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Due to the concerns expressed over the appropriate use and prescription of psychotropic medication, some states require judicial approval for the administration of these medications to children in foster care. There are perceptions that children in state custody suffer neglect and that some are genetically predisposed to mental illness as a result of psychotropic medication use. In addition, children in foster care are more likely to be administered psychotropic medication than those from comparable backgrounds. There is a lack of clear policy and guidelines on how children in foster care should receive psychotropic medication. There is a need for a policy that ensures that a request is sent to a juvenile court judge asking for permission to administer psychotropic medication. This request should include the psychiatrist’s signature to request the medication’s use, the child’s diagnosis, and a specific medication. The policy should detail recommended dosage for use, the expected benefits and possible side effects of the medication, and the list of other medication that the child is taking (Brown, 2009). During times of emergency times, the policy should allow the prescription of psychotropic medication without court approval according to the existing law. I think this is great, but sounds more like recommendations.  I would add in the introduction what the paper will discuss.  The following paper will …

Description of the Problem

Children placed in foster care are the most chemically abused children in society because they are frequently abusively medicated, sexually and physically molested, and emotionally damaged (Root, 2009). Root (2009) stated that the main problem is that when parents lose their right to consent to or refuse treatment for their children in foster care, those children are at the mercy of custodians who have no training in mental health maintenance. Therefore, there is a need for policies that regulate psychotropic medication use to children in foster care. Root (2009) stated that “in foster care children often spiral downward, not only because of losing their family but because they are forced to ingest powerful psychotropic drugs to quell their natural expressions of distress” (p. 54). Children descend into serious mental illness after years of multiple labels and medications and their lives are often irreversibly damaged. There is a need for policy and laws to monitor the medication administration to foster care children because these children end up in institutional care through no fault of their own (Root, 2009).

The numbers of children with emotional disturbances in state custody that are prescribed psychotropic medication are increasing. Due to this increase, there are certain challenges in the process of prescribing medication with regard to consent and errors (Naylor, Davidson, Ortega-Piron, Gutierrez, & Hall, 2007). The availability of medication evaluations can be difficult to secure for children in care because of the instability of placement. The changes in placement decrease the probability of having a constant caregiver to participate in the treatment of the child (Zima, Bussing, Crecelius, Kaufamn, & Belin, 1999).

Population Affected

Children and adolescents comprise a highly vulnerable population in the United States, with foster children having increased vulnerability.  Statistics from 2008 showed that an estimated 463,000 children were in the care and custody of the state (Leslie et al., 2010).  Children in foster care often have a large array of behavioral and developmental problems (Leslie et al., 2005). More often than not, children in foster care have been sexually or physically abused and/or neglected, which places them at an increased probability of developing mental health issues or behavioral and emotional disturbances (Naylor et al, 2007). 

Children and adolescents in foster care utilize mental health services at an elevated rate in comparison to children who are eligible for Medicaid and are more apt to be prescribed psychotropic medication. The amount of psychotropic medication being used to treat children with severe behavioral and emotional disturbances has increased over the past several years. Citation According to Zito et al (2003), there was a two to three fold increase in the frequency of psychotropic medication being prescribed during 1987 to 1996. The medications that had the highest increase of use were Clonidine, anticonvulsant medication used to stabilize moods, and antipsychotic medications (Naylor et al, 2007). Additionally, there was a significant increase in poly-pharmacy, which is prescribing more than one psychotropic medication at the same time (Leslie et al, 2010).

In a study completed in 1999, Zima et al. found that 13% of school-aged children who were placed in foster care had been prescribed psychotropic medication over the last year; 52% of those children did not receive a medical evaluation within that year, despite it being necessary. The sample from the study included children aged 5 to 14 who were receiving Medicaid benefits and it was found that it was three times more likely that a child in foster care would be prescribed psychotropic medication. Additionally, 13% of foster care children were prescribed psychotropic medication versus 5% of children found in a sample of elementary school students. However, the authors were unable to state that these statistics meant children were being excessively prescribed psychotropic medication due to the almost twice as high amount of diagnoses of ADHD and major depression in children in foster care (Zima, 1999).  Five years later, results from a study conducted by Breland-Noble et al. (2004) found that 67% of children in foster care were taking at least one psychotropic medication during the study period and 77% of foster children in group homes were taking a psychotropic medication.

Medication for Children

It is important to note that unless a certain medication is designed specifically to treat children, most medications are tested in adults prior to the possibility of testing in children. Doctors tend to prescribe medication for children and adolescents prior to research being conducted.  The bulk of medication research in the United States is done by pharmaceutical companies. Many of these companies are tentative to sponsor the studies for children, which stimulates doctors to prescribe medications to children without having a preferred amount of research evidence (Crismon & Argo, 2009). 

Naylor et al (2007) reported that the Physician’s Desk Reference, 60th edition, estimated that 45% of the medications prescribed for children and adolescents for the treatment of various emotional or behavioral disorders had not been approved for use in individuals under the age of eighteen. Only 31% of psychotropic medications for treating disorders were commonly found in the child/adolescent age group. Furthermore, it is common for some medications used for the treatment of psychiatric illnesses to only be approved to treat medical disorders (Naylor et al, 2007).

Foster parents, parents, clinicians, and other caregivers continue to be concerned about the doses of psychotropic medication prescribed to children due to the potential side effects, with the amount of side effects more common when the medication doses are increased (Crismon & Argo, 2009). There is a lack of research that is in support of poly-pharmacy, aside from a report published supporting certain combinations of psychotropic medication.  There has not been any research that supports the well-being and efficiency of prescribing three or more psychotropic medication concomitantly to children (Naylor et al, 2007).

According to a 2010 report from Tufts Clinical and Translational Science Institute, the estimated use of psychotropic medication for children in foster care is much higher than those of the general child/adolescent population, with foster children rates ranging from 13% to 52% and general population being 4%.  More importantly, results showed that there is a large disparity in rates of medication use for youth in foster care across different geographic communities. There is a rising concern about the appropriate use, both over and under-use, of psychotropic medication for youth in foster care (Tufts University Health Sciences, 2010). On a global scale, a report written by Child and Adolescent Psychiatry and Mental Health (2008) stated that children who live in the United States are an estimated three times more likely to be prescribed a psychotropic medication versus children living in Europe. Some reasons cited for the difference were the narrow practices and cultural beliefs about how medication plays a role in emotional and behavioral problems and the dissimilar diagnostic classification systems (Child and Adolescent Psychiatry and Mental Health, 2008)

Brown (2009) noted that majority of the states have been working with a number of universities and local experts to help with the oversight and control of the use of psychotropic medication by foster care children. Illinois, for example, has contracted with the state university to be able to provide an objective review of every psychotropic medication request with an aim to ensure its appropriate and safe usage in foster care. This request is then sent to a board-certified child and adolescent psychiatrist whose task is to review all the information and to determine whether to approve, adjust, or deny the request (Brown, 2009).

Description of the Current Law/Policy

The policy currently implemented to address the authorization of antipsychotic medication for children in Massachusetts state custody is the Rogers Process. While guardians can be appointed to an individual for various reasons, such as medical, financial, or property matters, Rogers petitions limit the ability of the guardian to make a decision about an individual with mental health and antipsychotic medication. In this process, a guardian is appointed by the juvenile court and is given the responsibility of making decisions for an individual that was deemed incompetent to make informed decisions by a judge (Department of Mental Health [DMH], 2011).

Rogers petitions originated from a Massachusetts Supreme Judicial court case from 1983 that mandated that individuals who were hospitalized in an inpatient setting had the right to refuse to take antipsychotic medication and to make decisions about their treatment in non-emergency circumstances, until that individual was deemed incompetent by a judge. It is imperative that a judge decides an individual’s treatment by acting as a surrogate decision-maker and uses a “substituted judgment” standard (DMH, 2011). This standard is used so that the judge can make his or her own decision after taking the following factors into account: “a person’s expressed preference of treatment, their religious beliefs, impact on the family, side effects of the proposed treatment, and the prognosis with and without treatment” (DMH, 2011, p. 1).

It is a difficult decision for parents to make whether or not they want their child to take antipsychotic medication.  However, when a child is in the custody of the Department of Children and Families (DCF) that decision is made by someone other than the child’s parent(s) (Office of Child Advocate [OCA], 2011). Even though many individuals are involved in the life of a foster child, such as clinicians, lawyers, school staff, case worker, and judges, there is not one single person or “parent” making choices on behalf of the child in regards to their medical and mental care (Leslie et al, 2010).

How Does this Affect Foster Children?

The Rogers petition was implemented by DCF in 1987 to ensure that foster children in state custody were receiving appropriate treatment to manage their medical, emotional, and behavioral needs.  With this process, a guardian is appointed by the juvenile court to a child in the custody of DCF. The role of the guardian is to monitor the treatment plan that was previously identified and approved by the court. Additionally, the guardian monitors the child’s progress and reports back to the court within the recognized time frames of that particular court (OCA, 2011)

Guardians are not able to approve or reject the use of antipsychotic medication for a child.  They are able to examine medical records and talk to staff at any programs that the child may attend or live, and attend important meetings such as case conferences. As noted previously, the guardian reports back to the court on the child’s progress and any concerns or worries can be presented to the judge in an appropriate manner. At minimum, treatment plans need to be reviewed every year; however, this length of time can be changed by the court to occur more frequently than annually if needed (DMH, 2011).

Effectiveness of the Policy

Over the last 23 years, child welfare agencies, children’s mental health treatment, and psychopharmacology have changed dramatically. In 2009, the Office of Child Advocate (OCA) began discussions with professionals to decide whether Rogers petitions were serving its proposed use. These discussions grew into what is known as the Rogers Working Group, which consisted of a group of policymakers and researchers. Discussion began in the summer of 2010 around evaluating the Rogers petition process.  The OCA worked closely with the Northeastern University School of Law and their students with an aim to examine the Rogers petition process in Massachusetts (OCA, 2011)

The OCA (2011) conducted research and spoke to various individuals that were involved in the Rogers petition, such as the judges, lawyers, social workers, doctors, and any other individuals deemed necessary. The three key components that were included in the project consisted of an analysis of the current legal framework of the Rogers petition process, interviews with individuals involved with the Rogers petition process, and a comparison of other states’ protocols for attaining informed consent for children in foster care. In August 2011, the researchers developed a report and gave a presentation to the OCA and the Rogers Working Group.  The results from the research are expected to assist in making decisions about the children in DCF custody. The recommendations will also help stakeholders as they respond to federal legislation and the child welfare organizations (OCA, 2011).

Analysis and Evaluation of the Policy/Law

Although the Rogers petition process is a step in the right direction for child welfare in Massachusetts, there is great room for growth and improvement.  A multi-state study was completed by Tufts in 2010 to research psychotropic medication and youth in foster care. The study results expressed concern with the inconsistency among state policies and practices around psychotropic medication use for foster children and potential oversight (Tufts University, 2010). The study recommended a national approach to manage the issue of medication mistakes for children in foster care. The concern is that if a national policy or practice is not implemented, then children moving from one state to the next one can be affected (Tufts University, 2010).

Some states, such as New York have passed laws prohibiting school personnel from coercing parents to administer psychotropic medication to their children suggesting diagnoses such as ADHD, or recommending medication Citation. Root (2009) reported that more teachers are hesitant to seek medical solutions because they also became concerned about the overuse of medication and the frequency of psychiatric referrals. On the other hand, in comparison with the Roger’s petition, some other states have enacted legislation to protect students and parents from coercive measures Citation. Root (2009) further stated that several bills have been introduced in the U.S. Congress titled “The Child Medication Safety Act”, which is intended to curb schools’ interference with student mental health. For example, Senate bill 891, introduced in March 2007, required that all states enact policies prohibiting schools from coercing parents to medicate their children with stimulants and other psychotropic medication as a condition of staying in school (Root, 2009).

            In addition, Root (2009) indicated that such policies protect parents from being charged with abuse or neglect for refusing to administer medication to their children. In line with this policy, the Rogers petition entails that federal funding would be contingent on states complying with the law Citation. Jimenez (2009) reported that in theory, children from economically marginalized families who are in foster care receive Supplemental Security Income (SSI) and are eligible for mental health services through Medicaid. Lundy and Janes (2009) noted that the use of psychotropic medication to control behavior problems in children has captured the attention of both lawmakers and the public.  Following the Columbine High School shootings, lawmakers in Colorado explored the relationship between prescription drugs and school violence after learning that one of the Columbine shooters was on a psychotropic medication Citation. In this context, Lundy and Janes (2009) stated that the Colorado Board of Education resolution states “psychiatric prescription drugs have been utilized for what are essentially problems with discipline”. Need page number

            Balon (1999) indicated that the prescription of psychotropic medication to foster care children exposes a psychiatrist to significant professional liability claims. Negligence and informed consent are the two main areas pertinent to liability when prescribing psychotropic medication. The Rogers petition outlines that by prescribing, psychiatrists risk negligence liability in a variety of areas, which include failure to take an adequate history, failure to obtain an adequate physical examination, failure to obtain an adequate laboratory examination, lack of indication for prescription, contraindication for prescription, and the prescription of an improper dosage (Balon, 1999). According to the law, Balon (1999) stated that psychiatrists risk negligence liability when they prescribe for an improper duration, fail to recognize, monitor, and treat medication side effects, and fail to halt medication reactions and interactions to foster care children.     

The Impact of the Implementation of the Law or Policy

            With the implementation of the policy, a psychiatrist administering psychotropic medication to foster care children has a legal duty to care for the patient according to the standards of care (Balon, 1999). As a result, the use of medication should be justified based on the patient’s symptomatology and the medication administration should be continuously monitored. The implementation of psychotropic medication policy entails that psychiatrists should not practice without error; hence he or she is required to exercise reasonable care Citation. Balon (1999) stated that courts are less tolerant of errors of fact than errors of judgment and there has to be a demonstrated dereliction of duty. According to Balon (1999), errors of judgment will not result in a successful suit if the psychiatrist acted in good faith and exercised the requisite care in obtaining necessary information, formulating a diagnosis, and treating the patient’s condition.

            The implementation of the policy articulates that psychiatrists are subject to litigation for the failure to obtain informed consent to treat with psychotropic medication (Balon, 1999). While administering psychotropic medication to foster care children, the law entails that informed consent is an ongoing process, especially those related to side effects. The law outlines that the psychiatrist must also inform the legal guardian of the child about the nature of the proposed treatment and its risks, benefits, and alternatives, as well as the risks and benefits of alternative therapies, including no treatment (Balon, 1999). Balon (1999) further indicated that the law does not require written informed consent for non-experimental medication and that its use remains the subject of debate. In relation to this, many legal experts do not recommend using written informed consent forms in any medical practice in which standard or routine medication is prescribed. Also, many state agencies, hospitals, and community mental health centers require a written informed consent form for the treatment with antipsychotic drugs. Therefore, the policy requires one to obtain informed consent from the legal guardian or parent of a child to start treatment with psychotropic medication (Balon, 1999).  Balon (1999) indicated that the most common and severe side effects of the medication and their management and precautions must be discussed with the parent or guardian of the child.

Criteria for Judging Alternative Policy/Law

            A newspaper article in the Los Angeles Times (Weber, 1998) discussed criteria that should be included in a new policy for prescribing psychotropic medication to children in foster care. Despite the law that requires foster children to have medical passports that document all their medical appointments, illnesses, and medication that will follow them from their placement(s), there is a worry that this expectation is ignored. Reasons cited by officials are that this process is tedious and time-consuming, which leaves many children’s medical passports incomplete. Dr. Kenneth Steinhoff, University of California (UC) Irvine’s chief of child psychiatry, expressed concern that he often does not know what medication a child has previously been prescribed due to not receiving an appropriate and complete medical history (Weber, 1998).

            The missing puzzle piece for many children in foster care is having someone in the parental role, as they are not in the care or custody of their biological parents.  According to Weber (1998), some of these foster parents were believed to put their foster children on medication without taking the appropriate measures of evaluations and obtaining consent.  Many concerns were noted that the wrong message is being sent to foster children who are placed on psychotropic medication Citation. Dr. Thomas Laughren, medical reviewer for the Food and Drug Administration (FDA) division of neuro-pharmacological drugs, stated, “you’re teaching them that they are dependents and damaged and need drugs to be normal” (Weber, 1998, p. 4). Also, the prescription of medication sends the message that if you take this pill, you will feel better (Weber, 1998).

The criteria for judging the alternative policy is based on the detailed dosage that is recommended for use, the anticipated benefits, and possible side effects of the medication, as well as the list of other medications the child is taking. In some states, including California, Massachusetts, Illinois, and New York, detaining a patient involuntarily for assessment and treatment does not automatically authorize the involuntary treatment with psychotropic medication. The alternative policy should not cause a dilemma for psychiatrists because many children will be hospitalized precisely because their behavior will be felt to be grossly dangerous and out of control (Ovsiew & Munich, 2008).   Ovsiew and Munich (2008) indicated that under the alternative policy, a foster care child will be hospitalized because of the need for treatment of his or her mental illness, which may trump the right for freedom under the current civil law.  Two policies being considered as an alternative policy for psychotropic medication for foster children in Massachusetts are from the states of Illinois and Oregon. Citation

Illinois Psychotropic Medication Policy

             The Illinois Psychotropic Medication Policy originated from the Illinois Department of Children and Family Service (DCFS), which is responsible for consenting to the medical, surgical, and psychiatric care for children and adolescents in its custody. The policy is the establishment of the Centralized Psychotropic Medication Consent Program in the guardian’s office to provide the permission for the prescription of psychotropic medications (Illinois DCFS, 2010). In order to support this process, DCFS has contracted with the University of Illinois in Chicago to provide an objective review of all the consent requests from clinicians concerning the prescription of psychotropic medication for children in foster care. Citation

            The Illinois Psychotropic Medication Policy provides consultation to DCFS to establish a set of treatment guidelines for foster children. The policy is appropriate because psychotropic medications are not to be used in place of psychosocial or behavioral interventions that the child requires (Illinois DCFS, 2010). The policy entails that all children receive a diagnostic assessment prior to starting a psychotropic medication. With the Illinois Psychotropic Medication Policy, prescription of psychotropic medication will be based on research showing it to be safe and effective for the disorder being treated. Also, the prescription of psychotropic medication will be accompanied by education for the child, his or her foster family or treatment team, and the child’s family of origin.  Citation

Oregon Psychotropic Medication Policy

            The origin of this policy is from the Oregon legislative assembly House Bill 3114, which is an act that relates to psychotropic medication for children in foster care, creates new provisions, and amends ORS 418.517 Citation describe the previous law. A report by the Oregon Legislative Assembly (2009) indicated that this alternative policy of psychotropic medication is suitable because it requires assessment by qualified mental health professionals with experience in children’s mental health, as defined by regulations, before the issuance of a new prescription for more than one type of psychotropic medication. The Oregon Psychotropic Medication Policy entails notice to be given by foster parents within one working day after they receive a new prescription for psychotropic medication. Citation The Oregon Legislative Assembly report (2009) stated that another requirement of the policy is that the child’s legal representative is given information pertaining to the prescribed psychotropic medication, the exact amount of dosage, the reason for taking such medication, efficacy of the medication, and its side effects.

            The Oregon Psychotropic Medication Policy is suitable because it ensures monitoring and follow-up by the child welfare department of a child who is administered psychotropic medication (Oregon Legislative Assembly, 2009). This alternative policy will ensure that psychotropic medication will not be administered to a child unless it is age-appropriate. In addition, this policy allows the parent or the legal representative to send a petition to the juvenile court asking for a hearing if the parent disapproves of the use of the prescribed dosage of psychotropic medication. In this context, the court can ask for an independent evaluation in order to decide whether the dosage of medication is appropriate (Oregon Legislative Assembly, 2009).  

Policy Recommendations

            Both the Illinois and Oregon psychotropic medication policies are appropriate and recommended because they are broad and give alternatives to both parents and legal representatives of foster children in case prescriptions are given in error. The policies give foster care children room for enough consultation and diagnostic assessment before starting a psychotropic medication Citation. According to Balon (1999), these policies provide in-service presentations on the side effects of psychotropic medication, which may be a useful way to educate therapists about the most common side effects of psychotropic medication and to foster their cooperation in reporting side effects, referring patients, and fostering compliance. The policies are recommended because the physical examination of foster children will be carried out and will ensure that the prescription of a psychotropic medication is based on research. The two policies will ensure that the medication is safe and effective and approved by the FDA for the treatment of such disorders in children. The policies are likely to be implemented in the future because of the frequent changes of psychotropic medications, which are without a clear rationale in many states and have affected service delivery to children in foster care. The policy is likely to be implemented because in many cases, psychotropic medication is not in line with the patient’s target symptoms; hence there is a need for clear guidelines in these medical conditions. Citation

            The need to have clear policies and guidelines in the administration of psychotropic medications cannot be overlooked in this time when the medications being administered are affecting the functioning, perception, behavior, and mood of foster children. The policies detailed above will ensure adherence to the guidelines and provisions made by state child welfare departments that are responsible for children in foster care. The policies should improve the communication between parents, legal representatives, and psychiatrists that are involved in the prescription of these medications. They also provide informed consent for treatment to all the parties involved and either side can be held responsible in case something goes wrong. The policies will protect parents from being charged with the abuse or neglect for refusing to administer psychotropic medication to their children. The policies will also reduce the dilemma faced by psychiatrists when such children are hospitalized because their behavior is felt to be grossly dangerous or out of control.

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