BILL ANALYSIS Ó SB 253 Page 1 Date of Hearing: June 30, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair SB 253 (Monning) - As Amended June 2, 2015 As Proposed to be Amended SENATE VOTE: 40-0 SUBJECT: foster children: COURT OVERSIGHT OF 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 THE LIMITED COURT OVERSIGHT DONE TODAY BE SUBSTANTIALLY IMPROVED? 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 medication alters chemical levels in the brain which impact mood and behavior and includes antipsychotics, antidepressants and psychostimulants. This bill, sponsored by the National Center for Youth Law, seeks to improve ongoing court oversight to help ensure that these powerful drugs are only used when medically necessary and appropriate for the SB 253 Page 2 particular child and that such usage is carefully monitored to ensure any benefits of the medication are not outweighed by its short- and long-term risks. In particular, the strengthened oversight in this bill requires that a court determine, by clear and convincing evidence, that administration of the medication is based on the best interest of the child and must include specified documentation and confirmations from the prescribing physician. This bill also prohibits the authorization of psychotropic medications without a second independent medical opinion under specified circumstances. This bill is supported by a long list of organizations, including the Department of Justice, the Alameda County Board of Supervisors, the county welfare directors and numerous children's organizations. It has no reported opposition, although several organizations have raised joint concerns about the bill and have been working with the author to address them. The amendments proposed to be taken in this Committee address some, but not all, of their concerns. Assuming it passes this Committee, this bill will be referred to the Human Services Committee. SUMMARY: Revises and strengthens, as of July 1, 2016, juvenile court oversight requirements for administration of psychotropic medications to dependents who have been removed from their parents. Specifically, this bill: 1)Requires the court to ensure, when authorizing administration of a psychotropic medication, that the medication is only one part of a comprehensive treatment plan for the child, which must specify the psychosocial services the child will receive in addition to any authorized medication. SB 253 Page 3 2)Allows the juvenile court to authorize psychotropic medication to a dependent only if the court determines, by clear and convincing evidence, that administration of the medication is in the best interest of the child based on a determination that the anticipated benefits of the psychotropic medication outweigh the short- and long-term risks associated with it. Provides that the medication cannot be ordered if it is being used as a punishment, for staff convenience, as a substitute for less invasive treatments, or in quantities that interfere with the child's treatment program. Provides that the authorization is effective for no more than 180 days. 3)Provides that an order authorizing psychotropic medication shall only be granted if the court: a) Is provided documentation confirming the child's caregiver and the child have been informed, in an age and developmentally appropriate manner, about the recommended medications and asked about their concerns, and the child has been informed of his or her right to object to the authorization and request a hearing. b) Is provided with the written assent or refusal to assent from a child who is 12 years of age or older. c) Determines that 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. d) Determines that the prescribing physician has conducted a comprehensive examination of the child, as defined, and confirm that there are no less invasive and effective treatment options available to meet the child's needs; the dosage is appropriate for the child; the short- and long-term risks do not outweigh the benefits of the SB 253 Page 4 medication; and all appropriate lab screenings for the child have been completed. e) Determines that a plan is in place for regular monitoring of the child's medication and psychosocial treatment plan, the effectiveness of the medication and psychosocial treatment, and any potential side effects of the medication. 4)Prohibits the authorization of psychotropic medications without a second independent medical opinion by a child psychiatrist or a behavioral pediatrician in any of the following circumstances: a) The child is five years old or less; b) The request would result in the child receiving three or more psychotropic medications concurrently; c) The request is for concurrent medication of two or more drugs; or d) The request is for a dosage amount that exceeds the amount recommended for children. 5)Requires the Department of Health Care Services, in collaboration with the Judicial Council, to assist courts in securing second opinions in order to avoid undue delays in authorization of medication. 6)Prohibits the court from authorizing the administration of psychotropic medications unless it is provided documentation that all of the appropriate lab tests, done no more than 30 days prior to the submission of the request, have been completed. SB 253 Page 5 7)Requires the court, no later than 60 days following an authorization for a new psychotropic medication, or at the next review hearing scheduled no earlier than 45 days after the authorization, to conduct a review hearing. Requires the social worker to submit a report prior to the review hearing. Requires the court to reconsider, modify or revoke its authorization if it determines that the proffered benefits of the medication have not been demonstrated or that the risks of the medication outweigh the benefits. 8)Allows a psychotropic medication to be administrated without court authorization in an emergency, provided that court authorization is sought as soon as practical, but no more than two court days after administering the medication and all of the following are true: a) The physician finds that the child requires the medication to treat a psychiatric disorder or illness; b) The medication is immediately necessary for the preservation of life or prevention of serious bodily harm for the child or others; and c) It is impractical to obtain court approval prior to administering the medication. 9)Provides that nothing in the bill grants anyone the authority to administer psychotropic medication to a child who refuses to take the medication. A child's refusal to take medication is a treatment issue to be resolved by the prescribing physician, and the child cannot be forced to take the medication, unless otherwise permitted by statute. Provides SB 253 Page 6 that no person may threaten, coerce, withhold privileges or otherwise penalize a child for refusing to take psychotropic medication. 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)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. (Section 362.) 3)Authorizes the court to allow a social worker to authorize the medical, surgical, dental or other remedial care for a dependent child who 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 care. (Section 369(c).) 4)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 & Safety Code Section 124260(b).) 5)Provides that only a juvenile court judicial officer shall SB 253 Page 7 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. 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.) 6)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. (Id.; California Rules of Court, Rule 5.640.) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: 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 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 SB 253 Page 8 prescribed use, though the practice is legal and common across all manner of pharmaceuticals. This bill seeks to improve ongoing court oversight to help ensure that these powerful drugs are only used when medically necessary and appropriate for the particular child and that such usage is very carefully monitored to ensure any benefits of the medication are not outweighed by its short- and long-term risks. 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 for 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 taking 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).) SB 253 Page 9 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 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 SB 253 Page 10 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 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 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 SB 253 Page 11 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: 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. (Id.) 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 SB 253 Page 12 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 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 SB 253 Page 13 three bills in the package are: SB 238 (Mitchell and Beall) requires certification and training programs for foster parents, child welfare social workers, group home administrators, dependency court judges and court appointed council to include training on psychotropic medication, trauma, and behavioral health. This bill also requires the Judicial Council to update forms and rules, and DSS to develop forms and an alert system. SB 238 is also being heard in this Committee today. 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 referred just to the Assembly Human Services Committee. This Bill Provides the Critical Court Oversight Piece of the Package. 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 ongoing treatment. Writes the author: SB 253 Page 14 Since 1999, juvenile courts have been the decision-makes, the gatekeepers for authorizing psychotropic medications for children in foster care. But we have not given the courts standards by which to guide their decision-making and the support necessary to make an informed decision. California law upholds the rights of convicted felons confined to our state prisons and county jails, sexually violent predators, and those adjudicated not guilty by reason of insanity to refuse the administration of antipsychotic medications unless specific circumstances exist and due process is afforded them. Among other protections, they are entitled to counsel, to be present at the hearing and to have decisions made on clear and convincing evidence. Certainly we can and must afford our foster children even greater protections against the misuses of these medications. SB 253 ensures out juvenile court judges are given the information they need to make informed decisions before authorizing these medications, provides criteria to guide the decision-making, and safeguards our foster children's health and safety by overseeing the affects of these medications. Bill Provides the Court With Better Tools for Evaluating the Administration of Psychotropic Medication for Each Particular Child. 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 SB 253 Page 15 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 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 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. Accordingly, this bill ensures 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 further requires that the court is provided with the tools to properly analyze the authorization request, including receiving appropriate laboratory reports and tests. Finally, by requiring the SB 253 Page 16 prescribing physician to confirm that he or she has reviewed the child's medical history in detail, and to provide that information to the court, this bill will help ensure that foster children are not unknowingly being prescribed multiple, and incompatible, psychotropics. In support, the Children's Partnership writes: [A]lmost half of the children in foster care are prescribed 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. This Bill Provides for a Second Opinion in the Most Disconcerting Cases, But Also Allows for Emergency Authorization, When Necessary. This bill requires a second opinion from a child psychologist or psychopharmacologist, prior to the authorization to administer psychotropic medication, in situations where prescribing psychotropics can be most questionable: (1) the medication is for a child five years of age or less; (2) the request would result in the child being administered three or more psychotropic medications concurrently; (3) the request is for a dosage that exceeds the amount recommended for children; or (4) the request is for the administration of a medication subject to a FDA black box warning. To ensure that even with the second opinion SB 253 Page 17 requirement, children who need psychotropic medication immediately will not be harmed, the bill provides 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, with a required court petition filed afterwards. Judicial Oversight Continues After Psychotropic Medication Has Been Authorized. 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 gives more guidance to the court prior to the administration of the medication, and also creates parameters for the court in exercising oversight after the administration of the medication has begun. Accordingly, this bill requires 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 must 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 requires the court, no later than 60 days following an authorization for a new psychotropic medication, or at the next review hearing scheduled no earlier than 45 days after the authorization, to review how the child is responding to the medication. The court is 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 SB 253 Page 18 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 the medication. Concerns Raised That the Bill, With All its Requirements, Could Keep Children Who Need Psychotropic Medication From Receiving it in a Timely Manner, and the Author Proposes Amendments to Address Many of These Concerns. Concern has been raised by a group of medical associations and group homes, consisting of the California Academy of Child and Adolescent Psychiatry, the California Psychiatric Association, the California Behavioral Health Directors Association, the California Alliance of Child and Family Services and the California Medical Association, that the bill, while attempting to fix a system that needs fixing, could restrict timely access to necessary medications by some foster children. In response to their concerns, the author proposes to amend the bill in several key ways. First, the bill will no longer give foster youth 14 years of age and older the unilateral right to prevent the court from authorizing a psychotropic medication. Instead, the judge will be informed whether a youth 12 or older assents or refuses to assent to taking the proposed medication and will be able to consider the youth's assent when deciding whether to authorize the medication. Second, as discussed above, the bill will allow a psychotropic medication to be administrated without court authorization in an emergency, provided that court authorization is sought right afterwards. This procedure should help ensure that children who need the medication can quickly get it, but is not so broad that it creates a huge loophole in the law. Finally, the amendments reduce the burden on physicians in terms of what they must consider before prescribing psychotropic medication. The concerned groups are appreciative of the changes, but believe that additional amendments are still required in order SB 253 Page 19 to ensure that children who need psychotropic medication can still receive it when appropriate. In particular, they remain concerned with the requirement for a second opinion of a child psychologist or behavioral pediatrician, because such a psychologist or pediatrician may not be available in the area. However, the emergency exception discussed above should help reduce concerns with getting a second opinion in a timely manner. The groups are also concerned that doctors may not be provided with all the information they are supposed to review, which these groups acknowledge is the standard of care, and request that perhaps there should be a single point of contact to help them access the required information. The author is continuing to work with these groups to see if these additional concerns can be addressed. REGISTERED SUPPORT / OPPOSITION: Support National Center for Youth Law (sponsor) Accessing Health Services for California's Children in Foster Care Task Force Advokids Alameda County Board of Supervisors Alameda County Foster Youth Alliance SB 253 Page 20 American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO California Alliance of Child and Family Services (if amended) California CASA Association California Department of Justice California Youth Connection Children's Advocacy Institute Children's Law Center of California Children's Partnership Citizens Commission on Human Rights Consumer Watchdog County Welfare Directors of California Dependency Legal Group of San Diego Disability Rights California SB 253 Page 21 Family Voices of California First Place for Youth Humboldt County Transition Age Youth Collaboration John Burton Foundation National Association of Social Workers - California Chapter North American Council on Adoptable Children Peers Envisioning and Engaging in Recovery Services Youth Law Center Some individuals Opposition None on file SB 253 Page 22 Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334