DEPARTMENT OF HEALTH AND SOCIAL SERVICES
Division of Services for Aging and Adults with Physical Disabilities
In the Matter Of: |
|
Final Regulations on Establishment of |
Delegation of Power of Relative Caregivers to |
Consent to Medical 13 Del.C. §707 and 708 |
Establishment of Delegation of Power of Relative Caregivers to Consent to Medical Treatment for Minors
Nature of the Proceedings:
Delaware Health and Social Services (DHSS) initiated proceedings to promulgate Regulations regarding relative caregivers without custody or guardianship and their ability to approve medical treatment for others' children in their care under 13 Del.C. § 708.
Public hearings were held according to APA standards. On Tuesday, August 22, a public hearing was held in Dover on both the Caregivers' Medical Authorization and the Caregivers' School Authorization.
There were no comments on the regulations for both Authorizations.
There were written legal concerns regarding protecting parents' rights and the proofs necessary to show that genuine effort was made to locate the parents. More information is in the Summary section below. As a result, a new set of Emergency Regulations and Proposed Regulations were published in the October 2000 Register of Regulations.
The State Council for Persons with Disabilities as well as the Delaware Health Care Association submitted comments. The comments on the proofs necessary to show genuine effort to locate parents and those of these two agencies were received and evaluated. The results of that evaluation are summarized below.
Summary of the Evidence and Information Submitted/findings of Fact, with Agency Response:
• Designing proofs required to show genuine effort to contact absent parents, guardians, or custodians. There are four proofs for a caregiver to choose from to fulfill this stipulation. Originally caregivers were required to choose one proof. In order to show genuine effort to locate the parents, guardians, or custodians, it was agreed that caregivers would be required to send a certified letter to the last known address of the parents, guardians, or custodians. The return receipt marked "Not at this address" would fulfill one proof. The caregiver would choose which proof among the remaining three he or she would fulfill.
• "The definitions in Section I of the Caregivers' Medical Consent may be unauthorized." The definitions are authorized because they apply only to consent to medical treatment by caregivers under the affidavit, not to consent to medical treatment by other persons.
• "Clarification of whether the relative caregiver can consent to involuntary commitment to a hospital for mental illnesses or substance abuse facility." The sentence "Medical treatment does not include treatment in an inpatient mental health facility" has been added.
• "taken before a person having authority to administer such oath or affirmation, such as an officer of the court or other person who has been duly authorized to do so" in the notary section is confusing." We agree and have changed the section to read:
• "An affidavit of written or printed declaration or statement of facts, made voluntarily,
• and confirmed by the Oath or affirmation of the party making it, and taken by a
• licensed notary."
• "only the Caregivers' Medical Authorization form developed by DSAAPD shall be used." The statute does not recite that DSAAPD is even authorized to develop a standard form, much less an exclusive form." The sentence "Only the Caregivers' Medical Authorization form developed by DSAAPD shall be used" is deleted.
• "Clarify that the regulations are not intended to affect the use of a valid power of attorney." As for the power of attorney, it functions as a caregiver's affidavit only if it complies with the formalities of the statute. The "clarification" proposed would not be appropriate.
• "Reasonable effort to locate the parent(s), guardian, or custodian of the child shall include . . .DSAAPD should clarify that the definition of reasonable effort relates only to Section 708(a) and not to 707(b)(5)." We do not believe this clarification is needed. DSAAPD is empowered to regulate only caregiver's consent, not other types of consent authorized under Section 707.
• "Authorization affidavit valid for one year – should end with the calendar year." The law states: §708(b) "The Affidavit is valid for one year . . ." Specifying that the year ends on December 31 would be changing the law.
• "Original versus copy of authorization affidavit to provide health care services." There is nothing in the law or regulations that prohibit photocopied Authorizations.
• "Signature lines on authorization affidavit." The affidavit itself is not part of the regulations.
• "Title of the form." A typographical error has been corrected so that it is clear this Affidavit refers to medical authorization only.
Decision/Order:
The Department finds that the changes made in response to the comments received during the public comment periods do not substantially change the nature of the regulations. Rather, they help to clarify the regulations proposed. Thus, the regulations, as set forth in the attached version, should be issued, in the best interest of the general public of the State of Delaware.
THEREFORE, IT IS ORDERED, that the Regulations governing the Establishment of Delegation of Power of Relative Caregivers to Consent to the Medical Treatment of Minors are adopted, as herein revised, and shall become effective ten days after publication of the final regulations in the Delaware Register of Regulations.
Gregg C. Sylvester, MD, Secretary
November 17, 2000
I. Definitions for terms used in13 Del.C. section 707(a):
1.(a) [Medical treatment includes the use of prescription drugs.] [Medical treatment does not include treatment in an inpatient mental health facility.]
Disease – a pathological condition of a body part, an organ, or a system resulting from various causes, such as infection, genetic defect, or environmental stress, and characterized by an identifiable group of signs or symptoms or life.
Pathology – the medical science concerned with all aspects of disease with an emphasis on the essential nature, causes, and development of abnormal conditions, as well as with the structural and functional changes that result from disease processes. It is also the anatomical or functional manifestations of a disease.
(1)(b) Public clinics include school wellness centers.
This authorization also applies to medical care provided in schools that do not have wellness centers as well as medical care required at school-related activities.
II. Definition for terms used in13 Del.C. section 708:
(1) Affidavit of Establishment of Power to Relative Caregivers to Consent to Medical Treatment of Minors (also known as Caregivers’ Medical Authorization) – An affidavit of written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, [taken before a person having authority to administer such oath or affirmation, such as an officer of the court or other person who has been duly authorized to do so.] [and taken by a licensed notary.]
III. Reasonable effort to locate the parent(s), guardian, or custodian of the child shall include option 1, which is required, and a choice of either option 2, 3, or 4.
(1) Certified mail receipt of a written notice from the caregiver that he or she intends to take medical responsibility for the child. The notice should be sent to the last known address of the parent(s), custodian, or guardian. Proof of this step will be the notice and the return receipt saying that the letter was not deliverable because no one by that name lives at this address.
(2) The caregiver or someone acting in his or her place makes an actual visit to the last known address of the parent(s), custodian, or guardian. The individual making this visit will need to describe what was found at this address and to whom he or she spoke regarding the missing parent(s), custodian, or guardian.
(3) Contact with social service agencies, place of employment, health care provider, or friends verified by a written statement signed by that party confirming that the location of the parent(s), custodian, or guardian is unknown.
(4) [The caregiver places a legal notice in the News Journal and the Delaware State News informing the parent(s), custodian, or guardian of (child's name) ____________________ that the caregiver intends to take educational responsibility of the child. Eight days after publication describe what happened. Include the
response you received or the lack of response. Attach a copy of the legal notice, being sure to include the portion of the newspaper with the date the notice was printed.]
[(5)] Other documents or confirmations that show the parent(s), custodian, or guardian cannot be found.
IV. Affidavit:
Delaware Health and Social Services will maintain the Caregivers’ Medical Authorization form. Anyone who wishes to obtain this form may do so by contacting [Delaware Health and Social Services,] [ their local State Service Center, Public Health clinic, or the] Division of Services for Aging and Adults with Physical Disabilities (DSAAPD) or their local school district office. [Only the Caregivers’ Medical Authorization form developed by DSAAPD shall be used.]