79(R) SB6 - 2nd reading 7 (H)



	Amend CSSB 6 (House Committee printing, page 59, line 9-page 
66, line 24) by striking Section 1.45 of the bill and substituting 
the following:
	SECTION 1.45.  (a)  Subtitle E, Title 5, Family Code, is 
amended by adding Chapter 266 to read as follows:

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.
		(3)  "Executive commissioner" means the executive 
commissioner of the Health and Human Services Commission.
		(4)  "Foster child" means a child who resides in a 
child-care institution, foster group home, foster home, agency 
foster group home, or agency foster home, as those terms are defined 
by Section 42.002, Human Resources Code.
		(5)  "Medical care" includes:                                          
			(A)  routine medical care, including treatment of 
illnesses commonly associated with childhood, and administration 
of medication;
			(B)  immunizations and vaccinations commonly 
administered in childhood;
			(C)  mental health treatment including the 
administration of medication;
			(D)  emergency medical care and administration of 
related medication; and
			(E)  surgery and administration of related 
medication.              
	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.
	Sec. 266.003.  MEDICAL SERVICES FOR CHILD ABUSE AND NEGLECT 
VICTIMS.  (a)  Subject to the availability of funds, the commission 
shall collaborate with health care and child welfare professionals 
to design a comprehensive, cost-effective medical services 
delivery model to meet the needs of children served by the 
department, either directly or by contract.  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)  a review system composed of medical and mental 
health professionals to assess clinical care recommendations as 
needed for individual foster children; and
		(5)  development of protocols for use of psychotropic 
medications for foster children based on the recommendations and 
best practices manual developed by an ad hoc work group consisting 
of experts from the fields of pharmacy, psychiatry, pediatrics, 
family practice, and internal medicine and staff from the 
commission.
	(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)  Notwithstanding any other provision in this section, 
the commission shall implement Subsections (a)(4) and (5) 
regardless of whether the commission implements the other 
provisions of Subsection (a).
	(d)  The executive commissioner shall adopt rules necessary 
to implement this chapter.
	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, address, and telephone number of the individual who 
will exercise the duty and responsibility of providing informed 
consent on behalf of the department.  If that individual 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)  A person authorized under Subsection (b) to consent to 
medical care for a foster child shall attend or shall participate by 
telephone, if feasible, in each appointment of the child with the 
provider of the medical care, other than any counseling or therapy 
session.
	(j)  A person authorized under Subsection (b) to give consent 
to medical care for a foster child must be aware of the child's 
medical condition and history before giving consent.
	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 notify the child's parents of any significant medical 
condition involving a foster child as soon as practicable, but not 
later than 24 hours after the department learns of the significant 
medical condition.
	(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; or
		(3)  has had the parent's parental rights terminated.                  
	Sec. 266.006.  HEALTH PASSPORTS.  (a)  The commission shall 
make available to the person authorized to consent to medical care 
under Section 266.004(b) and any provider of medical care to a 
foster child the most complete health history, including any 
emergency medical care, of the child available to the department.
	(b)  The commission shall develop a health 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 include the 
most complete medical and mental health history, including any 
emergency care, of the child available to the department and must be 
readily accessible to medical care providers.
	(c)  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.
	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.
	Sec. 266.008.  EDUCATION.  (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.
	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, 
including circumstances in which:
		(1)  the child is overtly or continually threatening or 
attempting to commit suicide or cause self-inflicted serious bodily 
harm; or
		(2)  the child is behaving in a manner that indicates 
that the child is unable to satisfy the child's need for 
nourishment, essential medical care, or self-protection.
	(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.
	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.  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.
	(b)  The Health and Human Services Commission is required to 
develop and implement the passport programs required by Sections 
266.006 and 266.008, Family Code, as added by this section, if the 
legislature appropriates money specifically for that purpose.  If 
the legislature does not appropriate money specifically for that 
purpose, the commission may, but is not required to, develop and 
implement the passport programs using other appropriations 
available for that purpose.  In addition, the commission may 
develop and implement the passport programs required by Sections 
266.006 and 266.008, Family Code, as added by this section, only if 
technology necessary to ensure privacy is available.
	(c)  If the Health and Human Services Commission develops  
and implements the passport programs required by Sections 266.006 
and 266.008, Family Code, as added by this section, the commission 
shall:
		(1)  finalize the form and content of the passports not 
later than March 1, 2006;
		(2)  make the health passport required by Section 
266.006, Family Code, as added by this section, available in an 
electronic format not later than September 1, 2007; and
		(3)  ensure, not later than September 1, 2008, that the 
health passport required by Section 266.006, Family Code, as added 
by this section, can interface directly with other electronic 
health record systems that contain information that impacts the 
health care of the child.