HB 1536-FN – AS INTRODUCED
HOUSE BILL 1536-FN
This bill requires the department of health and human services to obtain parental consent or a court order, supported by a medical diagnosis and treatment recommendation, prior to administering psychotropic medications to children in court ordered placements.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [
in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to administering psychotropic drugs to children in court ordered placements.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Court Ordered Placements; Medical and Psychological Care of Children in Court Ordered Placements. Amend RSA 169-F by inserting after section 4 the following new subdivision:
Medical and Psychological Care of Children in Court Ordered Placements
169-F:5 Definitions. In this chapter:
I. “Department” means the department of health and human services.
II. “Physician” shall mean a pediatric child psychiatrist licensed to practice in New Hampshire.
III. “Psychotropic medication” means those medications the prescribed intention of which is to alter mental activity or mental state, including but not limited to, antipsychotic, antidepressant, and anxiolytic medications, and behavior-altering medications.
169-F:6 Parental Consent for Administration of Psychotropic Medication.
I. Except as otherwise provided in 169-F:7 or RSA 169-F:10, before the department provides psychotropic medications to a child in its custody, the prescribing physician shall attempt to obtain express and informed consent from the child’s parent or legal guardian. The department shall take steps necessary to facilitate the inclusion of the parent in the child’s consultation with the physician. However, if the parental rights of the parent have been terminated, the parent’s location or identity is unknown or cannot reasonably be ascertained, or the parent declines to give express and informed consent, the department may, after consultation with the prescribing physician, seek court authorization to provide the psychotropic medications to the child. Unless parental rights have been terminated and if it is possible to do so, the department shall continue to involve the parent in the decision-making process regarding the provision of psychotropic medications. If, at any time, a parent whose parental rights have not been terminated provides express and informed consent to the provision of a psychotropic medication, the requirements of this subdivision that the department seek court authorization do not apply to that medication until such time as the parent no longer consents.
II. Any time the department seeks a medical evaluation to determine the need to initiate or continue a psychotropic medication for a child, the department shall provide to the evaluating physician all pertinent medical information known to the department concerning that child.
169-F:7 Limited Exceptions to Parental Consent.
I. If a child is removed from the home under RSA 169-B, 169-C, or 169-D and is receiving prescribed psychotropic medication at the time of removal and parental authorization to continue providing the medication cannot be obtained, the department may take possession of the remaining medication and may continue to provide the medication as prescribed until the preliminary hearing, if it is determined that the medication is a current prescription for that child, the medication has been approved by the Food and Drug Administration (FDA) for children of that age, and the medication is in its original container.
II. If the department continues to provide the psychotropic medication to a child when parental authorization cannot be obtained, the department shall notify the parent or legal guardian as soon as possible that the medication is being provided to the child as provided in paragraph I. The department’s case record shall include the reason parental authorization was not initially obtained and an explanation of why the medication is necessary for the child’s well-being.
III. If the department is advised by a licensed physician that the child should continue the psychotropic medication and parental authorization has not been obtained, the department shall request authorization at the preliminary hearing to continue to provide the psychotropic medication and shall provide to the court any information in its possession in support of the request. Any authorization granted at the hearing may extend only until the adjudicatory or dispositional hearing.
169-F:8 Court Authorization and Medical Report Required. Except as provided in RSA 169-F:7 or RSA 169-F:10, the department shall file a motion seeking the court’s authorization to initially provide or continue to provide psychotropic medication to a child in its legal custody. The motion shall be supported by a written report prepared by the department which describes the efforts made to enable the prescribing physician to obtain express and informed consent from the parent and other treatments considered or recommended for the child. In addition, the motion shall be supported by the prescribing physician’s signed medical report providing:
I. The name of the child, the name and range of the dosage of the psychotropic medication, and that there is a need to prescribe psychotropic medication to the child based upon a diagnosed condition for which such medication is being prescribed.
II. A statement indicating that the physician has reviewed all medical information concerning the child which has been provided.
III. A statement indicating that the psychotropic medication has been approved by the FDA for children of that age and, at its prescribed dosage, is appropriate for treating the child’s diagnosed medical condition, as well as the behaviors and symptoms the medication, at its prescribed dosage, is expected to address.
IV. An explanation of the nature and purpose of the treatment; the recognized side effects, risks, and contraindications of the medication; drug-interaction precautions; the possible effects of stopping the medication; and how the treatment will be monitored, followed by a statement indicating that this explanation was provided to the child if age appropriate and to the child’s caregiver.
V. Documentation addressing whether the psychotropic medication will replace or supplement any other currently prescribed medications or treatments; the length of time the child is expected to be taking the medication; and any additional medical, mental health, behavioral, counseling, or other services that the prescribing physician recommends.
169-F:9 Notice and Hearing Regarding Treatment.
I. If any party objects to a motion filed under RSA 169-F:8, that party shall file the objection within 2 working days after being notified of the department’s motion. If any party files an objection, the court shall hold a hearing as soon as possible before authorizing the department to initially provide or to continue providing psychotropic medication to a child in the legal custody of the department. At such hearing, the medical report described in RSA 169-F:8 is admissible in evidence. The prescribing physician need not attend the hearing or testify unless the court specifically orders such attendance or testimony, or a party subpoenas the physician to attend the hearing or provide testimony. If, after considering any testimony received, the court finds that the department’s motion and the physician’s medical report meet the requirements of RSA 169-F:8 and that it is in the child’s best interests, the court may order that the department provide or continue to provide the psychotropic medication to the child without additional testimony or evidence. At any hearing held under this paragraph, the court shall further inquire of the department as to whether additional medical, mental health, behavioral, counseling, or other services are being provided to the child by the department which the prescribing physician considers to be necessary or beneficial in treating the child’s medical condition and which the physician recommends or expects to provide to the child in concert with the medication. The court may order additional medical consultation or require the department to obtain a second opinion within a reasonable timeframe as established by the court, not to exceed 21 calendar days, after such order based upon consideration of the best interests of the child. The department shall make a referral for an appointment for a second opinion with a physician within one working day. The court may not order the discontinuation of prescribed psychotropic medication if such order is contrary to the decision of the prescribing physician unless the court first obtains an opinion from a licensed physician stating that more likely than not, discontinuing the medication would not cause significant harm to the child. The court may also order the discontinuation of prescribed psychotropic medication if a child’s treating physician states that continuing the prescribed psychotropic medication would cause significant harm to the child due to a diagnosed, non-psychiatric medical condition.
II. The burden of proof at any hearing held under this paragraph shall be by a preponderance of the evidence.
169-F:10 Emergency Authorization.
I. If the child’s prescribing physician certifies in the signed medical report required in RSA 169-F:8 that delay in providing a prescribed psychotropic medication would more likely than not cause significant harm to the child, the medication may be provided in advance of the issuance of a court order. In such event, the medical report shall provide the specific reasons why the child may experience significant harm and the nature and the extent of the potential harm. The department shall submit a motion seeking continuation of the medication and the physician’s medical report to the court, the child’s guardian ad litem, and all other parties within 3 working days after the department commences providing the medication to the child. The department shall seek the order at the next regularly scheduled court hearing or within 30 days after the date of the prescription, whichever occurs sooner. If any party objects to the department’s motion, the court shall hold a hearing within 7 days.
II. Psychotropic medications may be administered in advance of a court order in children’s hospitals and inpatient psychiatric programs specializing in mental health care for children and adolescents. Within 3 working days after the medication is begun, the department shall seek court authorization as described in RSA 169-F:8.
169-F:11 Status Report; Court Authorization to Continue Treatment.
I. The department shall fully inform the court of the child’s medical and behavioral status as part of the social services report prepared for each review hearing held for a child for whom psychotropic medication has been prescribed or provided under this subdivision. As a part of the information provided to the court, the department shall furnish copies of all pertinent medical records concerning the child which have been generated since the previous hearing.
II. The court may, in the best interests of the child, order the department to obtain a medical opinion addressing whether the continued use of the medication under the circumstances is safe and medically appropriate.
III. The court shall not authorize a psychotropic medication for a child if the medication has not been approved by the FDA for children of that age.
169-F:12 Rulemaking. The department shall adopt rules under RSA 541-A to ensure that children receive timely access to clinically appropriate psychotropic medications. These rules shall include, but need not be limited to:
I. The process for determining which adjunctive services are needed.
II. The uniform process for facilitating the prescribing physician’s ability to obtain the express and informed consent of a child’s parent or guardian.
III. The procedures for obtaining court authorization for the provision of a psychotropic medication.
IV. The frequency of medical monitoring and reporting on the status of the child to the court.
V. How the child’s parents will be involved in the treatment-planning process if their parental rights have not been terminated.
VI. How caretakers are to be provided information contained in the physician’s signed medical report.
VII. Uniform forms to be used in requesting court authorization for the use of a psychotropic medication and provide for the integration of each child’s treatment plan and case plan.
2 Effective Date. This act shall take effect January 1, 2011.
HB 1536-FN - FISCAL NOTE
AN ACT relative to administering psychotropic drugs to children in court ordered placements.
The Department of Health and Human Services states this bill may increase state expenditures by an indeterminable amount in FY 2011 and each year thereafter. This bill will have no fiscal impact on state, county and local revenue, or county and local expenditures.
The Department of Health and Human Services (DHHS) states this bill provides for a number of motions, evaluations, reports and hearings that would be required at various states of the process whenever psychotropic medications are to be provided for a child that is in the Department’s legal custody. The Department states while it is likely the bill would increase the number of motions and hearings in these cases and that it would increase provider costs by prescribing the type, number and timing of evaluations, given the number of variables in the bill, DHHS is unable to estimate what the increase in costs or the Federal and State share of such costs. Although an exact fiscal impact cannot be determined at this time, the Department has analyzed the potential impact as it relates to the population at the Sununu Youth Services Center (SYSC). The Department states after extensive conversation with the staff psychiatrist at the SYSC, there could be additional costs of approximately $1,087.50 per case. Such costs would include psychiatrist report writing; copying of youth medical files; transcription of reports, and review and correction by psychiatrist; psychiatrist meetings with Division of Juvenile Justice Services staff attorney; and psychiatrist court time. DHHS projects the number of SYSC cases impacted would total 13 in FY 2011, 14 in FY 2012, and 15 in FY 2013 and each year thereafter, which would result in additional costs of approximately $14,138 in FY 2011, $15,225 in FY 2012, and $16,313 in FY 2013 and beyond. All such costs would be from the state general fund since youth in placement at SYSC are not eligible for federal reimbursement (Title IV-E).