Over 1,000 Texas foster children have been allowed to refuse COVID-19 vaccines, despite the state requiring other vaccinations

Vials of the Moderna COVID-19 vaccine ready to be administered in 2020. (Jordan Vonderhaar For The Texas Tribune, Jordan Vonderhaar For The Texas Tribune)

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Over a thousand Texas foster children — some as young as 5 years old — have been allowed to refuse a COVID-19 vaccine, despite not typically being allowed to make their own medical decisions, according to a new report from protective services watchdogs.

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Around 40% of the foster children in the state’s care who are 5 and older have not received a COVID-19 vaccine despite being eligible. This is due, in part, to guidance from the Department of Family and Protective Services that “may be confusing,” leading to caseworkers unnecessarily “querying even very young children as to whether they would agree to vaccination,” court-appointed monitors say.

Nearly half of those children have been identified as having medical needs, meaning they could more easily contract COVID-19.

The monitors detailed how guidance has shifted and that many caseworkers seemed to be unaware that they were allowed to get children vaccinated or thought it required a judge’s order.

The deference to foster youth, even young children, seems to go against recent guidance from Gov. Greg Abbott on health care for transgender children. On Tuesday, Abbott instructed DFPS to investigate reports of children receiving gender-affirming medical care as child abuse because they are not deemed old enough to make medical decisions, citing an opinion from Texas Attorney Ken Paxton.

“Generally, the age of majority is eighteen in Texas,” Paxton wrote in his opinion. “[Children] are considered by the State in most regards to be without legal capacity to consent, contract, vote, or otherwise.”

The DFPS policy on the COVID-19 vaccine says “unlike other routine vaccines, the COVID vaccine is currently authorized by the FDA for emergency use authorization, which means getting it is voluntary and the youth should agree (if able) in addition to the medical consenter.”

“It is also possible that DFPS has confused requirements related to a child’s assent to participation in medical research or drug trials with language in the federal statute allowing emergency authorization of a drug or medical procedure,” the monitors wrote.

In a response to monitors’ queries, DFPS officials pointed to federal health code that ensures patients be made aware when treatments are under emergency authorization. The monitors said the code doesn’t apply here.

“This language requires a medical professional to provide medical consenters with information about the product’s emergency authorization to ensure informed consent; however, it does not empower those without capacity to become a medical consenter nor does it include any requirements related to a minor’s assent to the treatment,” the monitors wrote.

The report on foster care vaccinations was prepared by court monitors who act as watchdogs of the state’s foster care system as part of a long-running lawsuit against Texas. It details young children being allowed to refuse the vaccine, oftentimes seemingly nonchalantly or with little resistance from caseworkers.

Between April 20, 2020, and Feb. 17, 2022, there were 22 children in permanent managing conservatorship who were hospitalized with a primary diagnosis of COVID-19, the monitors noted. Permanent managing conservatorship means that a judge appoints DFPS, a foster parent or another individual to be legally responsible for a child without adopting them.

The monitors noted that in several examples, the refusal seemed to “reflect young children’s general reluctance or fear of shots” rather than a reluctance for the COVID-19 vaccine specifically.

Earlier this month, a foster child who recently turned 8 rejected the vaccine because it was a shot, according to the caseworker who spoke to her.

“I asked her if she wanted to get the vaccine,” the caseworker recounted, according to the report. “She said, isn’t it a shot? I said yes, it is a shot, but it will help you stay healthy from getting sick with COVID. I said you can say yes you will take the shot, or you can say no. She said well if I get to choose, I say no. I said OK that is fine. You can change your mind in the future if you want to.”

The court monitors’ report comes a month after a hearing in the federal lawsuit against Texas’ foster care system. State officials during the hearing revealed there is no mandate for a COVID-19 vaccine among foster youth and some expressed difficulties in getting children to be vaccinated because they refuse. DFPS did not immediately respond to a request for comment.

During the January hearing, U.S. District Judge Janis Jack dismissed officials’ accounts of children refusing the vaccine and noted that foster children have to be immunized for other diseases — such as mumps or measles. She called the lack of COVID-19 vaccination “negligence.”

“This continued, unconstitutional and unsafe treatment of these children is just getting to everybody that’s involved in this case,” Jack said.

The DFPS website outlines its policy on vaccinations for youth in CPS custody. “Unless there is known objection by the parent or person with legal authority over the child, the caseworker must ensure that children in DFPS conservatorship are immunized against disease,” the website states.

The department states its vaccine schedule is in accordance with the American Academy of Pediatrics. The AAP recommends COVID-19 vaccination for all children 5 years old and older who do not have contraindications.

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