BILL ANALYSIS �
AB 181
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Date of Hearing: April 26, 2011
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 181 (Portantino & Beall) - As Amended: March 21, 2011
AS PROPOSED TO BE AMENDED
SUBJECT : Foster youth: mental health bill of rights
SUMMARY : Establishes the Foster Youth Mental Health Bill of
Rights granting foster youth specified rights relative to the
provision of mental health treatment and services, and requires
the Foster Care Ombudsperson to distribute information about
those rights. Specifically, as proposed to be amended, this
bill :
1)Asserts that foster youth shall be entitled to enumerated
rights as a matter of state policy, including the rights to:
a) Receive developmentally appropriate, medically necessary
mental health screenings, assessments, and services;
b) Receive a mental health screening, including for foster
youth under six years of age, to determine whether mental
health services are necessary if the placement is at risk
due to behavioral reasons;
c) Be evaluated and treated by a mental health professional
who is culturally sensitive and qualified to treat
individuals of that age and symptomology;
d) Interview a therapist before starting treatment, and for
children under age 10, to participate with caregivers in
interviewing therapists prior to commencing treatment;
e) Request a new therapist at any time upon the
availability of a new provider once treatment commences;
f) Continue services with the same provider if that
provider is available, for at least one year, after a
placement changes or following reunification, consistent
with the best interests of the child or nonminor;
g) Refuse mental health treatment at any time unless the
individual poses an immediate danger to him or herself of
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others;
h) Initiate and consent to outpatient mental health
treatment or counseling services, if 12 years of age or
older;
i) Be presented with all available services and mental
health services including, but not limited to behavioral,
holistic or natural approaches, mentoring, peer counseling,
therapy, and medication;
j) Access available mental health services in the
least-restrictive community environment, including services
provided outside of the place of residence, if the youth
wishes;
aa) Be provided information on how to seek mental health
services in the county of residence. For children 10 years
of age or younger, caregivers shall be provided with
information on how to seek mental health services in the
child's county of residence;
bb) Receive timely mental health services in the county of
residence and not to be denied services based on the
individual's county of origin, unless the youth is
receiving services in the county of origin to preserve
desired continuity;
cc) Be provided developmentally appropriate information on
drug interactions if prescribed more than one medication;
dd) Receive developmentally appropriate information on
potential short- or long-term side effects of prescribed
psychotropic medications and to receive available
information related to the efficacy of the prescribed
psychotropic medication for individuals of a similar age
group;
ee) Notification, for youth and caregivers, if a prescribed
psychotropic medication has not been tested on youth of a
similar age group;
ff) Refuse or discontinue the administration of psychotropic
medications;
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gg) Be guaranteed the protection of privacy and
confidentiality when interacting with mental health
professionals, unless the youth is deemed a danger to him
or herself or others, and when reporting suspected child
abuse to the child protection agency;
hh) Gain access to personal mental health records as
permitted by law and to have the confidentiality of those
mental health records protected as provided under existing
law; and
ii) Be provided with copies of mental health records at no
cost if unable to pay.
2)Requires the Office of the Foster Care Ombudsperson to
disseminate information related to the Foster Youth Mental
Health Bill of Rights described above.
EXISTING LAW :
1)Provides children in foster care with categorical Medi-Cal
eligibility.
2)Federal law, establishes the Early and Periodic Screening,
Diagnosis, and Treatment (EPSDT) program to provide medically
necessary mental health services to Medicaid (Medi-Cal in
California) beneficiaries under age 21. 42 U.S.C. Section
1396(a)(43) & 1396d(r)(5).
3)Federal law, establishes the Individuals with Disabilities
Education Act (IDEA), which is intended to ensure that all
children, including infants and toddlers, with special needs
receive special education instruction and related services
necessary for them to benefit from a free and appropriate
public education, including the provision of mental health
assessments and services through an individualized education
plan or individualized family service plan.
4)Requires the Department of Mental Health (DMH) to provide
mental health services to Medi-Cal beneficiaries through
contracts with local managed care plans, generally
administered by individual counties. Welfare and Institutions
Code (WIC) Section 5775.
5)Provides that foster children receive Medi-Cal mental health
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services in the county of original placement in the foster
care system. WIC 14684(e), 319.1, 5777(a)(3).
6)Provides the juvenile court with the option to order the
social worker to acquire the services of psychiatrists,
psychologists, or other clinical experts to assist in
determining the appropriate treatment of the child. WIC 370.
7)Provides for assessments, including psychological or
behavioral assessments, as needed, by a qualified, culturally
competent personnel, to determine if a child is an individual
with exceptional needs. Education Code Section 56320.
8)Provides for assessments of children under three years of age.
Government Code Section 56425.
9)Provides that a minor who is a danger to himself or herself or
others as a result of a mental disorder may be involuntarily
detained for a clinical evaluation by an individual qualified
to diagnose and treat minors in accordance with the provisions
of the Lanterman-Petris-Short Act. WIC 5585.50.
10)Expresses the intent of the Legislature to encourage each
county to develop a system of care for seriously emotionally
disturbed children and youth with a defined range of
interagency services, blended programs, and program standards
to facilitate delivery of services in the least restrictive
environment as close to home as possible; a defined mechanism
to ensure that services are child centered and family focused
as well as culturally competent. WIC 5698.
11)Expresses the intent of the Legislature that the state
Departments of Health Services, Developmental Services, Mental
Health, Social Services and Education work together and with
local public agencies to provide coordinated, interagency
services to high-risk and disabled infants and their families,
including individualized early intervention services.
Government Code Section 95000 and 95003.
12)Requires the court to approve the decision to administer
psychotropic medications to a foster child based on a
physician's request outlining the reason for the request, the
child's diagnosis, the anticipated results of the medication,
and a description of the potential side-effects. WIC 369.5.
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13)Permits a minor 12 years of age or older to consent to mental
health treatment, counseling, or outpatient services if, in
the opinion of the attending professional person, the minor is
mature enough to participate intelligently in the mental
health treatment, counseling or outpatient services. Health
and Safety Code (HSC) Section 124260 and Family Code (FAM)
Section 6924.
14)Establishes a Foster Youth Bill of Rights and requires the
Foster Care Ombudsperson to disseminate those rights.
WIC16001.9.
FISCAL EFFECT : Unknown
COMMENTS :
The Mental Health Needs of Children in Foster Care: The
experiences of abuse or neglect that lead a child to be placed
in foster care often result in a need for mental health
counseling or treatment. In addition to any trauma experienced
in the home which may have led to the child's involvement with
the child welfare system, the act of removing a child from his
or her home and family can itself be an added traumatic event
for a child. These circumstances contribute to a higher need
among foster youth for mental health services. In fact, a
widely cited 2003 Casey Family Foundation study found that
foster youth suffered from post-traumatic stress disorder (PTSD)
at nearly twice the rate of U.S. war veterans.
Depending on the diagnosis or severity of the mental health
needs, foster youth may be treated through a variety of sources,
including school-based programs, EPSDT, or in coordination with
Regional Center Programs. Because foster youth are
categorically eligible for Medi-Cal until age 21, foster youth
are entitled to EPSDT, which provides a variety of services
tailored to the individual through a treatment plan and
coordinated through county mental health departments. Services
offered through EPSDT include periodic screenings, individual
and group therapy, family therapy, crisis counseling, case
management, and Therapeutic Behavioral Services. In 2009,
approximately 61% of California foster youth accessed EPSDT
mental health services. However, foster youth as a whole only
accounted for less than 2% of the statewide EPSDT program
beneficiaries in 2009.
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Another important point of access for children to receive
necessary mental health services comes through the school
system, and services provided by way of the federal IDEA.
Congress has guaranteed students with special needs access to
services needed to help them benefit from the right to a free
and appropriate education. Between 1976 and 1984 California
schools provided these mental health services to special
education pupils as guided by an Individualized Education Plan.
However, in 1984, the Legislature transferred the responsibility
for providing these services to the county mental health
departments with the enactment of AB 3632 (Brown) Chapter 1747,
Statutes of 1984. Through AB 3632, a child can be referred by
his or her school to the county mental health program for a
mental health assessment and necessary services for common
health disorders such as attention deficit hyperactivity and
disruptive behavior disorders, depression and bi-polar
disorders. According to the Legislative Analyst's Office,
approximately 20,000 special education pupils receive mental
health services under the AB 3632 program.
Due to the county-based mental health delivery systems in
California, responsibility for coordination of the mental health
needs of foster youth typically resides with the county of
origin, or the county their case comes from. However, a child's
mental health needs may also affect placement, in that decisions
are often made to place foster youth with higher-level mental
health needs in residential treatment settings, such as group
homes, or with Foster Family Agencies (FFAs) specializing in
providing intensive emotional and behavioral treatment services.
Innovative practice models, such as wraparound services, have
sought to bring these intensive treatment services into the
community and the home, to stabilize families before they reach
the need for higher level interventions. Although widely
acknowledged as a quality mental health treatment model,
wraparound services are not yet available in all California
counties.
The focus on early intervention, and forms of treatment that
emphasize the strengths of the family can be successful in
providing the supports necessary to keep a family together, or
when it can be safely achieved, to reunify children with their
parents.
Barriers to mental health services for foster children: The
fragmentation of funding streams, and frequent placement
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changes, especially those outside the county of origin, make
access to timely, quality mental health services a challenge for
foster youth. Another challenge unique to foster youth is that
federal Title IV-E foster care payments are restricted and cover
only the cost of foster care placement and administration, not
mental health treatment services which may be necessary to help
stabilize placements and facilitate permanency options for the
youth.
The state has struggled for well over a decade to figure out how
to untangle complex payment and delivery responsibilities
between counties when a foster youth is placed outside the
county of origin - a problem exacerbated by the prevalence of
out-of-county placements in certain regions, the state's managed
care mental health care delivery model, and the fact that
placements decided by social services or welfare departments
overseen by the Department of Social Services, while mental
health treatment services and payments are administered by
county mental health departments overseen by the Department of
Mental Health and Department of Health Care Services,
respectively.
Nationally, studies reveal that youth in foster care are three
to four times more likely than other low-income Medicaid-insured
children to receive psychotropic medications. Studies have also
indicated that among foster youth administered psychotropic
medications, over 40% were administered more than three
different classes of these drugs in 2004. Like most states,
California does not yet have adequate data on rates at which
psychotropic medications are prescribed and administered to
foster children. California does, however, require court
approval for decisions related to the administration of
psychotropic medications for foster youth. Additionally, under
existing law, have a right to refuse the administration of
psychotropic medications, and may only be administered
medication over his or her objections in very limited cases.
Consumer driven and centered mental health treatment is
essential to the success of persons with mental health needs,
and foster youth are no exception. In 2006, the Children's Law
Center of Los Angeles, along with the California Endowment, held
a Foster Youth Mental Health Summit in Los Angeles County and
found a need for greater youth participation in the development
of their case plans, the selection of their therapists and the
identification of desired outcomes from mental health treatment.
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Need for this bill:
Foster youth currently have a set of rights set forth in statute
covering a variety of topics, from rights associated with access
to education to basic needs, to some rights related to their
mental health. The rights articulated in the Foster Youth Bill
of Rights have been expanded over the years, most notably in
2003 with the passage of AB 458 (Chu) Chapter 331, Statutes of
2003 to express the nondiscrimination rights of foster youth.
The Office of the California Foster Care Ombudsperson
(Ombudsperson) is charged with the dissemination of those
rights. These efforts have served to inform children and youth
in foster care of their basic rights and with this knowledge,
youth and interested caregivers, providers and advocates have
been able to reach out to the Ombudsperson, as well as to
Community Care Licensing when they feel those rights are being
violated to protect children in foster care.
Foster Youth Rights: Why is another set of rights necessary?
The author and sponsor of this bill contend that a separate
mental health bill of rights is needed to highlight the
specialized and complex set of laws and rights governing a
foster youth's mental wellbeing and access to services. The
current Foster Youth Bill of Rights is widely distributed to
foster care placements and can commonly be found hanging on the
walls of group homes serving foster youth. In addition, the
Ombudsperson lists the rights on the Office website at:
http://www.fosteryouthhelp.ca.gov/Rights2.html and makes them
available as a printable poster. The sponsor and author imagine
that the Mental Health Bill of Rights could be a companion
document added to the website or as another printable poster,
distributed in much the same ways as the existing bill of
rights.
Support: The sponsor of this bill, the California Youth
Connection is an organization guided, focused and driven by
current and former foster youth. CCY writes in support of this
bill:
Children entering the foster care system are at risk
for mental health issues for several reasons. First,
entry into the child welfare system is caused by
family breakdown resulting from abuse, neglect, or
both. Second, children suffer from being separated
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from family, friends and teachers when they enter
foster care. Third, children who suffer the chronic
stresses of living in poverty are overrepresented in
child welfare populations. Additionally, children in
foster care are known to experience multiple
placements and other stressors that put them at even
further risk for mental health issues?�This bill]
would provide additional rights to foster youth
relating to mental health services and provides a
mechanism for foster youth to know and understand
their current rights?Our organization believes that
empowering foster youth to know their mental health
rights will take the state in the right direction to
reduce disparities and improve outcomes for this
at-risk population.
The California Association of Marriage and Family
Therapists writes that, "Foster youth, like anyone else,
have the right to have input on decisions about their
mental health treatment. This Bill will not only protect
the rights of foster youth, it will help in improving their
participation when receiving mental health services by
ensuring they play a role in determining what services will
be best for them."
Also in support, the Executive Committee of the Family Law
Section of the State Bar (FLEXCOM) writes:
FLEXCOM supports this expansion of specific rights for
foster youth concerning their mental health. Research
demonstrates the struggles foster youth face with
mental health disabilities and treatment. Elaborating
a specific set of rights will require judges,
attorneys and other juvenile dependency stakeholders
to focus more squarely on this issue during court
reviews and case plan development. Further, requiring
the State Foster Care Ombudsperson to develop a
process for disseminating this information will insure
that foster youth are knowledgeable about these
rights.
Support in concept: The County Welfare Directors Association of
California (CWDA) writes:
Many children and youth in foster care have mental
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health needs, often stemming from underlying abuse and
neglect conditions that led to their placement into
care. Counties have worked hard to improve the
diagnosis and treatment of these conditions, which can
range from abuse-related trauma to severe depression
to other, even more debilitating illnesses. At its
heart, the bill of rights put forth by CYC in this
legislation seeks to ensure that children in the
system are screened, assessed and treated in a timely
and proper fashion; that they and their caregivers are
given information about their diagnoses and treatment
options; and that they are advised of their ability to
seek alternate methods of treatment, to the greatest
extent possible.
Mental health treatment is a vital component of the
foster care system: children in the system should
have proper assessment of their needs and receive
timely treatment that helps them not only to recover,
but thrive. We note that �this bill] affects many
stakeholders and thus is a work in progress with a
goal that CWDA supports.
Support if amended: The California Alliance of Child and Family
Services (CACFS), writes that it appreciates the author and
sponsors efforts to be responsive to their initial concerns
related to the bill as introduced and offer additional technical
and clarifying amendments to this bill.
Suggestions and Concerns: The California Mental Health Directors
Association (CMHDA) expressed its support for the goal of
providing foster youth with standardized information on mental
health rights, but it is also concerned that some of the
proposed amendments may create unfunded mandates or should be
clarified. Specific suggestions and concerns related to this
bill as it is proposed to be amended, included, but were not
limited to, the following:
1) A request to include a statement acknowledging the
importance of the involvement of families to reflect the
importance of family members on a child's well-being and
mental health;
2) A request to specify that developmentally appropriate
medically necessary mental health screenings, assessments,
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and services should also be culturally and linguistically
appropriate;
3) Concerns that while all clients of county mental health
services have the right to request a new therapist if they
are not satisfied with the one that has been assigned to
them, interviews of therapists by prospective youth clients
would not be feasible as it is not considered a billable
option under Medi-Cal. CMHDA requests the author amend the
bill to state that foster youth and caregivers have the
right to request a new therapist if they are dissatisfied
with the one assigned to them;
4) Concerns that a requirement to notify youth and
caregivers regarding whether a psychotropic medication has
been tested on children of that age group may constitute a
new mandate on counties and create complicated clinical
consequences; and
5) A request to add mental health agencies to the list of
stakeholders required to work with the Office of the State
Foster Care Ombudsperson to develop standardized materials
pursuant to this bill.
Clarifications may be helpful : Given the complex nature of
health privacy, patient consent, mental health and foster care
issues addressed by this bill, the author's office should
continue to engage with the various stakeholder organizations
representing medical professionals, providers, counties, and
youth advocates to ascertain the most accurate, youth, family
and caregiver-friendly terminology with which to describe the
scope of entitlements and best practices in the provision of
mental health services for foster youth.
Prior and Related Legislation:
SB 518 (Migden) Chapter 649, Statutes of 2007 established the
Youth Bill of Rights pertaining to the rights of youth detained
in a juvenile or adult facility.
AB 458 (Chu) Chapter 331, Statutes of 2003 prohibited
discrimination in the California foster care system on the basis
of actual or perceived race, ethnic group identification,
ancestry, national origin, color, religion, sex, sexual
orientation, gender identity, mental or physical disability, or
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HIV status.
AB 899 (Liu) Chapter 683, Statutes of 2001 established the
Foster Youth Bill of Rights.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
Aspiranet
California Alliance of Child and Family Services (if amended)
California Association of Marriage and Family Therapists (CAMFT)
California Youth Connection (Sponsor)
County Welfare Directors Association of California (CWDA)
Disability Rights California
Executive Committee of the Family Law Section of the State Bar
of California (FLEXCOM)
State Council on Developmental Disabilities (SCDD)
State Public Affairs Committee (SPAC) Jr. Leagues of CA
Opposition
None on file.
Analysis Prepared by : Michelle Doty Cabrera / HUM. S. / (916)
319-2089