BILL ANALYSIS Ó SB 253 Page 1 Date of Hearing: July 14, 2015 ASSEMBLY COMMITTEE ON HUMAN SERVICES Kansen Chu, Chair SB 253 (Monning) - As Amended July 8, 2015 SENATE VOTE: 40-0 SUBJECT: Dependent children: psychotropic medication. SUMMARY: Modifies juvenile court practices and requirements regarding the authorization of psychotropic medications for foster youth. Specifically, this bill: 1)Requires the court, as of July 1, 2016, whenever it authorizes the administration of a psychotropic medication, to ensure that such administration is only one part of a comprehensive treatment plan for the child, as specified. 2)Requires, as of July 1, 2016, an order authorizing the administration of a psychotropic medication to be granted only upon the court's determination that there is clear and convincing evidence that such administration is in the best interest of the child, as specified. Further prohibits authorization of administration of a psychotropic medication SB 253 Page 2 if it is determined to be for purposes of punishment or staff convenience, or in lieu of less invasive treatments or in quantities or dosages that interfere with a child's treatment plan. 3)Requires, as of July 1, 2016, an order authorizing the administration of a psychotropic medication to be granted only if the court determines all of the following: a) The court is provided documentation including the written assent or refusal of any child age 12 or older and reflecting that, as specified: the child's caregiver and the child have been informed about the recommended medications and alternative treatments, the child and caregiver have been given the opportunity to express concerns, and the child has been informed of his or her right to object to the authorization of psychotropic medications; b) The prescribing physician submitting the request for psychotropic medication has conducted a comprehensive examination of the child, as specified; c) The prescribing physician confirms that there are no less invasive treatments available, the dosage is appropriate, the short-and long-term risks do not outweigh the reported benefits to the child, and all appropriate laboratory screenings, measurements, or tests for the child have been completed in accordance with accepted medical guidelines; and d) A plan is in place for regular monitoring, as specified, of the child's medication and psychosocial treatment plan, the effectiveness of such treatments, and potential side SB 253 Page 3 effects. 1)States that, as of July 1, 2016, the person or entity submitting the request for authorization of the administration of psychotropic medication is responsible, and shall bear the burden of proof, for providing the necessary documentation of the clinical appropriateness of the proposed medication. 2)Prohibits, as of July 1, 2016, a court from issuing an order authorizing the administration of psychotropic medications for a child without a second independent medical opinion if the request for a psychotropic medication: is for a child under the age of 6, would result in a child being administered three or more psychotropic medications concurrently, is for the concurrent administration of any two drugs from the same class, as specified, or is for a dosage exceeding that recommended for children. 3)Requires the Department of Health Care Services (DHCS), in collaboration with Judicial Council, to identify resources to assist the courts in securing a second review and second opinions, as specified. 4)Prohibits, as of July 1, 2016, the court from authorizing the administration of psychotropic medication unless the court is provided with documentation indicating that all appropriate laboratory screenings, measurements, or tests have been completed no more than 45 days prior to the submission of the request to the court, as specified. 5)Requires the court, as of July 1, 2016, to conduct a review hearing regarding the authorization of a new psychotropic medication, as specified, to determine whether the child is taking the medication(s), whether components of a child's SB 253 Page 4 treatment plan have been provided, the extent to which symptoms have been alleviated, whether more time is needed to evaluate the effectiveness of medication(s), any adverse effects the child has suffered and what steps have been taken to address those effects, 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. Further, requires the court, if the benefits of the medication have not been demonstrated or the risks outweigh the benefits, to reconsider, modify, or revoke its authorization for administration of the medication. 6)Requires, as of July 1, 2016, the child's social worker to submit a report to the court and to counsel for the parties prior to the review hearing that includes information from the child, the child's caregiver, the public health nurse, and any court appointed special advocate. 7)States that, as of July 1, 2016, the order for authorization is effective until terminated or modified by the court or until 180 days following the date of the order, whichever is earlier. 8)Provides for, as of July 1, 2016, the administration of psychotropic medications without court authorization in an emergency, as specified, and requires court authorization to be sought as soon as practical but no more than two court days after the emergency administration of medication. 9)States that, as of July 1, 2016, no person has the authority to administer psychotropic medication to a child who has refused and that a child cannot be forced to take such medication unless otherwise explicitly permitted by statute. SB 253 Page 5 10)Requires the Judicial Council to adopt rules of court and develop appropriate forms for the implementation of the changes contained in this bill by July 1, 2016. EXISTING LAW: 1)Establishes a state and local system of child welfare services, including foster care, for children who have been adjudged by the court to be at risk or have been abused or neglected, as specified. (WIC 202 et seq.) 2)Allows a juvenile court to adjudge a child a ward or a dependent of the court for specified reasons, including but not limited to if the child has been left without any provision for support, as specified. (WIC 300) 3)Defines "psychotropic medication" or "psychotropic drugs" as those medications administered for the purpose of affecting the central nervous system to treat psychiatric disorders or illnesses. Further states that these medications include, but are not limited to, anxiolytic agents, antidepressants, mood stabilizers, antipsychotic medications, anti-Parkinson agents, hypnotics, medications for dementia, and psychostimulants. (WIC 369.5 (d)) 4)States that only a juvenile court judicial officer has the authority to make orders for the administration of psychotropic medications for a minor who has been adjudged a dependent of the court. (WIC 369.5) FISCAL EFFECT: According to the May 28, 2015, Senate Appropriations Committee analysis, this bill may result in the SB 253 Page 6 following costs: 1)One-time costs of $77,000 (General Fund) related to developing/revising Judicial Council forms and rules of court. (Proposition 30 exempts the State from mandate reimbursement for realigned programs, however, legislation that has an overall effect of increasing the costs already borne by a local agency for realigned programs, including child welfare services, apply to local agencies only to the extent that the State provides annual funding for the cost increase.) 2)Annual costs ranging from $0.9 million to $1.8 million (General Fund) for review hearings for approximately 9,000 requests for psychotropic medication authorizations each year. 3)Annual costs of around $1 million (General Fund) for document management related to approximately 9,000 requests for psychotropic medication authorizations per year. 4)Annual costs of about $1.3 million (Federal Fund/General Fund) for social workers to identify cases that require a second opinion, make arrangements for the youth to be examined by the second medical practitioner, ensure the child's screenings, lab tests, and measurements have occurred no more than 30 days from the date of the request to the court, and attend the additional review hearings. 5)Potentially major increase in Medi-Cal program costs in the low millions of dollars (Federal Funds/General Fund) annually to the extent the provisions of this measure result in additional medical examinations for second opinions, as well as an increase in lab screenings, measurements, and tests completed that otherwise would not occur under existing law. While the estimated costs for second medical opinions may be SB 253 Page 7 less than $1 million annually as it will not impact the entire caseload, the requirement to have all appropriate lab screenings and tests within 30 days prior to submission of the request to the court will be required for each authorization. 6)Potentially significant off-setting decrease in Medi-Cal program costs (Federal Funds/General Fund) to the extent the enhanced oversight and monitoring process results in reduced utilization of psychotropic medications for this population of youth. To the extent the reduced utilization of these medications are replaced with alternative treatment options/psychosocial services could result in additional offsetting costs. COMMENTS: Psychotropic medications and foster youth: Psychotropic medications include drugs prescribed to manage psychiatric and mental health disorders or issues including depression, obsessive-compulsive disorder, attention deficit hyperactivity disorder, bipolar disorder, schizophrenia, and others. These medications include antipsychotics such as Seroquel, antidepressants like Prozac, mood stabilizers including Lithium, and stimulants like Ritalin. There continues to be significant concern over the use of psychotropic medications for children, due to a vast array of side effects (which can include aggressive behavior, hostility, seizures, significant weight gain, and more) and due to the fact that the long-term effects for children using these drugs are largely unknown. Additionally, many psychotropic medications are prescribed to children "off label" - that is, they are used to treat symptoms other than those for which the Federal Drug Administration originally approved each drug. While off-label use is not illegal, there are concerns about how well-understood SB 253 Page 8 these medications and their uses are by prescribers and patients. Over 75% of psychotropic drug use among children and adolescents is believed to be off-label. One class of psychotropic medications, antipsychotics, raises particular concern; these are potent drugs with a high potential for side-effects, and there is little known about their impact on growth, development, and children's neurological systems. Research has repeatedly indicated that children and youth in foster care face higher levels of inappropriate or excessive medication use, and that those foster youth placed in group home settings are particularly vulnerable to over-prescription and misuse of psychotropic medications. Data provided by the DHCS indicate that, in fiscal year 2013-14, almost 15% of all foster youth in California ages 0 to 20 years old were prescribed at least one psychotropic medication; looking specifically at all foster youth ages 12 through 20, this rate was almost 25% and for youth placed in group homes, it was 50%. In late 2011, the U.S. Department of Health and Human Services issued a letter to states encouraging them to coordinate with partners who worked with foster youth to address enhanced efforts to appropriately prescribe and monitor psychotropic medication among children placed in out-of-home care. As a result, DHCS and the Department of Social Services (DSS) developed the Quality Improvement Project to strengthen the state's Medicaid and child welfare services system by, among other things, improving safe and appropriate prescribing and monitoring of psychotropic drugs; this project has enabled the state to access the knowledge and perspectives of various experts, and has continued to hold various workgroup meetings and set and accomplish objectives related to its mission. Additionally, this Spring, DHCS and DSS released state guidelines for the use of psychotropic medication with children and youth in foster care. SB 253 Page 9 Need for this bill: This is one of four bills proposing a set of reforms aimed at curbing excessive and inappropriate authorization and administration of psychotropic medications among foster youth. According to the author: "Since 1999, juvenile courts have been the decision-makers, 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. [This bill] ensures our 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 effects of these medications." SB 253 Page 10 The sponsor of this bill, the National Center for Youth Law, states that, "When more than twenty-five percent of older children and adolescents in foster care are given one or more psychotropic medications, and thousands of children are taking multiple drugs at the same time, when fifty percent of those foster children receiving a psychotropic medication are administered an antipsychotic, it is clear that the current system is failing our children. A more rigorous process is needed to protect the health and welfare of our foster children. We believe [this bill] will improve decision-making for our children and provide the protections they are entitled to before being given medications that have profound effects upon their well-being." Concerns raised: Various parties, some representing health care providers, have registered concerns with this bill, claiming that some of its provisions may actually have the impact of restricting timely access to medically necessary medications for children. Specifically, one chief concern they have raised is the requirement that a prescribing physician confirm that he or she has conducted a comprehensive examination, taking into account a number of factors, including the child's trauma and health care history and medical records as well as multiple sources of information including, but not limited to, the child, the child's parents, relatives, teachers, caregiver(s), past prescriber of psychotropic medication, or other health care providers. The parties registering concern claim that these requirements represent an ideal standard of care that may in actuality be difficult to achieve. SB 253 Page 11 Another concern raised is that the requirement that physicians confirm that there are no less invasive or effective treatment interventions available is difficult to operationalize, that physicians may often prescribe a combination of both medications and psycho-social interventions, and that the availability of psycho-social interventions are not under the control of the prescribing physician. Staff comments: While structures and practices may not currently be in place in the state's child welfare system to always ensure the ready availability of a youth's entire medical history and useful supplementary information, this is arguably not a reason for the state to simply permit the prescription of potentially dangerous drugs to children based on imperfect and incomplete information. The excessive and inappropriate prescription of psychotropic medication to foster youth in California, and the negative impacts this can have on their lives both in the short- and long-term, is a serious problem that has triggered a number of approaches to reforming the system of psychotropic drug authorization and administration. As various pieces of this reform are adopted and implemented, the hope is that improved collection and sharing of medical and related data will be one result. In the interim, this bill's allowance for emergency administration of psychotropic medications can facilitate immediate access to such medications when warranted and medically necessary. This bill, in seeking to reform the way psychotropic medications are authorized in California, arguably has at its core at least three of the guiding principles of DSS's and DHCS's recently released "California Guidelines for the Use of Psychotropic Medication with Children and Youth in Foster Care": SB 253 Page 12 "Integration: These inclusive health care needs [inclusive of physical, emotional/behavioral, and dental health] of a child/youth are expected to be integrated into a health care services plan that provides integrated, coordinated services that are individualized and tailored to the strengths and needs of each child and their family. Collaboration: The State and its counties recognize the importance of collaboration with treatment providers, particularly prescribing providers, to ensure the success of these Guidelines and psychotropic medication management reform for children and youth in out of home care served by child welfare and/or probation. Limitations: Psychotropic medication is never the sole intervention but should be part of an overall treatment strategy. Medication also carries the risk of adverse (side) effects, so careful monitoring by the prescriber is essential." RELATED LEGISLATION: SB 238 (Mitchell), 2015, requires DSS to develop expanded training for foster parents, social workers, group home administrators, and others involved in the care and oversight of dependent children on issues related to psychotropic medications. Further requires Judicial Council to, in SB 253 Page 13 consultation with other entities, update court forms related to the authorization of psychotropic medications, and requires DSS to establish an individualized monthly report and other tools for use by county welfare agencies to monitor the administration of psychotropic medications to foster youth. SB 319 (Beall), 2015, adds to the duties of foster care public health nurses, including monitoring each child in foster care who is administered one or more psychotropic medications. SB 484 (Beall), 2015, requires DSS to compile and post on its Internet Web site specified information regarding the administration of psychotropic medications to children placed in group homes and to establish a methodology for identifying group homes with high levels of psychotropic drug use. Further establishes certain requirements for those group homes. SECOND COMMITTEE OF REFERENCE . This bill was previously heard in the Assembly Judiciary Committee on June 30, 2015 and was approved on a 10-0 vote. REGISTERED SUPPORT / OPPOSITION: Support Abode Services Advokids SB 253 Page 14 Alameda County Board of Supervisors Alameda County Foster Youth Alliance (FYA) American Federation of State, County and Municipal Employees (AFSCME), AFL-CIO California CASA Association California Department of Justice California Youth Connection Children's Advocacy Institute Children's Defense Fund - California (CDF-CA) Children's Law Center of California Children's Partnership Consumer Watchdog County Welfare Directors Association of California (CWDA) Dependency Legal Group of San Diego SB 253 Page 15 First Focus Campaign for Children Humboldt County Transition Age Youth Collaboration John Burton Foundation for Children without Homes National Association of Social Workers, CA Chapter (NASW-CA) National Center for Youth Law, sponsor Peers Envisioning and Engaging in Recovery Services (PEERS) The Children's Partnership The Jamestown Community Center 9 individuals Opposition None on file. SB 253 Page 16 Analysis Prepared by:Daphne Hunt / HUM. S. / (916) 319-2089