A Potential Template Emerges for Federal Action on Foster Care Drugging

Few people outside of California probably noticed the news yesterday that the state legislature is on its way to passing new controls on the prescription of psychotropic medications to youths in foster care.

Youth Services Insider can give you a reason why it’s important beyond the borders of the Golden State: It might serve as the basis for law at the federal level.

The reforms are a direct result of “Drugging Our Kids,” a series of investigative reports led by Karen de Sa of the San Jose Mercury News, who in our humble opinion is the greatest youth services reporter of all time.

On the day that the State Senate approved the reforms included in Senate Bill 238, SB 484, SB 319 and SB 253, U.S. Rep. Karen Bass (D-Calif.) told de Sa that she planned to pursue federal legislation based on what the California bills prescribed (get it?!)

Bass used to serve as speaker of the California Assembly. She now chairs the Congressional Caucus on Foster Youth, with a membership of 160 Congressmen and growing.

So what do the proposed new regulations accomplish? Well, they wouldn’t in and of themselves curb the use of psych meds on foster youth. But they would certainly make it impossible for a county to do so in the shadows.

So what does this potential template for federal law do?

More Input in Court Decision-Making

California’s protocol on prescribing psychotropic medications for foster youths currently involves two people: a physician to recommend it, and an officer of the juvenile court to sign off.

That would not change, but SB 238 and 253 would set significant barriers to the court on the way to prescription authorization.

First, the court would need to give a  “meaningful opportunity to provide input on the medications being prescribed” to a foster youth, his caregiver, or a court appointed special advocate (CASA.)

For youths who are 14 and older, they must be advised of their right to a hearing about psychotropic treatments and the record must include their written consent.

A court could only authorize psychotropics based on determination that there is clear and convincing evidence that administration of the medication is in the best interest of the child based on its “determination that the anticipated benefits of the psychotropic medication outweigh the short- and long-term risks associated with the medications.”

County child welfare agencies would also have to provide overall behavioral health assessments to the court, and provide a rationale for any prescription, including a detailed explanation of what other treatments, strategies and medications had been tried.

Medical Second Opinion

Under SB 253, s second medical opinion would have to be obtained for prescriptions under the following scenarios:

  • The prescription is for two or more psychotropic drugs.
  • The youth receiving the prescription is five or younger.
  • The prescription would increase the total number of prescriptions for any one child to three.

State-County Monthly Tracking

The State Department of Social Services (DSS) would also have a role to play. DSS would have to create a monthly report for each county that delineated the following:

  • Psychotropic medications for foster youths, along with data about the dosage and the length of the prescriptions
  • Claims paid for behavioral health services provided to the child, other than claims paid for psychotropic medication

Public Health Nurses

The state is already required to operate a public health nursing program to assist counties with medical care planning. SB 319 would require counties to use public health nurses and, by granting them broader access to kids’ health records, empower them to monitor psychotropic prescriptions.

Group Home Monitoring

SB 484 requires DSS to identify group homes that “may be inappropriately administering psychotropic medications to foster youth” and require them to submit corrective plans for reform of their policies.

Federal Potential?

None of these moves, individually, prohibits a California county from leaning on psych meds to treat (or control) foster youths. Taken together, they certainly provide some transparency and pause to the process.

On first read, it’s not entirely clear to YSI how well this translates to federal law, so we’ll be interested to see how Bass and anyone of a like mind plays it. It seems unenforceable at the federal level to make county-level courts do anything. And even if Congress could boss around the county systems, most states and counties do not place the prescription power with courts the way that California does.

As for state oversight, the simplest and cheapest route would be some bill that decreed that under Title IV-E of the Social Security Act, states shall establish an office to monitor the use of psychotropic meds. That was sort of the approach taken last year to address normalcy for foster youths.

In reality, it’s hard for Congress or the Department of Health and Human Services to patrol and enforce that sort of thing. More impactful would be a requirement that states start reporting this information to HHS. This would make it very obvious which states were not on the ball.

Such a mandate would almost certainly have to come with some money to help states build the infrastructure to comply. Or some threat of lost funds for failing to comply. Or both.

Many of the California reforms dovetail with the aspirations of Obama’s massive proposal on this subject. The administration has in two consecutive budget cycles called for a $750 million project that would help states better monitor medications and develop the therapeutic services that can either complement or supplant psych meds.

Bass does have allies in both chambers and in both parties that have at least voiced support for federal action on psych meds. Senate Finance Democrats Ron Wyden (Ore.) and Tom Carper (Del.) vowed last year to “play offense” on psychotropic medications, and we have heard quietly that Finance Republicans might be interested in legislating on this as well.

On the House side, Dave Reichert was interested enough to hold a memorable hearing last May that included Phil McGraw, better know to the TV masses as Dr. Phil.

“These drugs can change and even save lives,” McGraw told the Human Resources Subcommittee of House Ways and Means, which Reichert chairs. But with foster youths, they are “too often misused as chemical straitjackets,” prescribed to mitigate “undesirable behavior” and make foster youths “less inconvenient.”

“This is a bipartisan issue,” said Reichert, chairman of the Human Resources Subcommittee of House Ways and Means. “We are together on this.”

Youth Services Insider is mostly written by Chronicle Editor John Kelly

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John Kelly
About John Kelly 1153 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change.