BILL NUMBER:  S6015A

 TITLE OF BILL :

An act to amend the family court act and the public health law, in
relation to allowing a person having a lawful order of custody of a
child to make medical decisions for such child

 PURPOSE : OF THE BILL:

This bill amends the Family Court Act Section 657(c) to include
non-parents with lawful orders of custody as persons who may make
medical decisions for minors in their care, and amends Public Health
Law Section 2504 to include non-parents with lawful orders of custody
along with parents and guardians as persons whose consent is not
needed for the provision of medical, dental, health and hospital
services when in the judgement of a physician emergency medical care
is needed.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1 of this bill would amend Family Court Act Section 657(c) to
add persons possessing a lawful order of custody as persons who have
the right and responsibility, alongside the current provision of those
possessing a lawful order of guardianship, to make medical decisions
and necessary consents regarding the child in their care.
              

Section 2 of this bill would amend Public Health Law Section 2504 to
include legal custodians along with the current parents and guardians
as persons whose consent is not needed for the provision of medical,
dental, health and hospital services when in the judgement of a
physician emergency medical care is needed.

 EXISTING LAW :

Article Six, section 657 of the Family Court Act currently only allows
persons possessing a lawful order of guardianship of a child the right
and responsibility to make decisions, including necessary consents,
regarding the child's protection, education, care and control, health
and medical needs, and the physical custody of the person of the
child.

Section 2504(4) currently declares that medical, dental, health and
hospital services may be rendered to persons of any age without the
consent of a parent or legal guardian when in the judgement of a
physician an emergency exists that warrants medical treatment.

 JUSTIFICATION :

Article six, section 657 of the Family Court Act must be amended to
add the category of those in possession of a lawful order of custody
of a child to be able to make decisions regarding the child in their
care.

Legal custodians who must make medical decisions but who do not have
court orders expressly providing such powers can be denied
non-emergency medical care for children by medical providers. The
addition of legal custodians to this law will ensure that thousands of
non-parent legal custodians do not have to go back to court to request
modification of their court order to provide for the child in their
care.

According to the U. S. Census American Community Survey data, in New
York State, there are more than 130,000 grandparent "kinship"
families. Together with aunts, uncles and other family members,
estimates are as many as 200,000 kinship families are raising 300,000
children in New York State. Kinship caregivers are defined as
non-parents, including grandparents, blood relatives, and close family
friends who provide fulltime care and control of children in their
household. Studies show that children placed in care with relatives
fare much better emotionally and intellectually than children who go
into foster care with strangers (Marc Winokur, Amy Holtan, and Deborah
Valentine, "Kinship Care for the Safety, Permanency, and Well-Being of
Children Removed From the Home for Maltreatment," Campbell Systematic
Reviews 1 (2009), doi:10.4073/ csr.2009.1; Rubin, D., Springer, S. H.,
Zlotnik, S., & Kang-Yi, C. D.  (2017). Needs of Kinship Care Families
and Pediatric Practice.  Pediatrics, 139(4), e20170099.
doi:10.1542/peds.2017-0099; National Survey of Child and Adolescent
Well-Being (NSCAW), CPS Sample Component Wave 1 Data Analysis Report,
Washington, DC: U.S.  Department of Health and Human Services,
Administration for Children and Families, April 2005.)

While the Office of Court Administration does not maintain data on the
number of non-parent caregivers awarded legal custody or guardianship,
it is commonly acknowledged that in many family courts kinship
caregivers independently seek legal custody pursuant to Family Court
Act 651. According to the Office for Children and Family Services, it
is also common practice that relatives are often given orders of
custody of children who are at risk of being removed from their
parents by Child Protective Services pursuant to Family Court Act
1017(2)(a)(i), 1055(a) or 1089(b).

Unless these caregivers have orders expressly written to provide them
with powers to make medical decisions for the children they have
taken, they are not lawfully allowed to make medical decisions for the
children in their care. Until recently, medical providers rarely
challenged the assumed medical decision making authority of these
non-parent legal custodians. However, with the growth of "kinship
care" medical providers are increasingly denying access to health care
based upon the lack of statutory power for such legal custodians.

By expanding the law to include those caregivers who have lawful
orders of custody, tens of thousands of legal custodians will not have
to have their custody orders amended, and medical service providers
will be protected when serving children under the care of legal
custodians.

Public Health Law Section 2504 should be amended to include caregivers
who have lawful orders of custody in order to insure that medical,
dental, health and hospital services may be rendered to persons of any
age without the consent of a parent or legal guardian or legal
custodian when an emergency exists that warrants medical care.

 PRIOR LEGISLATIVE HISTORY :

This is a new bill.

 FISCAL IMPACT :

No anticipated budget implications

EFFECTIVE DATE:

This act shall take effect immediately.