This report describes an investigation concerning the presence of arsenic in concentrations exceeding 0. The study consisted of four distinct phases: a thorough review of the technical literature, a historical survey of arsenic use at the facility, a laboratory study of existing techniques for determining arsenic speciation, and a field program including water, soil, and sediment sampling.
The historical survey and literature review demonstrated that plant activities had not released significant quantities of arsenic to the environment but that similar occurrences of arsenic in alluvial groundwater are widespread in the midwestern United States. Laboratory studies showed that a chromatographic separation technique was necessary to accurately determine arsenic speciation for the KCP groundwater samples. Field studies revealed that naturally occurring reducing conditions prevalent in the subsurface are responsible for dissolving arsenic previously sorbed by iron oxides.
The study concludes, therefore, that the arsenic present in the KCP groundwater is the result of natural phenomena. Similar records in OSTI. Dep't of Soc. 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.
These cases do not limit the state's well established obligation to protect a child within its custody. See, e. 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. Johnson v. 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 decision-making 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.
In any event, even when viewed in the light most favorable to Plaintiffs, these allegations cannot be said to rise to the level of deliberate indifference because of the vagueness of the allegations.
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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.
Defendants concede that "Plaintiffs have a substantial liberty interest in avoiding the unnecessary administration of medical treatment. 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. 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.
It follows from these precedents that Plaintiffs possess a strong liberty interest in not being unnecessarily administered psychotropic drugs. 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.
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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. On reply, Defendants raise the additional argument that children in foster care are entitled to fewer protections than prisoners.
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 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. 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. 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, U. The process envisioned by the Supreme Court required only that the decision be made by a "neutral and detached trier of fact"—not 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. No "formal or quasi-formal" hearing was required. 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.
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. 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.
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.tomergreenfeld.com/4436.php
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. 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. 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 procedural safeguards" is so minimal as to warrant dismissal of the procedural due process claim. 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. 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.
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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. As there are important governmental interests on both sides, this factor does not weigh in favor of dismissing the procedural due process claim. Defendants argue that the relevant CWA provisions confer no federal rights on Plaintiffs. Plaintiffs, on the other hand, contend that the "majority" of courts have concluded that 42 U.
Sections a , b 8 A ii , a 16 , and 1 and 5 create judicially enforceable rights, the violation of which can be remedied through a Section action. See 42 U. The question of whether sections a , b 8 A ii , a 16 , and 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 a and 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. Importantly, a Section action supplies a remedy for violation of federal rights, and not merely violation of federal law. Blessing v. 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 whether the needs of any particular person have been satisfied;" and c "whether Congress provided a federal review mechanism.
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The statutory language in Midwest Foster Care, Gonzaga, and Does was twice removed from the party seeking enforcement. See Midwest Foster Care, F. Here, the statutes specifically concern the interests of children in foster care. Section 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. Section 5 defines "case review system" as "a procedure for assuring that," inter alia, " D a child's health and education record. Section a 16 requires the state to "have a plan. Section 1 defines "case plan" as "a written document which. C The health and education records of the child, including the most recent information available regarding.