A. Medical Consenter

Tex. Fam. Code § 266.004(h) requires medical consenter training, which must include training related to informed consent for the administration of psychotropic medication and the appropriate use of psychosocial therapies, behavior strategies, and other non-pharmacological interventions that should be considered before or concurrently with the administration of psychotropic medications. Tex. Fam. Code § 266.004(h-1).

Each person required to complete a training program under Tex. Fam. Code § 266.004(h) must acknowledge in writing that the person:

The Medical Consent Training for Caregivers is about two and half hours long and can be found at: http://www.dfps.state.tx.us/child_protection/medical_services/medical-consent-training.asp. DFPS also has a two-hour online training on psychotropic medications for DFPS staff, foster parents and residential providers, relative caregivers, and youth medical consenters. Please see: https://www.dfps.state.tx.us/Training/Psychotropic_Medication/

1. Informed Consent

Although the term “informed consent” as it relates to medical care for a child in foster care is not defined in Tex. Fam. Code Chapter 266, the Texas Legislature has defined consent for psychotropic medication. Consent to the administration of a psychotropic medication is valid only if:

•   The consent is given voluntarily and without undue influence;

•   The person authorized by law to consent for the foster child receives verbally or in writing information that provides:

The Parameters describe what is meant by informed consent by stating that consent to medical treatment in non-emergency situations must be informed consent, which includes discussing the following with the prescribing doctor/psychiatrist before consenting:

•   A DSM-IV (or current edition) psychiatric diagnosis for which the medication is being prescribed;

•   Target symptoms;

•   Treatment goals (expected benefits);

•   Risks of treatment, including common side effects, laboratory finding, and uncommon but potentially severe adverse events;

•   Risks of no treatment;

•   Overall potential benefit to risk of treatment;

•   Alternative treatments available and/or tried;

•   The date the child was first placed in current placement;

•   Child’s current weight in pounds; and

•   Child’s date of birth, necessary to classify child as a child (age 1-12 years) or as an adolescent (age 13-18 years), because some medications are approved for children but not adolescents and vice versa.

Included in the idea of informed consent is the consideration of alternative treatments and trauma-informed care. The concept of trauma-informed care is a huge paradigm shift for the entire system that will take some time. The Introduction and General Principles Section of the Parameters promote a trauma-informed child and family-serving system where all parties involved recognize and respond to the varying impact of traumatic stress on those who have contact with the system, including youth, caregivers, and service providers. A robust trauma-informed system would not only screen for trauma exposure and related symptoms, but would also use culturally appropriate, evidence-based assessments and treatment. In 2015, the 84th Texas Legislature added Tex. Fam. Code § 266.012 regarding comprehensive assessments. Not later than the 45th day after the date a child enters the conservatorship of DFPS, the child shall receive a developmentally appropriate comprehensive assessment. The assessment must include:

•   A screening for trauma; and

•   Interviews with individuals who have knowledge of the child’s needs. Tex. Fam. Code § 266.012(a).

Beginning September 1, 2016, all youth placed in substitute care will have a Child Assessment of Needs and Strengths (CANS) completed as part of their assessment and service planning process within 30 days of removal. The CANS will be used to gather information about the strengths and needs of the child and family and used in Service Planning to assist the child and family in reaching their goals.[81]DFPS may consent to health care services ordered or prescribed by a health care provider authorized to order or prescribe health care services regardless of whether services are provided under the medical assistance program under Tex. Hum. Res. Code Chapter 32, if DFPS otherwise has the authority under Tex. Fam. Code§ 266.004 to consent to health care services. Tex. Fam. Code § 266.004(k).

2. Texas Foster Children are More Likely to Have Been Traumatized

In the general Texas population, about 10% of children are on psychotropic medications compared to 15% of foster kids. The different rates of use could be due to the serious mental health issues that are common with abuse and neglect or the lack of alternative treatments and specialized, trauma-informed services, or a combination of both. Exposure to trauma, coupled with Texas’ low removal rate, might indicate that children in Texas foster care have higher mental health needs than other states that have a lower threshold for removal. Texas serves over 75% of families in the home, which means that the children who come into care have typically experienced more severe abuse and neglect and likely require more intervention for mental health and behavioral issues.

3. Limited Mental Health / Substance Abuse Services

Texas struggles to provide adults access to mental health services. Medicaid in Texas is only available to children, the elderly, and the disabled. An able-bodied adult with severe depression or bipolar disorder, who does not have private health insurance, is not likely to access Medicaid. Substance abuse treatment is also unavailable for the majority of the uninsured population. When parents cannot access mental health and substance abuse services, their children often suffer.

Another concern is the lack of access to child psychiatrists by the children and youth in foster care. When child psychiatrists are not available, more primary care physicians are put in the position of prescribing psychotropic medications that may be outside their expertise. STAR Health has made significant strides in contracting with new psychiatrists and other mental health providers, but the large, diverse population and geographic regions in Texas make this challenging.

4. Monitoring Use of Psychotropic Drug

The Medical Consenter shall ensure that the child has been seen by the prescribing physician, physician assistant, or advanced practice nurse at least once every 90 days to allow the physician, physician assistant, or advanced practice nurse to:

•   Appropriately monitor the side effects of the medication; and

•   Determine whether: