CASA Volunteers Can Help Ensure Appropriate Medical Care

By Richard LaVallo, Senior Attorney, Advocacy, Incorporated

The Legislature has enacted a new law governing the provision of medical care to foster children. These new provisions were part of SB6 and are now codified in Chapter 266 of the Texas Family Code. The intent of Chapter 266 was, in part, to ensure that foster children receive appropriate medical care. A CASA volunteer can play an instrumental role in guaranteeing that the rights of foster children under this new law are enforced.

The Medical Care Provisions under Chapter 266

To ensure that the medical needs of a foster child are met, a volunteer must first become familiar with the new medical care provisions under Chapter 266. Below is a brief summary of the basic requirements and procedures governing the provision of medical care to a foster child in Chapter 266.

Person Authorized to Consent to Medical Care

Chapter 266 requires a single person be appointed to make medical decisions on behalf of a foster child. A foster child cannot be provided medical care unless a person authorized by the court provides informed consent for the medical care or treatment. Tex. Fam. Code § 266.004(a). The court must designate in an order a person who will have the responsibility for consenting to medical care. Tex. Fam. Code § 266.004(b). This could be: 1) an individual including the child’s foster parent or child’s parent if the parent’s rights have not been terminated and the court determines that it is in the child’s best interest to have the parent make medical decisions; or 2) the Texas Department of Family and Protective Services (“Department”) or an agent of the Department. Tex. Fam. Code § 266.004(b)(1)&(2). When the Department or an agent of the Department is given the authority to consent to medical care by the court, the Department or its agent must file within five business days the name of the individual who will be providing consent to the court and the parties in the case. Tex. Fam. Code § 266.004(c). If the Department needs to change the individual who is authorized to consent, the Department only has to file notice of the change with the court and the parties within five business days after the change. Tex. Fam. Code § 266.004 (c).

Duties of Person Authorized to Consent to Medical Care

The person authorized to consent to medical care must complete a department-approved training program on informed consent and the provision of all areas of medical care. Tex. Fam. Code § 266.004(h). The person must “participate” in the foster child’s medical appointments. Tex. Fam. Code § 266.004(i). This requirement can be met by attending medical appointments or participating in the appointment by telephone.

Emergency Medical Care

Emergency medical care, however, may be provided without consent by the person authorized to consent when it is necessary to prevent the probability of death or substantial bodily harm to the foster child or others. Tex. Fam. Code § 266.009(a). Such emergencies include when a child threatens to commit suicide or cause serious bodily injury to self or others or exhibits sudden onset of acute symptoms including severe pain which would place the child’s health in serious jeopardy if not treated. Tex. Fam. Code § 266.009(a)(1)&(2). Within two business days, the treating physician must notify the person authorized to consent about the decision to provide emergency medical care. Tex. Fam. Code § 266.009(b).

Petition for Order Related to Medical Care

Chapter 266 provides a procedure for addressing concerns about a foster child’s medical care. First, the Department, the child’s parent if the parent’s rights have not been terminated, a guardian ad litem including a CASA volunteer, an attorney ad litem, or foster care provider may petition the court for an order related to the medical care of the child. Tex. Fam. Code § 266.004(e). Second, the court on its own motion may set a hearing to consider the medical care of the child. Tex. Fam. Code § 266.004(g). Third, if the child’s physician has concerns about the child’s medical care, the physician may also file a letter to the court stating the reasons for his or her concerns. Tex. Fam. Code § 266.004(f). Upon notice of the parties, the court may set a hearing to consider the concerns related to the medical care of the child. The court may enter any order related to the medical care of the child based on the best interest of the child. Tex. Fam. Code § 266.004(g).

Judicial Review of Medical Care

Chapter 266 mandates judicial review of the medical care provided to a foster child. At each permanency or placement review hearing or more often if ordered by the court, the court must review the medical care provided to a foster child since the last hearing. Tex. Fam. Code § 266.007(a). The Department shall prepare a court report which includes the following information about the medical care provided to the foster child:

• Emergency medical care and the circumstances necessitating emergency care;
• All medical and mental health treatment and child’s progress with the treatment;
• Any medication prescribed and the condition, diagnosis and symptoms for which the medication was prescribed and the child’s progress with the medications;
• Whether the child or foster care provider complied with the treatment;
• Any adverse reactions or side effects of any medical treatment;
• Any specific medical condition of the child that has been diagnosed or for which tests are being conducted to make a diagnosis;
• Any activity that the child should avoid that might affect the effectiveness of the treatment including physical activities, other medications or diet; and
• Other information required by the Department or the court.

Tex. Fam. Code § 266.007(a). At or before the hearing, a copy of the court report must be provided to the parties including any other person determined by the Department or the court to be necessary or appropriate for review of the medical care provided to the foster child. Tex. Fam. Code § 266.007(b). At each hearing, the foster child must be given an opportunity to express to the court his or her concerns about the medical care provided to him or her. Tex. Fam. Code § 266.007(c).

Consent to Medical Care by Foster Child Over 16

A foster child who is at least 16 years old may consent to medical care if the court determines that the child has the capacity to consent. Tex. Fam. Code § 266.010(a). Before the child turns 16 years old, he or she must be provided training on informed consent and the provision of medical care as part of the Preparation for Adult Living Program and be advised of the right to a hearing to determine whether the child has the capacity to consent to medical care. Tex. Fam. Code § 266.010(l). The court may make this determination at a permanency or placement review hearing or on its own motion. Tex. Fam. Code § 266.010(b). The child’s attorney ad litem may also file a petition for a hearing to determine capacity to consent. Id. The court may issue an order authorizing the foster child to consent to some or all medical care. Id. If the court determines that the child lacks the capacity to consent, the person previously authorized to consent to medical care shall continue to make medical decisions on behalf of the child. Tex. Fam. Code § 266.010(c). In such cases, the court may consider the child’s capacity to consent at subsequent review hearings. Tex. Fam. Code § 266.010(b).

This provision includes a procedure for overriding a foster child’s refusal to consent to medical care after the court has determined that the child possessed the capacity to consent to medical care. If a foster child who has been given the authority to consent to medical care refuses medical care or treatment, the Department or the private agency providing foster care or case management services may request an order authorizing the medical care. Tex. Fam. Code § 266.010(d). The motion must include the child’s reasons for refusing medical care and a statement signed by the physician stating why the medical care is necessary. Tex. Fam. Code § 266.010(e). The court shall appoint an attorney ad litem for the child if one has not already been appointed. Tex. Fam. Code § 266.010(f). The court shall issue an order authorizing the provision of medical care only if the court finds by clear and convincing evidence that the medical care is in the best interest of the child and that the child lacks the capacity to make a decision regarding the medical care; the failure to provide medical care will result in an observable and material impairment to the growth, development or functioning of the child; or the foster child is at risk of causing substantial bodily harm to the child or others. Tex. Fam. Code § 266.010(g).

Health Passport

Each foster child shall have a health passport which is maintained in an electronic format by September 1, 2007. Tex. Fam. Code § 266.006(a). The passport must include the name and address of the child’s physicians and health care providers, record of each visit with physician or other health care provider, immunization record, list of child’s known health problems and allergies, information about all prescribed medications, and any other available health history that a physician or health care provider deem important. Tex. Fam. Code§ 266.006(b). The passport must be secure and maintain the confidentiality of the child’s health records. Tex. Fam. Code § 266.006(c). When a child is discharged from foster care, the Department shall make the health passport available to the child’s parent, guardian or managing conservator or the child if the child is 18 years old or emancipated. Tex. Fam. Code § 266.006(f).

Medical Review Team

Chapter 266 requires “the use of medical advisory committees and medical review teams, as appropriate, to establish treatment guidelines and criteria by which individual cases of medical care provided to children in foster care will be identified for further, in-depth review.” Tex. Fam. Code § 266.003(a)(6). In response to concerns about the use of psychotropic medications for children in foster care, the Texas Department of State Health Services developed Psychotropic Medication Utilization Parameters for Foster Children, which are available at http://www.dshs.state.tx.us/mhprograms/PsychotropicMedicationUtilizationParametersFosterChildren.pdf.

Practical Tips in Advocating for the Health Care Needs of Foster Children

Being knowledgeable about the medical care provisions in Chapter 266 is not in itself sufficient to guarantee that a foster child receives appropriate medical care. A CASA volunteer must also become informed about the medical care or treatment being provided to a foster child. To illustrate what steps a volunteer could take to advocate for the health care needs of a foster child, consider the following strategies which can be employed to ensure that a foster child is receiving appropriate psychotropic medications:

1. Be Informed
Determine whether the person authorized to consent has given informed consent for the psychotropic medication. For each medication, know what diagnosis and symptoms are being treated by the medication. Make sure the lab work and any other follow-up required for the medication is done. Use the Psychotropic Medication Review Parameters for Foster Children to review the medications being administered to the child. Look for any changes in the child’s appearance or mood, such as weight gains, over-sedation or increased agitation, which may be caused by the medication. Talk to the child about how he or she feels about the medication.

2. Have Courage
Don’t be afraid to ask the foster child’s physician questions about the psychotropic medications being administered to the child. If the foster child is being treated by a physician who is not a psychiatrist and is not improving, request that the child be seen by a child psychiatrist.

3. Request a Medication Review
If a foster child’s medications fall outside the guidelines and criteria established in the Psychotropic Medication Review Parameters for Foster Children, request an in-depth review of the child’s psychotropic medications by a medical review team.

4. Use the Procedures in Chapter 266
Document your concerns about a foster child’s psychotropic medications in your reports to the court. At every review hearing, make sure that the child has an opportunity to express his or her concerns about the medications to the judge. If your concerns about the psychotropic medications are not being addressed by the child’s physician or the caseworker, file a petition for an order related to medical care with the court.

5. Don’t be Complacent
Remember that psychotropic medications are not the panacea for fixing all of the foster child’s problems. If the child has not responded to the medications and other forms of treatment, find an expert to review the child’s case and provide a second opinion.

Conclusion

With the enactment of the medical care provisions in Chapter 266, the framework for ensuring that the individual health care needs of foster children has been created. In their role as an independent voice for children, CASA volunteers are in a unique position to utilize these new requirements and procedures to guarantee that the health care needs of foster children are met.