BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 82
Assemblymember Evans
As Amended June 25, 2009
Hearing Date: July 14, 2009
Welfare and Institutions Code
KB:jd
SUBJECT
Dependent Children: Psychotropic Medications
DESCRIPTION
This bill, sponsored by the Children's Law Center of Los
Angeles, would establish 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.
BACKGROUND
In 1999, the Legislature passed SB 543 (Bowen, Chapter 552,
Statutes of 1999), which provided that only a juvenile court
judicial officer has the authority to make orders regarding the
administration of psychotropic medications for foster youth. SB
543 also provided that the juvenile court may issue a specific
order delegating this authority to a parent if the parent poses
no danger to the child and has the capacity to authorize
psychotropic medications. This legislation was passed in
response to concerns that foster children were being subjected
to excessive use of psychotropic medication, and that judicial
oversight was needed to reduce the risk of unnecessary
medication. The Judicial Council was required to adopt rules of
court to implement the new requirement. Rule 5.640 specifies
the process for juvenile courts to follow in authorizing the
administration of psychotropic medications and permits courts to
adopt local rules for the courts to use to further refine the
approval process.
In 2004, this law was amended by AB 2502 (Keene, Chapter 239,
(more)
AB 82 (Evans)
Page 2 of ?
Statutes of 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.
In 2007, the Legislature added provisions regarding court
authority to make orders about the administration of
psychotropic medications to a ward of the court placed into
foster care (AB 1514, Maze, Chapter 120, Statutes of 2007). The
Department of Social Services sponsored that bill to remedy
disparities between the way wards in foster care and dependents
in foster care may be prescribed psychotropic medications.
This bill was approved by the Senate Committee on Human Services
on June 23, 2009.
CHANGES TO EXISTING LAW
Existing law defines psychotropic medication as those
administered for the purpose of affecting the central nervous
system to treat psychiatric disorders or illnesses. (Wel. &
Inst. Code Secs. 369.5, 739.5.)
Existing law authorizes only a juvenile court judicial officer
to make orders about the administration of psychotropic
medications to a child who was removed from his or her parent's
custody and declared a dependent of the court, unless the court
issues a specific order delegating that authority to a parent or
guardian after making specified findings. Existing law
establishes a similar authorization process for a ward of the
court. (Wel. & Inst. Code Secs. 369.5, 739.5.)
Existing law requires that the juvenile court's authorization to
administer psychotropic medications be based on a physician's
request that includes the reasons for the request, a description
of the child's diagnosis and behavior, the expected results of
the medication, and a description of any side effects of the
medication. (Wel. & Inst. Code Secs. 369.5, 739.5.)
Existing law provides that judicial officers have seven days to
approve or deny the request, or to set the matter for a hearing
upon request by the parent, legal guardian, or child's attorney.
(Wel. & Inst. Code Secs. 369.5, 739.5.)
AB 82 (Evans)
Page 3 of ?
Existing law provides that whenever it appears that a dependent
child or a ward requires immediate emergency medical, surgical,
or other remedial care in an emergency situation, that care may
be provided by a licensed physician and surgeon without a court
order and upon authorization of a social worker or probation
officer. (Wel. & Inst. Code Secs. 369; 739.)
Existing rules of court provide for specified procedures that
must be followed in obtaining authorization for the
administration of psychotropic medication to a dependent child
or a ward. (Cal. Rule of Court 5.640.)
Existing law defines prescribing, dispensing, or furnishing
dangerous drugs without an appropriate prior examination and a
medical indication as unprofessional medical conduct. (Bus. &
Prof. Code Sec. 2242.)
This bill would establish a pilot project operative until
January 1, 2013, in three counties, one each from the northern,
southern, and central areas of the state and each with a
population of less than two million five hundred thousand
(2,500,000), to be selected by the Department of Social Services
(DSS) in consultation with the California Welfare Directors
Association and the Judicial Council. The pilot project would
create additional requirements in the court approval process for
requests to administer psychotropic medications to children in
foster care.
This bill , consistent with existing law, would authorize
juvenile court judicial officers in pilot counties to make
orders regarding the administration of psychotropic medications
to a child who has been removed from the physical custody of a
parent or guardian, pending adjudication as a dependent child.
This bill , consistent with existing law, would specify that the
juvenile court in pilot counties may issue a specific order
delegating this authority to a parent or guardian upon making
findings on the record that the parent or guardian poses no
danger to the child and has the capacity to authorize
psychotropic medications.
This bill would require physicians in pilot counties requesting
authorization to administer psychotropic medications to a
dependent child, a child awaiting adjudication as a dependent
child, or a ward of the court in foster care to have conducted
an examination, and to include information on the child's
AB 82 (Evans)
Page 4 of ?
medical history, the probability of side effects of the
medication, and a description of recommended therapy in the
request.
This bill would require the juvenile court judicial officer in
pilot counties, before authorizing the administration of
psychotropic medication, to make findings that:
a)The child's caregiver has been informed, and the child has
been informed in an age and developmentally appropriate
manner, about the recommended medications, anticipated
benefits, possible side effects and any other recommended
treatment.
b)The child has been informed of his or her right to request a
hearing on the issue.
c)A plan is in place for the physician to monitor the
medication, in consultation with the child's caregiver, mental
health care provider, and others as appropriate.
This bill would require that, in pilot counties, a dependent
child or ward in foster care be present in court for a hearing
on the request to administer psychotropic medications, unless
the child waives the right to attend after consulting with
counsel or the court finds good cause for his or her absence.
This bill would authorize the court in pilot counties, in
proceedings following orders regarding administration of
psychotropic medication, to inquire about:
a)The effectiveness and side effects of the medication, the
child's progress toward treatment goals, and any changes
recommended, as reported by the physician.
b)Any behavior changes and possible side effects observed by
individuals in regular contact with the child.
c) Any statements or concerns expressed by the child about
the medication.
This bill would provide that psychotropic medications may be
administered without court authorization in an emergency
situation. In that situation, court authorization shall be
AB 82 (Evans)
Page 5 of ?
sought as soon as possible thereafter consistent with this bill
and existing rules of court.
This bill would require the Judicial Council to adopt rules and
forms to implement the above provisions by July 1, 2010.
This bill would require DSS, after consultation with the
Department of Mental Health, to report to the Legislature before
July 1, 2013, regarding the findings of the pilot project. The
report shall include demographic data on foster youth and
probation youth on psychotropic medications and data on mental
health outcome measures for these youth.
COMMENT
1. Stated need for the bill
The author states:
Many children and youth in the foster care and youth probation
systems have unmet needs for mental health care. For some of
these youth, psychotropic medications are a key component of
effective treatment for conditions that affect their safety,
emotional well-being, and ability to succeed in school and
other settings. In recent years, however, mental health
professionals, children's advocates, and former foster youth
in California and nationally have expressed concerns about the
potential overuse or under use of psychotropic medications for
children in the foster care and probation systems.
In testimony provided before the Blue Ribbon Commission on
Foster Care (June 2006) and the Select Committee on Foster
Care (September 2006), some youth reported being put on
medications when they were very young - as young as 4 or 5
years old - and remaining on various medications for their
entire childhoods. Other youth described being prescribed
multiple medications at the same time, and having their
medications changed frequently and abruptly each time they
were moved to a new placement or new mental health care
provider. Youth reported experiencing serious side effects -
drowsiness, weight gain, insomnia, drooling, facial tics, etc.
- and receiving little or no monitoring of the effectiveness
of their medications, nor efforts to mitigate side effects.
Other foster youth on medication indicated that they did not
receive effective therapy and/or behavioral interventions that
could have reduced or eliminated the need for medication.
AB 82 (Evans)
Page 6 of ?
Youth also complained that they were not given information
about the purpose or potential side effects of their
medications, and had no opportunity to participate in
decisions regarding their medication and other mental health
treatment.
2.Pilot project would create additional safeguards in the court
approval process for psychotropic medication
Currently, there is little or no aggregated data on the scope of
the use of psychotropic medication for youth in the California
foster care system. While some studies and articles document
experts' concerns about inappropriate or over-medication of
children in foster care, others raise concerns about the
potential for under-medicating youth who might benefit from
psychotropic medications. In general, there appears to be no
consensus about the efficacy or appropriate level of usage of
psychotropic medications for children in the population at large
or for children in foster care; but there seems to be agreement
that careful monitoring of its administration should be
practiced.
Existing law provides for a court approval process for the
authorization of the administration of psychotropic medications
for wards and dependent children. This bill would create a
pilot project in three counties with additional safeguards in
the court approval process designed to improve oversight and
monitoring where foster children are receiving psychotropic
medication.
Existing law requires that court authorization for the
administration of psychotropic medications be based on a request
from a physician indicating the reasons for the request, a
description of the child's diagnosis and behavior, the expected
results of the medication, and a description of any side effects
of the medication. (Wel. & Inst. Code Sec. 369.5.) This bill
would additionally require that requests in the pilot counties
include the child's medical history, the nature, degree,
duration, and probability of side effects and significant risks
commonly known by the medical profession, and a description of
any clinically indicated therapy recommended for the child to
participate in during the six-month period until the next court
review of psychotropic medication.
California Rule of Court 5.640 is the current rule governing
requests and orders for the administration of psychotropic
AB 82 (Evans)
Page 7 of ?
medications. Rule 5.640 and the corresponding forms that must
be used to make a request for an order of psychotropic
medication already require that the physician prescribing the
medication provide all of the information required by AB 82. AB
82 would, in this respect, codify and implement the current
court rule for the purposes of the pilot project.
This bill would also require that physicians submitting the
requests in the pilot counties have conducted an examination of
the child in compliance with Section 2242 of the Business and
Professions Code, which provides that furnishing dangerous drugs
without a proper examination is unprofessional conduct. Thus,
this bill would ensure that doctors conduct a thorough
examination that comports with professional standards of care,
and consider the child's medical history, before prescribing any
drugs.
This bill would further require courts in pilot counties to make
the following findings prior to authorizing the administration
of psychotropic medications: (1) the child's caregiver has been
informed, and the child has been informed in an age and
developmentally appropriate manner, about the recommended
medications, anticipated benefits, possible side effects, and
any other recommended treatment; (2) the child has been informed
of his or her right to request a hearing on the issue; and, (3)
a plan is in place for the physician to monitor the medication,
in consultation with the child's caregiver, mental health care
provider, and others as appropriate. These findings are
intended to ensure that a child and their caregiver are properly
informed about the recommended medications and of their right to
request a hearing if they disagree with the recommendation. A
monitoring plan for the administering of psychotropic medication
is generally good practice and would arguably serve to improve
the health and well-being of the child.
Existing law requires that the youth and/or their attorneys
receive notice of the request for an order of psychotropic
medication, and an opportunity to request a hearing on the
issue. (Wel. & Inst. Code Secs. 369.5, 739.5.) This bill would
require that the child be present unless the child waives the
right to attend after consulting with counsel or the court finds
that there is good cause for the child's absence from the
proceedings. In its final recommendations, the California Blue
Ribbon Commission on Children in Foster Care stated that courts
should ensure that all participants in dependency proceedings,
including children and parents have an opportunity to be present
and heard in court. This bill is consistent with the
AB 82 (Evans)
Page 8 of ?
Commission's recommendations by ensuring that children are given
the right to be present during a hearing to determine whether
they should be given psychotropic medication. When conducting a
hearing regarding an order for psychotropic medication, it is
especially important that the child be present so that the court
may better determine what is best for the child's mental and
physical well-being.
In order to ensure that courts are able to continuously assess
the effects of psychotropic medications, this bill would provide
that courts in pilot counties may inquire about the following in
any proceeding following the authorization for administration of
psychotropic medication: (1) the effectiveness and side effects
of the medication, the child's progress toward treatment goals,
and any changes recommended, as reported by the physician; (2)
any behavior changes and possible side effects observed by
individuals in regular contact with the child; and (3) any
statements or concerns expressed by the child about the
medication.
Under existing law, whenever it appears that a dependent child
or a ward requires immediate emergency medical, surgical, or
other remedial care in an emergency situation, that care may be
provided by a licensed physician and surgeon without a court
order and upon authorization of a social worker or probation
officer. (Wel. & Inst. Code Secs. 369; 739.) This bill would
preserve the existing standard for prescribing emergency
medication, and provide that court authorization shall be sought
as soon as possible thereafter consistent with this bill and
existing rules of court.
Finally, this bill would require the Judicial Council to adopt
rules and forms to implement the provisions of this bill. The
California Department of Social Services, after consultation
with the State Department of Mental Health, would be required to
report to the Legislature before July 1, 2013 regarding the
findings of the pilot project, including demographic data on
foster youth and probation youth on psychotropic medications and
data on mental health outcome measures for these youth. The
report should provide much needed data on the use of
psychotropic medication by foster youth and assist the
Legislature in determining whether the pilot program should be
continued and extended to other counties.
3. Concerns expressed
AB 82 (Evans)
Page 9 of ?
Disability Rights California (DRC) has taken a "support if
amended" position expressing concerns that this bill does not
address the failure of many prescribing practitioners to obtain
an adequate and complete history about the child. DRC has
proposed an amendment to require a physician submitting a
request for psychotropic medications to "certify on the request
that he or she has obtained or reviewed information from all
available sources pertaining to the child's treatment history,
including but not limited to, any psychotropic medications the
child has taken in the past and the effectiveness of and the
side effects attributable to such medication, and has taken this
history into account in requesting to administer psychotropic
medications to the child."
Committee staff notes that this bill already requires physicians
to conduct an examination of the child before prescribing
psychotropic medication in compliance with Section 2242 of the
Business and Professions Code. Under this standard, physicians
would presumably review what is necessary, including a child's
medical and treatment history, in determining whether or not
medication is warranted.
The California Mental Health Directors Association (CMHDA) has
taken a support position, but raises concerns about the
provision in the bill requiring that the child be present in
court for the hearing unless the child waives the right to
attend or the court finds that there is good cause for the
child's absence from the proceedings.
CMHDA states:
In recognition of the difficulties this could present for
children who might miss school to travel to a hearing, we
would like to suggest that AB 82 give children the option of
participating in the hearing by telephone or videoconference.
In some cases, children in remote or rural areas would need to
travel significant distances to personally attend the court
hearing.
In response, the sponsor of the bill states that hearings are
rare and only occur if a child's attorney or parent's attorney
files a written objection to the medication request.
According to the sponsor, if there is any question or concern
AB 82 (Evans)
Page 10 of ?
about the medication, the child's or parent's attorney usually
contacts the child's doctor and resolves the issue without a
formal hearing. The sponsor further states that in the rare
instance where a hearing does occur, it is important for the
child to be present for the hearing as telephonic or
video-conference participation are not the most effective for
children, particularly those with mental health issues.
Support : California Welfare Directors Association; Western
Center on Law & Poverty; California Medical Association;
California Public Defenders Association; Judicial Council;
Juvenile Court Judges of California; Professional Fiduciary
Association of California; Family Law Section of the Section;
Junior Leagues of California State Public Affairs Committee;
Sacramento Child Advocates; California Youth Connection; Youth
Law Center; California Mental Heath Directors Association (with
suggestions); Disability Rights California (if amended)
Opposition : None Known
HISTORY
Source : Children's Law Center of Los Angeles
Related Pending Legislation : None Known
Prior Legislation :
AB 2117 (Evans, 2008) contained provisions similar to those in
this bill, but contained 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
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
AB 82 (Evans)
Page 11 of ?
died at the Assembly Desk.
AB 1514 (Maze, Chapter 120, Statutes of 2007) See Background.
AB 2502 (Keene, Chapter 239, Statutes of 2004) See Background.
SB 543 (Bowen, Chapter 552, Statutes of 1999) See Background.
Prior Vote :
Assembly Human Services Committee (Ayes 7, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Floor (Ayes 78, Noes 0)
Senate Human Services (Ayes 4, Noes 0)
**************