Webinar: Educational and Health Care Consent Laws · Webinar: Educational and Health Care Consent...

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)

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Q&A

There will be time for your questions and comments

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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

http://www.gu.org/

http://www.grandfamilies.org/

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


http://www.aecf.org/

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


Background

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


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


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


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


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


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


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


Essential elements of responsive

consent laws

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


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


18 Generations United

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


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


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)


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).


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


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


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


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


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


Elements to avoid in responsive

consent laws

Elements to avoid:

Not allow local school

districts to decide

whether to accept

affidavits

Not require sworn

statements from the

parents

Minimize

documentation

requirements


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


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)


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


Reasons some states may lack

consent laws

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


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


http://mic3.net/

Tools and strategies to enact

consent laws

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


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


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


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


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


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


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?


Tim Harless

Richland County Children Services

[email protected]

Ohio’s consent and power of attorney

laws

mailto:[email protected]

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


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)


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


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


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)


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


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

http://www.gu.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.


http://www.gu.org/



http://www.grandfactsheets.org/

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.


http://www.brookdalefoundation.org/

http://www.aarp.org/quicklink

Ana Beltran

Special Advisor, Generations United

[email protected]

Tim Harless

Richland County Children Services

[email protected]

Jaia Peterson Lent

Deputy Executive Director, Generations United

[email protected]

www.gu.org

www.grandfamilies.org




http://www.gu.org/


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