BILL ANALYSIS Ó
SB 238
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Date of Hearing: June 30, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
238 (Mitchell and Beall) - As Amended June 2, 2015
SENATE VOTE: 40-0
SUBJECT: foster CHILDREN: TRAINING AND OVERSIGHT for
psychotropic medication
KEY ISSUE: IN ORDER TO BETTER PROTECT FOSTER CHILDREN FROM
INAPPROPRIATELY BEING PRESCRIBED POTENT PSYCHOTROPIC DRUGS WITH
POTENTIALLY SIGNIFICANT SHORT- AND lONG-TERM HEALTH
CONSEQUENCES, SHOULD THOSE WITH OVERSIGHT RESPONSIBILITIES BE
BETTER INFORMED ABOUT THEIR FOSTER CHILDREN'S MEDICATIONS, AND
SHOULD TRAINING ON THESE DRUGS BE PROVIDED TO THOSE WHO WORK
WITH FOSTER CHILDREN?
SYNOPSIS
This bill is part of a package of bills introduced in response
to very troubling, recent reports on the overmedicating of
children in the foster care system with psychotropic drugs.
Psychotropic medications, including antipsychotics,
antidepressants and psychostimulants, alter chemical levels in
the brain which impact mood and behavior. Sponsored by the
County Welfare Directors Association, this bill seeks to address
the concerns related to the administration of psychotropic drugs
in the foster system in several important ways. First, this
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bill requires the Judicial Council to update forms and rules to
ensure improved and regularly updated information is solicited
from, and received by, appropriate individuals and entities
regarding use of psychotropic medication. Second, the bill
requires the Department of Social Services to develop monthly
reports on foster children receiving these medications, as well
as a system that triggers an alert to child welfare workers when
a child is prescribed psychotropic medication in several
potentially dangerous instances. Finally, this bill requires
training on the use of psychotropic medication by foster
children for group home administrators, foster parents, relative
and nonrelative caregivers, judges, children's counsel, and
child welfare workers.
This bill is supported by a long list of organizations,
including the Department of Justice, several counties and county
agencies, and numerous children's organizations. It has no
reported opposition. Assuming it passes this Committee, this
bill will be referred to the Human Services Committee.
SUMMARY: Increases training and information regarding use of
psychotropic medication for children in the foster care system.
Specifically, this bill:
1)Requires existing trainings of the following individuals to
include information about the authorization, uses, risks,
benefits, administration, oversight and monitoring of
psychotropic medication, behavioral health and other available
behavioral health treatments, for children receiving child
welfare services, including how to access those treatments:
a) Group home administrators;
b) Licensed foster parents, both for initial certification
and for post-placement annual training;
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c) Relative and nonrelative extended family members;
d) Juvenile court judges, commissioners and referees who
hear dependency cases;
e) Court-appointed counsel of a minor or nonminor
dependent; and
f) County child welfare workers.
2)Requires the Department of Social Services (DSS), in
consultation with specified stakeholders, to develop the
training specified in #1), above.
3)Requires the Judicial Council, on or before July 1, 2016, in
consultation with specified stakeholders, to implement and
develop updates to the required rules and forms regarding new
requirements for authorization of psychotropic medication to
dependent children. Requires the updates to ensure:
a) The child and his or her caregiver and court-appointed
special advocate, if any, have a meaningful opportunity to
provide input on the medications being prescribed.
b) Information regarding the child's overall behavioral
health assessment and treatment plan is provided to the
court.
c) Information regarding the rationale for the proposed
medication, including information about other
pharmacological and nonpharmacological treatments and the
child's response to those treatments, and an explanation
how the psychotropic medication being prescribed is
expected to improve the symptoms.
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d) Guidance on how to evaluate the request for
authorization, including how to proceed if required
information is not included in a request.
4)Requires the implementation updates in #3), above, to include
a process for periodic oversight by the court, facilitated by
the county social worker, public health nurse or other
appropriate county staff, of orders regarding the
administration of psychotropic medication that includes
specified information. Provides that oversight shall be
conducted in conjunction with other regularly scheduled court
hearings and reports provided to the court.
5)Requires DSS, in consultation with specified stakeholders, to
provide an individualized monthly report to each county child
welfare services agency that includes specified information
for each foster child receiving psychotropic medicine.
Requires that this information be shared with the juvenile
court, the child's attorney, and the court-appointed special
advocate, on a form that DSS, in consultation with
stakeholders, must develop.
6)Requires DSS, in consultation with specified stakeholders, to
develop or provide access to a system that automatically
alerts a social worker when any of the following occurs: a)
multiple psychotropics have been prescribed for the foster
child and the combination has risk; b) the dosage is unusual
for the child's age; c) the medication has a potential for
dangerous interaction with other prescribed medication; or d)
the medication is not typical for a child of that age.
Requires a child's social worker, upon receipt of an alert, to
tell the child's attorney, caregiver, and court appointed
special advocate that the alert has been received and to
include a discussion of the alert and its resolution in the
next court report filed.
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EXISTING LAW:
1)Provides that a minor may be removed from the physical custody
of his or her parents and become a dependent of the juvenile
court as the result of abuse or neglect. (Welfare &
Institutions Code Section 300. Unless stated otherwise, all
further statutory references are to that code.)
2)Requires that DSS develop a group home administrator
certification program to ensure certified persons have
appropriate training to provide care and services. (Health &
Safety Code Section 1522.41.)
3)Requires every licensed foster parent to complete a minimum of
12 hours of foster parent training covering specified topics
prior to the placement of a foster child in the home and eight
hours each year thereafter. (Health & Safety Code Section
1529.2.)
4)Requires the Judicial Council to develop and implement
standards for the education and training of all judges,
commissioners and referees who conduct dependency hearings.
(Section 304.7.)
5)Requires counsel appointed to represent a minor or nonminor
dependent to have specified training to ensure adequate
representation. (Section 317.)
6)Provides for the development of a statewide coordinated
training program designed specifically to meet the needs of
county child protective services social workers, agencies
under contract with county welfare departments to provide
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child welfare services, and mandated reporters. (Section
16206.)
7)Requires each community college district with a foster care
education program to provide orientation and training to
relative and nonrelative extended family member caregivers.
(Section 16003.)
8)Provides that only a juvenile court judicial officer has
authority to make orders regarding the administration of
psychotropic medications for a minor who has been adjudged a
dependent of the court and removed from the physical custody
of his or her parent. Defines "psychotropic medicine" as
those medicines administered to treat psychiatric disorders or
illnesses and includes anxiolytic agents, antidepressants,
mood stabilizers, antipsychotic medications, anti-Parkinson
agents, hypnotics, medications for dementia and
psychostimulants. (Section 369.5.)
9)Requires court authorization for the administration of
psychotropic medication to be based on a request from a
physician, indicating the reasons for the request, a
description of the minor's diagnosis and behavior, the
expected results of the medication, and a description of any
side effects of the medication. Requires, within seven court
days, the juvenile court to either approve or deny in writing
a request for authorization for the administration of
psychotropic medication, or to set the matter for hearing.
Requires the Judicial Council to adopt rules of court and
develop appropriate forms for the requirement above. (Id.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill is part of a package of bills introduced in
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response to very troubling, recent reports on the overmedicating
of children in the foster care system with psychotropic drugs.
Psychotropic medication alters chemical levels in the brain
which impact mood and behavior and includes antipsychotics,
antidepressants and psychostimulants. The category of
psychotropic medication is fairly broad, intending to treat
symptoms of conditions ranging from ADHD to childhood
schizophrenia. Much of the use of psychotropic drugs in
children is considered "off label," meaning the use has not been
approved by the Food and Drug Administration (FDA) for the
prescribed use, although the practice is legal and common to all
manner of pharmaceuticals.
This bill seeks to address the concerns related to the
administration of psychotropic drugs in the foster system in
several important ways. First, it requires the Judicial Council
to update forms and rules to ensure improved and regularly
updated information is solicited from, and received by,
appropriate individuals and entities regarding use of
psychotropic medication. Second, the bill requires DSS to
develop monthly reports on foster children receiving these
medications, as well as a system that triggers an alert to child
welfare workers when a child is prescribed psychotropic
medication in several potentially dangerous instances. Finally,
this bill requires training on the use of psychotropic
medication by foster children for group home administrators,
foster parents, relative and nonrelative caregivers, judges,
children's counsel, and child welfare workers.
In support of the bill, the author writes: "SB 238 will ensure
that the department and legislature are receiving the reports
that we need to monitor our foster youth, that triggers are in
place to make sure the children are not being over medicated,
and that those who are in trusted with the youth's well-being
receive adequate and appropriate training."
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Background on Use and Misuse of Psychotropic Medication in
Foster Children. Concern over the use of psychotropic
medications among children has been growing for years.
According to a recent report by the Government Accounting Office
(GAO), 18 percent of foster children are taking psychotropic
medication, a "rate 2.7 to 4.5 times higher than were nonfoster
children in the Medicaid system." (GAO, Foster Children: HHS
Could Provide Additional Guidance to States Regarding
Psychotropic Medications 5, 7 (May 2014), citing data from the
Administration for Children and Families' National Survey of
Child and Adolescent Well-Being II (NSCAW II).) The rate of
psychotropic medication use among foster children living in
group homes is significantly higher than for other foster
children - 48 percent, as compared with 14 percent who live in
non-relative foster homes and 12 percent who live with a
relative. (Id.)
Not only are more foster children taking psychotropic
medication, but many of them take multiple medications. The GAO
found that of those foster children who take psychotropic
medication, 13 percent took three or more such drugs
concurrently, even though research is lacking on the efficacy of
taking multiple psychotropics concurrently. (Id. at p. 6.) The
GAO found 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." (Id. at p. 7 (footnote omitted).)
Additionally, the GAO found that children in the Medicaid
system, including foster children, were prescribed doses higher
than the maximum recommended for children, noting that: "Our
experts said that this increases the risk of adverse side
effects and does not typically increase the efficacy of the
drugs to any significant extent." (Id. at p. 8.)
Another recent investigation, this one by the Inspector General
of the Department of Health and Human Services, uncovered
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significant misuse of the most powerful psychotropic medication
- antipsychotics - in children receiving these drugs through the
Medicaid system, including children in the foster care system.
While the second generation antipsychotics (SGAs) reviewed in
the report are used to treat serious mental health conditions,
they can also "have serious side effects and little clinical
research has been conducted on the safety of treating children
with these drugs." (Inspector General, Department of Health and
Human Services, Second-Generation Antipsychotic Drug Use Among
Medicaid-Enrolled Children: Quality of Care Concerns 1 (March
2015).)
More disturbingly, the Inspector General examined records for
five states, including California, and found that there were
quality of care concerns in fully two-thirds of the cases
reviewed, including poor monitoring (53 percent of the time),
wrong treatment (41 percent), too many drugs (37 percent), taken
too long (34 percent), wrong dose (23 percent), taken too young
(17 percent), and side effects (7 percent). (Id. at p. 9.) As
a result, the Inspector General recommended that "children's
treatment with SGAs needs careful management and monitoring."
(Id. at p. 1.)
Recent in-Depth Media Coverage Confirms Significant Concerns
With Use of Psychotropic Medication in California's Foster
Children. A recent in-depth series of stories published in the
San Jose Mercury News (Karen de Sá, Drugging our kids, San Jose
Mercury News (Aug. - Dec. 2014)) and a more recent article in
the Los Angeles Times (Garrett Therolf, Rampant medication use
found among L.A. County foster, delinquent kids, Los Angeles
Times (Feb. 16, 2015), highlighted growing concerns that
psychotropic medications have been relied on by California's
child welfare and children's mental health systems as a means of
controlling, instead of treating, youth who suffer from
trauma-related behavioral health challenges. The Mercury News
series detailed significant challenges in accessing pharmacy
benefits claims data held by the California Department of Health
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Care Services, eventually overcome through a Public Records Act
request and lengthy negotiations, and found that prescribing
rates for foster children were far higher than for children in
the overall population:
Abandoned and alone, [foster children] are among
California's most powerless children. But instead of
providing a stable home and caring family, the state's
foster care system gives them a pill.
With alarming frequency, foster and health care providers
are turning to a risky but convenient remedy to control the
behavior of thousands of troubled kids: numbing them with
psychiatric drugs that are untested on and often not
approved for children.
An investigation by this newspaper found that nearly 1 out
of every 4 adolescents in California's foster care system
is receiving these drugs - 3 1/2 times the rate for all
adolescents nationwide. Over the last decade, almost 15
percent of the state's foster children of all ages were
prescribed the medications, known as psychotropics, part of
a national treatment trend that is only beginning to
receive broad scrutiny. (Karen de Sá, Drugging our kids:
Children in California's foster care system are prescribed
unproven, risky medications at alarming rates, San Jose
Mercury News (Aug. 24, 2014).)
The Mercury News series went on to state that while psychotropic
medication is necessary for some children, side-effects, both
short- and long-term, are not fully understood and not always
fully considered:
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No one doubts that foster children generally have greater
mental health needs because of the trauma they have
suffered, and the temptation for caregivers to fulfill
those needs with drugs can be strong. In the short term,
psychotropics can calm volatile moods and make aggressive
children more docile.
But there is substantial evidence of many of the drugs'
dramatic side effects: rapid-onset obesity, diabetes and a
lethargy so profound that foster kids describe dozing
through school and much of their young lives. Long-term
effects, particularly on children, have received little
study, but for some psychotropics there is evidence of
persistent tics, increased risk of suicide, even brain
shrinkage. (Ibid.)
Despite Requirement for Limited Court Oversight, Protections in
Current Law may be Inadequate. In 1999, the Legislature passed
SB 543 (Bowen), Chap. 552, Stats. 1999, which provided that only
a juvenile court judicial officer can make orders regarding the
administration of psychotropic medications for foster youth. SB
543 also provided that the juvenile court may issue a specific
order delegating this authority to a parent if the parent poses
no danger to the child and has the capacity to authorize
psychotropic medications. This legislation was passed in
response to concerns that foster children were being subjected
to excessive use of psychotropic medication, and that judicial
oversight was needed to reduce the risk of unnecessary
medication. The Judicial Council was required to adopt rules of
court to implement the new requirement. Accordingly, Rule of
Court 5.640 specifies the process for juvenile courts to follow
in authorizing the administration of psychotropic medications
and permits courts to adopt local rules to further refine the
approval process.
In 2004, AB 2502 (Keene), Chap. 329, sponsored by a coalition of
group homes, actually sped up the process for approving
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psychotropic medication in foster children by requiring a
judicial officer to approve or deny, in writing, a request for
authorization to administer psychotropic medication, or set the
matter for hearing, within seven days.
Despite these measures, concerns remain that psychotropic
medication in the child welfare system is overused and
underreported, and statutory and regulatory oversight
requirements are not always complied with. The Los Angeles
Times discovered, through information obtained from a Public
Records Act request, that Los Angeles county failed to report on
almost one in three dependent or delinquent children in the
county receiving psychotropic medication. (Garrett Therolf,
Rampant medication use found among L.A. County foster,
delinquent kids, supra.) The Mercury News series noted that
while the court must approve any authorization to take
psychotropics, "forms the courts use often lack critical details
and a doctor's expertise is rarely questioned" by the court.
(Karen de Sá, Drugging our kids, supra.)
A Package of Bills Introduced to Address The Significant
Concerns That Foster Children May Be Overmedicated With Strong
Psychotropic Medication Without Sufficient Oversight. In
response to the significant and well-placed concerns about the
overuse of psychotropic drugs to treat foster children and the
need for increased oversight, four bills, including this one,
have been introduced in the Legislature this year. The other
three bills in the package are:
SB 253 (Monning) increases ongoing court oversight to help
ensure that psychotropic drugs are only used when the juvenile
court determines, by clear and convincing evidence, that
administration of the medication is based on the best interest
of the child, after review of specified documentation and
confirmations from the prescribing physician. This bill also
prohibits the authorization of psychotropic medications without
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a second independent medical opinion under specified
circumstances. SB 253 is also being heard in this Committee
today and, like the bill that is the subject to this analysis,
scheduled to be heard by the Assembly Human Service Committee
afterwards.
SB 319 (Beall) expands the duties of the foster care public
health nurse to include monitoring and oversight of the
administration of psychotropic medication to foster children.
This bill was referred to the Assembly Human Services and Health
Committees.
SB 484 (Beall) requires DSS to identify group homes in the
foster care system that may be inappropriately administering
psychotropic medications to foster youth and to require the
submissions of plans from those facilities to reduce
inappropriate use of psychotropic medications. This bill was
single-referred to the Assembly Human Services Committee.
Bill Provides for Better Monitoring of Psychotropic Medication
for Children in Foster Care. Under existing law, only the court
may authorize the use of psychotropic medication for any child
in the dependency system. Rules of court require the
prescribing physician to complete and submit an application to
the court, known as the "JV-220" form. The JV-220 requires the
inclusion of specific information, including: (1) the child's
diagnosis; (2) the specific medication with the recommended
maximum daily dosage and length of time this course of treatment
will continue; (3) the anticipated benefits to the child from
the use of the medication; (4) a list of any other medications,
prescription or otherwise, that the child is currently taking,
and a description of any effect these medications may produce in
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combination with the psychotropic medication; and (5) a
statement that the child has been informed in an age-appropriate
manner of the recommended course of treatment, the basis for it,
and its possible results. The court is required, upon review of
the JV-220, to deny, grant or modify the application for
authorization of psychotropic medication within seven days, or
to set the matter for hearing. The court may also set a date
for review of the child's progress and condition. (Section
369.5; Rules of Court, Rule 5.640.)
Supporters of this bill argue that courts are often not being
provided with the full story. Upon reviewing a JV-220, a judge
may have no indication that the child is already on psychotropic
medication, what a proper dosage for a child is, or what less
invasive alternatives are available. Supporters further assert
that the existing rule, which sets arguably loose parameters and
includes no considerations that the court must take into account
when evaluating a JV-220, is too broad for judges who may lack
the tools to properly evaluate medical recommendations and are
overburdened with unmanageable caseloads. As Judge Michael
Nash, former Presiding Judge of the Los Angeles Juvenile Court,
put it: "The last time I looked around, there aren't too many
psychiatrists or psychologists on the bench. So how in the heck
are we able to make good decisions about these meds?" (Karen de
Sá, Drugging our kids, supra., quoting Judge Michael Nash.) In
addition, the current process does not offer any meaningful way
for other adults, caretakers or those who interact with a foster
child on a regular basis, to contribute information to a
physician's recommendation.
Accordingly, this bill ensures that a child, his or her
caregiver and court appointed special advocate have an
opportunity to provide input to the court on the medications
being prescribed. This bill further requires that the court is
provided with information and tools to properly analyze the
authorization request, and that the court monitors the child's
progress by way of periodic oversight facilitated by the social
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worker, public health nurse or other appropriate county staff.
The bill's sponsor, the County Welfare Directors Association,
states that "recent reports indicating that psychotropic
medications are over-prescribed in the child welfare system have
prompted a needed look at the procedures by which those
medications are authorized and overseen. The children we serve
have experienced severe trauma that often warrants behavioral
health services such as trauma-informed therapy and other
targeted treatments. We believe it is appropriate for some
children to receive medication, when thoughtfully prescribed as
part of an overall treatment plan that includes
non-pharmacological interventions, as well. With those
medications, however, must come oversight to ensure that the
treatment plan is in place and that children are responding well
to the authorized medications."
Bill Provides Training and Education on Psychotropic Medication
for Those Who Are Entrusted with the Safety and Care of Foster
Youth. This bill requires that the adults who provide care,
protection and services to foster children receive training on
the "authorization, uses, risks, benefits, administration,
oversight, and monitoring of psychotropic medication, and
trauma, behavioral health, and other available behavioral health
treatments, for children receiving child welfare services,
including how to access those treatments." These adults,
including foster parents, relative and nonrelative extended
family members, judges, minor's counsel and social workers, are
in a unique position to recognize and advocate for a child's
best interest. With the proper training, they may be able to
recognize when a child is not responding properly to medication,
and provide valuable information to assist the court in the
oversight of a child's treatment plan. Thus, the court will not
be forced to rely on the opinion of the prescribing physician
alone. This required education and training on the risks and
uses of psychotropic drugs should help the adults in a foster
child's life better assist the child in achieving behavioral and
emotional health.
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REGISTERED SUPPORT / OPPOSITION:
Support
County Welfare Directors Association of California (sponsor)
Advokids
Alameda County Board of Supervisors
Alameda County Foster Youth Alliance
Alameda County Social Services Agency
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
California CASA Association
California Conference of the NAACP
California Department of Justice
California State Association of Counties
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California Youth Connection
Children's Advocacy Institute
Children's Partnership
Citizens Commission on Human Rights
Contra Costa County Board of Supervisors
Dependency Legal Group of San Diego
First Focus Campaign for Children
Humboldt County Transition Age Youth Collaboration
National Association of Social Workers - California Chapter
National Center for Youth Law
Peers Envisioning and Engaging in Recovery Services
Public Counsel's Children's Rights Project
San Joaquin County Human Services Agency
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Santa Clara Board of Supervisors
Stanislaus County Community Services Agency
Ventura County Board of Supervisors
Youth Law Center (if amended)
Several individuals
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916)
319-2334