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
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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.
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(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).)
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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
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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
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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.
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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.
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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
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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
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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:
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(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
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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 :
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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
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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)
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