webinar: educational and health care consent laws · webinar: educational and health care consent...
TRANSCRIPT
Webinar: Educational and Health Care
Consent Laws Ana Beltran, Generations United
Tim Harless, Richland County, Ohio Children Services
Regional Webinar for the Midwest: Illinois, Indiana, Iowa, Kansas,
Michigan, Minnesota, Missouri, Nebraska, North Dakota, Ohio,
South Dakota, & Wisconsin
Wednesday, October 22 from 2:30 PM to 3:45 PM (EDT)/
1:30 PM to 2:45 PM (CDT)/ 12:30 PM to 1:45 PM (MDT)
Housekeeping Audio
To hear the presentation select either MIC & SPEAKERS
to listen through your computer speakers or TELEPHONE
The dial in information is under the audio tab
Mute your phone throughout the presentation
Q&A
There will be time for your questions and comments
At any time, you can send your questions/comments to the
organizers and we will pass them on to the presenters
Webinar recording and PowerPoint slides will be available
early next week on www.gu.org and www.grandfamilies.org
Please complete the short survey when the webinar ends
Generations United 2
Thank you
This project has been made possible by the
Annie E. Casey Foundation.
We thank them for their support and
partnership.
www.aecf.org
Generations United 3
Today’s agenda
Background
Essential elements of
responsive consent
laws
Elements to avoid in
responsive consent
laws
Reasons some states
may lack consent laws
Tools and strategies to
enact consent laws
Ohio’s caregiver
authorization affidavit
and power of attorney
laws
Resources
Generations United 4
Grandfamilies
Children across the US are being denied access
to education and child care solely because they
are not being raised by their parents
About 2.7 million children are being raised by
grandparents, other extended family members,
and close family friends
Many of these children are being raised by
relatives without a legal relationship – such as
guardianship or legal custody
Also, only about 104,000 are living with relatives
in foster care
Generations United 6
Informal caregivers
Many relatives raising children do so “informally”
(without a legal relationship and outside of
licensed foster care)
Legal process can be emotionally exhausting and
damaging to relationships
It’s hard to find and afford lawyers
Caregivers may hope that child will ultimately
return to parents’ care
Without a legal relationship, families often face
more barriers
Generations United 7
Inability to access health care
Malpractice, liability and
confidentiality issues often
cause health care
providers to refuse to treat
a child without the consent
of a parent, legal custodian
or guardian even if the
child has insurance
For the caregiver without a
legal relationship, can be
nearly impossible to access
health care for the child
Generations United 8
Inability to enroll children in school
Most districts have residency requirements that a
child attend the school where the parents live
If a child isn’t living with a parent, then many require
legal custody or guardianship
Districts require this proof to avoid abuse by using
another address solely to enroll the child in a
preferred school
But these requirements inadvertently and unjustly
prevent children who are being raised by relatives
from attending school
result in caregivers being held responsible for
violating truancy laws Generations United 9
Consent laws
Generally, both education and health care consent
laws allow a caregiver to complete an affidavit under
penalty of perjury that they are the primary caregiver
of the child
Then, by presenting the form, they can consent to
treatment, school enrollment, and educational
services
These laws typically protect parents’ rights by stating
that parents can rescind the affidavits at any time and
do not give the caregivers legal custody
They also shield health care providers and schools
districts from liability by relying on the affidavit
Generations United 10
Consent laws cont. California seems to have
started the consent law trend
when it passed its combined
law in 1994
Now, 25 states have health
care consent and 17 have
educational consent
Annie E. Casey’s Stepping
Up for Kids report
recommends that states
without these laws enact
them
Generations United 11
Consent laws in the Midwest
Of the states on this webinar:
Both laws – Ohio and Missouri
Health care consent only – Indiana, North Dakota
and South Dakota
Neither – Illinois, Iowa, Kansas, Michigan,
Minnesota, Nebraska and Wisconsin
Generations United 12
Power of Attorney
Parents (legal custodians or guardians) complete
document that states what type of authority they are
conferring
Having parents confer authority can pose significant
barrier for some grandfamilies
if parents can’t be found or
If parents are unwilling to complete a legal
document
Power of attorneys generally confer all powers over
the care of a child, with the exceptions of the powers
to consent to marriage or adoption
13 Generations United
Power of Attorney cont’d Some states specifically allow caregivers to use
power of attorney to confer school-related and
medical decision-making
In this region, Illinois, Indiana, Michigan, Minnesota,
Missouri, Nebraska, North Dakota and Ohio have
such laws
Generations United 14
Elements to include:
Put the form for the
affidavit in the law itself
Cover comprehensive
health care and
educational services
Allow the caregiver to
complete the form
without the parent’s
signature
Address parents’ rights
Shield providers from
liability
Specify the penalties for
fraudulent consent
Allow consent to be
valid until rescinded by
parent or caregiver
Permit all full time
caregivers to complete
affidavits
Generations United 16
Put the form in the affidavit If the form is in the law itself, it
can make it easier for a
caregiver to use without
needing an attorney
Helpful if the laws are combined
and only one form is needed
It can be simpler for school
districts who usually require
health care information as well
Whether the laws are
combined, however, not as
important as if the forms are
readily available
Generations United 17
Cover comprehensive
health care services
Consent authority should include:
Immunizations
Physical, dental and mental health care
Developmental screenings
Occupational, speech, and physical therapies
Delaware includes mental health care – this is a
hurdle that has been faced by many. Anecdotally, its
omission seems to be nothing more than an
oversight, which can be corrected
Delaware also includes developmental screenings
Generations United 19
Cover comprehensive
educational services
Educational enrollment is the primary hurdle
overcome by educational consent laws, but access to
other educational services is also important.
For example from Delaware’s law --
Making educational decisions, including but not
limited to special education decisions
Serving as the contact for the school regarding
truancy, discipline and school-based medical care
Once an affidavit is submitted, the school is no
longer responsible for communicating with the
parent, custodian or guardian
14 Del. Code Ann. § 202
Generations United 20
Do not require parental signatures
No state requires parental signatures
A couple of states ask for parental signatures, but
do not require them if the parent cannot be found
(Delaware and Hawaii)
Generations United 21
Address parents’ rights
To address parents’ rights, language can be
included in the notice section of the affidavit
For example, from Maryland’s health care
consent law --
Parental rights
“An affidavit under this section does not abrogate the
right of the parent or guardian of a child to consent to
health care on behalf of the child in a future health
care decision.”
Md Code Ann., Health-Gen. § 20-105(j).
Generations United 22
Shield providers from liability
To protect health care providers from liability,
states can:
Clarify that the providers have no duty of further
inquiry into the relationship between the caregiver
and child
Protect providers from civil liability, criminal
prosecution, and professional disciplinary action
because they relied on the form, and
Clarify that providers can still be held liable for
negligence
Delaware's law does all three
Generations United 23
Shield schools from liability To protect schools from liability, states can include
language like in Hawaii’s law:
(d) Any person who relies in good faith on the affidavit
has no obligation to conduct any further inquiry or
investigation
(e) No person who relies in good faith on the affidavit for
caregiver consent shall be subject to civil or criminal
liability, or to professional disciplinary action because of
the reliance. Haw. Rev. Stat. § 302A-482
Louisiana makes clear that protection is extended to
situations where the parent would have made an opposite
decision to the caregiver, but the school didn’t know
Generations United 24
Specify penalties for giving
fraudulent consent Most states provide that caregivers can be penalized for
perjury if they provide false information -- the statement
itself seems to be enough to deter people
Typically, the penalties for making false statements are
more stringent under educational consent laws
For educational consent fraud, caregiver often subject to:
Monetary penalties
School tuition costs
Criminal charges
In New Jersey, the school board has the explicit authority
to remove the student. It also authorizes the school board
to impose penalties, rather than relying on the criminal
justice system
Generations United 25
Allow consent authority to be valid
until rescinded
Like Hawaii, states should not put automatic time
limits on their educational or health care consent
affidavits
They should be valid until rescinded by the parent
or the caregiver is no longer raising the child
Generations United 26
Permit all full time caregivers to
complete consent affidavits
The vast majority of states allow all full time
caregivers or caregivers acting in loco parentis (in
the place of a parent) to complete both types of
affidavits
Only five states limit their consent authority to
blood, marriage or adoption and only one further
limits it to just grandparents
Generations United 27
Elements to avoid:
Not allow local school
districts to decide
whether to accept
affidavits
Not require sworn
statements from the
parents
Minimize
documentation
requirements
Generations United 29
Do not allow local school districts to
decide whether to accept affidavits
Educational consent should cover the whole state
Discretion should not be left to the local school
district to accept the affidavit
Generations United 30
Do not require sworn statements
from the parents
Only New Jersey requires a sworn statement
from the parent saying that he is “not capable of
supporting or providing care for the child due to a
family or economic hardship and that the child is
not residing with the resident of the district solely
for the purpose of receiving a free public
education within the district.”
N.J. Stat. Ann. § 40-10B-15
Virginia allows local school districts to require
such statements, but does not require them to.
Va. Code Ann. § 22.1-3(A)(4)
Generations United 31
Do not have onerous
documentation requirements
Try to avoid documentation requirements, such
as reasons the parent is unable to parent
These requirements can be intrusive
Can also be impossible to obtain given federal
health care privacy protections
Generations United 32
Reasons:
alternative methods to
enroll children in school
child’s residency is
where caregiver lives
consent for military
families
power of attorney
laws
open enrollment laws
parents’ rights
school objections
Generations United 34
Alternative methods to enroll
children in school
(1) Child’s residency is where the caregiver lives…
Rhode Island
(2) Consent for military families – Interstate
Compact on Educational Opportunity for Military
Children http://mic3.net Cover limited number of
grandfamilies, so consent laws still necessary
(3) Power of Attorney laws – require action by the
parents, so consent laws still necessary
(4) Open enrollment laws – require action by the
parents, so consent laws still necessary
Generations United 35
Tools and strategies:
educate that existing
alternatives are not
sufficient
protect parents’ rights
involve educational
stakeholders and
respond to their
concerns
make clear that these
laws are cost neutral
protect against liability
and fraud
use community
partners to help
advocate
separate educational
from health care
consent laws
share personal stories
Generations United 37
Educate that existing alternatives
are not sufficient
Advocates must make the case that power of attorney
and open enrollment laws, which require action on the
part of parents, are not responsive to many
grandfamilies
Many families can’t locate parents
Many families can’t obtain cooperation of the
parents
Generations United 38
Protect parents’ rights
An effective response is ensuring that these
laws have notice provisions explicitly:
protecting parents’ rights
stating that the affidavit does not confer
legal custody to the caregiver
Asking for parents’ signatures can be a
compromise, provided it’s not required
Generations United 39
Involve educational stakeholders
and respond to their concerns
Prior to introducing legislation, reach out to one or
two school leaders who are receptive to the idea
of educational consent
They can help identify potential challenges and
ways to address them
Involve school stakeholders throughout the
process
Respond to school concerns with strict penalties
Finally, consider whether including a process to
challenge the statement made in an affidavit
would be a useful compromise
Generations United 40
Make clear that these laws are
cost neutral
Neither law requires a program to be
implemented, salaries to be paid or administrative
costs to be borne
Generations United 41
Protect against liability and fraud
Use liability provisions like those discussed earlier
to protect schools and health care providers
Use penalty provisions to protect against fraud
and abuse
Generations United 42
Use community partners to help
advocate & share personal stories
Unify community partners to help advocate
Bring aging and children’s communities together
Reach out to:
Schools
Pediatricians
Area Agencies on Aging
Kinship navigators
Caregiver support groups
Others?
Generations United 43
Tim Harless
Richland County Children Services
Ohio’s consent and power of attorney
laws
Ohio’s caregiver authorization
affidavit and power of attorney
Enacted together in 2004 to give options to families
Caregiver authorization affidavit = signed only by the
caregiver
Power of attorney = signed by the parent
Both provide grandparent with the same “rights and
responsibilities regarding the care, physical custody, and
control of the child, including the ability to enroll the child in
school, to obtain from the school district educational and
behavioral information about the child, to consent to all
school-related matters regarding the child, and to consent
to medical, psychological, or dental treatment for the child.”
Ohio Rev. Code Ann. § § 3109.52 and 3109.65
Generations United 45
Ohio’s affidavit and power of
attorney differ from other states
In Ohio, the affidavit and power of attorney are:
limited to grandparents only
must be filed with a court (juvenile court)
Generations United 46
Reason for court filing requirement
This requirement exists to give grandparents a way to
request a court hearing if the parent revokes the
power of attorney or terminates the affidavit and the
grandparent believes it is not in the child’s best
interest
The grandparent has 14 days after a revocation or
termination to seek a hearing
The grandparent can keep the child for the 14 days or
until the hearing if ordered by the court
The court hears the case and decides what is in the
best interest of the child.
Ohio Rev. Code Ann. § 3109.76
Generations United 47
How the laws work in practice
Forms must be completed, notarized, and filed
with the juvenile court within 5 days of
notarization
There is no filing fee
Implementation challenges:
Court clerks don’t assist in completing forms
Many court clerks are not familiar with authorization
affidavits
Richland County’s response is to contract with
private attorneys to help caregivers complete the
affidavits
Generations United 48
Laws amended in 2013 Amended both laws in 2013
Repealed automatic one year time limit on both the
caregiver authorization affidavit and the power of
attorney (Amended Ohio Rev. Code Ann. § 3109.55 and
§ 3109.70, by 129th General Assembly, File No.180, HB
279, §1, eff. 3/20/2013)
Also repealed provision requiring that there be a court
hearing within 10 days of the filing of the power of
attorney or caregiver authorization affidavit (Repealed
Ohio Rev. Code Ann. § 3109.77, by 129th General
Assembly, File No. 180, HB 279, §2, eff. 3/20/2013)
Generations United 49
Next step -- extending law to other
caregivers
There is ongoing advocacy work in Ohio to
extend both laws to other extended family
members (aunts, uncles, etc.) and to “significant
others” who are not related by blood, marriage or
adoption
Opposition comes from stakeholders, such as the
courts and schools, who believe the numbers of
caregivers using these laws may become
overwhelming
Generations United 50
Some Available Resources
“It was easier for them to adjust to me because I’m their grandmother.”
- grandmother raising grandchildren
52 Available at www.gu.org and www.grandfamilies.org
Websites & resources
www.gu.org – Free resources on grandfamilies,
including free, downloadable copies of the policy
brief and its summary.
www.grandfamilies.org – A database of state laws
and legislation affecting grandfamilies for all 50
states and DC, in addition to analyses of these
laws and legislation.
www.grandfactsheets.org – fact sheets for each
state and DC.
Generations United 53
Websites & resources cont’d
www.brookdalefoundation.org - The Brookdale
Foundation’s Relatives As Parents Program
(RAPP) is a national network of support groups
and services for the families. They have grantees
in almost all states, Puerto Rico, and the District
of Columbia.
www.aarp.org/quicklink - the AARP Foundation
Benefits QuickLINK website helps people find
and apply for programs that pay for food,
increase income, and cover home and health
care for older adults and children.
Generations United 54
Ana Beltran
Special Advisor, Generations United
Tim Harless
Richland County Children Services
Jaia Peterson Lent
Deputy Executive Director, Generations United
www.gu.org
www.grandfamilies.org