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Introduced Version Senate Bill 705 History

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sb705 intr
Senate Bill No. 705

(By Senator Unger)

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[Introduced February 18, 2008; referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §49-6C-1, §49-6C-2, §49-6C-3, §49-6C-4, §49-6C-5, §49-6C-6, §49-6C-7, §49-6C-8, §49-6C-9 and §49-6C-10, all relating to establishing the Consent to Health Care of Minors Act; definitions; caregiver's consent for minor's health care; duty of health care facility or practitioner; affidavit of caregiver consent; revocation or termination of consent; good faith reliance on affidavit; exceptions to applicability; penalty for false statement; and rule-making authority.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §49-6C-1, §49-6C-2, §49-6C-3, §49-6C-4, §49-6C-5, §49-6C-6, §49-6C-7, §49-6C-8, §49-6C-9 and §49-6C-10, all to read as follows:
ARTICLE 6C. CONSENT TO HEALTH CARE OF MINORS ACT.
§49-6C-1. Short title.
This article may be cited as the "Consent to Health Care of Minors Act."
§49-6C-2. Definitions.
As used in this article:
(1) "Caregiver" means any person who is at least eighteen years of age and:
(A) Is related by blood, marriage or adoption to the minor, but who is not the legal custodian or guardian of the minor; or
(B) Has resided with the minor continuously during the immediately preceding period of six months or more.
(2) "Health care" means developmental screening, mental health screening and treatment, and ordinary and necessary medical and dental examination and treatment, preventive care including ordinary immunizations, tuberculin testing and well-child care. Health care also means the examination and treatment of any laceration, fracture or other traumatic injury, or any symptom, disease or pathology which may, in the judgment of the treating health care professional, if left untreated, reasonably be expected to threaten health or life.
§49-6C-3. Caregiver consent for minor's health care.
(a) Except for minor children placed under the custody of the Department of Health and Human Resources, pursuant to proceedings under chapter forty-nine of this code, a caregiver who possesses and presents a notarized affidavit of caregiver consent for a minor's health care under section five of this article may consent on behalf of a minor to primary and preventive medical and dental care and diagnostic testing, and other medically necessary health care and treatment.
(b) Examination and treatment shall be prescribed by or under the supervision of a physician, advanced practice nurse, dentist or mental health professional licensed to practice in the state.
§49-6C-4. Duty of health care facility or practitioner.
The decision of a caregiver who possesses and presents a notarized affidavit of caregiver consent for a minor's health care under section five of this article, shall be honored by a health care facility or practitioner unless the health care facility or practitioner has actual knowledge that a parent, legal custodian or guardian of a minor has made a contravening decision to consent to or to refuse medical treatment for the minor.
§49-6C-5. Affidavit of caregiver consent.
An affidavit of caregiver consent for a minor's health care shall include the following:
(1) The caregiver's name and current home address;
(2) The caregiver's birth date;
(3) The relationship of the caregiver to the minor;
(4) The minor's name;
(5) The minor's birth date;
(6) The length of time the minor has resided with the caregiver;
(7) The caregiver's signature under oath affirming the truth of the matter asserted in the affidavit;
(8) The signature of the minor's parent, guardian or legal custodian consenting to the caregiver's authority over the minor's health care: Provided, That the signature of the minor's parent, guardian or legal custodian is not necessary if the affidavit states that the caregiver has been unable to obtain the signature of the minor's parent, guardian or legal custodian and includes a statement by the caregiver documenting the attempts to obtain the signature of the minor's parent, guardian or legal custodian; and
(9) A statement, as follows:
"General Notices:
This declaration does not affect the rights of the minor's parent, guardian or legal custodian regarding the care, custody and control of the minor, other than with respect to health care, and does not give the caregiver legal custody of the minor.
This affidavit is valid for one year unless the minor no longer resides in the caregiver's home. Furthermore, the minor's parent, guardian or legal custodian may at any time rescind this affidavit of caregiver consent for a minor's health care by providing written notification of the rescission to the appropriate health care professional.
A person who relies in good faith on this affidavit of caregiver consent for a minor's health care has no obligation to conduct any further inquiry or investigation and shall not be subject to civil or criminal liability or to professional disciplinary action because of that reliance."
§49-6C-6. Revocation and termination of consent.
(a) The affidavit of caregiver consent for a minor's health care shall be superseded by written notification from the minor's parent, guardian or legal custodian to the health care professionals providing services to the minor that the affidavit has been rescinded.
(b) The affidavit of caregiver consent for a minor's health care is valid for one year unless the minor no longer resides in the caregiver's home or a parent, guardian or legal custodian revokes his or her approval by written notification to the health care professionals providing services to the minor that the affidavit has been rescinded. If a parent, guardian or legal custodian revokes approval, the caregiver shall notify any health care provider or health service plans with which the minor has been involved through the caregiver.
§49-6C-7. Good faith reliance on affidavit.
(a) Any person who relies in good faith on the affidavit of caregiver consent for a minor's health care shall:
(1) Have no obligation to conduct any further inquiry or investigation; and
(2) Not be subject to civil or criminal liability or to professional disciplinary action because of such reliance.
(b) The provisions of subsection (a) apply even if medical treatment is provided to a minor in contravention of a decision of a parent, legal custodian or guardian of the minor who signed the affidavit if the person providing care has no actual knowledge of the decision of the parent, legal custodian or guardian.
§49-6C-8. Exceptions to applicability.
The consent authorized by this section shall not be applicable for purposes of the Individuals with Disabilities Education Act (20 U.S.C. section 1400 et seq.) or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. section 791).
§49-6C-9. Penalty for false statement.
A person who knowingly makes a false statement in an affidavit under this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars.
§49-6C-10. Rule-making authority.
The Secretary of the Department of Health and Human Resources is authorized to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article.
NOTE: The purpose of this bill is to establish the Consent to Health Care of Minors Act, allowing for a caregiver who is not a parent, legal custodian or guardian of a minor to consent to health care for a minor through an affidavit. The bill provides for revocation and termination of consent, good faith reliance on the affidavit, exceptions to an affidavit's applicability, penalties for a false statement in an affidavit of consent, and rule making authority.

This article is new; therefore, strike-throughs and underscoring have been omitted.
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