BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015 - 2016 Regular Session SB 253 (Monning) Version: April 22, 2015 Hearing Date: April 28, 2015 Fiscal: Yes Urgency: No NR SUBJECT Dependent children: psychotropic medication DESCRIPTION This bill would require that an order of the juvenile court authorizing psychotropic medication shall require clear and convincing evidence that the administration of the drug is in the best interest of the child, as specified, and granted only if the court makes certain findings. This bill would also prohibit the authorizing of psychotropic medication without a second opinion under specified circumstances, including for a child who is under five years of age or where the request would result in the administration of three or more psychotropic medications concurrently. This bill would also prohibit the authorization of psychotropic medications unless the court is provided documentation that appropriate lab screenings, measurements, or tests have been completed no more than 30 days prior to submission of the request to the court. This bill would require the court, no later than 45 days following an authorization for psychotropic medication, to conduct a review to determine specified information regarding the efficacy of the child's treatment plan, and would make other conforming changes. BACKGROUND In 1999, the Legislature passed SB 543 (Bowen, Ch. 552, Stats. 1999), which provided that only a juvenile court judicial officer has the authority to make orders regarding the SB 253 (Monning) Page 2 of ? 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, the provisions of SB 543 were amended by AB 2502 (Keene, Ch. 329, Stats. 2004), which required 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. This amendment was intended to ensure timely consideration of requests for authorization to administer psychotropic medication to dependent children. Despite these measures, concerns remain that psychotropic medication is overused and underreported in the child welfare system. A recent Los Angeles Times article reported that "Los Angeles County's 2013 accounting failed to report almost one in three cases of children on the drugs while in foster care or the custody of the delinquency system. The data show that along with the 2,300 previously acknowledged cases, an additional 540 foster children and 516 children in the delinquency system were given the drugs. There are 18,000 foster children and 1,000 youth in the juvenile delinquency system altogether. ? State data analysts discovered the additional cases of medicated children by comparing case notes of social workers and probation officers with billing records for the state's Medi-Cal system. The billing records for those additional children did not appear to have corresponding case notes, leaving child advocates concerned that the drugs may have been prescribed without appropriate approval." The high rate of psychotropic usage is not limited to Los Angeles County - it is a national issue. Governing magazine recently noted that children in the United States are on drugs for longer and more often than kids in any other country. SB 253 (Monning) Page 3 of ? (Chris Kardish, Bad Medicine: How states are overmedicating low-income kids, Governing, March 2015.) Much of the concern stems from the fact that the long-term effects of psychotropic drugs on children are unknown, and the short term effects, including obesity, diabetes, and tremors, can be debilitating. Yet, many medical and child welfare professionals agree that some foster youth may benefit from these medications at some point in their lives. These children, who have suffered abuse and neglect at the hands of family, often have clinically significant emotional or behavioral problems. However, when psychotropic medications are prescribed to a foster child whose parent has been found, at least temporarily, unfit to approve the administration of the drugs, the question arises as to whether the court is capable of making the important inquiries that a parent should make before administering any medication to his or her child. This comprehensive bill seeks to address the issues related to psychotropic drugs in the foster system by providing a detailed framework the court must use when determining whether to approve the administration of such medication, and requires judicial oversight of the child's treatment. This bill was heard in the Senate Human Services Committee on April 21, 2014, where the author accepted substantial amendments. CHANGES TO EXISTING LAW Existing law provides that a minor may be removed from the physical custody of his or her parents and become a dependent of the juvenile court for abuse or neglect, or risk of abuse or neglect. (Welf. & Inst. Code Sec. 300.) Existing law authorizes the court to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of a dependent child, including medical treatment, subject to further order of the court. (Welf. & Inst. Code Sec. 362.) Existing law authorizes the court to allow a social worker to authorize the medical, surgical, dental or other remedial care for a dependent child that has been placed by the court under the custody or supervision of a social worker, if it appears there is no parent or guardian capable of authorizing or willing to authorize medical, surgical, dental or other remedial care. (Welf. & Inst. Code Sec. 369(c).) SB 253 (Monning) Page 4 of ? Existing law authorizes a minor who is 12 years of age or older to consent to mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services. (Health & Saf. Code Sec. 124260(b).) Existing law provides that only a juvenile court judicial officer shall have 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. (Welf. & Inst. Code Sec. 369.5.) Existing law 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. (Welf. & Inst. Code Sec. 369.5.) Existing law requires the Judicial Council to adopt rules of court and develop appropriate forms for the requirement above. (Welf. & Inst. Code Sec. 369.5.) Existing law 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. (Welf. & Inst. Code Sec. 369.5.) This bill would provide that an order of the juvenile court authorizing psychotropic medication shall require clear and convincing evidence that the administration of the medication is in the best interest of the child based on a determination of whether the risks associated with use of the medication outweigh the reported benefits to the child. This bill would permit the court to issue an order authorizing the administration of psychotropic medication for a dependent child only if the court determines the following: the medication is not being used as punishment, for the convenience of staff, as a substitute for less invasive treatments, or in quantities or dosages that interfere with the child's treatment program; the court has been provided documentation confirming that the SB 253 (Monning) Page 5 of ? child's caregiver has been informed, and the child has been informed in an age and developmentally appropriate manner, about the recommended medications, including the anticipated benefits, probability of side effects, and risks; the above documentation shall also include a description of the child and/or caregiver's concerns, if any, and shall confirm that the child has been informed of the right to request a hearing, as specified; the prescribing physician confirms that he or she conducted a comprehensive examination of the child, which takes into account the child's trauma history, medical records, and that he or she has consulted multiple sources of information, as specified; the prescribing physician confirms that there are no less invasive and effective treatment options, that the dosage is appropriate for the child, that the risks do not outweigh the reported benefits to the child, and that all appropriate lab screenings, measurements, and tests have been completed in accordance with accepted medical guidelines; and a plan, as specified, is in place for the regular monitoring of the child's medication and psychosocial treatment plan. This bill would require a second, independent medical opinion, prior to authorizing the administration of psychotropic medication, if one or more of the following conditions exist: the child is five years of age or younger; the request would result in the child being administered three or more psychotropic medications concurrently; the request is for the concurrent administration of any two drugs from the same class, as specified; the request is for dosage that exceeds the amount recommended for children; or the request is for the administration of a psychotropic medication that is subject to a federal black box warning, or is for the administration of an antipsychotic medication for a use that is not approved by the Food and Drug Administration for children or adolescents. This bill would prohibit the court from authorizing the administration of psychotropic medication to a child unless all the appropriate lab screenings, measurements, or tests for the child have been completed in accordance with accepted medical guidelines no more than 30 days prior to submission of the request to the court. This bill would require the court to conduct a review hearing SB 253 (Monning) Page 6 of ? within 45 days, as specified, after the authorization of a psychotropic medication to determine the following: whether the child is taking the medication; whether psychosocial services and other aspects of the child's treatment plan have been provided; the symptoms for which the medication was prescribed and any adverse effects the child has suffered; the date(s) of follow-up visits with the prescribing physician; and whether the appropriate follow-up laboratory screenings have been performed and their findings. This bill would require the court to reconsider, modify, or revoke its authorization for the psychotropic medication if, based on its review of the factors above, the court determines that the risks of the medication outweigh the benefits or the proffered benefits of the medication have not been demonstrated. COMMENT 1.Stated need for the bill According to the author: Nearly one in four children placed in foster care receive powerful psychotropic drugs. Of all children taking psychotropic medications in California, 52 percent are given antipsychotics, which have risk factors that can lead to life-long disabilities, such as tremors, obesity, and diabetes. Forty-eight percent of foster children are given antidepressants that have an Food and Drug Administration (FDA) black box label warning for use by children. In 1999, in response to concerns about the overmedication of foster children, the Legislature made juvenile court judges the gatekeepers for deciding if a child in foster care should be administered a psychotropic drug. California is one of a very few states in which the authority to make this decision is removed from the parents of a dependent child and given to the courts. In the 15 years since its enactment, the hope for reduction in the percent of foster children and youth given powerful psychotropic medications has not been realized. Current law provides no guidance to the courts, no standards or criteria for deciding to grant or deny an application for the use of psychotropic medication by foster children. SB 253 (Monning) Page 7 of ? SB 253 will provide the courts with key factors to consider when making these potentially life-changing medical decisions, and create a more rigorous process in line with the serious risks associated with the administration of these powerful drugs. 2.Better tools for evaluating the administration of psychotropic medication 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 of 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 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. (See Cal. Rule Ct. Sec. 5.640; Welf. & Inst. Code Sec. 369.5.) 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 and courts that may lack the tools to properly evaluate medical recommendations and are overburdened with unmanageable caseloads. 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. SB 253 (Monning) Page 8 of ? The Children's Law Center, in support of the bill, states that "children in foster care frequently exhibit emotional and behavioral problems as a result of the serious trauma they have faced in their young lives. To address these issues, a huge percentage of our clients are being prescribed psychotropic medications, often times without appropriate information and oversight. In California, more than 25 percent of older children and adolescents in foster care are given one or more psychotropic medications. 50 percent of those foster children are administered an antipsychotic. Thousands of children are taking more than one drug at the same time. This is unacceptable. It is clear that a more rigorous process is needed to protect the health and welfare of our foster children." Accordingly, this bill would ensure that a child and his or her caregiver are informed of the risks and benefits of the prescribed medication, and have had an opportunity to share any concerns with the court. This bill would further require that the court is provided with the tools to properly analyze the authorization request, including receiving appropriate laboratory reports and tests, and requiring a second opinion when psychotropic medications are prescribed to a child under five, or an authorization would result in more than three psychotropic medications being administered concurrently. Finally, by requiring the prescribing physician to confirm that he or she has reviewed the child's medical history in detail, and provide that information to the court, this bill will help ensure that foster children are not subject to multiple, and incompatible, psychotropic prescriptions. 3.Additional considerations in the oversight of psychotropic medication in foster care Under existing law, the court is given a few parameters when approving the administration of psychotropic drugs. However, with regards to oversight and monitoring of the progress of the child once he or she begins taking psychotropic medication, existing law is largely silent. This bill would create more considerations for the court prior to the administration of the medication, and would also create parameters for the court in exercising oversight after the administration of the medication has begun. In support, the Children's Partnership writes: [A]lmost half of the children in foster care are prescribed SB 253 (Monning) Page 9 of ? psychotropic medications, often without any supportive services or appropriate follow-up care. The trauma that led these children into foster care is often exacerbated by poorly managed mental health care and the overuse of mind-altering medications. So, while psychotropic medication is sometimes the right way to help these children and youth, the real world experience with such medications calls for better oversight and management of its use. ? We believe that this bill takes an important step forward in addressing the serious problems that are currently being experienced by children and youth in foster care through inappropriate, poorly managed, and often over-use of psychotropic medications. Accordingly, this bill would require that the court determine, prior to authorizing a request to administer psychotropic medication to a foster child that a plan is in place for regular monitoring of the child's medication and psychosocial treatment. This plan would need to also monitor the effectiveness and the side effects of the medication, and include input from the child's caregiver, mental health care provider, and others who have contact with the child. Further, this bill would require the court, no later than 45 days after the authorization of a new psychotropic medication, as specified, to review how the child is responding to the medication. The court would be required to look at a number of factors, including whether the child is taking the medication, the adverse effects of that medication, any follow-up visits with the prescribing physician, and whether the appropriate follow-up laboratory screenings have been performed. If, based upon this review the court determines that the goals in administering the medication are not being met, or the risks of the medication outweigh the benefits, the court is required to reconsider, modify, or revoke its authorization for the administration of medication. 4.Author addressing the need for emergency authorization and timeliness of second opinions This bill would require a second opinion from a child psychologist or psychopharmacologist, prior to the authorization to administer psychotropic medication, in a number of situations including: (1) the medication is for a child under the age of five; (2) the request would result in the child being administered three or more psychotropic medications concurrently; (3) the request, if, for a dosage that exceeds the amount recommended for children; or (4) the request is for the SB 253 (Monning) Page 10 of ? administration of a medication subject to a federal Food and Drug Administration (FDA) black box warning. The California Welfare Directors Association (CWDA) and the Children's Law Center of California (CLC) both support this bill, if amended in a number of ways. Most of the concerns these groups raise were addressed in amendments accepted by the author in the Senate Human Services Committee on April 21, 2015. Their one outstanding concern deals with the ability of a court to approve psychotropic medication in a timely manner. Regarding this bill's requirement for a second opinion, CLC recommends implementing a time limit by which the second opinion must be sought, and CWDA writes, "given the shortage of medical professionals available to serve our children, this new requirement must not result in prescription requests being set aside for great periods of time while a second opinion is sought. We request the bill be amended to require the development of a statewide resource that can be used to obtain a second opinion in a timely manner. We note that California's university system may be able to serve as a resource. For example, the State of Washington utilizes the services of Seattle Children's Hospital, connected to the University of Washington, to obtain opinions in certain cases, a model California may wish to emulate." CWDA further emphasizes the need for the bill to provide for the emergency authorization of medication under certain circumstances, which is currently addressed in the Rules of Court issued by Judicial Council. To address these concerns, the author offers the following amendments which would create an emergency procedure for the authorization of psychotropic medication if the child is a danger to himself or others and there is not adequate time to provide the court with all the required information prior to the necessary administration of the medication. Author's amendments: Welf. & Inst. Code Sec. 369.5 is amended to read: (k) Emergency treatment (1) Psychotropic medications may be administered without court authorization in an emergency situation. An emergency situation occurs when: SB 253 (Monning) Page 11 of ? (A) A physician finds that the child requires psychotropic medication to treat a psychiatric disorder or illness; (B) The medication is immediately necessary for the preservation of life or the prevention of serious bodily harm to the child or others. It is not necessary for harm to take place or become unavoidable prior to treatment; and (C) It is impractical to obtain authorization from the court before administering the psychotropic medication to the child. (2) Court authorization must be sought as soon as practical but in no case more than two court days after the emergency administration of the psychotropic medication. 5.Additional concerns expressed by stakeholders This bill would require the physician prescribing the requested medication to confirm to the court that there are "no other less invasive and effective treatment options available" to meet the needs of the child. CWDA argues that this language may have a chilling effect on the willingness of physicians to prescribe medication in situations when it is truly needed. CWDA writes, "we question whether doctors would be willing to tell the court that a particular medication will be 'less invasive and more effective' than any other possible treatment, especially when the recommended medication involves a patient's mental health, and how the patient might react to a particular medication is not fully known at the time it is prescribed." The California Judges Association, who has not taken a position on this bill, additionally expressed concern with the requirement that, prior to approving the administration of a psychotropic medication, the court is required to find that the medication is "not being used as punishment, for the convenience of the staff, as a substitute for other, less invasive treatments, or in quantities or dosages that interfere with the child's treatment program" would be difficult for a judge to SB 253 (Monning) Page 12 of ? assess based on the information he or she is provided with. In response to these and other concerns that an unintended consequence of this bill could be that children who truly need psychotropic medications may not be able to receive them, the author offers the following amendments which would prohibit a court from approving the administration of a psychotropic if the court finds it is being used for an impermissible purpose, and would allow a court to consider whether a child might need more time on a particular medication in order to evaluate the effectiveness of the treatment. Author's amendments 1. On page 3, strike lines 24-27. 2. On page 3, after line 20, insert "An order authorizing the administration of psychotropic medications pursuant to this section shall not be granted if the court determines that the medication is being used as punishment, for the convenience of staff, as a substitute for other, less invasive treatments, or in quantities or dosages that interfere with the child's treatment program." 3. On page 6, after line 16, insert "Whether more time is needed to evaluate the effectiveness of the medication." Support : Advokids; Alameda County Board of Supervisors; Alameda County Foster Youth Alliance; California Court Appointed Special Advocates (CASA); California Youth Connection; Children's Advocacy Institute; Children's Partnership; Dependency Legal Group of San Diego; East Bay Children's Law Offices; East Bay Community Law Center; First Focus Campaign for Children; Humboldt County Transition Age You Collaboration; John Burton Foundation; Legal Advocates for Children and Youth; Peers Envisioning and Engaging in Recovery Services; 9 individuals Opposition : None Known HISTORY Source : The National Center for Youth Law Related Pending Legislation : SB 253 (Monning) Page 13 of ? SB 238 (Mitchell) would require specified certification and training programs for group home administrators, foster parents, child welfare social workers, dependency court judges and court appointed council to include training on psychotropic medication, trauma, and behavioral health, as specified, for children receiving child welfare services, and require the Judicial Council to update court forms pertaining to the authorization of psychotropic medication. SB 484 (Beall) would require the CDSS to publish and make available to interested persons specified information regarding the administration of psychotropic medication in residential facilities serving dependent children, and would require CDSS to inspect facilities at least once per year if the facility is determined to have a higher than average rate of psychotropic medication authorization rate for children. SB 319 (Beall) would expand the duties of the foster care public health nurse to include monitoring and oversight of the administration of psychotropic medication to foster children, and require counties to provide child welfare public health nursing services by contracting with the community child health and disability prevention program established by the county. Prior Legislation : AB 82 (Evans, 2009) would have established a pilot project that would create additional requirements and safeguards in the court approval process for requests to administer psychotropic medications to children in foster care. This bill was vetoed by Governor Schwarzenegger. AB 2117 (Evans, 2008) would have created new safeguards before and after juvenile court judicial officers authorize the administration of psychotropic medications to foster youth including a requirement that the county child welfare agency or county probation department include or attach specified information to all reports provided to the juvenile court following court authorization for the administration of psychotropic medication to a child. This bill was held in the Senate Appropriations Committee. AB 1330 (Evans, 2007) would have required the Department of Social Services to collect and maintain specified information regarding foster youth who are prescribed psychotropic SB 253 (Monning) Page 14 of ? medication. This bill was held in the Assembly Appropriations Committee. AB 1573 (Niello, 2007) would have extended a juvenile court judicial officer's authority to make orders administering psychotropic medication to wards of the court who had been removed from the custody of a parent or guardian. This bill died at the Assembly Desk. AB 2502 (Keene, Chapter 329, Statutes of 2004) See Background. SB 543 (Bowen, Chapter 552, Statutes of 1999) See Background. Prior Vote : Senate Human Services Committee (Ayes 5, Noes 0) **************