Microsoft word - healthcare updated 4-09 with medicare bp3.doc
Health Care Family Planning Sterilization Abortion The Minor and Health Care Children's Health Insurance Mental Health Access to Medical Records and Related Rights Advance Directives Long-Term Care Decision Making Emergency Medical Care Medicare Medicaid Contributing Authors: Roberta Green Dina Mohler Susan Saxe Dr. Alvin "Woody" Moss Kathleen Sherman Suzanne Messenger Taunja Willis Miller Cheryl Eifert
Excerpt from Women and the Law: A Legal Rights Handbook, Online Edition, 2007 by the West Virginia Women’s Commission (www.wvdhhr.org/women/) and the Women Lawyers Committee of the West Virginia State Bar (www.wvbar.org/). PLEASE NOTE: This book provides general information about the law and a background about legal matters. It is not intended to be used in lieu of legal advice on any individual problem and is not intended to create lawyer-client advice as to any individual problem. If you have a legal problem, you should contact a lawyer to provide advice on the particular laws that apply to your circumstance. Planning What birth control devices are available and do I need a doctor's prescription to get them?
There are a variety of birth control devices available. Some require a prescription and
The diaphragm with spermicidal jelly or cream, the cervical cap, the vaginal ring, birth
control pills, Depo-Provera and Lunelle, the OrthoEvra contraceptive patch, the NuvaRing, morning after pills, Norplant, and the intrauterine device (IUD) all need a prescription, as each of these methods of birth control require some degree of medical supervision.
The female condom, or vaginal pouch; the male condom; the contraceptive sponge; and
spermicides do not require a prescription. What are the differences among the birth control devices and how effective are they?
female condom, or vaginal pouch, is a polyurethane sheath about 6 ½ inches
long that is designed to be used one time. It is inserted into the vagina and lines the vaginal wall, helping to prevent pregnancy and sexually transmitted diseases. One end of the condom is closed to prevent access of sperm into the cervix. The female condom was approved for use in the United States in 1993 and is marketed under various brand names, including Reality, Femidom, and Care. The benefits of the female condom are that it can be inserted up to eight hours before intercourse, it requires no special storage methods, and it is less likely to cause an allergic reaction than a male condom. The disadvantages include difficulty in insertion, a higher failure rate than nonbarrier methods like the birth control pill, the expense, and the lack of availability. When used correctly, the female condom has an expected failure rate of 6 percent. However, because the female condom is often used incorrectly or reused, the actual failure rate is closer to 21 percent. 2.
male condom is a single-use sheath, generally made of thin latex rubber,
which is placed over an erect penis and acts as a barrier to keep sperm from entering the cervical opening. Some condoms are coated with a spermicide that kills sperm on contact and offers greater protection against sexually transmitted diseases. Male condoms should not be used with
lotions, oils or petroleum jellies such as Vaseline, as these substances can reduce the effectiveness of the condom. Male condoms can be used with non-oil based lubricants, like K-Y Jelly, and with spermicidal foams, creams or jellies. The advantages of male condoms are ready availability, low cost, and increased protection against sexually transmitted diseases, including HIV. The disadvantages of male condoms are a perceived decrease in sensation and enjoyment, breakage, and spillage. When used properly, a male condom has an expected failure rate of 3 percent. With additional spermicides, the expected failure rate is less than 1 percent. However, because male condoms are not always applied or removed properly, the actual failure rate is about 12 percent. 3.
Vaginal spermicides can be bought at any drug store without a prescription.
Depending upon the type of spermicide used, the application methods vary; however, all are relatively easy to use. The advantages of vaginal spermicides include their availability and, when used alone, a perceived increase in sensation and enjoyment. The disadvantages include messy application, a lack of protection against most sexually transmitted diseases, and variable effectiveness against pregnancy. When used alone but correctly, the expected failure rate is about 5 percent. When used in conjunction with a male condom, the expected failure rate is less than 1 percent. However, because spermicides are not always used correctly, the average failure rate is around 21 percent. 4.
vaginal contraceptive sponge, which was first introduced in 1983, rapidly
became the most popular contraceptive device for women. However, in 1994, the sponge was taken off the market due to manufacturing problems. The sponge was reintroduced to the American public in 2003. The sponge is a donut-shaped polyurethane device that is inserted into the vagina to cover the cervix and act as a barrier to sperm. One advantage of the sponge is its easy application. Also, the sponge protects against conception for 24 hours and can be used for multiple acts of intercourse during this time frame. The disadvantages of the sponge include difficulty in removing it, its lack of protection against sexually transmitted diseases, and the possible development of toxic shock syndrome if the sponge is not removed within 30 hours of insertion. When used correctly, the sponge has an expected failure rate of 9 percent. However, the typical failure rate of the sponge is about 15 percent. 5.
cervical cap is a soft, cup-shaped device that fits over the cervical opening,
providing a barrier to sperm. The cervical cap is smaller than a diaphragm and comes in different sizes, so your doctor must fit it to your cervical opening. The cap is filled with a spermicide before use to provide added protection against pregnancy. It can be inserted up to eight hours before intercourse and can be left in place for as long as 48 hours. The advantages of the cap include its smaller size, its continuous protection against pregnancy during the entire time it is in place, regardless of how many episodes of intercourse occur, and the fact that it does not require the ongoing use of hormones. The disadvantages include a lack of protection against sexually transmitted diseases, difficulty in fitting women who have experienced childbirth, and the theoretical risk of toxic shock syndrome if the cap is left in place for too long. When used correctly, the cervical cap has an expected failure rate of about 9 percent. However, the typical failure rate is approximately 17 percent.
diaphragm is a shallow, cup-shaped latex device with a spring mechanism
designed to hold it in the vagina. The diaphragm is filled with a spermicide before insertion and is placed over the cervical opening acting as a barrier to sperm. Diaphragms are made in different sizes, so your doctor will have to measure your vaginal canal to find the one that fits you the best. The advantages of the diaphragm include its ability to provide protection against pregnancy without the use of hormones. The disadvantages include an increased risk for urinary tract infections, its lack of protection against sexually transmitted diseases, and its awkwardness. When used correctly, a diaphragm has an expected failure rate of about 9 percent; however, typical failure rates are approximately 20 percent. 7.
intrauterine device (IUD) is a small, plastic device that is placed inside the
uterus by your doctor. A string is connected to the device and rests in the upper vagina so that your doctor can remove it. IUDs can contain hormones or can be partially made of copper. When placed in the uterus, the IUD interferes with effective fertilization of an egg by either immobilizing sperm or by changing the lining of the uterine wall, preventing implantation of the fertilized egg. Hormone-releasing IUDs also inhibit the pituitary gland, preventing egg development and release. While popular in Europe, IUDs have not been widely used in the United States due to negative publicity associated with one IUD, the Dalkon Shield, which caused high rates of pelvic inflammatory disease in the 1970s. However, the Dalkon Shield has long since been removed from the market, and the newer models, which are considered much safer and more effective for protecting against pregnancy, are gaining in popularity. Once inserted, IUDs require little attention and last between 5-10 years. IUDs are not recommended for women with a history of cervical or uterine cancer or pelvic inflammatory disease, or women who may be pregnant. In some women, IUDs can increase the risk of ectopic pregnancy, which is a pregnancy outside the uterus. For these reasons, you should thoroughly discuss the risks and benefits of IUDs with your doctor before deciding to use an IUD as your method of birth control. The advantages of IUDs include their long-term contraceptive effect, their relatively low cost, and the fact that fertility returns soon after removal of the IUD. The disadvantages of IUDs include a lack of protection against sexually transmitted diseases and increased or absent menstrual bleeding in some women. IUDs provide effective birth control with failure rates ranging between 1 and 2 percent. Because IUDs do not require you to do anything before intercourse, user error is not a factor in the failure rate. 8.
Birth control pills are one of the most widely used contraceptive devices. The
pills generally inhibit the development and release of eggs, preventing effective fertilization. Birth control pills are not recommended for women with severe headaches, high blood pressure, liver disease, blood clotting disorders, diabetes, cardiac disease, or sickle cell anemia. You should have a thorough discussion with your doctor about the risks and benefits of birth control pills before you decide on this method of birth control. The advantages of birth control pills include their ease of use, their tendency to result in lighter menstrual flow, a decrease in ovarian cysts, and a decrease in episodes of endometriosis. The disadvantages of birth control pills include their lack of protection against sexually transmitted diseases, an increased risk of blood clots, mood swings and weight gain in some women, and the fact that women sometimes forget to take the pill. When taken as prescribed, birth control pills have an expected failure rate of about 1 percent. In typical usage, however, birth control pills have an expected failure rate of about 5 percent.
Norplant is a long-lasting contraceptive system in which six capsules are
implanted under the skin of a woman’s upper arm by her doctor. The capsules contain synthetic hormones that thicken the cervical mucous, blocking sperm, and alter ovulation, making pregnancy unlikely. The capsules are designed to last up to five years and can be replaced at the end of five years with another set of capsules. Norplant is not recommended for women with a history of liver disease, seizure disorder requiring anticonvulsant medication, severe headaches, heart disease, stroke, breast cancer, or blood clots. You should thoroughly discuss all the risks and benefits of Norplant with your physician before choosing it as your method of birth control. The advantages of Norplant include its continuous protection against pregnancy, its five-year life span, and the fact that you do not have to do anything before, during, or after intercourse. The disadvantages include menstrual irregularities, headaches and weight gain in some women, and its lack of protection against sexually transmitted diseases. Norplant has been shown to be very effective in preventing pregnancy, with an expected failure rate of less than 1 percent during the first year of use and an overall failure rate of less than 4 percent over the five-year life span of the capsules.
Injectable contraceptives like Depo-Provera and Lunelle are long-acting
synthetic hormones that are given by injection on a regular basis. Depo-Provera contains only one hormone and requires a new injection every 12 weeks. Lunelle contains a combination of hormones and requires a repeat injection every 4 weeks. Injectable contraceptives have been proven to be very effective, with an expected failure rate of less than 1 percent. However, there is some controversy over the risks and benefits of injectable contraceptives. For example, one recent study indicated that women who use injectable contraceptives have a greater risk of contracting chlamydia and gonorrhea than women who use other methods of birth control, although no one knows the reason for this difference. Women with a history of heart disease, liver disease, cancer of the breast or reproductive organs, and blood clots should not use injectable contraceptives. You should get as much information as possible and discuss the risks and benefits of injectable contraceptives with your doctor before selecting this method of birth control. The advantages of injectable contraceptives include their continuous and effective protection against pregnancy and the fact that they do not require you to do anything before, during, or after intercourse. The disadvantages include the lack of protection against sexually transmitted diseases, the possible side effects of irregular menstruation, headaches, weight gain and a potential delay in your ability to get pregnant after stopping the injections. 11.
OrthoEvra contraceptive patch was introduced in the United States in
November 2001. The patch is a thin, beige square with one sticky side that is placed on the buttocks, abdomen, back/shoulder area, or upper outer arm. The patch contains a hormone that prevents ovulation and thins the uterine wall so that a fertilized egg cannot attach. A new patch is applied every seven days for three weeks, and then the last patch is removed to allow a week for menstruation. The advantages of the patch include its once-a-week application, its tendency to reduce the chances of ovarian cysts and tubal pregnancies, and its ability to regulate menstrual periods. The disadvantages include its lack of protection against sexually transmitted diseases, its visibility when bathing or changing clothes, and potential side effects of spotting, nausea, headaches, mood swings, and skin irritation. The patch is not recommended for women who weigh more than 197 pounds because its contraceptive effect decreases. The patch is also not
recommended for women with a history of cancer of the breast or reproductive organs, heart disease, blood clots, stroke, or severe headaches. You should thoroughly discuss the risks and benefits of the OrthoEvra contraceptive patch with your doctor before choosing this method of birth control. When applied correctly, the OrthoEvra patch has an expected failure rate of 1 percent.
The vaginal ring, first marketed in 2001 as NuvaRing, is a flexible, doughnut-
shaped device about two inches in diameter that contains a combination of hormones. The ring is inserted high into the vagina and remains there for three weeks. At the end of the three weeks, the ring is removed to allow one week for menstruation. A new ring is inserted each month. The ring prevents ovulation and thickens cervical mucous to stop the progress of sperm. The ring is not recommended for women with a history of liver disease, heart disease, stroke, blood clots or cancer of the breast or reproductive organs. You should thoroughly discuss the risks and benefits of the NuvaRing with your doctor before choosing this method of birth control. The advantages of the ring include its long-lasting contraceptive protection, its ease of use, and its effectiveness. When used correctly, the ring has an expected failure rate of 1 percent. The disadvantages include vaginal discharge, vaginitis and irritation, and its lack of protection against sexually transmitted diseases. 13.
Emergency contraceptive pills (ECP) or “morning after pills” are used after
having unprotected intercourse. They are not recommended as your only protection against pregnancy because they are not as effective as any ongoing contraceptive method. ECPs are marketed as Plan B and Preven and contain either a single hormone or a combination of hormones. The pills are taken in two doses, with the first dose to be taken within 72 hours after unprotected intercourse (sooner rather than later) and the second dose 12 hours later. ECPs cause nausea and vomiting in some women who take them. ECPs prevent or inhibit ovulation, preventing fertilization of the egg. They are not designed to terminate an existing pregnancy and should not be confused with RU-486, which is intended to cause abortion. When taken correctly, ECPs can reduce the risk of becoming pregnant by 75 to 89 percent. ECPs must be prescribed by a physician and should only be used as an emergency measure. The long-term effects of ECPs have not been thoroughly studied, so you should discuss the risks and benefits of ECPs with your doctor before taking them. Can I get free birth control if I don't have any money?
Yes. Family planning services are available to you at your local health department or
primary care center. Family planning clinics provide information, conduct medical examinations, and distribute family planning and birth control devices and medication without charge. Can I get a prescription for birth control without my parents’ permission if I am under 18?
Yes. (See The Minor and Health Care section.)
Sterilization What is sterilization? Sterilization is a term that describes several different operations, all of which make it impossible to have children. There are sterilization procedures for both men and women. For women, the operation may be a hysterectomy, a removal of the ovaries, or a tubal ligation (sometimes called “getting your tubes tied”). A hysterectomy is the removal of your uterus. Generally, a hysterectomy is not done simply for preventing pregnancy. A hysterectomy is a major surgery that requires weeks to months for recovery. Removal of the ovaries also is not usually done just for birth control. Like a hysterectomy, a removal of the ovaries can require a significant recovery period. A tubal ligation is a procedure in which the fallopian tubes are either cut or blocked off to prevent an egg from traveling to the uterus. Tubal ligation is the most common surgical procedure used for female sterilization. Once your tubes have been blocked or cut, it is very difficult to reverse the procedure. Therefore, even if you do not believe that you will want children in the future, you should thoroughly discuss this contraceptive option with your doctor before choosing to proceed with it. Particularly if you are young, you may want to consider other, less permanent forms of birth control.
The male sterilization procedure is called a vasectomy. In a vasectomy, the doctor cuts
the vas tube located inside the scrotal area, through which sperm travel. A vasectomy is a simple and safe procedure that requires very little recovery time. In fact, non-scapel vasectomies do not require an incision or stitches. While procedures exist to reverse vasectomies, reversal is not guaranteed, and a vasectomy should be considered a permanent procedure. Does the law regulate sterilization?
Yes. According to West Virginia law, if you request sterilization, you must make that
request in writing. At the time of your request, your doctor must give you a reasonable and complete explanation of the meaning and results of a sterilization procedure. Female sterilization must take place in a hospital or a facility licensed by the state board of public health and authorized by the board to perform such procedures. Hospitals are not required to admit patients who want a sterilization procedure, so you should check with the hospitals in your area to see if they offer sterilization services.
Are Medicaid funds available for sterilization?
Yes. As long as certain criteria are met, Medicaid funds are available for sterilization.
Some of the requirements include confirmation that the person seeking sterilization is mentally competent and is an appropriate age. Before a sterilization procedure is performed, the person requesting the procedure must give informed consent and sign a form documenting that consent. Does my spouse have to consent to my sterilization?
No. As long as you provide consent, sterilization may be performed.
Can I be sterilized against my will?
Abortion Is abortion legal in West Virginia?
Yes. Under the landmark decision of Roe v. Wade, issued by the United States Supreme
Court in 1973, the United States Constitution protects a woman’s decision whether to end a pregnancy. But the right to an abortion is not absolutely protected at all stages of the pregnancy. Instead, the right to choose an abortion is considered and balanced against the interests of the state. The balancing test used by the courts and the state to analyze the right to an abortion is known as the trimester approach. What is the trimester approach?
In Roe, the United States Supreme Court divided the term of pregnancy into trimesters,
each one made up of three months. During the first trimester, the woman’s right of privacy in deciding whether to end the pregnancy outweighs the interests of the state. During the first trimester, the woman and her doctor may decide, without government interference, whether to have an abortion. The Supreme Court based this decision, in part, on the fact that until the end of the first trimester, abortion is actually safer than childbirth.
After the first trimester, the state’s interest in the health of the woman becomes more
compelling. Therefore, the state may regulate the procedure of abortion to protect the woman’s health. An example of such regulation includes requirements about the qualifications of individuals who can perform abortions.
During the third trimester, or at the point that a fetus can live outside of the mother’s
uterus, the state’s general interest in the lives of the mother and fetus is most compelling. Once the fetus can survive outside of the mother’s uterus, the state regulates and restricts the procedure of abortion. What is the status of a woman’s right to choose?
Although there have been many challenges to the Roe decision, a woman’s right to
choose is still the law, subject to the restrictions and regulations that govern the last two trimesters of pregnancy. However, attempts to further restrict the right to choose an abortion are being made in legislatures across the country, including the West Virginia Legislature. Does West Virginia allow partial-birth abortions?
No. West Virginia law prohibits the practice of partial-birth abortion, which has been
defined as an abortion in which the person performing the procedure partially vaginally delivers a living fetus, then kills the fetus and completes the delivery. Any person who knowingly performs a partial-birth abortion is guilty of a felony and can be fined and imprisoned. However, a woman having a partial-birth abortion may not be prosecuted. Do I need the consent of my husband or the father of the fetus to have an abortion?
Can I be forced to have an abortion against my will?
No. In fact, if someone acts intentionally to produce an abortion or miscarriage without
your knowledge or consent and causes the death of the fetus, he or she may be guilty of a felony. Can I get an abortion in West Virginia if I am under 18 years old?
Yes. However, West Virginia does have a law requiring that your parents be notified of
your decision to have an abortion. If you are an unemancipated minor (meaning that you are under the age of 18, are unmarried, or have not been declared emancipated by a court order), the doctor who is going to perform the abortion must notify one of your parents or your guardian of your decision before performing the procedure. The doctor can waive the notification requirement if another physician finds that you are mature enough to make the decision independently or that notification would not be in your best interest. The notification requirement is also waived if your doctor certifies that continuation of the pregnancy is an immediate threat and grave risk to your health and that an emergency abortion is necessary.
If your doctor cannot waive the parental notification requirement, then you have the right
to petition the court for a waiver. You can file a petition with the circuit court in the county where you live or where the abortion will be performed. You can file the petition yourself or with a lawyer. If you want a lawyer but cannot afford one, the court will appoint a lawyer for you. You will not have to pay a fee to file the petition.
If you have an abortion when you are an unemancipated minor, your doctor must report
the abortion to the state, but the report will not contain your name, address or other identifying information. What should I do if I think I am pregnant and want an abortion?
You should contact a family doctor, obstetrician/gynecologist, or medical clinic for
advice. Some health care providers and hospitals do not perform abortions, so you should seek care from someone who will agree to perform an abortion if appropriate. Your situation should be fully discussed. If you decide that you want an abortion, you and your doctor should determine how and when it should be performed.
In 2003, the West Virginia Legislature passed a new law called the Women’s Right to Know Act. This law requires your doctor to provide you with information regarding the risks of abortion, the gestational age of your fetus, and the risks of childbirth, and tell you that materials are available through the state or its Web site regarding alternatives to abortion. The doctor will also advise you that benefits may be available for prenatal care, childbirth, and neonatal care, and that the biological father is responsible for child support in the event that you decide against an abortion, even if he wanted or has agreed to the abortion. This information must be given to you at least 24 hours before the abortion procedure, and you must certify in writing, before the abortion, that you have received this information. The requirements of this act are waived if your doctor certifies that an emergency abortion is necessary to protect you from death or from irreversible and substantial impairment of a major bodily function. Your doctor will be required to report your decision on whether or not to have an abortion, but the report will not contain your name, address or other identifying information. Are Medicaid funds available for abortions?
Yes, when the abortion is medically necessary. If your physician certifies that an
abortion is medically advisable in light of your age or physical, emotional, psychological, or familial condition, or any combination of those factors, then Medicaid may cover your abortion.
The Minor Health Care
Are minors allowed to give consent to medical treatment?
The general rule is that a minor (someone under 18 years of age) is not legally competent to
give consent to medical treatment. However, there are exceptions to the rule.
If I am a minor, under what circumstances can I consent to medical treatment?
If you are an emancipated minor, you may give consent to treatment. An emancipated
minor is a person over the age of 16 who has received an order from a circuit court declaring that she is emancipated from her parents and has all the rights, privileges and duties of adulthood. Also, if a minor is over the age of 16 and is married, then that minor is considered emancipated. Once a minor is emancipated, her parents have no right to control her medical care and no duty to provide her with financial support.
Mature minors may also consent to medical treatment. In order to be considered a mature
minor, a treating physician must assess qualities about you and determine if you are mature enough to understand the risks and complications of proposed treatment and can give a reasoned response. Some of the factors considered by the physician include your age, intelligence, experience, living situation, education and apparent degree of maturity. If a physician determines and documents that you are mature, you may give or refuse consent to treatment. Even if you are considered mature enough to make medical decisions, your parents will still be included in the consent process if feasible and reasonable. However, if you and your parents disagree on a proposed treatment, your wishes will be followed.
You may also give valid consent to treatment in a medical emergency. If a medical condition
requires immediate treatment to protect your life or health, and your parent or guardian cannot be located to authorize treatment, then your consent is sufficient. Do I need my parents' permission to be treated for a sexually transmitted disease (STD)?
No. According to state law, your parents do not have to know or give permission for a doctor
to treat you for an STD (venereal disease).
Do I need my parents' permission to be treated for drug addiction or alcoholism?
No. In West Virginia, any licensed physician may examine, diagnose, treat and counsel you at
your request for an addiction to or dependency on alcohol or controlled substances. Your parents or guardian do not have to know about or consent to this treatment.
Do I need my parents' permission to get birth control?
No. As a minor, you can give consent to treatment for contraceptive (birth control) care
and other family planning services under most circumstances. In fact, federally funded health care providers must provide such services to you, and the treatment must be kept confidential from your parents if you request. Do I need to be 18 to donate blood?
No. In West Virginia, any person 17 years of age or older may donate blood without the per-
mission or authorization of a parent or guardian. However, this does not mean that a minor of age 17 is allowed to give blood for money or any other form of compensation. Also, your parent or guardian will not be financially responsible for any medical expense that you may need as a result of your blood donation; any such expenses are your responsibility.
What is a special guardian?
If you are neither an emancipated minor nor a mature minor and your physician believes
medical treatment is necessary for you, but your parent or guardian refuses to give consent to the treatment, a special guardian may be necessary. If the physician believes there is a good chance that you would die, suffer serious or permanent physical or emotional disability, be disfigured or suffer unnecessarily if you did not receive treatment, he or she may ask the court to appoint a special guardian to consent to the necessary medical treatment for you.
Can the state ever authorize a minor's medical treatment?
Yes. The West Virginia Department of Health and Human Resources has legal authority to
accept temporary custody of children from any law enforcement officer in an emergency situation At this point, the Department has the authority to give consent to the children’s medical treatment. For example, if a law enforcement officer removes a child from a home where he or she has been physically or sexually abused, the person from the Department who takes custody of that child could consent to medical treatment for the child.
Who is financially responsible for my medical care if I am a minor?
If you are emancipated because of a court order or marriage, you are financially liable for
medical care requested by and given to you. On the other hand, if you are unemancipated, even though you may consent to receiving medical care in certain circumstances, the financial responsibility for this care remains with your parent or legal guardian.
The reason for this difference is that emancipated minors have all the privileges, rights and
duties of adulthood, including financial responsibilities. Unemancipated minors remain minors for all purposes, and the parent or guardian is legally bound to financially support them. This support includes assuming liability for contracts for necessaries into which the minor has entered. Do my parents have the right to see all of my medical records? No. Even though you are a minor and your parents may be financially responsible for your
medical care, some of your health care records are confidential and may not be released to a parent or guardian without your consent. For example, before your parent can be told about or see any medical records of your diagnosis and treatment for alcohol or drug abuse or dependency, contraceptive care, sexually transmitted disease, or psychiatric care, you must sign a valid release form.
Is it a violation of the law to permit my child to ride a bicycle without a protective helmet?
Yes. It is unlawful for any parent or legal guardian to permit a child under 15 years of age to
ride a bike on public roads, paths or rights-of-way unless the child wears a well-fitting and securely fastened protective bicycle helmet. Violation of the law may result in fines and the requirement to perform community service, If you can demonstrate inability to pay for a bicycle helmet, you should contact the West Virginia State Occupant Protection Program for assistance in getting a helmet for your child.
Children’s Insurance Is there health insurance available for my children if I do not qualify for insurance or cannot afford to provide insurance for them?
Yes. Your children may qualify for coverage through the West Virginia Children's
What is WVCHIP?
WVCHIP was created to help working families who do not have health insurance for
their children. If your children are eligible, WVCHIP will cover doctor visits, hospital visits, immunizations, prescriptions, tests and x-rays, dental care, vision care, mental health treatment, emergency care and other services and medical equipment. Who is eligible for WVCHIP?
Minor children who live in West Virginia and who do not have and have not had health
insurance coverage for the past 6 months may be eligible. The fact that your employer offers health insurance, which you have failed to accept, does not affect your children’s eligibility to qualify for WVCHIP, unless coverage is available under PEIA (West Virginia State Employee Health Insurance). To be covered by WVCHIP, your children cannot be eligible for PEIA or for West Virginia Medicaid, and they must live in families that meet certain income guidelines. The income guidelines are based upon family size, but only the income of the child and the natural/adoptive parents are counted to qualify. Even if your family income is over the maximum limits set for your family’s size, there are income disregards and deductions that will be subtracted from your gross income to determine your eligibility. For more information on the maximum income limits allowed for eligibility, you can contact the WVCHIP department of the West Virginia State Department of Health and Human Resources (DHHR) or go to the Web site at www.wvchip.org. You can fill out an application for WVCHIP over the phone or online, and an eligibility worker will review your application to determine if your children are eligible for benefits. Once I have filled out an application, how long will it take before I know if my children are covered?
The review process for eligibility usually takes about two weeks. You will be notified in
writing about the denial or approval of your application. If your application is denied, you have the right to request a Fair Hearing from your local DHHR office if you want a review of the decision. Can my children be denied WVCHIP if I refuse to sign a personal responsibility contract?
If my ex-spouse does not want to cooperate with the Child Advocate Office for the purpose of child support, can my children be denied coverage?
Who accepts the WVCHIP card?
WVCHIP gives many of the same benefits as Medicaid, although it is a separate program.
Doctors do not necessarily have to be enrolled as a WVCHIPS provider to accept WVCHIP benefits, as long as they are willing to accept the program’s designated payment for the service provided. Doctors cannot bill you for any amount over the allowable charge. However, some plan members have copayments for certain procedures and medications. You should check with your child’s doctor and dentist to see if they will accept WVCHIP. If I am a working parent and my employer does not offer health insurance, can I also be covered through WVCHIP?
No. Current guidelines only allow children to be covered by WVCHIP.
What is the difference between AIDS and HIV?
HIV, the abbreviation for human immunodeficiency virus, is the virus that causes AIDS
(acquired immunodeficiency syndrome). Over months to years, HIV attacks the body’s immune system, leaving the body open to a variety of opportunistic diseases that, eventually, it can no longer fight. When the body can no longer defend itself against the opportunistic infections or tumors, then HIV has developed into AIDS. Although no cure has been discovered for AIDS, AIDS sufferers may prolong their lives by taking a combination of drugs that have proven effective in sustaining life. How is HIV transmitted?
HIV is spread through blood or certain other bodily secretions that pass from an infected
person and enter another person’s body. The spread of the virus can occur through having unprotected sexual activity, sharing IV needles, receiving blood transfusions with infected blood, or being born to or breast-fed by an infected person. HIV is not transmitted by insects or through food preparation, shaking hands, hugging, or on toilet seats. HIV usually cannot be transmitted by kissing. HIV penetrates the body of a healthy person through tiny tears or sores in the mucous membranes of the mouth, vagina, or rectum; cuts in the skin; or directly into the blood with a needle. The virus can live in the blood for as long as 10 years without causing symptoms. During this period, an infected person can transmit the virus to a healthy person. Because a
person can have HIV and not know it, it is important to protect yourself and others from HIV transmission by taking precautions, such as using condoms during sexual intercourse. Can my doctor test my blood for HIV without my knowledge or permission?
Usually not. However, under West Virginia’s AIDS-related Medical Testing and
Records Confidentiality Act, HIV-related testing may be requested directly by a physician, dentist, or health commissioner in very specific instances. These include when there is cause to believe that the test could be positive, when there is cause to believe the test could provide information important in the care of the patient, or when there is cause to believe that the results could provide information important in the care of medical or emergency responders. Except in very particular instances, the physician, dentist, or health commissioner who requests HIV testing must provide the patient with written information, such as a booklet or pamphlet, that sets out an explanation of the test, an explanation of the procedure and other related information.
Except for these limited circumstances, you must give informed consent to the testing.
Under West Virginia’s AIDS-related Medical Testing and Records Confidentiality Act, before giving consent to HIV testing, you should receive written information in the form of a booklet or pamphlet prepared or approved by the Bureau of Public Health that explains the test’s purpose, uses, limitations, results, and relation and relevance to pregnancy. The information should also explain the test procedures to be followed and that (1) the test is voluntary and may be obtained anonymously and (2) that consent for the test may be withdrawn at any time prior to the drawing of the sample. The pamphlet should also explain the nature and current knowledge of asymptomatic HIV infection, AIDS-related complex, and AIDS (including the relationship between and among them) and include information about behaviors known to pose risks for transmission of HIV infection. Additionally, if you are unable to read, you may be shown a video or film prepared or approved by the Bureau of Public Health. Alternatively, the pamphlet may be read to you. If I am found to be HIV positive, do I have the right to additional information?
Yes. At the time of learning of any test result, whether positive or negative, you must be
provided with counseling or a referral for counseling to help you cope with the emotional consequences of any test result. The counseling can be accomplished personally, by brochure or through both. Can an employer make me take an AIDS test before he or she hires me?
As discussed above, West Virginia’s AIDS-related Medical Testing and Records
Confidentiality Act limits the persons who may conduct HIV testing at other than the patient’s request and limits the circumstances in which those persons can conduct tests. West Virginia law relating to employment and HIV and AIDS is evolving. Federal law, however, prohibits HIV testing unless there is a business necessity for the testing. To the extent that a person with an infectious disease presents a risk of harm in the workplace that cannot be reduced or eliminated by reasonable accommodations, then that person is not qualified for the job and need not be hired or retained. Therefore, if your job duties present a definite risk of passing the disease along to others, testing may be allowed.
Currently, persons who are HIV positive or who have AIDS are considered to be under a
disability as that term is understood under the Americans with Disabilities Act (ADA) and the West Virginia Human Rights Act. Therefore, a person who is HIV positive is protected from employment discrimination in many instances. What laws protect my confidentiality and privacy if I have an HIV-related test?
The West Virginia AIDS-related Medical Testing and Records Confidentiality Act
provides that a patient has the right to be tested anonymously, even if it requires a referral by the physician to an institution or office that does anonymous testing. The act states specifically that no person may disclose or be forced to disclose the identity of any person upon whom an HIV- related test is performed. Further, the act protects the results of such a test, specifying that the results shall not be presented in any manner that would permit identification of the subject of the test. However, the act sets out exceptions. For obvious reasons, the person requesting the test can be told the results of his/her own test. Beyond that, victims of sexual crimes are allowed to know the results of HIV-related tests performed on the offenders. Other persons entitled to know test results include funeral directors, health care providers who render treatment to the person after the test results are returned, research bodies such as the Center for Disease Control, and persons who have a release or court order allowing them to learn the results. Are there any situations in which I can be made to submit to HIV-related testing?
Yes. As set forth above, the AIDS-related Medical Testing and Records Confidentiality
Act identifies specific situations in which a person may be forced to submit to testing. These include if you are convicted of sexual abuse, sexual assault, sexual molestation or prostitution. Beyond the necessity of protecting the safety of medical or emergency responders, the act also states that HIV-related testing can be done when someone donates a human body part, such as under the Uniform Anatomical Gift Act or for transplantation purposes. Other instances are identified in the act and/or are discussed above. Can I be denied access to health care because I am HIV positive?
No. West Virginia’s AIDS-related Medical Testing and Records Confidentiality Act
states that a positive HIV test report and/or the diagnosis of an AIDS-related complex or of the AIDS syndrome or disease may not be a basis upon which to deny you access to quality health care. Can my child be kept out of school if he/she is HIV positive?
No. The act specifically states that no student may be excluded from attending school or
from participating in school-sponsored activities on the basis of a positive HIV test or diagnosis of an AIDS-related complex or of AIDS itself. That said, the act states that, on a case-by-case basis, exclusion may be accomplished when a student represents an unacceptable risk to others.
Can I be fired or demoted because I am HIV positive or have AIDS?
No, except in certain specific circumstances. Being HIV positive or having AIDS makes
an employee disabled for purposes of the application of the Americans with Disabilities Act or the West Virginia Human Rights Act. To the extent that reasonable accommodations can be made to allow you to work in the workplace without placing others at unreasonable risk, you have protected status under the ADA and the Human Rights Act. However, the United States Supreme Court has found that, in instances where reasonable accommodations cannot be made, you may stand to lose your employment. Can my health insurance be revoked or canceled if I become HIV positive or develop AIDS?
No. However, the extent of available coverage will be governed by the insurance
contract. If my physician, dentist, nurse, or other health care provider is HIV positive or has AIDS, must he/she tell me?
No. Under West Virginia’s AIDS-related Medical Testing and Records Confidentiality
Act, health care providers need not notify you of their HIV or AIDS status. Is there somewhere I can call or write to get more information on HIV and AIDS?
Yes. The West Virginia Department of Health has a toll-free AIDS hotline, or you can
write the Department to receive more information. Please see the Resource Guide. Alternatively, the National AIDS hotline can be reached at 1-800-342-AIDS.
Can someone commit me to a mental health facility without my permission or consent?
Any adult may make an application for your involuntary hospitalization for examination
if the person making the application has reason to believe that you are addicted to alcohol or drugs, or that you are mentally ill, and that because of your mental illness you are likely to cause serious harm to yourself or to others. “Likely to cause serious harm to yourself or to others” can
mean that you are suicidal, homicidal, or so unable to take care of yourself that you are a danger to yourself if you are allowed to remain free. Usually, an application is made only after you have refused to seek treatment voluntarily. What happens after the application is filed?
The application will be reviewed by a circuit court judge; a mental hygiene
commissioner; or, in some circumstances, a magistrate appointed by the circuit judge. If the judge, commissioner or magistrate believes the application has merit, he or she may enter an order for you to be taken into custody for the purpose of having a probable cause hearing and to have you examined by a person authorized by law to conduct such an examination. Currently those persons authorized to examine persons for involuntary commitment include physicians, psychologists, certain licensed independent clinical social workers and certain advanced nurse practitioners with psychiatric certification. The hearing to determine whether there is probable cause to find that you are either addicted or mentally ill must be held within 24 hours of the time when you have been taken into custody. You may receive treatment for your condition or illness during the time you are held awaiting your hearing. If the circuit court judge or mental hygiene commissioner orders that I be taken into custody for a probable cause hearing, do I have a right to a lawyer?
Yes. A lawyer must be appointed to represent you. You also have the right to hire a
lawyer of your choice if you have the means to do so. What happens if the examination reveals that I am either not addicted or mentally ill, or that I am not likely to cause serious harm to myself or others?
If the examination reveals that you are not mentally ill or addicted, or if it is determined
that you are mentally ill but not likely to cause harm to yourself or others, you will be released immediately without the need for a probable cause hearing. What rights do I have at a probable cause commitment hearing?
You must be present at the hearing. You have the right (1) to counsel; (2) to present your
own evidence; (3) to cross-examine the witnesses called by the applicant, including expert witnesses; and (4) to examine any physical evidence offered. You have the right to remain silent; that is, no one can force you to testify at the hearing. What is decided at a probable cause hearing?
Essentially four different results may occur after the judge, mental hygiene commissioner
or magistrate hears the evidence at your hearing. The judge, commissioner or magistrate must determine whether or not you, as a result of mental illness, are likely to cause serious harm to yourself or others, or whether you are addicted, and because of your mental illness or addiction, require treatment. If the answer is no, you will be released immediately. If the answer is yes, then the judge, commissioner or magistrate may consider evidence on the question of whether
you will agree to accept outpatient treatment in a nonresidential or nonhospital setting in a written voluntary treatment agreement. The judge, commissioner or magistrate may also order that you be involuntarily committed with participation in a voluntary commitment agreement as a term and condition of your release. Finally, you may be ordered to be involuntarily committed. All of these results are described more completely below. What is a voluntary treatment agreement?
A voluntary treatment agreement is a written document approved by you, your lawyer,
and the judge, commissioner or magistrate. Before it can take effect, the judge, commissioner or magistrate must have found that you, as a result of mental illness, are likely to cause serious harm to yourself or others, or that you are addicted, and because of your mental illness or addiction, require treatment. By its terms, you agree to participate in outpatient treatment in a nonresidential or nonhospital setting. Each voluntary treatment agreement is specific to the needs and issues of the patient, and gives you and the judge, commissioner or magistrate an alternative treatment that is less restrictive than inpatient commitment. What happens if I do not comply with the voluntary treatment agreement?
If you do not comply with the terms of the voluntary treatment agreement, the judge,
commissioner or magistrate may consider your noncompliance as evidence that outpatient treatment is insufficient for your needs. A hearing will be held on the issue of whether you failed or refused to comply with the terms and conditions of the voluntary treatment agreement and whether you remain likely to cause serious harm to yourself or others or remain addicted. If the answer is yes, the judge, commissioner or magistrate may enter an order requiring involuntary commitment. What happens if I cannot afford the outpatient treatment required by the voluntary treatment agreement?
If you are unable to pay for the outpatient treatment ordered in your voluntary treatment
agreement and you have no insurance coverage (including Medicaid) for this treatment, the Department of Health and Human Resources may pay the providers of your services. How long can voluntary treatment agreements last?
If you have not been involuntarily committed in the last two years, your voluntary
treatment agreement can last for up to six months. If you have been voluntarily committed in the last two years, your voluntary treatment agreement can last up to two years. Just how “voluntary” is the voluntary treatment agreement? Can I refuse?
If you object to the voluntary treatment agreement or to any of its terms and conditions,
the judge, commissioner, or magistrate cannot force you to accept it. Of course, this means that the judge, commissioner, or magistrate can decide on another way to handle your situation, including an involuntary commitment. If you agree to a voluntary treatment agreement and later,
while the agreement is in effect, believe that a term or condition should be eliminated or modified, you may request a hearing on that issue and seek to have the agreement cancelled or modified. What happens if probable cause is found and I am ordered committed?
If (1) an order has been entered after your probable cause hearing, and if (2) a physician,
psychologist or, in certain circumstances, a licensed independent clinical social worker or advanced nurse practitioner certifies that you have been examined and that (3) the examiner is of the opinion that you are mentally ill and likely to cause serious harm to yourself or others if not immediately restrained, or that you are addicted, you may be admitted to a mental health facility for examination and treatment. You must be examined at this facility within 3 days or be released. If the examiner at the mental health facility finds that you are not mentally ill or addicted, you must be released. The chief medical officer of the mental health facility must give written notice of your admission to your spouse, if any, and one of your parents or guardians. If you have no spouse, parent or guardian, notice must be given to one of your adult next of kin. The applicant for your commitment cannot serve as a person to whom notice is given. The medical director must also give written notice of your admission to the community health facility in the county where you reside. Both the notices to your family and the community health facility must be by certified or registered mail, return receipt requested. You cannot be detained more than five days (excluding Sundays and holidays) after admission unless you are examined by a staff physician and the physician certifies that in his or her opinion you are mentally ill and likely to injure yourself or others or that you will remain addicted if allowed to be at liberty. If the examining physician does so certify, then the medical director of the mental health facility must institute final commitment proceedings within 15 days of the date of your admission or you must be released. How does the final commitment process begin?
The final commitment process is started with the filing of a sworn application by an adult
person having personal knowledge of the facts stating that you are mentally ill and are likely to cause serious harm to yourself or others or that you are addicted to alcohol and/or drugs. This application is filed with a certification by a physician or psychologist confirming your mental illness or addiction, detailing any recent acts you have committed that demonstrate your illness or addiction, and stating that you should be hospitalized. If you refused to submit to an examination, no certificate by a physician or psychologist is necessary. The application and certificate are filed with either the circuit court or mental hygiene commissioner located in the county of your residence or the county of the mental health facility where you are hospitalized.
The circuit judge or the mental hygiene commissioner will review the application and
determine whether the facts support involuntary hospitalization. If they do, then the judge or commissioner must set a date for a hearing and give you at least 8 days notice. The final commitment hearing must be held within 30 days after the filing of the application for involuntary hospitalization. As part of this process, the judge or commissioner must appoint a physician or psychologist to examine you and report his or her findings as to your mental condition and the likelihood of your causing serious harm to yourself or others, or whether you
are addicted. If the examination is negative, you will be released. Otherwise, you will proceed to the final commitment hearing. What rights do I have at the final commitment hearing?
You have the right to counsel, and if you cannot afford counsel, counsel will be
appointed for you at least 6 days prior to the hearing. You have the right to have an independent examination by a physician or psychologist of your choice and to have that person appear and testify at your hearing. If you cannot pay for the services of this expert, the state will cover the cost. You have the right to remain silent at the hearing. Your counsel is entitled to copies of all your medical reports and can call witnesses to testify in your behalf. A transcript of the hearing must be made, and you are entitled to a copy of it within 30 days of the hearing, if you request it, at no cost to you, if you are unable to pay. What is decided at the final commitment hearing?
After hearing all the evidence, the judge or commissioner must decide whether you are
mentally ill and likely to cause serious harm to yourself or others, or addicted. The judge or commissioner must also determine whether there is an alternative that is less restrictive than in-patient commitment. After the judge or commissioner makes the decision, you may be confined in a mental health facility for a temporary observatory period that cannot be longer than six months, or you can be ordered to indeterminate hospitalization. If you are given a temporary observatory period, the judge or commissioner can hold another hearing during that six months to see how you are progressing. This hearing follows the rules for probable cause hearings. After hearing the evidence, the judge or commissioner can either dismiss the proceedings and release you or order your indeterminate hospitalization.
If you are ordered to be indeterminately hospitalized, you will be committed for a period
of no more than two years, unless before the two years have passed the Department of Health and Human Resources requests an extension based on the reports of a physician or psychologist. If this happens, you can request a hearing. This hearing will follow the procedure followed for a final commitment hearing. What happens if I get better? Do I still have to stay in the hospital?
While you are committed, you must be given a psychiatric evaluation at least every three
months. If this examination shows that either the conditions that justified your hospitalization no longer exist or that you can no longer benefit from hospitalization, you will be discharged by the facility’s chief medical officer. Additionally, you can be released on a trial or convalescent status, if the chief medical officer believes it is in your best interest. This means that you could go home with a plan of treatment that involves outpatient care. If you successfully complete six months of treatment on convalescent status, you must be discharged from the involuntary commitment order, and you cannot be involuntarily returned to a mental health facility unless new proceedings are started. If your convalescent status is not successful and the chief medical officer believes it is in your best interest to be readmitted, he or she will make a report to the judge or commissioner who ordered your involuntary commitment, who can authorize that you be taken into custody and transported back to the mental health facility. Can I appeal an order of commitment?
Yes. You have the right to appeal an order of commitment to the West Virginia Supreme
Court of Appeals. What rights do I have if I am a voluntary or involuntary patient of a state mental health facility?
You have many rights that are protected by West Virginia law. Some of your rights as a
patient of a state mental health facility are listed below. This list is by no means all inclusive.
1. You cannot be deprived of any of your civil rights solely because you are receiving
treatment for mental illness. This includes your right to vote, to buy and sell property, and to hold a license, permit, privilege or benefit. If you have been found to be incompetent and have not been restored to legal competency, those rights may be affected.
2. You have the right to receive care and treatment that is suited to your needs and
administered in a skillful, safe and humane manner with full respect for your dignity and personal integrity.
3. You have the right to treatment by trained personnel. 4. You have the right to psychiatric reevaluation at least once every three months. 5. You have the right to a physical reevaluation at least once every six months. 6. You have the right to receive treatment that is based on an appropriate examination and
7. You have the right to a written treatment plan, which is to be updated periodically with
reevaluation. If your treatment plan is not updated as required, you are entitled to be released.
8. You have the right to a complete clinical record, which contains all documents relating to
your admission, legal status, care and treatment, results of periodic examinations, individualized treatment programs, evaluations and reevaluations, orders for treatment, orders for application of mechanical restraint and accident reports.
9. You have the right to confidentiality of records. Records will not be released unless
10. You have the right to a copy of your rights upon admission to a mental health facility.
What rights do I have about my treatment in a state mental health facility?
You have the right to prompt, individualized treatment in the least restrictive setting.
Except in very limited circumstances, you have the right to participate in the planning of your treatment. What rights do I have to refuse treatment?
As you participate in your treatment planning, you should have an opportunity to object
to or refuse treatment. If you are temporarily incapacitated, do not have a legal representative
and refuse a recommended treatment, and there is a failure to agree on an acceptable treatment, then the most conservative and least intrusive treatment may be imposed over your objections in some situations. If you have been judged to be incompetent by the court, then your court- appointed guardian or committee has the right to consent to or refuse treatment. If you have named someone as a medical power of attorney, he or she will make these decisions for you. What rights do I have to communicate with others if I am a patient in a state mental health facility?
You have the right to have free and open communication with people outside of the
facility. Your written correspondence is private. You must have access to a phone during normal waking hours and privacy to talk. Your right to talk to your lawyer, religious advisor or advocate cannot be restricted. You have a right to have visitors or to refuse visitors. Any restriction on communication or visitation must be based upon clinical considerations and cannot last longer than three days. What do I do if I believe my rights as a patient of a state mental health facility have been violated?
All state mental health facilities must have a patient grievance procedure for use in
investigating and resolving patient complaints. Patient complaints may be filed about any aspect of a patient's treatment, housing, services, accommodations, or rights and about verbal, physical, or sexual abuse. A complaint may be filed by you or by a family member, advocate, facility employee or other person acting on your behalf. Ask the facility administrator or patient advocate for the procedure for investigating and resolving complaints. What rights are there under federal law for people with mental illness?
In 1986, Congress enacted the Protection and Advocacy for Mentally Ill Individuals Act.
The purpose of the act is to assure that the rights of individuals with mental illness are protected. The act helps states protect and advocate for individuals with mental illness and to investigate incidents of abuse and neglect. The West Virginia Advocates, located in Charleston, operate the system of protection and advocacy for people with mental illness in our state. What is the difference between the process of commitment and that of guardianship/conservatorship?
The commitment proceedings involve involuntary hospitalization. The issue of
guardianship/conservatorship involves the management of the personal and/or financial affairs of individuals who are mentally incompetent, mentally retarded, or mentally handicapped. What is a guardian?
A guardian is a person appointed by the court who is responsible for the personal affairs
of a protected person with a mental disability. A guardian has a fiduciary duty to the protected
person to responsibly manage the protected person’s affairs and may be held liable for violating that duty. What is a conservator?
A conservator is a person appointed by the court who is responsible for managing the
financial affairs and property of a protected person with a mental disability. A conservator has a fiduciary duty to the protected person and may be held personally liable for violating that duty. Can one person be appointed to be both guardian and conservator?
Yes. Who is a protected person for purposes of guardianship and conservatorship?
The protected person is used to describe the individual who may be in need of a
guardian or conservator. A protected person is someone who is a least 18 years old and who has been found by the court, due to a mental impairment, to be unable to receive and understand information; to take care of her own health, safety, living, and daily needs without help or protection; and to manage property and financial matters for her own support and for the support of dependents. Exercising poor judgment is not enough for someone to be a protected person. Protected person can also mean a person whom the court has determined is a missing person. A missing person is an adult who is absent from his or her usual place of residence in the state and whose whereabouts have been unknown for a period of six months or more. Who can serve as a guardian or conservator or both?
Any adult may be appointed to serve as a guardian, a conservator or both, if he or she
possesses the education, ability and background to perform the duties and demonstrates to the court that he or she is capable of providing an active and suitable program of guardianship or conservatorship for the protected person. The individual must not be connected with any organization that is providing substantial services or financial assistance to the protected person and cannot be a creditor of the protected person.
A nonprofit corporation licensed by the West Virginia Department of Health and Human
Resources to act as a guardian or conservator or both may be appointed. A bank or trust company may be appointed only as conservator. The county sheriff may be appointed guardian, conservator, or both. A division of the West Virginia Department of Health and Human Resources may be appointed guardian, conservator or both for individuals under its care, or to whom it is providing services or financial assistance, when there is no other person or agency qualified and willing to serve. Do guardians and conservators have to post bonds?
A guardian may or may not have to post a bond, depending on the court. A conservator
(other than a bank or trust company) must post a bond. The court will decide the amount and
type of the bond based upon many factors, including the value of the property within the conservator’s control. Must guardians and conservators have any training?
Yes. The guardian or conservator must complete a training program that includes written
materials and audio and video recordings prepared by the West Virginia Department of Health and Human Resources. The guardian or conservator must give the court a sworn affidavit verifying that the training has been completed. Can guardians or conservators be paid?
Yes. Any guardian or conservator is entitled to be paid a reasonable fee, including
reimbursement for costs, from the estate. The court must approve all fees. What is the procedure for requesting the appointment of a guardian or conservator?
A petition for the appointment of a guardian or conservator or both must be filed with the
clerk of the circuit court in the county where the protected person lives or has been admitted to a health or correctional facility. The petition for the appointment of a conservator for a missing person is to be filed with the circuit clerk in the county where the missing person last lived. The petition may be filed by the individual seeking a guardian or conservator, by someone caring for the individual, or by any interested person. The petition must contain extensive information regarding names, address of relatives, any current representation, the proposed guardian or conservator and an explanation of the type of appointment proposed. The petition must include a report by a licensed physician or psychologist, which, among other things, must contain an opinion as to whether the appointment of a guardian or conservator is necessary and the type and scope of appointment needed. What rights do I have if a petition for guardianship or conservatorship or both is filed?
You have the right to be notified of the hearing and to receive a copy of the petition and
evaluation report at least 14 days before the hearing. You have the right to legal counsel, even if you cannot afford a lawyer. You have the right to attend the hearing, unless a physician has testified that your presence is not possible due to physical inability or because your presence would significantly impair your health. If you cannot be present, your attorney will be there, representing your interests in your absence. Your attorney will be concerned with (1) whether a guardian, conservator, or both, is needed; (2) how the role of the guardian or conservator will be limited; (3) making sure that a person with the greatest interest in you is appointed; (4) assuring that the bond is adequate in cases of conservatorship; and (5) if needed, assuring consideration of proper placement. In order to accomplish these goals, your counsel will discuss the case with you and/or your caretakers, contact persons who have knowledge of you, interview witnesses, file appropriate court documents, obtain independent psychological and/or medical examinations and home studies, subpoena witnesses, obtain medical reports, discuss your desires, raise
appropriate questions about the person nominated to serve as guardian or conservator, take all steps to limit the scope of guardianship, inform you of the right to appeal any decision, file appropriate appeals and file motions for modification or other petitions as appropriate. What does the court consider when deciding whether a guardian or conservator shouldbe appointed?
The court will consider a number of factors, including the limitations of the individual;
the development of the individual’s self-reliance and independence; the availability of less restrictive alternatives, such as advance directives or medical powers of attorney (see Advance Directives section); and the need to protect the individual from neglect, exploitation, or abuse. In its order, the court must include the specific areas of protection or assistance granted in the case of a guardian and the specific areas of management and assistance granted in the case of a conservator. How does the court know what a guardian or a conservator is doing?
Guardians and conservators must file periodic reports detailing their activities. Although
conservators have broad powers, they must also get the court's permission before selling or mortgaging real estate. Can a guardian or conservator ever be removed?
Yes. The court may remove a guardian or conservator for a variety of reasons, including
not acting in the best interests of the protected person or the estate. Can a guardianship or conservatorship be terminated, revoked or modified?
Yes. Upon petition and hearing, the court may terminate, revoke, or modify the
conditions of the appointment of a guardian or conservator if the protected person is no longer in need of assistance or protection, or if the extent of the protection in place is excessive or insufficient, or if the protected person’s abilities have changed, or for other reasons in the best interest of the protected person. Are the records of guardianship and conservatorship proceedings confidential?
Yes. Only parties to the proceedings, their lawyers, and their designees can inspect these
Access to Records and Related Rights
Do I have a right to a copy of my medical records?
Yes. Subject to certain exceptions, both state and federal law permit you to see and to
obtain copies of your medical records. Records requests must generally be in writing, and in most cases, you may be charged a reasonable fee for the copies that you receive. Your health care providers must generally respond to your request to see or to obtain a copy of your medical records within 30 days after they have received your request. Do I have any other rights with respect to my medical records and health information?
Yes. Federal privacy regulations (HIPAA), which became effective on April 16, 2003,
not only provide you the right to review and obtain a copy of your medical records in most instances, but they also provide you with more control over how your health information is used and disclosed. Certain state laws provide you with even more privacy protection than the federal privacy regulations, and those state laws continue to apply.
The federal privacy regulations place certain limits on how your health information can
be used and disclosed by your health care providers and by the health plans that provide health insurance coverage to you. There are certain circumstances, however, when your health care providers and health plans are permitted or required to disclose your health information to others without your permission. For example, if you have two or more physicians who are participating in your care, those physicians may share your health information and records with one another for purposes of your treatment without your written permission. Generally speaking, however, your health care providers and health plans may not release your health information to others without your written permission.
You also have certain other rights under the federal privacy regulations. Those rights
include, for example, your right to request the correction of mistakes or errors in your medical records; your right to request certain restrictions on how your medical information will be used and disclosed; and your right to file a complaint with your provider, your health plan, or with the government if you believe that your privacy rights have been violated.
Your health care providers and health plans are required by law to give you a written
notice of their practices relating to the privacy of your health information. The notice must inform you about the types of situations in which your health information may be shared with others without your permission. The notice must also explain to you the various rights you have with respect to the privacy of your health information and how you may exercise those rights.
You may obtain more information about your privacy rights on the Internet at
www.hhs.gov/ocr/hipaa or by calling (866) 627-7748. What are the exceptions to my right to obtain a copy of my records?
Your health care providers are not required to permit you to see or to copy certain types
of medical records and information. For example, you may be denied the right to review or to obtain copies of certain types of mental health counseling records. You may also be denied the right to see or to review health information or records prepared by your health care providers for use in legal proceedings and certain types of laboratory information. How much does it cost to get copies of my medical records?
In most instances your health care provider has the right to be paid for the reasonable
expenses of making and giving you a copy of your medical records. However, you may not be charged more than what it costs your health care provider to actually make the copies for you, and the cost cannot be more than 75 cents per page, plus a $10 search fee.
If you have requested your records for the purpose of a disability claim and can prove
that you do not have enough money to pay for copies of your records, state law requires that your health care provider give you one copy of your records without charge. What can I do if my health care provider will not give me a copy of my medical records?
Under state law, you may bring a civil action in court to force your health care provider
to give you copies of your medical records. If the court rules in your favor, the health care provider must pay your costs and legal fees in bringing the action to enforce your rights.
You may also file a complaint with the federal government if you believe that your health
care provider has improperly denied you the right to review or to receive a copy of your medical records. Information about how to file a privacy complaint with the government is available on the Internet at www.hhs.gov/ocr/privacyhowtofile.html. You may also put your complaint in writing and mail it to Office for Civil Rights, Department of Health & Human Services, 150 S. Independence Mall West, Suite 372, Philadelphia, PA, 19106-3499.
Directives Is there anything I can do to make sure that my wishes about medical treatment will be followed if I am unable to make my own decisions?
Yes. You always have the right to be informed about your medical treatment and the
benefits, procedures, risks and alternatives. You also have the right to either accept or refuse such treatment. If you become unable to make decisions about your own treatment, you have the right to specify beforehand what you wish to be done and whom you want to make your health care decisions. These specifications are called advance directives.
In West Virginia there are two ways to provide for any future medical treatment that
you may receive when you are unable to decide for yourself. These are a living will and a medical power of attorney. What is a living will?
A living will is a legal document directing your doctor to withdraw or withhold life-
sustaining procedures if you become terminally ill or permanently unconscious. Life- sustaining procedures include such things as CPR or breathing machines. A living will only becomes effective if you become unable to make medical decisions for yourself. The living will directs your doctor to provide only those services that will relieve your pain or add to your comfort. For instance, if you were in a deep coma and stopped breathing, the living will would instruct your doctor not to try to begin your breathing again. How do I make a living will?
Under the West Virginia Health Care Decisions Act, if you are an adult, emancipated
minor or a mature minor, you may make a living will. To be an emancipated minor you must be over 16 years of age and either have a court order of emancipation or be married. To be considered a mature minor, you must have your doctor assess your ability to understand health care information and make a determination in writing that you are a mature minor. The living will must be in writing, dated and signed by you in the presence of two witnesses. The witnesses also must sign the living will, and their signatures must be notarized. The witnesses may not be
your heir if you were to die without a will, or knowingly a beneficiary of your will;
directly responsible for your medical care costs;
the health care representative named in your medical power of attorney.
Can I revoke or cancel a living will?
Yes. You can revoke a living will at anytime. If you revoke it in writing, you must
present a copy of the written revocation to your health care providers. You can also revoke the living will by destroying it, or by orally revoking it in the presence of an adult witness, who signs a statement confirming the date and time of the revocation. The revocation of a living will does not take effect until you notify your health care providers. What is a medical power of attorney?
A medical power of attorney is a legal document that authorizes a person you name to
follow your wishes in making decisions about your medical care and treatment or the withholding of treatment if you become too ill to do so. This person is called your health care representative. The medical power of attorney becomes effective only if you become unable to make medical decisions for yourself. You can revoke the medical power of attorney at any time in a manner similar to that used to revoke a living will. (A medical power of attorney should not be confused with a durable power of attorney, which deals with property matters.) What is the difference between a living will and a medical power of attorney?
A living will only applies if you are terminally ill or permanently unconscious, and it
usually only tells the doctor what you do not want (that is, you do not want life-sustaining interventions). A medical power of attorney is much broader, allowing your health care representative to make decisions for you whenever you are unable to make them. It also allows you to give your representative specific instructions about what you do and do not want. For instance, you may tell your representative whether you want to donate your organs and tissues, whether you wish to be tube-fed if you ever become permanently unconscious and whether you wish to receive CPR if your heart stops. You also might explain your feelings about life and death more generally to your representative. The medical power of attorney also allows your health care representative to make decisions based on your known values about issues that you have not specifically addressed. How do I create a medical power of attorney?
Under West Virginia’s Health Care Decisions Act, if you are an adult, emancipated
minor, or mature minor, you may create a medical power of attorney. Any instructions for your health care representative may be as general or as specific as you wish. A medical power of attorney must be written, dated, signed by you before two witnesses and notarized, in the same manner as a living will. As with a living will, a witness may not be related to you, benefit from your estate, be directly financially responsible for your medical care or be your attending physician.
The health care representative that you appoint may not be
an employee of a provider and not related to you,
the operator of a health care facility serving you, or
an employee of an operator and not related to you.
Your representative can be a family member or someone who benefits from your
estate or anyone else who will be available if he or she is needed. Of course, it should be someone you trust to decide matters for you. You also may appoint a successor representative, who will act as your health care representative if your first choice is unable or unwilling to do so. Do I need a lawyer to create a living will or a medical power of attorney?
No. There are living will forms and medical power of attorney forms that you can
complete without a lawyer’s help. There is also a form that combines the two into one document. These forms are available through the West Virginia State Bar in Charleston and the West Virginia Center for End-of-Life Care in Morgantown and through its Web site, www.wvendoflife.org. Most hospitals also have the forms available at their registration desk. Can I have both a living will and a medical power of attorney?
Yes. If you have both, your representative can make sure that the wishes you express
in your living will are followed. You may prepare a combined living will and medical power of attorney or store the living will and medical power of attorney documents together, so your representative will be aware of all your wishes. Where should I keep these documents?
You should give copies of your living will and medical power of attorney to your
health care representative and your doctor and keep the originals in a safe, accessible place. You should make sure that your representative knows where the original documents are, but if your representative cannot find the originals, photocopies are legally valid. Can I change my living will or medical power of attorney?
Yes. If you change your mind about what sort of treatment you wish to receive or who
you wish your representative to be, you may simply create a new document. A new living will or medical power of attorney will automatically override an old one. Tell people who have old copies of the change, and try to destroy all copies of the older documents. How can I make sure that my instructions and wishes will be follows?
You should make sure that your doctor has a copy of any advance directive, that you
carry a copy with you when you are admitted to a health care facility and that other people know where you keep the document or documents. You may also give a copy to the hospital where you are most likely to receive care in the future. You may want to carry a card in your purse or wallet that explains that you have a living will or a medical power of attorney or
both. The card should give the name and address of a person to contact about the directives. Your
representative must follow your wishes if they are clearly stated or understood.
To make sure that your representative follows your wishes, talk to that person before you are incapacitated about what treatment you want and do not want if you become gravely ill or are dying. Your instructions and your representative’s instructions must be followed, whether or not your family or doctor disagrees with these decisions. Will my living will or medical power of attorney be valid in another state?
In general, your wishes will be honored, although laws do vary from state to state.
Most states will recognize a living will or medical power of attorney that is valid under the laws of the state in which it was created.
Long-Term Care Decision Making What is long-term care?
The term long-term care includes all forms of services, both institutional and non-
institutional, that are required by people with chronic health conditions. The term has traditionally been associated with residential care, assisted living, intermediate or skilled nursing homes and life care communities servicing the elderly. However, it actually covers a broad spectrum of housing choices.
Long-term care includes any of the services and/or facilities necessary to allow adults
to remain in their own homes or to live in a noninstitutionalized setting for as long as possible. These services include, but are not limited to, 24-hour emergency call services, home health (see below), homemaker services, hospice programs, respite care, home-delivered meals, transportation, adult day care, home health aides or visitors, swing beds, family patient education, referral programs, and equipment rental and other services that support independent living units.
The two key elements to any type of long-term care are
1. time frame = long term = provided for more than a short period of time,
2. care = provided outside of an acute-care hospital.
What type of long-term care services should I select?
There are several types of services and facilities to choose from. You should select the
services that fit your individual needs and allow you to live in the setting of your choice. The following is a brief description of some of the services and available facilities:
This includes, but is not limited to, the following services, furnished to an
individual who is under the care of a physician. Such services are to be provided on a visiting basis in the individual’s home: (1) Part-time or intermittent nursing care provided by or under the supervision of a registered professional nurse; (2) physical, occupational or speech therapy; (3) medical social services under the direction of a physician; (4) part-time or intermittent services of a home health aide.
2. Medicaid Waiver Services
a. MR/DD Waiver serves eligible persons who have been diagnosed as having
mental retardation or a developmental disability. MR/DD Waiver clients receive the following services:
Residential Habilitation Special Project,
QMRP (Qualified Mental Retardation Professional),
Transportation (the transporting of a participant or travel by agency personnel to and/or from a Medicaid reimbursable service, including to and from a participant's work site, to and from community activities, to and from medical appointments, to and from care plan (IPP) meetings, and to and from habilitation training locations where specific training will take place as outlined in the IPP), and
Environmental Accessibility Adaptations.
For more information about the MR/DD Waiver program, contact your local West Virginia
DHHR office or go to the Web site: www.wvdhhr.org/bhhf/mrddwaiver/ProgramServices.asp.
Aged/Disabled Waiver serves eligible adults who are over age 60 or who have a disability. Aged/Disabled Waiver clients receive the following services:
Case Management, either consumer-directed or traditional; and
For more information about the Aged/Disabled Waiver Program, contact your local West Virginia DHHR office or go to the Web site:
www.wvdhhr.org/bms/sManuals/Common_Chapters/bms_manuals_Chapter_500_ ADWaiver.htm. You must register and get a password to use this site.
3. Adult Family Care
This is a placement setting within a family unit that provides support, protection and
security for up to three individuals over the age of 18.
For more information about Adult Family Care, contact your local West Virginia DHHR office or go to the Web site: www.wvdhhr.org/bcf/children_adult/ars/policy/AFC_Request_to_Receive-final_11-99.htm.
4. Specialized Family Care
This is a comprehensive statewide placement and family support system designed
to serve the needs of children and adults with mental retardation and/or developmental disabilities.
A specialized family care home is a specially recruited and trained family that
provides training, nurturing, and a family atmosphere for anyone with a developmental disability. A host family provides special services under a contract with the placement agency. The home is a place where the individual can grow and develop to his/her maximum potential mentally, physical, emotionally, and socially. In many instances, the Specialized Family Care home becomes the permanent home for the person.
For more information about Specialized Family Care, go to the Web site:
www.ced.wvu.edu/Programs/Community/Specialized_family_care/sfc.htm.
ICF/MR Group Home
These facilities furnish health or rehabilitative services to persons with mental retardation or persons with related conditions.
These facilities provide health-related services to individuals with mental/physical conditions that require services above the level of room and board but do not require the degree of services provided in a hospital or skilled-nursing facility.
6. Assisted
An assisted living facility is any living facility, residence or place of
accommodation, however named, available for four or more residents, which is advertised, offered, maintained or operated by an owner or management, whether for a fee or not, for the express or implied purpose of having personal assistance or supervision or both provided to any residents who are dependent upon the services of others by reason of physical or mental impairment, and who may also require nursing care at a level that is not greater than limited and intermittent nursing care.
7. Residential Community
A residential care community is any group of 17 or more residential apartments,
however named, which are part of a larger independent living community, and which are advertised, offered, maintained or operated by an owner or manager, regardless of fees or the absence thereof, for the express or implied purpose of providing residential accommodations, personal assistance and supervision on a monthly basis to 17 or more persons who are or may be dependent upon the services of others by reason of physical or mental impairment, or who may require limited and intermittent nursing care but who are capable of self-preservation and are not bedfast. Individuals may not be disqualified for residency solely because they qualify for or receive services coordinated by a licensed hospice. Each apartment in a residential care community shall be at least 300 square feet in size, have doors capable of being locked and contain at least: (1) one bedroom, (2) one kitchenette that includes a sink and a refrigerator, and (3) one full bathroom that includes a bathing area, toilet and sink.
Legally Unlicensed Homes
Legally unlicensed homes provide to consumers, for a period of more than 24
hours, whether for a fee or not, services of personal assistance for one to three residents and who may require limited and intermittent nursing care, including those individuals who qualify for and are receiving services coordinated by a licensed hospice. Services utilizing equipment that requires auxiliary electrical power in the event of a power failure may not be used unless the home has a backup power generator.
9. Nursing
A nursing home is any institution, residence or place, or any part or unit thereof,
however named, in this state that is advertised, offered, maintained or operated by the ownership or management, whether for a fee or not, for the express or implied purpose of providing accommodations and care, for a period of more than 24 hours, for four or more
persons who are ill or otherwise incapacitated and in need of extensive, ongoing nursing care due to physical or mental impairment, or that provides services for the rehabilitation of persons who are convalescing from illness/incapacitation.
For more information about residential care communities, legally unlicensed homes, assisted living facilities, or nursing homes, contact the Office of Health Facility, Licensure, and Certification (OHFLAC) at 304-558-0050 or go to the Web site:
www.wvdhhr.gov/ohflac. You can also contact the Long-term Care Ombudsman Program or the West Virginia Health Care Association.
10. Hospice
Hospice is a coordinated program of home and inpatient care provided directly or
Boletim Semanal do Sistema de Informação de Mercados Agrícolas da Publicação da Direcção Provincial da Agricultura Telef. 26213308; Fax 26214177 e-mail: jvarimelo @ teledata.co.mz Edição No. 269 Nampula , 18 de Março de 2008 Destaque da Semana com vista ao melhoramento da espécie da mandioca que será utilizada na produção do Mandioca na Panificação
DEGREE: Medical Doctor MD. UNIVERSITY OF BUENOS AIRES. ARGENTINA.1987. GENERAL SURGEON DEGREE. Ministerio Salud Pública 1994. GYNECOLOGIST DEGREE. Min.Salud Pública 1997. MASTOLOGIST DEGREE. Min.Salud Pública 2001. 1- HEALTH SCIENCES PROFESSORSHIP: UNIVERSITY OF BUENOS AIRES (U.B.A.) 1991-1995. 2.- GENERAL SURGEON TEACHING PROFESSOR- AFFILIATED TO UNIVERSITY OF BUENOS AIRES. Since 1995 to