and limitations, the request for attorney fees is still problematic in that there are numerous incidents of block billing (especially in the billing entries of Morgan Lewis) [and] vague or non-specific entries generally (and specifically in the billing entries of Children’s Rights regarding ‘stakeholders’) . . . .” Doc. 298, p. 11. The practice of block-billing—putting multiple tasks in one time entry without specifying how much time was devoted to each task—is not necessarily problematic in and of itself. See Nassar v. Jackson, 779 F.3d 547, 554 (8th Cir. 2015) (finding no abuse of discretion where district court did not reduce award for “block-bill[ing],” despite the defendant’s argument that the practice
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prevented “meaningful analysis of the time spent on each discrete task”). This Court previously has stated that “block-billing is problematic only where the hours billed for multiple tasks appears excessive, or where billed time needs to be eliminated for certain tasks . . . .” Washington v. Denney, No. 14-CV-6118-NKL, 2017 WL 4399566, at *6 (W.D. Mo. Oct. 3, 2017); see also Nathanson v. Diversified Adjustment Serv., Inc., No. 18-CV-3102 (PJS/ECW), 2019 WL 4387960, at *5 (D. Minn. Sept. 13, 2019) (same) (quoting Washington, 2017 WL 4399566, at *6). Plaintiffs’ counsel have already engaged a consultant to identify problematic billing practices of this sort. See Doc. 285-1, ¶ 3 (“Sterling submitted to Clients our expert opinions regarding which tasks were improperly billed, unreasonable, or required additional detail to justify and substantiate the work performed.”). In the face of Plaintiffs’ compelling showing, Defendants have not pointed to any examples of Plaintiffs’ counsel spending an inordinate amount of time on any given task. They claim only that the billing entries of Morgan Lewis “especially” contain numerous incidents of block billing. The Court, having reviewed in detail the Morgan Lewis time entries for block billing, has found nothing to suggest that the billers allocated an unreasonable period of time to any group of tasks.
As for Defendants’ complaints about Plaintiffs’ use of the term “stakeholders,” Plaintiffs explained their wording choice as follows:
This approach to time entries is intentional to protect attorney work product gathered over the course of the litigation and to reduce the possibility that some form of retaliation – as occurred here in the instance of children’s access to certain Next Friends being denied by Children’s Division officials – is exacted on individuals who have provided information to support the reform effort. Doc. 299-4 (Supplemental Declaration of Samantha M. Bartosz in Support of Plaintiffs’ Motion for Fees and Expenses) ¶ 8. Particularly in light of Plaintiffs’ statement that children’s access to certain Next Friends was denied by Children’s Division officials, possibly in retaliation for the
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Next Friends’ cooperation in this case, Plaintiffs’ efforts to protect the identities of the Next Friends and potential witnesses with whom they spoke are reasonable.
Still, some additional information, even in general terms, concerning the subject of the communications with stakeholders would have made evaluation of some of the time entries easier. For example, Plaintiffs might have explained the purpose as “intake,” or “gathering information concerning potential witnesses” or “collecting information for purposes of discovery.” Instead, many entries merely mention a call, correspondence, or meeting with a stakeholder without specifying the purpose or subject of the communication. See, e.g., Doc. 285-2, p. 80 (“Call with stakeholder re: case.”), p. 98 (“stakeholder meeting with CF”), .p. 121 (“Call w stakeholder”); Doc. 285-3, p. 45 (“Attend Stakeholder Meetings”); p. 82 (“Conversation with stakeholder”). In light of the vagueness in some descriptions of the subjects of the stakeholder communications, the Court reduces the attorneys’ hours, outside of travel time, by an additional 5%.
E. Specific Time Entries Modified by the Court Although Defendants have not identified any specific time entries that warrant reduction or elimination, the Court, having reviewed Plaintiffs’ time entries, has identified a handful of instances in which reductions are warranted. First, matters relating to “press” releases are not appropriately billed to Defendants. See, e.g., Doc. 285-2, p. 61 (“Meet with HA and EGH to discuss MO press release”); id., p. 62 (“Work on complaint and complaint-related press issues - incorporate edits, conversations with SB”). While such efforts may be an important component of the work that the children’s and youth law organizations perform, because they may be useful in effecting public policy change, they are not properly billable to Defendants as litigation costs. See Trinity Lutheran, 2018 U.S. Dist. LEXIS 190824, at *29 (“Fees for time spent discussing media matters cannot be shifted to Defendant.”); Halderman v. Pennhurst State School & Hosp., 49 F.3d 939, 942 (3d Cir. 1995) (noting that “the
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proper forum for litigation is the courtroom, not the media,” and precluding recovery for “hours
of ‘work related to writing press releases, speaking with reporters and otherwise publicizing’”
matters under litigation). Accordingly, the Court has reduced the hours in the lodestar calculation
slightly to exclude time spent working on press releases (.5 hours on 8/24/16, .3 on 5/30/17, .5 on
6/7/17).
On one occasion, an attorney billed .8 hour for “Attention to state request for additional
pages for MTD.” Id., p. 69. The Court has reduced the time billable for this simple, administrative
task. See Trinity Lutheran,2018 U.S. Dist. LEXIS 190824, at *37 (“The Court reduced time billed
that seemed excessive for the listed task(s).”).
F. Volume Discount Finally, Defendants ask the Court to apply a “volume discount” of 50% to the remaining
hours. The primary reason Defendants cite in requesting a volume discount is that the fees are
paid by state and local taxpayers. Taxpayers of some sort typically bear the cost of litigation in
civil rights cases when the plaintiff succeeds. If a special discount were warranted for that reason
alone, then the legislature would have built a discount into Section 1983. However, the legislature
did not do so.
The Court sees no basis for further discounts. Plaintiffs have already reduced their fees—
in consultation with a hired consultant—by more than 22%. Plaintiffs spent significant time investigating and researching this case even before it was filed,4 reviewed or indexed 1.5 million
4 Notably, “Section 1988 does not limit fee awards to work performed after the complaint is filed, but allows recovery of fees for time spent beforehand investigating facts and researching the viability of potential legal claims.” McDonald v. Armontrout, 860 F.2d 1456, 1462 (8th Cir. 1988). The Eighth Circuit expressly permits recovery of fees “for ‘research or investigation done in connection with’ a related proceeding, to the extent it ‘proved directly relevant to the successful prosecution of the later civil rights’ action.” Id. (citation omitted). Plaintiffs’ having initiated this action with a detailed, 45-page complaint, flush with facts specific to the Named Plaintiffs, the alleged policies and practices at issue, medical information, and complex theories of constitutional
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pages of documents, conducted multiple depositions, drafted 100 pages of interrogatory responses, engaged in extensive motion practice (much of which was necessitated by Defendants’ strategic choices), and worked with experts whose opinions are summarized in reports exceeding 100 pages. This case, a class action alleging constitutional violations based on state policies and procedures, or lack thereof, regarding the administration of psychotropic medications to children in the state’s foster care system, was complex both in procedure and substance. A case of this duration, complexity, scope, and importance is bound to be time-intensive.
The fact that CR and NCYL now seek fees that exceed the total fees they were awarded in prior years does not indicate that a fair award of fees in this case would represent a windfall. As Defendants themselves point out, this case, which Plaintiffs describe as the first of its kind, required three years of work, including two years of pre-filing investigation and research (only one of which is being billed here). The reason the fees are so high is because the case was unusually challenging and vigorously defended. Defendants were entitled to vigorously defend themselves, but they cannot now reasonably complain that the hours Plaintiffs expended to counter Defendants’ efforts were ill spent. See Weitz Co. v. MH Washington, 631 F.3d 510, 530 (8th Cir. 2011) (stating that defendants “cannot litigate tenaciously and then be heard to complain about the time necessarily spent overcoming [their] vigorous defense”) (quotation marks and citation omitted).
liability that largely survived a motion to dismiss presenting issues of first impression is proof that their pre-filing efforts were an important part of their success in this case. See Doc. 1 (Complaint for Injunctive Relief and Declaratory Relief and Request for Class Action). The Court previously noted that counsel’s having “spent nearly two years investigating the oversight of psychotropic medications in the Missouri child welfare system” was “testament to their diligence and dedication.” Doc. 183, p. 17. Nonetheless, Plaintiffs have billed for only one of the two years they spent preparing to initiate this case.
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3. Lodestar Calculation With the adjustments to the billing rates and hours of Plaintiff’s counsel discussed above, the lodestar calculation is as follows:5

Name Samantha Bartosz Bill Grimm Scott T. Schutte Leecia Welch John Ammann Elizabeth Gretter Poonam Juneja Stephanie Schuster Stephen Dixon Aaron Finch Catherine Frizell Jonathan King Daniele Gerard Danielle Rosenthal Freya Pitts Courtney J. McCormick Ning He Erin McGuinness Amanda Grill Jacqueline Stolzenberg Genevieve Caffrey Hailey Cherepon Meghan Kacsmar Kira Setren TOTALS

Law School Grad. Year 1986 1975 1995 1996 1984 2009 2009 2011 1987 2012 2012 2012 1990 2013 2013 2010 2015 2012 2017 2018 Paralegal Paralegal Paralegal Paralegal

Rates Set by Court $500.00 $500.00 $475.00 $450.00 $400 $350.00 $350.00 $325.00 $300.00 $300.00 $300.00 $300.00 $300.00 $300.00 $300.00 $275.00 $250.00 $225.00 $200.00 $200.00 $150.00 $150.00 $150.00 $150.00

Non-travel Hours (before
discount) 1333.97 415.00 314.20 628.89 185.90 2217.54 618.50 87.20 298.00 244.86 433.19 386.87 291.80 800.72 262.50 51.20 175.90 148.47 463.30 92.00 345.74 236.99 453.21 175.20 10,661.15

Travel Hours (before discount) 92.43 85.60 0.00 9.41 0.00 167.26 39.50 0.00 80.10 23.64 105.71 39.03 46.60 17.18 40.30 0.00 0.00 0.23 9.40 0.00 0.06 -0.09 0.09 0.00 756.45

Total Fees (after
discount) $590,044.75 $197,775.00 $126,858.25 $242,668.38 $70,642.00 $727,795.86 $190,916.25 $24,089.00 $70,125.15 $65,984.82 $126,320.30 $104,506.00 $81,399.00 $206,760.25 $72,982.50 $11,968.00 $37,378.75 $28,420.50 $79,701.00 $15,640.00 $51,865.50 $35,542.00 $67,988.00 $26,280.00 $3,253,651.25

5 Although Plaintiffs offered to charge half of their rates for travel time, they did not break the

hours they presented to the Court down into travel time and non-travel time. The Court used the

following algebraic equation to determine the hours attributable to travel and to other billable time:

total proposed fee

non-travel time =

------------------------------------ – total proposed hours

(.5 x proposed hourly rate)

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The Court finds that the fee produced through the lodestar calculation, with the specific discounts discussed and reflected above, is fair. See Stallsworth, 2018 WL 2125950, at *1 (“There is a strong presumption that the lodestar calculation represents a reasonable fee award.”) (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)); see also Perdue, 559 U.S. at 552 (stating that “the lodestar method yields a fee that is presumptively sufficient to achieve [the] objective” of “induc[ing] a capable attorney to undertake the representation of a meritorious civil rights case”). This case was both important and complicated, in terms of the facts and associated sensitivities, the science and associated complexities, and the law. Plaintiffs who have “won excellent results,” as Plaintiffs have done here, are “entitled to a fully compensatory fee award . . . .” Jenkins, 127 F.3d at 716.
b. Expenses Defendants acknowledge that “Plaintiffs are entitled to reimbursement for ‘[r]easonable expenses of the kind a law firm would ordinarily bill to its client.’” Doc. 298, p. 14 (quoting Barrett v. Claycomb, No. 11–CV–4242–NKL, 2013 WL 6920860 at *4 (W.D. Mo. Dec. 9, 2013); see also Sapa Najin v. Gunter, 857 F.2d 463, 465 (8th Cir. 1988) (“Reasonable expenses of litigation incurred by counsel on the prevailing side can be awarded as part of the fees due under Section 1988.”). Plaintiffs’ counsel seek $132,907.56 in expenses. This figure was reduced by $98,518.04—42.6%—following review by Sterling Analytics. Defendants ask that all of the travel expenses be disallowed. However, Defendants provide neither legal nor factual grounds to discount Plaintiffs’ travel expenses. The Eighth Circuit has expressly held that “travel expenses for attorneys” are among “expenses that a law firm normally would bill to its client” and therefore are “properly characterized as part of an attorney’s fees
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award.” Williams v. ConAgra Poultry Co., 113 F. App’x 725, 728 (8th Cir. 2004). Plaintiffs therefore are entitled to reimbursement of their reasonable travel expenses.
Having reviewed the itemized lists of expenses submitted by Plaintiffs’ counsel, the Court sees no reason for disallowing any expense. IV. CONCLUSION
For the reasons discussed above, the Court grants in part and denies in part the motion for fees and expenses. The Court awards to Plaintiffs’ counsel a total of $3,253,651.25 in fees and $132,907.56 in expenses.
s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge Dated: April 3, 2020 Jefferson City, Missouri
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