BILL NUMBER: S3248

SPONSOR: SALAZAR
 
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-par-
ents with lawful orders of custody as persons who may make medical deci-
sions 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 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 physi-
cian emergency medical care is needed.

 
JUSTIFICATION:

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.

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 caregiv-
ers 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)(1),
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.

 
FISCAL IMPLICATIONS:

None to the State

 
LEGISLATIVE HISTORY:

5/9/17 Referred to Children and Families Committee
5/16/18 Passed Assembly

 
EFFECTIVE DATE:
Immediately.