Medical Welfare is Child Welfare

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Medical Welfare is Child Welfare Powered By Docstoc
					Taylor Dudley
Barton Child Law and Policy Center
June 16, 2011




                                     1
1.   Introduction

2.   Foster Care

3.   Numbers

4.   Contributors

5.   Law and policy

6.   The right to parent and removal

7.   Group work
                                       2
1.   Existing law and policy

2.   Policy change and legislative advocacy

3.   Partnering and building bridges




                                              3
   Early parenting compounds the challenges faced by court
    involved children and increases the likelihood of poor
    outcomes:
     Limited educational opportunities
     Income disparity/poverty
     Poor health outcomes
     Higher rates of incarceration
   Babies born to teen mothers face poor outcomes
     Cycle: Removal  Foster Care  Poor Outcomes
   Teen pregnancies are often high risk for mother and baby


                                                               4
 Reproductive rights
 Preventing pregnancy is a matter of child welfare
   Child health, bodily integrity, human development
   Child well-being (emotional and physical)
   Positive outcomes, success, opportunity
   Societal impact
 Principles apply to all court involved children
   Boys/girls
   Juvenile Justice/Child Welfare
   LGBTQ youth
   Developmentally disabled youth
                                                        5
Who?
 Children, defined as persons under the age of 18 (S.C. St. § 63-7-20(3)).

What?
 24-hour substitute care for children placed away from their parents or
  guardians and for whom the State agency has placement and care
  responsibility (45 CFR § 1355.20).

When and Why?
 Child abuse or neglect occurs. (S.C. St. § 63-7-20(4)).
 Reasonable efforts were made by the department to prevent removal of
  the child and continuing the child’s presence in the home is contrary to
  the welfare of the child (S.C. § 63-7-720).


                                                                              6
Where?
 Children may be placed in relative placement, foster family care,
  residential group care, therapeutic foster care, residential treatment, or
  independent living depending on the needs of the child. (DSS Policies §
  800).

How?
 Court order finding that due to abuse or neglect, retention of the child in
  or return of the child to the home would place the child at unreasonable
  risk of harm affecting the child's life, physical health or safety, or mental
  well-being and the child cannot reasonably be protected from this harm
  without being removed (S.C. § 63-7-1660).



                                                                                  7
   By 19, nearly 50% of female youth in foster care have been
    pregnant.
   Female youth in foster care are 2.5 times more likely than
    those not in foster care to have been pregnant by age 19.
   46% of teen girls in foster care who have been pregnant have
    had a subsequent pregnancy, compared to 29% of their
    peers outside the system.
   50% of 21-year-old men aging out of foster care reported
    they had gotten someone pregnant, compared to 19% of
    their peers who were not in foster care.



                                                                   8
1.   Victims of abuse
2.   Few positive alternatives to motherhood
3.   Parenthood confers meaning upon one’s life
4.   Lack of positive family influence
5.   Lack of family planning/sex education
6.   Ambivalence/fatalism



                                                  9
   Foster care: A State Institution

   State Law

   Department Policies

   Special Issues

   Federal Law: Fostering Connections

   The Right to Parent

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   Foster status constitutionally entitles a child to certain
    protections that the state must insure. (Andrea L. v. Children
    & Youth Servs. of Lawrence Cnty., 987 F.Supp 418, 421 (D. Pa.
    1997)).
   Involuntary placement in a foster home is similar to a
    prisoner being involuntarily placed in an institution, such that
    similar rules of law should be applied. (Taylor v. Ledbetter,
    818 F.2d 791, 796 (11th Cir. 1987)).
   Numerous courts have imposed a constitutional duty to
    protect foster children by analogy to involuntarily
    institutionalized individuals. (Jordan v. City of Philadelphia,
    66 F.Supp.2d 638 (D. Pa. 1999)).
                                                                       11
Purpose of the Child Protection Laws:
 “Establish an effective system of services. . . to
  safeguard the well-being and development of
  endangered children. . . .”
 “Establish an effective system of protection of
  children from injury and harm while living in. .
  . the agencies and institutions meant to serve
  them.” (S.C. St. § 63-7-10 (B)).

                                                       12
Legal Custody:
 “Means the right to physical custody, care,
  and control of a child. . . the right and duty to
  provide. . . ordinary medical care.”
 “Parent or guardian retains the right to make
  decisions of substantial legal significance. . .
  Including major non-emergency medical and
  surgical treatment.” (S.C. St. § 63-7-20(13)).

                                                      13
Medical Consent
 DSS has the authority to make decisions concerning ordinary medical care.
  The severity and degree of the medical procedure determine who at DSS
  makes the decision.
 Exceptions: (1) parents should be given the opportunity to consent where
  possible; (2) parental consent for medical procedures that are necessary;
  (3) youth 16+. (DSS Policies § 835).

Medical Assessments and Follow-up
 A comprehensive medical assessment must be completed within 5
  working days of entry into foster care. (DSS Policies § 810, 16a)
 The case worker arranges for ongoing medical assessments according to
  EPSDT guidelines. (DSS Policies § 818.05.01; Medicaid Paper Based Manual
  § 5122-5123).

                                                                              14
Independent Living
 Programs and services that begin at age 13, regardless of
   permanent plan. Information includes:
    Human sexuality, puberty, bodily functions
    Medication, prescriptions
    STDs, birth control, family planning
    Health care systems, doctors, clinics. (DSS Policies § 832).
 Independent Living Plans
    90 days before 18th birthday (DSS Policies § 819.01.02).



                                                                    15
Consent:
 “Any minor who has reached. . . 16. . . may consent to any
  health services. . . .” (S.C. St. § 63-5-340).
 “Health services of any kind may be rendered to minors of
  any age without the consent of a parent or legal guardian
  when, in the judgment of a person authorized by law to
  render a particular health service, such services are deemed
  necessary. . . .” (S.C. St. § 63-5-350).
Exceptions:
 Operations shall be performed only if essential to the health
  or life of the child. (S.C. St. § 63-5-340; § 63-5-350).
 Emergency Contraception (Plan B)
 Abortion

                                                                  16
   The state does not have a general, comprehensive
    statute prohibiting the disclosure of confidential
    medical information. Privacy protection is addressed in
    statutes governing specific medical conditions.

   Sexually Transmitted Disease: Name of the minor and
    their medical information must be reported if required
    by the mandatory reporting statute. ( S.C. St. § 44-29-
    135; see also S.C. St. § 63-7-310).


                                                              17
   HIPAA: Parents may generally access medical records of their children, unless:
       Minor can consent to care under state law
       Minor obtains care at the direction of the court
       Parent agrees minor and provider have a confidential relationship
       State law prohibits access (if silent, provider’s decision)
       Child has been abused or informing parent could endanger child.


   Title X: Services funded in full or in part by Title X must be made available to
    all youth, regardless of age. Services cannot be conditioned on parental
    consent or notification.
       Exceptions: Abortion – not authorized under Title X funding.; Child abuse.

   SCHIP and Medicaid: Eligible youth may receive confidential family planning
    services.

                                                                                       18
   17+: Plan B, Plan B One-Step, and their
    generic versions are approved by the FDA for
    OTC distribution to youth 17+.

   16 and under: Plan B, Plan B One-Step, and
    their generic versions are available by
    prescription only for youth 16 and under, per
    the FDA.

                                                    19
CONSENT:                           JUDICIAL BYPASS:
S.C. ST. § 44-41-31                S.C. ST. § 44-41-33
   Informed, written consent      Court must make a finding:
    is required from:              1. That the minor is mature
     Legal guardian; or              and well informed
     Grandparent; or
                                      enough to make the
                                      decision on her own; or
     Any person who has
                                   2. That termination would
       been standing in “loco         be in the minor’s best
       parentis” for at least 60      interest.
       days.


                                                                 20
DSS Policies § 833
 The agency cannot consent to an abortion.
 If the youth is under age 17 and cannot obtain
  the requisite consent, refer to area adoption
  staff.
 Consult with Medicaid staff regarding any
  abortion procedure coverage.


                                                   21
   Federal law intended to help children and
    youth achieve better outcomes (permanency).
   Fostering Connections:
     Requires development of a transition plan for youth
      aging out of care.
     Permits expanded use of federal funds for training
      funds.
     Mandates increased health care coordination.


                                                            22
Section                              Opportunities

202:                                 •Health education and services in the transition plan.
Transition Plan for Children Aging   •Encourage case workers to distribute resources on health
Out of Care                          care, healthy relationships, and the consequences of early
                                     pregnancy.

203:                                 •Training for staff and guardians to increase their ability to
Short Term Training                  discuss health education and locate community resources.
Reimbursement

205:                                 •Regularly scheduled, age appropriate physical exams with
Health Oversight and Coordination    an appropriate doctor.
Plan




                                                                                                      23
DSS Policies § 833
   Documented efforts must be made to identify a
    placement for the foster care youth and her child.
   Should the placement disrupt and the baby can no
    longer be placed with the foster care youth, the agency
    must assess risk, safety, and permanency for the baby.
    Use of voluntary placement agreement or court petition
    for custody will be necessary (to continue to draw down
    federal financial assistance to fund the baby’s ongoing
    placement in the foster care system). The baby then
    becomes a foster child.
                                                              24
1.    Get into groups: The number on your chair designates your
      group.
2.    Depending on your group and using knowledge from your
      field, discuss:
      Group 1: How can current law and policy be utilized to
        prevent pregnancy in foster care?
      Group 2: What gaps are in the current law and policy? How
        can they be changed? Consider: ILPs, training, etc.
      Group 3: Who do we need to build bridges with? How can
        we do so? Consider: Juvenile courts, case managers, foster
        parents, attorneys, community resources/schools, youth,
        etc.
                                                                     25
   Group 1
     Existing law and policy
   Group 2
     Gaps in law and policy
   Group 3
     Building bridges




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   Resources
   Questions
     taylor.dudley@emory.edu
     404-727-3970




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