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The information provided in any OLRS publication is not a substitute for legal advice. You should consult with a lawyer concerning your rights in a specific case. Contact your local bar association or visit the Ohio State Bar Association Web site to find a lawyer in your area.
This publication was produced by the Ohio Legal Rights Service through a contract with the National Alliance on Mental Illness (NAMI) Ohio and with funding from the Ohio Department of Mental Health. This booklet is protected by copyright under United States law and by international copyright laws and treaty provisions. You may copy and distribute the work provided that you use the work for personal, noncommercial use; do not add the work to a collection or use it with any other text, photographs, artwork, etc; do not modify or alter the work in any way or delete or modify any copyright; and do not publish or post all or any part of the work on any Internet site or in or on any other media without obtaining the prior written consent of Ohio Legal Rights Service. Copyright © 2006 Ohio Legal Rights Service. All rights reserved. IntroductionAbout This BookletThis booklet tells about rights in community services for children and their families. These services include mental health, substance abuse and addiction treatment services (behavioral health services), education, child welfare, DD services, and unruly and delinquent youth services. This booklet gives you information about your child's and family's rights and ways you can guard and advocate for your child's rights. You can read this booklet to get an overview of your rights in community services for children. While you learn about rights from this booklet, a good way to begin guarding and guiding your child's rights is to begin asking questions. You can ask questions of the people from child-serving agencies who are giving your child services in the community or hospitals. You might ask - "What are your plans for my child?" - "Who can explain our choices to me?" - "What if we disagree with your decision about services?" Asking questions is a good way to advocate for your child's rights. Reader's note: Sample Questions to AskThis booklet has sample Questions to Ask, marked with bullets like this:
These bulleted sample questions can help you think about questions to ask people of child-serving agencies who are giving your child services in hospitals, community clinics and other facilities. Asking questions is a good way to learn about and speak up for your child's rights, and a good beginning to your child's getting healthy and resilient. Defining the Word "Right"It is hard to define the word "right," but easier to give examples of rights. For example, you have rights:
These are important rights guaranteed by laws. You and your child have other rights. If your child needs or receives behavioral health services, you have three basic rights that protect and support your child in the behavioral health system. Many other rights come out of these three basic rights. Your child and family have rights:
Before discussing your child's and family's specific rights, it is important to identify the role of parents, guardians and legal custodians.
Defining the Word "Placement Setting"In this document "placement setting" is defined as any living arrangement where children reside apart from their families, such as foster care homes, detention centers, group homes, residential treatment centers, and youth correctional facilities. Knowing about your rights can help you and your child:
The Role of Parents, Guardians and CustodianRole of ParentsThe law does not give your child complete control of all of his or her rights. The law says you can decide how to guard and advocate for many of your child's rights. You can decide how to use your child's rights so your child has the best chance to get something positive out of behavioral health services or treatment.
You are your child's natural guardian. You are legally responsible for your child and have the right to make decisions for your child. Role of Non-custodial Family MemberParental rights issues often arise because of divorce. Under Ohio law, both biological parents keep the right to consent to treatment for their child and the right to access their child's treatment records, unless the divorce court specifically limits or restricts one parent's rights by court order. If a custodial parent remarries, the new spouse does not have the same rights as a biological parent has to consent to treatment and to access records. The biological parent may grant the new spouse those powers with a signed document such as a power of attorney or a release of information.
Role of Persons Acting as Custodians or GuardiansA judge may make an order to take away some or all of your parental rights and responsibilities to make decisions for your child. The judge can select a person to be your child's legal guardian. Sometimes a judge chooses a relative or family friend to be a legal custodian of a child. Persons who are chosen as guardian or custodian make decisions for the child. The parents might still be allowed to participate in decisions for their child.
Role of Custodians of Children in Foster CareWhile your child is in foster care, you will not have legal custody of your child. The custodian is usually the local public children services agency (PCSA). You may not have the right to make decisions for your child in foster care. But you are still the child's legal parent, with rights to visit your child and be kept informed about your child. And you also keep the right to help make major decisions for them, such as participating in choices about major medical treatment your child may need. You are still part of planning for services for your child while your child is in foster care, unless a judge has said you are not allowed.
If your child is in foster care, the court may appoint a lawyer for your child to protect your child's rights and advocate for your child's wishes. A judge may also choose a person to be your child's guardian ad litem. The guardian ad litem tells the judge what he or she thinks is best for your child, for example, that behavioral health treatment and services are necessary.
Children who are in foster care have the same rights as other children. If your child is in foster care, your child can still talk to and visit with you, unless a judge limits visits or says you can not see your child at all. Sometimes, after years of costly treatment for their child, families face bankruptcy and losing their homes, and they may no longer be able to pay for the help their child needs. Families desperate to secure necessary treatment may give custody to the PCSA as a last resort. Neither these families nor the PCSA find this solution desirable.
The following sections describe specific rights of your child and family while receiving services in Ohio. You have three basic rights that protect and support your child. Many other rights come out of these three basic rights. Your child and family have rights:
The Right to Know and Understand Important InformationRight to be Told About Your RightsIt is your child's right to be told about rights. If your child is getting treatment or services, Ohio law says you and your child must be told about your rights.
Mental health staff members who must tell you about your rights are called Client Rights Officers (CRO) in community mental health agencies and residential treatment facilities. In community hospitals, they are often called Patient Representatives. Right to Service Without DiscriminationIt is your child's right not to be discriminated against because of:
If you apply for services for your child, the child-serving agency or hospital must be fair and may not discriminate.
Right to Get Information from Your RecordsIt is your child's and family's right to know what doctors, psychiatrists and other people say in the treatment chart or record. If your child or family ask for a copy of your child's treatment chart, the mental health or substance abuse services agency or hospital must give you a copy. You will probably have to pay for the copies, possibly as high as two dollars fifty cents per page.
If your child or family does not understand what the papers say, the doctor or another staff member has to explain the papers to you in a way you understand.
The only time you or your child can be kept from seeing part of the chart is when a doctor has written in the treatment plan that it would substantially harm you or your child to see that part of the chart. But the doctor can only keep your child from seeing the chart for clear treatment reasons. A mental health service provider may not keep your child or family from seeing what is in your child's chart because you owe money for treatment or medical care. Right to Privacy of Your Child's RecordsIt is your child's right to have health and treatment information kept private and confidential by child-serving agencies and people who give your child services.
Any person or child-serving agency that gives your child services or treatment must keep your child's information private. Sometimes your child's information can be shared with others. Some examples are:
Right to Services in the Least Restrictive SettingIt is your child's right to get services or treatment in the least restrictive setting that fits what your child needs. Your child must get services or treatment in a place that gives your child the most freedom and lets your child be around children with and without disabilities. Your child should not have to live in a placement setting or hospital to get services, if services are available at home or in the community.
For mental health or substance abuse services, providers must tell you and your child about options for treatment and services that you can get at home or in the community. Right to Talk to a LawyerIt is your child's and your family's right to talk to a lawyer in private to get advice about your rights or any other concerns having to do with your child's behavioral health diagnosis, treatment or services. If the lawyer charges for giving advice, you will have to pay. Not all lawyers charge for services. For example, your child may be able to get free advice about rights from organizations like the local Legal Aid Society or Ohio Legal Rights Service. See the reference section at the end of this book for the names and phone numbers of these and other sources of advice about your rights.
No one may punish or threaten your child or family, or take away services, privileges or belongings because you or your child talks to a lawyer. Right to Get a Second OpinionIt is your child's right to get a second opinion, sometimes called an independent evaluation. Your child can get an independent evaluation from another doctor or behavioral health professional (a counselor or therapist) about your child's diagnosis, treatment or services. Your child or family may want a second opinion if you disagree with or have questions about your child's diagnosis, treatment or services. Most of the time, you will have to pay for the independent evaluation.
No one may punish or threaten your child or family or take away services, privileges or belongings because you ask for a second opinion. Right to Know Why Services were DeniedIt is your child's right to be told why a child-serving agency will not provide services.
If a child-serving agency decides not to give services or treatment to your child, the agency must explain the reason to you. If you think that the reason violates your child's rights, you can complain by using the grievance procedure. See the section of this booklet about your right to complain about treatment or services. Right to Know When Services Will StopIt is your child's and family's right to know ahead of time why services will be stopped and to be involved in the planning for this stoppage.
Your child and family have the right to be involved with planning in advance for the consequences when services are stopped.
For mental health or substance abuse services, the provider may not stop services or take them away unless the agency first tells your child and family why. Right to Get Help from AdultsIt is your child's right to get adult guidance, support and supervision that fits your child's needs and circumstances. Each child should have a parent or a legal custodian to look out for his or her rights. If a child's parents are unable or unwilling to do so, a court should appoint a legal custodian or a guardian ad litem or both to guard and guide the child's rights. Every child should have an adult advocate to speak up for the child's rights.
The staff of child-serving agencies and hospitals should be role models and teachers for children. They should help children to develop healthy, trusting relationships. Right to Food and ClothingIt is your child's right to get enough healthy food and clothing. A placement setting or hospital must make sure that your child gets a well-balanced diet or, if needed, a special diet to keep your child healthy. Your child must have enough clothes that fit, and the clothes should be the right kind for the weather.
Right to Live in a Clean and Safe PlaceIt is your child's right to live or receive services in a place that is clean and safe. If your child is residing in a placement setting or hospital, it has to be clean and safe. A placement setting or hospital should not have:
If residing in a placement setting, the setting must not be overcrowded and must meet your child's needs. For example, if your child uses a wheelchair, your child must be able to live in setting that is accessible to wheelchairs.
Right to Medical CareIt is your child's right to get adequate and appropriate medical care. A placement setting must make sure your child gets the right kind of medical care, vision care and dental care when needed. A placement setting must pay attention to your child's health care needs.
Right to Know How Much Services Will CostIt is your child's and your family's right to know how much you will have to pay for services or treatment, or to know when those services are free to the community. Any time your child gets mental health or substance abuse services, the agency or hospital must tell you how much the services or treatment will cost you. Right to Not be Over-medicatedIt is your child's right to be free from unnecessary or excessive medication.
No child-serving agency may give your child medication that your child does not need or over-medicate your child. No child-serving agency may give your child medication to make staff members' jobs easier or to punish your child. Your child may not be forced to take medication, unless your child is at immediate risk of physical harm to self or others, right here and right now. Before being forced to take medication, everything else must be tried to keep your child from hurting himself or herself or other people.
Right to Not be Restrained or SecludedIt is your child's right to not be restrained or secluded unless absolutely necessary.
No child-serving agency or hospital may restrain or seclude your child unless your child is at immediate risk of physical harm to self or to others. Before being secluded or restrained, your child must be an immediate risk to self or others, right here and right now. Before being secluded or restrained, everything else must be tried to keep your child from hurting himself or herself or other people. Child-serving agency staff members may not physically restrain your child by sitting on or tying up your child. Child-serving agency staff members may not lock your child in his or her bedroom.
Right to Not be NeglectedIt is your child's right to be free from physical, mental and emotional neglect. No one who gives your child services or treatment may neglect your child. Staff members of a child-serving agency must pay attention to what your child needs to be healthy, safe, and protected.
Right to Not be AbusedIt is your child's right to be free from physical, mental and emotional abuse. No one who gives your child behavioral health services or treatment may say or do things to hurt your child.
Staff members of child-serving agency are not allowed to hit, punch, kick, or do anything else to hurt your child's body. Abuse is not only physical. Staff members of a child-serving agency are not allowed to curse or scream at your child, or say things to humiliate, threaten, or belittle your child. Staff members of a child-serving agency are not allowed to say or do anything that would endanger your child or make your child feel unsafe.
Right to Not be Sexually AbusedIt is your child's right to be safe and protected from all forms of sexual abuse. No child-serving agency staff member may do anything sexual to your child or with your child. Sexual abuse is not only physical touching. No one who gives your child services or treatment may hurt or take advantage of your child in any sexual way, whether through action or in word.
The Right to Participate in Making DecisionsRight to a PlanIf your child is getting treatment or services from a child-serving agency, it is your child's right to have an individualized service plan in writing and kept up-to-date, so that it meets your child's changing needs. An individualized service plan, or treatment plan, says what your child needs, and what services or treatment your child should get. Your child and family help make this plan with the help of the people who work for child-serving agencies. If your child or family wants, other people can also be part of making the plan. All these people together are called the treatment team. The child-serving agency must make sure your child and family get a copy of the written plan.
The plan says how the services are supposed to help your child. The plan says that your child and family know about the services or treatment and, in the absence of a court order requiring treatment, have agreed to the services or treatment. The plan must be up-to-date and meet your child's changing needs. The team can change the plan to fit your child's needs. Your child or family can ask for the plan to change.
Right to Participate in Making the PlanIf your child is getting treatment or services from a child-serving agency, it is your child's right, and often your family's right, to be part of making the treatment plan, and changing it too.
The child-serving agency must give your child and family the chance to be a part of making and changing the treatment plan. Agencies must:
Staff members must talk with you ahead of time about when and where the treatment meeting will be. They should have the meeting at a time and place that is good for your child and family.
Your child or family can pick an advocate, family member, teacher or anyone else you want to be part of your child's meetings. You may choose a person to be part of the meetings to help you talk, or write down what people say in the meeting, or just be there for support. Right to Agree to or Refuse ServicesMaking a decision after getting all the information you need is making an informed decision. Informed consent is saying "yes" to services or treatment after getting all the information you need to make the decision.
In the absence of a court order directing otherwise, it is your and your child's right to agree to or refuse any services after getting all the information you need to decide. For mental health or substance abuse services, the provider must tell your child and family all the information about how the services might help or harm your child. This right says that your child and family do not have to decide until you have the information. You have the right to refuse unusual or dangerous treatment. For mental health or substance abuse services, the provider must give your child and family a chance to ask questions. The agency or hospital must answer those questions, talk with your child and family about your concerns, and give you information about other choices of services and treatment.
Right to Agree or Refuse to Take MedicationsIt is your and your child's right to agree or refuse to take medication. The mental health or substance abuse services agency or hospital must first ask you and your child whether he or she wants to take medication, and your child can agree or refuse to take the medication. You or your child can change your mind and say "no" to taking medication at any time. Before asking your child to take medication, the doctor must explain what the medication is for and must answer any questions you have about the medication. The doctor must explain how the medication can help or hurt your child, any side effects, and other medications or treatment your child can get instead.
Right to Refuse a Service and Not Lose OthersIt is your child's right to say he or she does not want a service, without losing other services that your child wants. For example, you or your child can say you do not want your child to take a medication, but you want your child to keep getting counseling and case management. Your child and family have the right to say "no" to medication and not lose the counseling and case management.
The Right to Complain About Services or TreatmentRight to Complain About ServicesIt is your child's and your family's right to complain about services and ask for changes. This is your right to file a grievance. Your child and family can complain, or tell someone in the child-serving agency, when you think someone is:
Your child and family can complain to any staff member in the child-serving agency. In mental health agencies, it is the job of the Client Rights Officer (CRO) or the Patient Representative in community hospitals to explain to your child or family how to make a complaint. A child-serving agency must have a grievance procedure. The grievance procedure is a way for your child or family to complain. The grievance procedure says how to complain, whom to complain to, when the agency has to answer you and what you can do if you do not like the answer you get.
An agency must tell your child and family about the grievance procedure in a way you understand and must also give the explanation in writing.
If your child or family is not happy with the agency's answer to your complaint, you can appeal. In a mental health or substance abuse services agency, you can ask for the local behavioral health board to decide if the answer was fair and right for your child. If your child or family is not happy with what the local behavioral health board says, you can ask ODMH or the Ohio Department of Alcohol and Drug Addiction Services (ODADAS) to decide if the answer was fair and right for your child.
If your child is in a psychiatric hospital, you can appeal to ODMH. If your child is in a child-serving agency placement setting, you can appeal to ODADAS. Also, your child and family can complain, at any time, to outside agencies, like these:
The reference section at the end of this book lists the names and phone numbers of these and other sources of legal advice. Right to Ask for Help to Make a ComplaintIt is your child's and your family's right to ask for help to complain. Your child and family can ask for help to complain from any staff member of a child-serving agency. It is the job of the CRO in mental health agencies, or the Patient Representative in community hospitals, to explain to your child and family how to make a complaint, but first you have to ask for the help.
Civil RightsRight to Personal DignityIt is your child's right to be treated with consideration and respect for your child's personal dignity. Staff from a child-serving agency should speak to your child with respect. They should treat your child as an individual who has feelings, thoughts, likes and dislikes, experiences and beliefs. Right to Communicate with OthersIt is your child's right to talk to and be in touch with his or her family, guardian, custodian, friends and other important people.
If your child is getting services away from your family's home, the placement setting or hospital must give your child the chance to have visitors, make and receive phone calls, and write and receive letters according to your child's individual service plan, and as long as you or your child's guardian give permission.
Right to Make ChoicesIt is your child's right to make choices and decisions. Child-serving agencies must give your child the chance to give an opinion about decisions that affect his or her life. The agency should encourage and support your child to form opinions and to make choices.
Right to PrivacyIt is your child's right to have a reasonable amount of private time, in private places. Your child must have time for privacy and a place for privacy. The privacy must fit your child's needs and must keep your child safe. If your child lives in a placement setting, the setting must make sure that your child can get to her or his bedroom or sleeping area, as long as the setting can assure your child's physical, mental and emotional safety.
Right to be Treated Without DiscriminationIt is your child's right not to be discriminated against. No one can discriminate against your child because of your child's:
Right to Exercise Your RightsIt is your child's right to exercise all his or her rights, without being threatened or punished, or without losing services or treatment. A child-serving agency may not stop your child's services or treatment as punishment for exercising your rights. Also, an agency may not threaten or punish your child because your child or someone in your family exercised rights. For example, an agency may not take away your child's services because your family exercised your right to complain that the agency restrained your child.
Right to Humane, Respectful, Adequate TreatmentIt is your child's right to get humane, respectful and adequate treatment and care. Any child-serving agency or placement setting licensed or certified by the State of Ohio must give your child humane, adequate treatment and care. Right to Freedom of and from ReligionIt is your child's right to think his or her own thoughts and to have his or her own beliefs and ideas about religion.
Child-serving agencies may not force your child to take part in religious or spiritual activities and may not prevent your child from doing so.
Right to Refuse to be Photographed or TapedIt is your child's right to agree or refuse to have his or her picture taken or to be recorded on videotape or audio tape. It is your child's right to agree or refuse to be looked at through a one-way mirror, through which a staff member can see your child but your child can not see the staff member. Child-serving agencies may not videotape, tape-record, take a picture of, or look at your child from behind a one-way mirror without your child's permission. Before asking permission, the agency must tell your child and family who will hear the tape or see the pictures, who will be looking at your child from behind the one-way mirror, and why the agency wants to do these things.
The child-serving agency must tell you that you have the right to refuse to be audio-taped, video-taped or photographed, or observed through a one-way mirror. Right to Have His or Her Own BelongingsIt is your child's right to have his or her own belongings. Your child must be able to have belongings or money that belong to him or her, as long as those things fit your child physically, mentally and emotionally and are safe for him or her.
Rights in Specialized Service SystemsRights You Keep During Alcohol and Drug TreatmentYour child's rights come from the three basic rights of children who have behavioral health problems:
Right to Protection from Addicted Parent and OthersIf a court or a local public children's service agency (PCSA) decides that your child is at risk of abuse or neglect by a parent, guardian or custodian who has a drug or alcohol addiction, your child has some extra protections. The local PCSA must refer the parent, guardian or custodian, who has the addiction, to an addiction program that is certified by the Ohio Department of Alcohol and Drug Addiction Services (ODADAS). The parent, guardian or custodian may need to go the program for testing, treatment, assessment or services. The PCSA can also refer your child to a drug or alcohol program, if your child has a drug or alcohol addiction. Right to a Free Appropriate Public Education (FAPE)It is your child's right to get help and support to learn in a classroom or other place that fits your child's needs. If your child has a disability, a federal law called the Individuals with Disabilities Education Improvement Act (IDEA) says that your child must get free schooling called special education if he or she qualifies as a child with a disability under the law. You may ask the school to test your child for special education. Sometimes a child needs extra help to learn in special education. The extra help is called "related services." The extra help might be counseling or behavioral management services. The special education law (IDEA) says your child must get special education in a place that fits your child's needs. That place also must give your child the most freedom possible and the opportunity to learn with children with and without disabilities. This is called getting education in the least restrictive environment (LRE). If your child gets special education and related services because of the IDEA, your child must have an individualized education program (IEP). The IEP will say what kind of special education and related services your child must get. The IEP will also say where your child will get the special education and related services. For example, your child's IEP might specify a regular or special classroom.
Even if your child is not living at home, your child must still get the education and related services that the IEP says your child should get, in the placement the IEP says. If your child is living in a residential facility, your child may attend school in a regular classroom at the neighborhood school, or in a classroom on the grounds of the hospital, or your child may have a tutor. The residential facility and your child's school must make sure that your child goes to school as the IEP directs. This is also true if your child is in foster care. Right to Complain About Special Education ServicesIt is your child's and your family's right to complain if you think your child is not getting the special education and related services that your child needs, and to ask for changes. This right to complain is called your right to due process. You will want to first talk to the person in your district who is in charge of special education. Your child and family can complain about not getting special education and services, or not getting the right special education and services. Due process gives your child and family a step-by-step way to complain. Due process also guarantees that your rights will be protected according to what the special education law (IDEA) says. Your child's school district must give you information in writing about your due process rights. The information must be written in a way you understand.
Right to Privacy of Education recordsYour family has the right to look at your child's records. Your family has some rights to keep your child's education or school records private. Ohio law and the federal Family Educational Rights and Privacy Act (FERPA) give your family these rights to look at your child's records and to keep them private.
Records include:
Generally, the school must keep your child's records private and may not give these records to other people without your written permission. In limited exceptions, the law allows the school to release your child's records without your permission. For example, the school can give information from your child's records to the state and federal governments for certain purposes.
Right to Early Intervention ServicesIt is your young child's right to get services to improve his or her development, and to prevent or improve a developmental delay.
If your child is less than three years old and has not developed like children his or her age are expected to develop, your child and family can get early intervention (EI) services. The reason for EI services is to help your child develop and prepare to learn in school.
You can find out more about EI services by calling the Help Me Grow program, which manages EI services in Ohio: Help Me Grow Rights You Keep in Detention and Juvenile Correction FacilitiesIf your child is incarcerated or confined, your child has specific rights that have to do with being in a detention center or juvenile correctional facility. Your child's rights will be limited, but your child does keep some rights while confined. In general, your child has the right to a safe and secure environment and a right to food, clothing and recreation. Your child has the right to medical and mental health care and educational services, including special education and related services. Your child has the right to practice his or her religion so long as it can be done safely in the institution. Your child has the opportunity for visits and telephone and mail contact and the opportunity to register complaints when his or her rights are not met.
If your child is in a county detention facility, you can contact the home county juvenile court to get information or help. If your child is in a state facility, you can contact the facility Superintendent to get information or help.
Ohio Department of Youth Services ResourcesGetting Help with Rights in Behavioral Health SettingsThere are people who can advise you about your rights at the places where your child is getting behavioral health services. Agencies, hospitals and other facilities must be licensed or certified by the state to give behavioral health services. In order to have a license, these places must have a person on staff to protect your child's rights. This staff member is an advocate for your child. This staff member's job is to speak up for your child and for your child's rights. The advocate is also the person who helps your child and family understand your rights and make a complaint if you feel your child's rights are being limited or violated.
This advocate is called a Client Rights Officer (CRO) in community mental health agencies and in mental health residential treatment facilities, and a Patient Representative in private psychiatric hospitals. Each agency, hospital and facility must put information about the CRO or the Patient Representative in a place where children and their families can see it. The information must have the name of the advocate, office hours, telephone number and office location.
Other AdvocatesYour child and family can also get help from other advocacy agencies, consumer groups and private lawyers. On admission and whenever you ask, agencies, hospitals and facilities must give you and your child information about other advocates. These may include your local behavioral health authority, the Office of Consumer Advocacy and Protection of ODMH, and Ohio Legal Rights Service. Contact information for these and other advocates follows. Rights Advocacy ContactsFor agencies with no TTY/TDD number listed call the Ohio Relay Service, TTY (800) 750-0750. CSD Ohio Legal Aid Programs National Alliance on Mental Illness (NAMI Ohio) Ohio Civil Rights Commission Ohio Coalition for the Education of Children with Disabilities Ohio Department of Alcohol and Drug Addiction Services Ohio Department of Education Ohio Department of Health Ohio Department of Job and Family Services Ohio Department of Mental Health Ohio Department of Developmental Disabilities Ohio Department of Youth Services Ohio Family and Children First Council Ohio Legal Rights Service Related Topics:
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