BP BHEAD INT S [atlas:bill]

AN ACT Relating to medical treatment of children in custody; amending RCW 13.34.060; and adding new sections to chapter 13.34 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. This act may be known and cited as the "Wenatchee children's protection amendment."

NEW SECTION. Sec. 2. (1) A child protective services or child welfare professional shall not authorize the administration of antipsychotic or psychotropic medication, or drugs that specifically treat behavior problems or mental illness other than previously prescribed medications, except as provided in this section.

(2) The parent of the child in the custody of the department must be informed of the department's intent to seek authorization for the administration of antipsychotic or psychotropic medication, or drugs that specifically treat behavior problems or mental illness. The parent shall be given an opportunity to sign a declaration in support or opposition to the request.

(3) A child who is in the custody of the department under chapter 13.34 or 26.44 RCW shall not receive antipsychotic or psychotropic medication, or drugs that specifically treat behavior problems or mental illness, until all of the following have occurred:

(a) The department has provided the treating physician a copy of the child's complete medical records accompanied by a signed statement by the appropriate department employee verifying that all medical records in the department's possession have been provided and identifying the steps taken to ensure the records are complete. The department or the parents may provide the physician with the child's medical records. The department shall first make a reasonable effort to contact the parent to obtain a copy of the child's complete medical records and to ensure that the medical records and medical history are complete. The department has a continuing obligation to obtain any missing records and to provide the records to the treating physician;

(b) The treating physician believes that it is medically necessary to treat a child with antipsychotic or psychotropic medication, or prescription drugs to treat behavior disorders or mental illness;

(c) The department has filed a petition with the court requesting authorization for administration of such drugs. The petition shall include a copy of the declaration, if any, signed by the parent under subsection (2) of this section; and

(d) The court has issued an order pursuant to the following standards and procedures:

(i) The administration of antipsychotic or psychotropic medication, or prescription drugs to treat behavior disorders or mental illness, shall not be ordered unless the petitioning party proves by clear, cogent, and convincing evidence that there exists a compelling state interest that justifies the use of antipsychotic or psychotropic medications, or prescription drugs to treat behavior disorders or mental illness, that the proposed treatment is necessary and effective, and that medically acceptable alternative forms of treatment are not available, have not been successful, or are not likely to be effective.

(ii) The court shall make specific findings of fact concerning: (A) The existence of one or more compelling state interests; (B) the necessity and effectiveness of the treatment; and (C) the desires of the parent of the child, or the desires of the child, if the child is age thirteen or older, regarding the proposed treatment. If a child age thirteen or older is unable to make a rational and informed decision about consenting to or refusing the proposed treatment, the court shall make a substituted judgment for the child as if he or she were competent to make such a determination.

(iii) A child age thirteen or older shall be present at any hearing on a request to administer antipsychotic medication, or prescription drugs to treat behavior disorders or mental illness, filed pursuant to this subsection. The child has the right: (A) To be represented by an attorney; (B) to present evidence; (C) to cross-examine witnesses; (D) to have the rules of evidence enforced; (E) to remain silent; (F) to view and copy all petitions and reports in the court file; and (G) to be given reasonable notice and an opportunity to prepare for the hearing. The court may appoint one or more psychiatrists, psychologists within their scope of practice, or physicians to examine and testify on behalf of a parent and child.

(iv) An order for the administration of antipsychotic medications or prescription drugs to treat behavior disorders or mental illness entered following a hearing conducted pursuant to this section shall be effective for a period of ninety days. The order may be extended for periods of ninety days upon agreement of all parties, or by the court after a hearing on the issue.

(4) In an emergency, the decision and authority to prescribe and administer to a dependent child antipsychotic medicines, or prescription drugs necessary to treat behavior disorders or mental illness, rests with the treating physician based on his or her professional opinion that the child's condition constitutes an emergency requiring the treatment be instituted before a judicial hearing as authorized pursuant to this section can be held.

NEW SECTION. Sec. 3. The department shall not place a child who is in the custody of the department under chapter 13.34 or 26.44 RCW in any facility not located within the borders of the state if that facility is out of compliance with medicaid rules, regulations, and guidelines or its state's licensing or health and safety regulations, or the facility owes the federal government, state government, or any other entity financial penalties related to noncompliance with federal medicaid rules, or state licensing or health and safety regulations.

NEW SECTION. Sec. 4. The department shall not place a child who is in the custody of the department under chapter 13.34 or 26.44 RCW in any facility, including but not limited to a mental health or medical facility, not located within the borders of the state unless there are medical orders signed by a physician in the child case record and the department has reasonable cause to believe and confirms in writing in the child's case record that in-state facilities or services were considered and that there is no facility or service available in the state that would meet the child's treatment needs. The child case record shall contain all available information to ensure that placement is consistent with the goals of the child's permanency plan and appropriate services have been offered in closest proximity to the child's family resources. This documentation shall be included in the child's case record.

Sec. 5. RCW 13.34.060 and 1990 c 246 s 1 are each amended to read as follows:

(1) A child taken into custody pursuant to RCW 13.34.050 or 26.44.050 shall be immediately placed in shelter care. A child taken by a relative of the child in violation of RCW 9A.40.060 or 9A.40.070 shall be placed in shelter care only when permitted under RCW 13.34.055. "Shelter care" means temporary physical care in a facility licensed pursuant to RCW 74.15.030 or in a home not required to be licensed pursuant to that section. Whenever a child is taken into such custody pursuant to this section, the supervising agency may authorize evaluations of the child's physical or emotional condition, routine medical and dental examination and care, and all necessary emergency care, as limited by section 2 of this act. In no case may a child who is taken into custody pursuant to RCW 13.34.055, 13.34.050, or 26.44.050 be detained in a secure detention facility. No child may be held longer than seventy-two hours, excluding Saturdays, Sundays and holidays, after such child is taken into custody unless a court order has been entered for continued shelter care. The child and his or her parent, guardian, or custodian shall be informed that they have a right to a shelter care hearing. The court shall hold a shelter care hearing within seventy-two hours after the child is taken into custody, excluding Saturdays, Sundays, and holidays. If a parent, guardian, or legal custodian desires to waive the shelter care hearing, the court shall determine, on the record and with the parties present, that such waiver is knowing and voluntary.

(2) Whenever a child is taken into custody by child protective services pursuant to a court order issued under RCW 13.34.050 or when child protective services is notified that a child has been taken into custody pursuant to RCW 26.44.050 or 26.44.056, child protective services shall make reasonable efforts to inform the parents, guardian, or legal custodian of the fact that the child has been taken into custody, the reasons why the child was taken into custody, and their legal rights under this title as soon as possible and in no event longer than twenty-four hours after the child has been taken into custody or twenty-four hours after child protective services has been notified that the child has been taken into custody. The notice of custody and rights may be given by any means reasonably certain of notifying the parents including, but not limited to, written, telephone, or in person oral notification. If the initial notification is provided by a means other than writing, child protective services shall make reasonable efforts to also provide written notification.

The written notice of custody and rights shall be in substantially the following form:

"NOTICE

Your child has been placed in temporary custody under the supervision of Child Protective Services (or other person or agency). You have important legal rights and you must take steps to protect your interests.

1. A court hearing will be held before a judge within 72 hours of the time your child is taken into custody. You should call the court at (insert appropriate phone number here) for specific information about the date, time, and location of the court hearing.

2. You have the right to have a lawyer represent you at the hearing. A lawyer can look at the files in your case, talk to child protective services and other agencies, tell you about the law, help you understand your rights, and help you at hearings. If you cannot afford a lawyer, the court will appoint one to represent you. To get a court-appointed lawyer you must contact: (explain local procedure) .

3. At the hearing, you have the right to speak on your own behalf, to introduce evidence, to examine witnesses, and to receive a decision based solely on the evidence presented to the judge.

You should be present at this hearing. If you do not come, the judge will not hear what you have to say.

You may call the Child Protective Services' caseworker for more information about your child. The caseworker's name and telephone number are: (insert name and telephone number) ."

Upon receipt of the written notice, the parent, guardian, or legal custodian shall acknowledge such notice by signing a receipt prepared by child protective services. If the parent, guardian, or legal custodian does not sign the receipt, the reason for lack of a signature shall be written on the receipt. The receipt shall be made a part of the court's file in the dependency action.

If after making reasonable efforts to provide notification, child protective services is unable to determine the whereabouts of the parents, guardian, or legal custodian, the notice shall be delivered or sent to the last known address of the parent, guardian, or legal custodian.

(3) If child protective services is not required to give notice under subsection (2) of this section, the juvenile court counselor assigned to the matter shall make all reasonable efforts to advise the parents, guardian, or legal custodian of the time and place of any shelter care hearing, request that they be present, and inform them of their basic rights as provided in RCW 13.34.090.

(4) Reasonable efforts to advise and to give notice, as required in subsections (2) and (3) of this section, shall include, at a minimum, investigation of the whereabouts of the parent, guardian, or legal custodian. If such reasonable efforts are not successful, or the parent, guardian, or legal custodian does not appear at the shelter care hearing, the juvenile court counselor or caseworker shall testify at the hearing or state in a declaration:

(a) The efforts made to investigate the whereabouts of, and to advise, the parent, guardian, or legal custodian; and

(b) Whether actual advice of rights was made, to whom it was made, and how it was made, including the substance of any oral communication or copies of written materials used.

(5) At the commencement of the shelter care hearing the court shall advise the parties of their basic rights as provided in RCW 13.34.090 and shall appoint counsel pursuant to RCW 13.34.090 if counsel has not been retained by the parent or guardian and if the parent or guardian is indigent, unless the court finds that the right to counsel has been expressly and voluntarily waived in court.

(6) The court shall hear evidence regarding notice given to, and efforts to notify, the parent, guardian, or legal custodian and shall examine the need for shelter care. The court shall make an express finding as to whether the notice required under subsections (2) and (3) of this section was given to the parent, guardian, or legal custodian. All parties have the right to present testimony to the court regarding the need or lack of need for shelter care. Hearsay evidence before the court regarding the need or lack of need for shelter care must be supported by sworn testimony, affidavit, or declaration of the person offering such evidence.

(7) The juvenile court probation counselor shall submit a recommendation to the court as to the further need for shelter care, except that such recommendation shall be submitted by the department of social and health services in cases where the petition alleging dependency has been filed by the department of social and health services, unless otherwise ordered by the court.

(8) The court shall release a child alleged to be dependent to the care, custody, and control of the child's parent, guardian, or legal custodian unless the court finds there is reasonable cause to believe that:

(a) After consideration of the specific services that have been provided, reasonable efforts have been made to prevent or eliminate the need for removal of the child from the child's home and to make it possible for the child to return home; and

(b)(i) The child has no parent, guardian, or legal custodian to provide supervision and care for such child; or

(ii) The release of such child would present a serious threat of substantial harm to such child; or

(iii) The parent, guardian, or custodian to whom the child could be released is alleged to have violated RCW 9A.40.060 or 9A.40.070.

If the court does not release the child to his or her parent, guardian, or legal custodian, the court shall order continued shelter care or order placement with another suitable person, and the court shall set forth its reasons for the order. The court shall enter a finding as to whether subsections (2) and (3) of this section have been complied with. If actual notice was not given to the parent, guardian, or legal custodian and the whereabouts of such person is known or can be ascertained, the court shall order the supervising agency or the department of social and health services to make reasonable efforts to advise the parent, guardian, or legal custodian of the status of the case, including the date and time of any subsequent hearings, and their rights under RCW 13.34.090.

(9) An order releasing the child on any conditions specified in this section may at any time be amended, with notice and hearing thereon, so as to return the child to shelter care for failure of the parties to conform to the conditions originally imposed.

(10) A shelter care order issued pursuant to this section may be amended at any time with notice and hearing thereon. The shelter care decision of placement shall be modified only upon a showing of change in circumstances. No child may be detained for longer than thirty days without an order, signed by the judge, authorizing continued shelter care.

(11) Any parent, guardian, or legal custodian who for good cause is unable to attend the initial shelter care hearing may request that a subsequent shelter care hearing be scheduled. The request shall be made to the clerk of the court where the petition is filed prior to the initial shelter care hearing. The hearing shall be held within seventy-two hours of the request, excluding Saturdays, Sundays, and holidays. The clerk shall notify all other parties of the hearing by any reasonable means.

NEW SECTION. Sec. 6. Sections 1 through 4 of this act are each added to chapter 13.34 RCW.