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79R2806 KEG-F
By: Naishtat H.B. No. 339
A BILL TO BE ENTITLED
AN ACT
relating to the administration of psychoactive medication to foster
children.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle E, Title 5, Family Code, is amended by
adding Chapter 266 to read as follows:
CHAPTER 266. ADMINISTRATION OF PSYCHOACTIVE
MEDICATION TO FOSTER CHILDREN
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 266.001. DEFINITIONS. In this chapter:
(1) "Foster child" means a child who resides in a
child-care institution, foster group home, foster home, agency
foster group home, or agency foster home, as those terms are defined
by Section 42.002, Human Resources Code.
(2) "Psychoactive medication" has the meaning
assigned by Section 574.101, Health and Safety Code.
[Sections 266.002-266.050 reserved for expansion]
SUBCHAPTER B. ADMINISTRATION OF PSYCHOACTIVE MEDICATION
Sec. 266.051. CONSENT OR COURT ORDER REQUIRED. (a) A
physician may not prescribe a psychoactive medication for a foster
child who is at least six years of age until the physician receives:
(1) written consent from a person authorized under
this chapter to provide consent; or
(2) a court order authorizing administration of the
medication.
(b) Notwithstanding Subsection (a)(1) and subject to
Section 266.056, a physician may not prescribe a psychoactive
medication for a foster child that will result in the simultaneous
administration to the child of three or more psychoactive
medications until the physician receives a court order authorizing
administration of the medication.
(c) For purposes of Subsection (b), it is a rebuttable
presumption that the simultaneous administration of three or more
psychoactive medications is not appropriate for a foster child.
Sec. 266.052. INFORMATION REQUIRED BEFORE CONSENT MAY BE
GIVEN. Before a person authorized under this chapter to provide
consent may consent to the administration of a psychoactive
medication to a foster child, the child's physician or the
physician's designee must:
(1) provide the following information to the person in
the person's primary language using simple, nontechnical terms that
the person can understand:
(A) a description of the child's condition and
symptoms for which the physician is recommending the medication;
(B) the manner in which the medication is
expected to benefit the child;
(C) an explanation of why, in the physician's
medical opinion, it is not likely that another medical condition or
problem is causing the symptoms for which the physician is
recommending the medication;
(D) the name of the medication and any other
names under which the medication is known;
(E) the dosage or range of dosages that the
physician is recommending for the medication;
(F) the length of time that the physician
anticipates the child will need to take the medication and the
manner in which the decision would likely be made to discontinue the
medication;
(G) generally accepted alternatives to the
medication, if any, and the reasons why the physician believes that
the alternatives are not appropriate;
(H) whether the medication has been approved by
the federal Food and Drug Administration for the child's condition
and, if not, whether there is research supporting the physician's
decision to prescribe the medication;
(I) whether the medication has been the subject
of a federal Food and Drug Administration alert or caution and, if
so, the nature of the alert or caution;
(J) commonly occurring side effects;
(K) rare or serious side effects, if any;
(L) whether the medication is addictive or can be
abused;
(M) whether there are any laboratory tests,
including heart or blood tests, that need to be performed before the
child may be administered the medication or while the child is
taking the medication, including the frequency with which the tests
must be performed;
(N) identification of the person who will monitor
the child's response to the medication and that person's ability or
inability to modify the child's dosage if necessary;
(O) the frequency with which the child's progress
will be checked and by whom;
(P) whether there are any prescription
medications, over-the-counter medications, or foods that the child
should avoid while taking the medication;
(Q) a list of all prescription and
over-the-counter medications the child is currently taking and
whether there are possible negative interactions between any of
those medications and the recommended medication and, if so,
whether and how the interactions may be avoided;
(R) whether there are any activities the child
should avoid while taking the medication and whether there are any
precautions recommended for activities in which the child engages;
(S) what the child's foster parent or care
provider should do if a problem arises related to the child's
medication, such as illness, missed doses, or side effects; and
(T) whether the child's school nurse or other
school personnel should be informed about the child taking the
medication; and
(2) if the child is not the person providing consent,
provide to the child any information under Subdivision (1) that the
physician believes the child is capable of understanding, in terms
that are appropriate considering the age of the child.
Sec. 266.053. INFORMATION FROM DEPARTMENT ABOUT PRESCRIBED
MEDICATION. Before a foster child may be administered a
psychoactive medication that has been prescribed for the child, the
department must inform the child that:
(1) the child may confer with the child's guardian ad
litem or attorney ad litem if the child has any questions, concerns,
or problems regarding being treated with psychoactive medication;
and
(2) as provided by Section 266.302, the child will be
provided with the opportunity at each review hearing to express to
the court the child's views on being treated with a psychoactive
medication.
Sec. 266.054. WRITTEN NOTICE OF RIGHT TO REVOKE CONSENT. A
physician who prescribes a psychoactive medication for a foster
child must give written notice to the person providing consent that
the person may revoke consent at any time, as provided by Section
266.101.
Sec. 266.055. CHANGE IN MEDICATION. The department and the
prescribing physician must comply with this subchapter each time
the physician prescribes a different psychoactive medication for a
foster child or alters the child's medication regimen in a manner
that is likely to affect the side effects, risks, or benefits of the
medication.
Sec. 266.056. ADMINISTRATION IN EMERGENCY. (a) Consent or
court authorization otherwise required by this chapter for the
administration of a psychoactive medication is not required in an
emergency during which it is immediately necessary to administer
psychoactive medication to a foster child to prevent:
(1) imminent probable death or substantial bodily harm
to the child because the child is overtly or continually
threatening or attempting to commit suicide or cause self-inflicted
serious bodily harm; or
(2) imminent physical or emotional harm to another
person because of threats, attempts, or other acts the child
overtly or continually makes or commits.
(b) The prescribing physician shall, not later than the
fifth business day after the date a psychoactive medication is
initially administered to a child under this section, provide the
department with a detailed report of the medication and the
circumstances that required the emergency administration.
(c) The department shall include a copy of the physician's
report under Subsection (b) in the child's file and provide a copy
to all interested parties not later than 48 hours after the
department receives the report.
(d) Not more than three doses of psychoactive medication may
be administered to a child under this section during a seven-day
period.
[Sections 266.057-266.100 reserved for expansion]
SUBCHAPTER C. GENERAL CONSENT PROVISIONS
Sec. 266.101. RIGHT TO REVOKE CONSENT. A person authorized
to provide consent under this chapter has the right to revoke
consent at any time.
Sec. 266.102. CONSENT INVALID UNLESS VOLUNTARY. Consent
required under this chapter is invalid unless provided voluntarily
and without coercion or undue influence.
Sec. 266.103. REMOVAL FOR REFUSAL OR REVOCATION OF CONSENT
PROHIBITED. A child may not be removed from the child's foster home
or institution by the department or required to be removed by a care
provider because a person authorized under this chapter to consent
to the administration of a psychoactive medication refuses to
provide that consent or revokes consent.
[Sections 266.104-266.150 reserved for expansion]
SUBCHAPTER D. SPECIAL PROVISIONS APPLICABLE TO CHILDREN
YOUNGER THAN SIX YEARS OF AGE
Sec. 266.151. COURT ORDER REQUIRED. (a) A physician may
not prescribe a psychoactive medication for a foster child who is
younger than six years of age until a court issues an order
authorizing the administration of the medication.
(b) There is a rebuttable presumption that the
administration of a psychoactive medication for a foster child
younger than six years of age is not appropriate.
(c) A court may issue an order authorizing the
administration of a psychoactive medication only if the court finds
that the administration is in the best interest of the child.
Sec. 266.152. PROCEDURES FOR GUARDIAN AD LITEM. If a
physician recommends a psychoactive medication for a child who is
younger than six years of age, the child's guardian ad litem:
(1) shall interview the child's foster parents, the
prescribing physician, and any mental health professional who has
recently treated the child;
(2) shall make a recommendation to the court regarding
the appropriateness of the medication based on the best interest of
the child; and
(3) may ask the court to order a second medical opinion
with respect to the medication.
[Sections 266.153-266.200 reserved for expansion]
SUBCHAPTER E. SPECIAL PROVISIONS APPLICABLE TO CHILDREN
AT LEAST SIX YEARS OF AGE BUT LESS THAN 16 YEARS OF AGE
Sec. 266.201. APPLICABILITY OF SUBCHAPTER. This subchapter
applies only to a foster child who is at least six years of age but
less than 16 years of age.
Sec. 266.202. PERSON AUTHORIZED TO PROVIDE CONSENT. The
following persons may consent to the administration of a
psychoactive medication:
(1) a parent whose parental rights have not been
terminated, but only as provided by Section 266.203; and
(2) a person who:
(A) has successfully completed a
department-approved training program related to the administration
of psychoactive medications;
(B) has reviewed any available medical records
and documents describing the child's medical and mental health
history; and
(C) is:
(i) the child's foster parent, if the child
resides in a basic, habilitative, primary medical, or therapeutic
foster home;
(ii) the child's caseworker, with the
agreement of the caseworker's supervisor, if the child does not
reside in a basic, habilitative, primary medical, or therapeutic
foster home; or
(iii) specifically authorized by court
order to provide consent on behalf of the child.
Sec. 266.203. CONSENT OF CHILD'S PARENT. (a) If a foster
child has at least one parent whose parental rights have not been
terminated and a physician recommends that the child be
administered a psychoactive medication, the court shall determine
whether it is in the child's best interest for the child's parent to
make a decision regarding the medication on behalf of the child.
(b) If the court determines that it is in the child's best
interest for a parent of the child to have the opportunity to
consent to the medication, the court shall issue an order
recognizing the parent as a person authorized to provide consent on
behalf of the child, contingent on the parent's compliance with the
requirements prescribed by Sections 266.202(2)(A) and (B).
(c) If the court determines that it is not in the child's
best interest for a parent of the child to consent to the
medication, a person authorized to provide consent under Section
266.202(2) shall make a determination on behalf of the child with
respect to the medication.
Sec. 266.204. COURT HEARING. (a) If, after consent for the
administration of a psychoactive medication has been provided by a
person authorized to provide consent under Section 266.202, the
foster child's guardian ad litem or other party disagrees with the
person's decision to provide consent to the psychoactive
medication, the guardian ad litem or other party may request that a
court hold a hearing to review the person's decision to provide
consent.
(b) If a court determines that the administration of a
psychoactive medication is not in the best interest of a foster
child, the court shall issue an order prohibiting the
administration of psychoactive medication to the child.
Sec. 266.205. CASEWORKER INVOLVEMENT. If consent is
provided by a child's caseworker with the agreement of the
caseworker's supervisor, the caseworker or the caseworker's
supervisor shall attend or participate by telephone in all
appointments with the child's physician in which psychoactive
medications are prescribed or reviewed.
[Sections 266.206-266.250 reserved for expansion]
SUBCHAPTER F. SPECIAL PROVISIONS APPLICABLE TO
CHILDREN AT LEAST 16 YEARS OF AGE
Sec. 266.251. CONSENT FORM. A foster child who is at least
16 years of age may provide the written consent required by Section
266.051. If the child provides consent by signing a consent form,
the form must be written in the child's primary language and use
simple, nontechnical terms that the child can understand.
Sec. 266.252. REFUSAL OF CHILD. (a) If a foster child who
is at least 16 years of age refuses to take a prescribed
psychoactive medication or provide the written consent required by
Section 266.051 and the child's caseworker believes that
administration of the medication is appropriate, the department may
file a motion with a court requesting an order authorizing the
administration of the medication. The motion must include:
(1) the child's stated reason for refusing to take the
psychoactive medication; and
(2) a notarized statement prepared and signed by the
prescribing physician that includes the information required by
Section 266.052.
(b) If a motion is filed under Subsection (a), the court in
which the motion is filed shall appoint an attorney ad litem for the
child if one has not already been appointed. The child's attorney
ad litem shall:
(1) discuss the situation with the child;
(2) discuss the suitability of the medication with the
prescribing physician;
(3) review the child's mental health records; and
(4) advocate to the court on behalf of the child's
expressed preferences regarding treatment with the psychoactive
medication.
(c) The court shall base its decision with respect to the
administration of the medication on whether the child lacks the
capacity to make a decision regarding the administration of a
psychoactive medication and whether treatment with the proposed
medication is in the best interest of the child. In making this
decision, the court shall consider:
(1) the child's expressed preferences regarding the
administration of the medication;
(2) the child's religious beliefs;
(3) the risks and benefits, from the perspective of
the child, of taking the medication;
(4) likely consequences to the child if the child is
not treated with the medication;
(5) the child's prognosis if the child is treated with
the medication; and
(6) whether there are any alternatives to treatment
with the medication.
(d) This section does not apply in an emergency that
requires the urgent administration of a psychoactive medication.
An emergency relating to a foster child who is at least 16 years of
age is governed by Section 266.056.
[Sections 266.253-266.300 reserved for expansion]
SUBCHAPTER G. MONITORING AND REPORTING
Sec. 266.301. CONCERNS ABOUT MEDICATION; RIGHT TO SECOND
MEDICAL OPINION. If a foster child or the child's guardian ad
litem, attorney ad litem, or the person authorized under this
chapter to provide consent on behalf of the child has concerns about
the appropriateness of a psychoactive medication that has been
prescribed for the child, the child, the child's guardian ad litem
or attorney ad litem, or the authorized person may request a second
medical opinion concerning the appropriateness of the medication
from a physician other than the prescribing physician.
Sec. 266.302. REVIEW AT HEARINGS; CHILD'S RIGHT TO STATE
OPINIONS. (a) The court shall conduct a full review of a foster
child's status with respect to the administration of psychoactive
medication at:
(1) each permanency hearing required under Subchapter
D, Chapter 263;
(2) each placement review hearing required under
Section 263.501; and
(3) any hearing specifically called by an interested
party, including the child, to review the use of psychoactive
medication.
(b) At each permanency hearing or placement review hearing,
the child shall be provided the opportunity to express to the court
the child's views on being treated with a psychoactive medication.
Sec. 266.303. INFORMATION TO BE INCLUDED IN CERTAIN
REPORTS. The department shall include the following information in
each permanency progress report under Section 263.303 and each
placement review report under Section 263.502:
(1) medical and mental health reports concerning the
child's progress with a psychoactive medication, including
necessary lab reports and any reports or summaries prepared by a
mental health professional who has worked with the child;
(2) a description of all treatments in addition to
psychoactive medication treatment that the child is receiving for
the condition that required the administration of the medication
and the child's progress with the additional treatments;
(3) a report from the prescribing physician indicating
the child's progress with the medication and any additional
treatments and the approximate date that the physician anticipates
the medication will be discontinued;
(4) a statement from the child's foster parents or care
provider regarding the steps they have taken to monitor side
effects of the medication and any results they have recorded; and
(5) medication logs maintained by the child's foster
parents or care provider.
SECTION 2. This Act applies only to a psychoactive
medication prescribed or administered on or after January 1, 2006.
A psychoactive medication prescribed or administered before
January 1, 2006, is governed by the law as it existed before the
effective date of this Act, and the former law is continued in
effect for that purpose.
SECTION 3. This Act takes effect September 1, 2005.