Senate Bill No. 373
(By Senators Prezioso, Minard and Foster)
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[Introduced January 28, 2010; 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 §49-11-1, §49-11-2,
§49-11-3, §49-11-4, §49-11-5, §49-11-6, §49-11-7, §49-11-8,
§49-11-9 and §49-11-10, all relating to establishing the
Caregivers Consent 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; criminal 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 §49-11-1, §49-11-2,
§49-11-3, §49-11-4, §49-11-5, §49-11-6, §49-11-7, §49-11-8, §49-11-
9 and §49-11-10, all to read as follows:
ARTICLE 11. CAREGIVERS CONSENT ACT.
§49-11-1. Short title.
This article may be cited as the Caregivers Consent Act.
§49-11-2. 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 and treatment" means:
(A) Developmental screening;
(B) Mental health screening;
(C) Mental health treatment;
(D) Ordinary and necessary medical and dental examination and
treatment;
(E) Preventive care including ordinary immunizations,
tuberculin testing and well-child care; and
(F) Nonemergency diagnosis and treatment.
§49-11-3. 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
established in this chapter, a caregiver who possess and presents
a notarized affidavit pursuant to section five of this article may
consent on behalf of a minor to 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.
§49-11-4. 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
pursuant to 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.
§49-11-5. 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 is not subject
to civil or criminal liability or to professional disciplinary
action because of that reliance.
§49-11-6. Revocation and termination of consent.
(a) The affidavit of caregiver consent for a minor's health
care is 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.
§49-11-7. 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:
(1) Has no obligation to conduct any further inquiry or
investigation; and
(2) Is not subject to civil or criminal liability or to
professional disciplinary action because of the reliance.
(b) The provisions of subsection (a) of this section 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.
§49-11-8. Exceptions to applicability.
The consent authorized by this section is not applicable for
purposes of the Individuals with Disabilities Education Act,
20 U.S.C. §1400
et seq., or Section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. §791.
§49-11-9. 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 $1,000.
§49-11-10. Rule-making authority.
The Secretary of the Department of Health and Human Resources
is authorized to propose rules necessary to implement the
provisions of this article for legislative approval in accordance
with the provisions of article three, chapter twenty-nine-a of this
code.
NOTE: The purpose of this bill is to establish the Caregivers
Consent Act, allowing 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 the 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