CHAPTER 266. MEDICAL CARE AND EDUCATIONAL SERVICES FOR CHILDREN IN FOSTER CARE - Texas Statutes

FAMILY CODE

TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE

PARENT-CHILD RELATIONSHIP

SUBTITLE E. PROTECTION OF THE CHILD

CHAPTER 266. MEDICAL CARE AND EDUCATIONAL SERVICES FOR CHILDREN

IN FOSTER CARE

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 266.001. DEFINITIONS. In this chapter:

(1) "Commission" means the Health and Human Services Commission.

(2) "Department" means the Department of Family and Protective

Services.

(2-a) "Drug research program" means any clinical trial, clinical

investigation, drug study, or active medical or clinical research

that has been approved by an institutional review board in

accordance with the standards provided in the Code of Federal

Regulations, 45 C.F.R. Sections 46.404 through 46.407, regarding:

(A) an investigational new drug; or

(B) the efficacy of an approved drug.

(3) "Executive commissioner" means the executive commissioner of

the Health and Human Services Commission.

(4) "Foster child" means a child who is in the managing

conservatorship of the department.

(4-a) "Investigational new drug" has the meaning assigned by 21

C.F.R. Section 312.3(b).

(5) "Medical care" means all health care and related services

provided under the medical assistance program under Chapter 32,

Human Resources Code, and described by Section 32.003(4), Human

Resources Code.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.65(a), eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

506, Sec. 1, eff. September 1, 2007.

Sec. 266.002. CONSTRUCTION WITH OTHER LAW. This chapter does

not limit the right to consent to medical, dental, psychological,

and surgical treatment under Chapter 32.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.65(a), eff. September 1, 2005.

Sec. 266.003. MEDICAL SERVICES FOR CHILD ABUSE AND NEGLECT

VICTIMS. (a) The commission shall collaborate with health care

and child welfare professionals to design a comprehensive,

cost-effective medical services delivery model, either directly

or by contract, to meet the needs of children served by the

department. The medical services delivery model must include:

(1) the designation of health care facilities with expertise in

the forensic assessment, diagnosis, and treatment of child abuse

and neglect as pediatric centers of excellence;

(2) a statewide telemedicine system to link department

investigators and caseworkers with pediatric centers of

excellence or other medical experts for consultation;

(3) identification of a medical home for each foster child on

entering foster care at which the child will receive an initial

comprehensive assessment as well as preventive treatments, acute

medical services, and therapeutic and rehabilitative care to meet

the child's ongoing physical and mental health needs throughout

the duration of the child's stay in foster care;

(4) the development and implementation of health passports as

described in Section 266.006;

(5) establishment and use of a management information system

that allows monitoring of medical care that is provided to all

children in foster care;

(6) 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;

(7) development of the training program described by Section

266.004(h);

(8) provision for the summary of medical care described by

Section 266.007; and

(9) provision for the participation of the person authorized to

consent to medical care for a child in foster care in each

appointment of the child with the provider of medical care.

(b) The commission shall collaborate with health and human

services agencies, community partners, the health care community,

and federal health and social services programs to maximize

services and benefits available under this section.

(c) The executive commissioner shall adopt rules necessary to

implement this chapter.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.65(a), eff. September 1, 2005.

For expiration of this section, see Subsection (f).

Sec. 266.0031. COMMITTEE ON PEDIATRIC CENTERS OF EXCELLENCE

RELATING TO ABUSE AND NEGLECT. (a) The committee on pediatric

centers of excellence relating to abuse and neglect is composed

of 10 members appointed by the executive commissioner. The

members must include:

(1) a representative of the attorney general's office;

(2) a representative of the Department of State Health Services;

(3) a representative of the Department of Family and Protective

Services;

(4) a representative of the Health and Human Services

Commission;

(5) a representative of a child advocacy center;

(6) three pediatricians who specialize in treating victims of

child abuse;

(7) a representative from a children's hospital; and

(8) a representative of a medical school, as defined by Section

61.501, Education Code, with expertise in forensic consultation.

(b) The executive commissioner shall designate a member

representing the Department of State Health Services as the

presiding officer of the committee.

(c) If there is a medical director for the department, the

executive commissioner shall appoint the medical director to be

the department's representative on the committee.

(d) The committee shall:

(1) develop guidelines for designating regional pediatric

centers of excellence that:

(A) provide medical expertise to children who are suspected

victims of abuse and neglect; and

(B) assist the department in evaluating and interpreting the

medical findings for children who are suspected victims of abuse

and neglect;

(2) develop recommended procedures and protocols for physicians,

nurses, hospitals, and other health care providers to follow in

evaluating suspected cases of child abuse and neglect; and

(3) recommend methods to finance the centers of excellence and

services described by this section.

(e) The committee shall report its findings and recommendations

to the department and the legislature not later than December 1,

2008.

(f) This section expires January 1, 2010.

Added by Acts 2007, 80th Leg., R.S., Ch.

1406, Sec. 21, eff. September 1, 2007.

Sec. 266.004. CONSENT FOR MEDICAL CARE. (a) Medical care may

not be provided to a child in foster care unless the person

authorized by this section has provided consent.

(b) Except as provided by Section 266.010, the court may

authorize the following persons to consent to medical care for a

foster child:

(1) an individual designated by name in an order of the court,

including the child's foster parent or the child's parent, if the

parent's rights have not been terminated and the court determines

that it is in the best interest of the parent's child to allow

the parent to make medical decisions on behalf of the child; or

(2) the department or an agent of the department.

(c) If the person authorized by the court to consent to medical

care is the department or an agent of the department, the

department shall, not later than the fifth business day after the

date the court provides authorization, file with the court and

each party the name of the individual who will exercise the duty

and responsibility of providing consent on behalf of the

department. The department may designate the child's foster

parent or the child's parent, if the parent's rights have not

been terminated, to exercise the duty and responsibility of

providing consent on behalf of the department under this

subsection. If the individual designated under this subsection

changes, the department shall file notice of the change with the

court and each party not later than the fifth business day after

the date of the change.

(d) A physician or other provider of medical care acting in good

faith may rely on the representation by a person that the person

has the authority to consent to the provision of medical care to

a foster child as provided by Subsection (b).

(e) The department, a person authorized to consent to medical

care under Subsection (b), the child's parent if the parent's

rights have not been terminated, a guardian ad litem or attorney

ad litem if one has been appointed, or the person providing

foster care to the child may petition the court for any order

related to medical care for a foster child that the department or

other person believes is in the best interest of the child.

Notice of the petition must be given to each person entitled to

notice under Section 263.301(b).

(f) If a physician who has examined or treated the foster child

has concerns regarding the medical care provided to the foster

child, the physician may file a letter with the court stating the

reasons for the physician's concerns. The court shall provide a

copy of the letter to each person entitled to notice under

Section 263.301(b).

(g) On its own motion or in response to a petition under

Subsection (e) or Section 266.010, the court may issue any order

related to the medical care of a foster child that the court

determines is in the best interest of the child.

(h) Notwithstanding Subsection (b), a person may not be

authorized to consent to medical care provided to a foster child

unless the person has completed a department-approved training

program related to informed consent and the provision of all

areas of medical care as defined by Section 266.001. This

subsection does not apply to a parent whose rights have not been

terminated unless the court orders the parent to complete the

training.

(i) The person authorized under Subsection (b) to consent to

medical care of a foster child shall participate in each

appointment of the child with the provider of the medical care.

(j) Nothing in this section requires the identity of a foster

parent to be publicly disclosed.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.65(a), eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

727, Sec. 1, eff. June 15, 2007.

Sec. 266.0041. ENROLLMENT AND PARTICIPATION IN CERTAIN RESEARCH

PROGRAMS. (a) Notwithstanding Section 266.004, a person may

not authorize the enrollment of a foster child or consent to the

participation of a foster child in a drug research program

without a court order as provided by this section, unless the

person is the foster child's parent and the person has been

authorized by the court to make medical decisions for the foster

child in accordance with Section 266.004.

(b) Before issuing an order authorizing the enrollment or

participation of a foster child in a drug research program, the

court must:

(1) appoint an independent medical advocate;

(2) review the report filed by the independent medical advocate

regarding the advocate's opinion and recommendations concerning

the foster child's enrollment and participation in the drug

research program;

(3) consider whether the person conducting the drug research

program:

(A) informed the foster child in a developmentally appropriate

manner of the expected benefits of the drug research program, any

potential side effects, and any available alternative treatments

and received the foster child's assent to enroll the child to

participate in the drug research program as required by the Code

of Federal Regulations, 45 C.F.R. Section 46.408; or

(B) received informed consent in accordance with Subsection (h);

and

(4) determine whether enrollment and participation in the drug

research program is in the foster child's best interest and

determine that the enrollment and participation in the drug

research program will not interfere with the appropriate medical

care of the foster child.

(c) An independent medical advocate appointed under Subsection

(b) is not a party to the suit but may:

(1) conduct an investigation regarding the foster child's

participation in a drug research program to the extent that the

advocate considers necessary to determine:

(A) whether the foster child assented to or provided informed

consent to the child's enrollment and participation in the drug

research program; and

(B) the best interest of the child for whom the advocate is

appointed; and

(2) obtain and review copies of the foster child's relevant

medical and psychological records and information describing the

risks and benefits of the child's enrollment and participation in

the drug research program.

(d) An independent medical advocate shall, within a reasonable

time after the appointment, interview:

(1) the foster child in a developmentally appropriate manner, if

the child is four years of age or older;

(2) the foster child's parent, if the parent is entitled to

notification under Section 266.005;

(3) an advocate appointed by an institutional review board in

accordance with the Code of Federal Regulations, 45 C.F.R.

Section 46.409(b), if an advocate has been appointed;

(4) the medical team treating the foster child as well as the

medical team conducting the drug research program; and

(5) each individual who has significant knowledge of the foster

child's medical history and condition, including any foster

parent of the child.

(e) After reviewing the information collected under Subsections

(c) and (d), the independent medical advocate shall:

(1) submit a report to the court presenting the advocate's

opinion and recommendation regarding whether:

(A) the foster child assented to or provided informed consent to

the child's enrollment and participation in the drug research

program; and

(B) the foster child's best interest is served by enrollment and

participation in the drug research program; and

(2) at the request of the court, testify regarding the basis for

the advocate's opinion and recommendation concerning the foster

child's enrollment and participation in a drug research program.

(f) The court may appoint any person eligible to serve as the

foster child's guardian ad litem, as defined by Section 107.001,

as the independent medical advocate, including a physician or

nurse or an attorney who has experience in medical and health

care, except that a foster parent, employee of a substitute care

provider or child placing agency providing care for the foster

child, representative of the department, medical professional

affiliated with the drug research program, independent medical

advocate appointed by an institutional review board, or any

person the court determines has a conflict of interest may not

serve as the foster child's independent medical advocate.

(g) A person otherwise authorized to consent to medical care for

a foster child may petition the court for an order permitting the

enrollment and participation of a foster child in a drug research

program under this section.

(h) Before a foster child, who is at least 16 years of age and

has been determined to have the capacity to consent to medical

care in accordance with Section 266.010, may be enrolled to

participate in a drug research program, the person conducting the

drug research program must:

(1) inform the foster child in a developmentally appropriate

manner of the expected benefits of participation in the drug

research program, any potential side effects, and any available

alternative treatments; and

(2) receive written informed consent to enroll the foster child

for participation in the drug research program.

(i) A court may render an order approving the enrollment or

participation of a foster child in a drug research program

involving an investigational new drug before appointing an

independent medical advocate if:

(1) a physician recommends the foster child's enrollment or

participation in the drug research program to provide the foster

child with treatment that will prevent the death or serious

injury of the child; and

(2) the court determines that the foster child needs the

treatment before an independent medical advocate could complete

an investigation in accordance with this section.

(j) As soon as practicable after issuing an order under

Subsection (i), the court shall appoint an independent medical

advocate to complete a full investigation of the foster child's

enrollment and participation in the drug research program in

accordance with this section.

(k) This section does not apply to:

(1) a drug research study regarding the efficacy of an approved

drug that is based only on medical records, claims data, or

outcome data, including outcome data gathered through interviews

with a child, caregiver of a child, or a child's treating

professional;

(2) a retrospective drug research study based only on medical

records, claims data, or outcome data; or

(3) the treatment of a foster child with an investigational new

drug that does not require the child's enrollment or

participation in a drug research program.

(l) The department shall annually submit to the governor,

lieutenant governor, speaker of the house of representatives, and

the relevant committees in both houses of the legislature, a

report regarding:

(1) the number of foster children who enrolled or participated

in a drug research program during the previous year;

(2) the purpose of each drug research program in which a foster

child was enrolled or participated; and

(3) the number of foster children for whom an order was issued

under Subsection (i).

(m) A foster parent or any other person may not receive a

financial incentive or any other benefit for recommending or

consenting to the enrollment and participation of a foster child

in a drug research program.

Added by Acts 2007, 80th Leg., R.S., Ch.

506, Sec. 2, eff. September 1, 2007.

Sec. 266.005. PARENTAL NOTIFICATION OF SIGNIFICANT MEDICAL

CONDITIONS. (a) In this section, "significant medical

condition" means an injury or illness that is life-threatening or

has potentially serious long-term health consequences, including

hospitalization for surgery or other procedures, except minor

emergency care.

(b) Except as provided by Subsection (c), the department shall

make reasonable efforts to notify the child's parents within 24

hours of:

(1) a significant medical condition involving a foster child;

and

(2) the enrollment or participation of a foster child in a drug

research program under Section 266.0041.

(c) The department is not required to provide notice under

Subsection (b) to a parent who:

(1) has failed to give the department current contact

information and cannot be located;

(2) has executed an affidavit of relinquishment of parental

rights;

(3) has had the parent's parental rights terminated; or

(4) has had access to medical information otherwise restricted

by the court.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.65(a), eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

506, Sec. 3, eff. September 1, 2007.

Sec. 266.006. HEALTH PASSPORT. (a) The commission, in

conjunction with the department, and with the assistance of

physicians and other health care providers experienced in the

care of foster children and children with disabilities and with

the use of electronic health records, shall develop and provide a

health passport for each foster child. The passport must be

maintained in an electronic format and use the commission's and

the department's existing computer resources to the greatest

extent possible.

(b) The executive commissioner shall adopt rules specifying the

information required to be included in the passport. The

required information may include:

(1) the name and address of each of the child's physicians and

health care providers;

(2) a record of each visit to a physician or other health care

provider, including routine checkups conducted in accordance with

the Texas Health Steps program;

(3) an immunization record that may be exchanged with ImmTrac;

(4) a list of the child's known health problems and allergies;

(5) information on all medications prescribed to the child in

adequate detail to permit refill of prescriptions, including the

disease or condition that the medication treats; and

(6) any other available health history that physicians and other

health care providers who provide care for the child determine is

important.

(c) The system used to access the health passport must be secure

and maintain the confidentiality of the child's health records.

(d) Health passport information shall be part of the

department's record for the child as long as the child remains in

foster care.

(e) The commission shall provide training or instructional

materials to foster parents, physicians, and other health care

providers regarding use of the health passport.

(f) The department shall make health passport information

available in printed and electronic formats to the following

individuals when a child is discharged from foster care:

(1) the child's legal guardian, managing conservator, or parent;

or

(2) the child, if the child is at least 18 years of age or has

had the disabilities of minority removed.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.65(a), eff. September 1, 2005.

Sec. 266.007. JUDICIAL REVIEW OF MEDICAL CARE. (a) At each

hearing under Chapter 263, or more frequently if ordered by the

court, the court shall review a summary of the medical care

provided to the foster child since the last hearing. The summary

must include information regarding:

(1) the nature of any emergency medical care provided to the

child and the circumstances necessitating emergency medical care,

including any injury or acute illness suffered by the child;

(2) all medical and mental health treatment that the child is

receiving and the child's progress with the treatment;

(3) any medication prescribed for the child and the condition,

diagnosis, and symptoms for which the medication was prescribed

and the child's progress with the medication;

(4) the degree to which the child or foster care provider has

complied or failed to comply with any plan of medical treatment

for the child;

(5) any adverse reaction to or side effects of any medical

treatment provided to the child;

(6) any specific medical condition of the child that has been

diagnosed or for which tests are being conducted to make a

diagnosis;

(7) any activity that the child should avoid or should engage in

that might affect the effectiveness of the treatment, including

physical activities, other medications, and diet; and

(8) other information required by department rule or by the

court.

(b) At or before each hearing under Chapter 263, the department

shall provide the summary of medical care described by Subsection

(a) to:

(1) the court;

(2) the person authorized to consent to medical treatment for

the child;

(3) the guardian ad litem or attorney ad litem, if one has been

appointed by the court;

(4) the child's parent, if the parent's rights have not been

terminated; and

(5) any other person determined by the department or the court

to be necessary or appropriate for review of the provision of

medical care to foster children.

(c) At each hearing under Chapter 263, the foster child shall be

provided the opportunity to express to the court the child's

views on the medical care being provided to the child.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.65(a), eff. September 1, 2005.

Sec. 266.008. EDUCATION PASSPORT. (a) The commission shall

develop an education passport for each foster child. The

commission, in conjunction with the department, shall determine

the format of the passport. The passport may be maintained in an

electronic format. The passport must contain educational records

of the child, including the names and addresses of educational

providers, the child's grade-level performance, and any other

educational information the commission determines is important.

(b) The department shall maintain the passport as part of the

department's records for the child as long as the child remains

in foster care.

(c) The department shall make the passport available to the

person authorized to consent to medical care for the foster child

and to a provider of medical care to the foster child if access

to the foster child's educational information is necessary to the

provision of medical care and is not prohibited by law.

(d) The department and the commission shall collaborate with the

Texas Education Agency to develop policies and procedures to

ensure that the needs of foster children are met in every school

district.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.65(a), eff. September 1, 2005.

Sec. 266.009. PROVISION OF MEDICAL CARE IN EMERGENCY. (a)

Consent or court authorization for the medical care of a foster

child otherwise required by this chapter is not required in an

emergency during which it is immediately necessary to provide

medical care to the foster child to prevent the imminent

probability of death or substantial bodily harm to the child or

others, including circumstances in which:

(1) the child is overtly or continually threatening or

attempting to commit suicide or cause serious bodily harm to the

child or others; or

(2) the child is exhibiting the sudden onset of a medical

condition manifesting itself by acute symptoms of sufficient

severity, including severe pain, such that the absence of

immediate medical attention could reasonably be expected to

result in placing the child's health in serious jeopardy, serious

impairment of bodily functions, or serious dysfunction of any

bodily organ or part.

(b) The physician providing the medical care or designee shall

notify the person authorized to consent to medical care for a

foster child about the decision to provide medical care without

consent or court authorization in an emergency not later than the

second business day after the date of the provision of medical

care under this section. This notification must be documented in

the foster child's health passport.

(c) This section does not apply to the administration of

medication under Subchapter G, Chapter 574, Health and Safety

Code, to a foster child who is at least 16 years of age and who

is placed in an inpatient mental health facility.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.65(a), eff. September 1, 2005.

Sec. 266.010. CONSENT TO MEDICAL CARE BY FOSTER CHILD AT LEAST

16 YEARS OF AGE. (a) A foster child who is at least 16 years of

age may consent to the provision of medical care, except as

provided by Chapter 33, if the court with continuing jurisdiction

determines that the child has the capacity to consent to medical

care. If the child provides consent by signing a consent form,

the form must be written in language the child can understand.

(b) A court with continuing jurisdiction may make the

determination regarding the foster child's capacity to consent to

medical care during a hearing under Chapter 263 or may hold a

hearing to make the determination on its own motion. The court

may issue an order authorizing the child to consent to all or

some of the medical care as defined by Section 266.001. In

addition, a foster child who is at least 16 years of age, or the

foster child's attorney ad litem, may file a petition with the

court for a hearing. If the court determines that the foster

child lacks the capacity to consent to medical care, the court

may consider whether the foster child has acquired the capacity

to consent to medical care at subsequent hearings under Section

263.503.

(c) If the court determines that a foster child lacks the

capacity to consent to medical care, the person authorized by the

court under Section 266.004 shall continue to provide consent for

the medical care of the foster child.

(d) If a foster child who is at least 16 years of age and who

has been determined to have the capacity to consent to medical

care refuses to consent to medical care and the department or

private agency providing substitute care or case management

services to the child believes that the medical care is

appropriate, the department or the private agency may file a

motion with the court requesting an order authorizing the

provision of the medical care.

(e) The motion under Subsection (d) must include:

(1) the child's stated reasons for refusing the medical care;

and

(2) a statement prepared and signed by the treating physician

that the medical care is the proper course of treatment for the

foster child.

(f) If a motion is filed under Subsection (d), the court shall

appoint an attorney ad litem for the foster child if one has not

already been appointed. The foster child's attorney ad litem

shall:

(1) discuss the situation with the child;

(2) discuss the suitability of the medical care with the

treating physician;

(3) review the child's medical and mental health records; and

(4) advocate to the court on behalf of the child's expressed

preferences regarding the medical care.

(g) The court shall issue an order authorizing the provision of

the medical care in accordance with a motion under Subsection (d)

to the foster child only if the court finds, by clear and

convincing evidence, after the hearing that the medical care is

in the best interest of the foster child and:

(1) the foster child lacks the capacity to make a decision

regarding the medical care;

(2) the failure to provide the medical care will result in an

observable and material impairment to the growth, development, or

functioning of the foster child; or

(3) the foster child is at risk of suffering substantial bodily

harm or of inflicting substantial bodily harm to others.

(h) In making a decision under this section regarding whether a

foster child has the capacity to consent to medical care, the

court shall consider:

(1) the maturity of the child;

(2) whether the child is sufficiently well informed to make a

decision regarding the medical care; and

(3) the child's intellectual functioning.

(i) In determining whether the medical care is in the best

interest of the foster child, the court shall consider:

(1) the foster child's expressed preference regarding the

medical care, including perceived risks and benefits of the

medical care;

(2) likely consequences to the foster child if the child does

not receive the medical care;

(3) the foster child's prognosis, if the child does receive the

medical care; and

(4) whether there are alternative, less intrusive treatments

that are likely to reach the same result as provision of the

medical care.

(j) This section does not apply to emergency medical care. An

emergency relating to a foster child who is at least 16 years of

age, other than a child in an inpatient mental health facility,

is governed by Section 266.009.

(k) This section does not apply to the administration of

medication under Subchapter G, Chapter 574, Health and Safety

Code, to a foster child who is at least 16 years of age and who

is placed in an inpatient mental health facility.

(l) Before a foster child reaches the age of 16, the department

or the private agency providing substitute care or case

management services to the foster child shall advise the foster

child of the right to a hearing under this section to determine

whether the foster child may consent to medical care. The

department or the private agency providing substitute care or

case management services shall provide the foster child with

training on informed consent and the provision of medical care as

part of the Preparation for Adult Living Program.

Added by Acts 2005, 79th Leg., Ch.

268, Sec. 1.65(a), eff. September 1, 2005.