Texas law requires that each child in DFPS conservatorship has a medical consenter to make health care decisions for the child. The court names (authorizes) either an individual or DFPS as the medical consenter and puts it in the court order.
- When the court names an individual as medical consenter, that person is ultimately responsible for the medical decisions for that child and answers directly to the court.
- When the court names DFPS to make medical decisions for a child, DFPS must a designate medical consenter and a back-up medical consenter for the child. They answer to DFPS, and DFPS answers to the court.
DFPS may choose medical consenters and back-up medical consenters who are:
- Professional employees of emergency shelters.
- Foster parents.
- CPS caseworkers.
DFPS may not pick medical consenters (or back-ups) who are employees of staffed facilities, such as residential treatment centers or intermediate care facilities for mental retardation. CPS caseworkers are usually designated in these cases unless a relative or other person is available.
DFPS designates medical consenters and back up medical consenters by issuing Form 2085-B. These medical consenters and back-ups must provide copies of Forms 2085-B to each child's doctors or other health care providers. Form 2085-B contains contact information for CPS supervisors and the court in case the health care provider has issues with the decision(s) of a medical consenter.
DPFS may decide to change a child's medical consenter or back up medical consenter for a variety of reasons by issuing another Form 2085-B and notifying the court.
All medical consenters and back-up medical consenters must take training whether they are chosen by the court or DFPS. Mandatory training is available on the DFPS Intranet for DFPS staff and on the DFPS Public Website for all other medical consenters and back-ups.
To see the training, go to:
- Medical Consent Training for Caregivers
- En Español: Capacitación sobre el consentimiento informado para personas que no trabajan para el DFPS
Medical consenters must participate in a child's medical appointments according to CPS policy but healthcare providers may require greater participation. CPS' minimum participation guidelines are below:
- Preventive Care. The medical consenter or back up medical consenter may provide written consent for a residential provider or another person to take a child to a healthcare appointment, unless the health care provider requires the consenter to come in person or call by phone.
Each child in DFPS conservatorship must get the preventive care required by Texas HealthSteps:
- Well child examinations.
- Sensory screening (e.g., vision, hearing).
- Developmental/behavioral assessment.
- Laboratory testing for screening purposes (e.g., blood work, urinalysis, TB testing, STD screening, pelvic exam).
- Anticipatory guidance.
- Dental check-ups.
- Ongoing Behavioral Health Therapy and Allied Health Services. The medical consenter or back up must approve the behavioral or allied health care plan and monitor the progress of the child. The medical consenter is not required to attend every appointment but should participate when the therapist request it. These therapies or services include dietary services, occupational, physical, speech or other therapy.
- Other Medical Care. The medical consenter or back up medical consenter must attend the appointment or participate by phone with the healthcare provider, as specified by the healthcare provider, for all other medical care. This medical care includes medical appointments for:
- Physical health treatment, (e.g., acute care).
- Dental treatment (e.g., fillings, crowns).
- Progress reviews every three months for children prescribed psychotropic medications. This is required by DFPS policy, Service Level Indicators, Licensing Minimum Standards for Child-Placing Agencies, and Residential Child Care Contract Standards.
When the child's medical consenter is a live-in caregiver, participation in medical appointments should not be a problem. However, this can be difficult when the child's medical consenter is an employee of an emergency shelter or CPS. DPFS recognizes that health care providers also have busy schedules and appreciate any attempt by healthcare providers to accommodate CPS employees who are required to participate in children's appointments.
Sixteen and 17 year olds in DFPS care can ask the court whether they can consent to their medical care. This can happen at any hearing after the youth turns 16 years old The court decides if a youth may consent to all, some, or none of his or her medical care.
When the court allows a youth to consent to medical care, DFPS staff, the youth or the youth's caregivers will have a copy of the court order. The youth's caseworker and caregivers are required to help the youth get information about any medical condition(s), tests, treatment, and medications, and to support them in making informed decisions.
However, the court can overrule a youth's decision to refuse medical care even after authorizing the youth to make medical decisions. To do that the court must find by clear and convincing evidence that the medical care is in the best interest of the youth and one of the following:
- The youth lacks the capacity to make the decision.
- Not getting the care will result in observable and material impairment of growth, development, or functioning of the youth.
- The youth is at risk of causing substantial bodily harm to himself/herself or others.
In these situations, DFPS may file a motion asking the court to order a specific medical treatment or allow DFPS to consent to medical care for the youth. The motion must include the youth's reasons for refusing medical care and a statement signed by the physician explaining why medical care is necessary.
In an emergency, state law allows a child in DFPS conservatorship to receive medical care without a medical consenter's permission. The Texas Family Code §266.009(a) defines an emergency as a situation in 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: the child is overtly or continually threatening or attempting to commit suicide or cause serious bodily harm to the child or others; or 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.
In an emergency, the child's caregiver or caseworker is required to take the child to an emergency room or healthcare provider. If no medical consenter is available, the doctor decides if the child's condition is an emergency under the law. If the doctor provides medical care without consent, he or she must notify the medical consenter no later than the second business day after providing medical care.
The court must review a summary of each child's medical care at each hearing held under Chapter 263, which includes the status, permanency, and placement hearings. DFPS includes this information in its reports to the court.
DFPS must notify parents if their child has a significant medical condition. Examples of a serious medical condition include injuries or illnesses that are life threatening or have potentially serious long-term health consequences, including hospitalization for surgery or care other than minor emergency care.