Constitutional Rights: Medical Treatment for Children with Special Needs

In truth, nothing quite prepares you for raising a special needs child in a world that too often treats serious diagnoses as over-used labels.

The burden of stress for parents of children with special needs, according to this study, can be as high as those of soldiers in combat. Yet, that seems milder compared to the constant worry, fear, and guilt over the child’s health and future. Thankfully, the constitution lays strong foundations for the life, liberty, and happiness of your special needs child and you as a parent.

You have a right to secure assistance with obtaining the necessary medical treatment that will allow your child to live his/her best life. You are also entitled to make decisions on how best to help your child access safe medical treatment. No one loves your child more than you.

For experienced Metro Detroit area family law attorney, Allison Folmar, these rights and constitutional freedoms are important, not just to you as a parent, but for the welfare and safety of your child. As such, it should not be a struggle to exercise your constitutionally guaranteed right to treatment for your special needs child(ren).

If you are being deprived access, in any way, to medical treatment for your child’s need, Allison will use her skill and expertise to make sure the system does not abuse its authority and ruin your life.

Approximately 20% of US children under 18 have a special health need

For context, nearly 20% of U.S. children (1 in every 5 families) under 18 have a special health care need. These children, according to the Department of Health and Social Services, “have or are at increased risk for chronic physical, developmental, behavioral, or emotional conditions and also require health and related services of a type or amount beyond that required by children generally”.

Their wide-ranging cognitive and developmental needs can often leave them at the mercy of health care, mental health, and social services providers. In most cases, these children require constant medical support throughout their lives.

Treatment for their special healthcare needs (SHCN) is something that they usually cannot access on their own. There are findings that indicate how children with special needs “when compared to those children without SHCN, face more inadequacies in healthcare, education, health of family, and maintaining a healthy lifestyle”.


Parental Rights and Medical Treatment of Special Needs Children

The U.S. Constitution recognizes the right of individuals to establish a family, to act on behalf of their child, and to have a relationship with that child. It recognizes parents as the primary caregivers of their children. It also promotes the parental right to direct the care and upbringing of their children unless they are proven unfit.

While these rights are not expressly mentioned in the Constitution, they are contained within the Due Process Clauses of the 5th and 14th Amendments. Both of these provisions were held by the US Supreme court to “…protect the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville 530 U.S. 57, at 65-6 (2000).

These rights are classed into two specific rights that entitle parents to provide the best care and life for their children with special needs. These rights can only be denied in the event of some wrongdoing. They are:

Decision Rights

For parents with special needs children, this can translate into a legal right to make treatment decisions on behalf of those children. This right to make medical and financial decisions in the child’s best interest exists up until the child turns 18. Even then, every parent also has a right to continue to “parent” their special needs child even when the child comes of age.

Parents also have a right to reject coercive state intervention in the treatment of that child. The Second Circuit has held, in Duchesne v. Sugarman 566 F.2d 817, 825 (2d Cir. 1977), that families have a right to remain together without the coercive interference of the state.

If you live in Michigan, then you are probably aware of Attorney Folmar’s fight against this and other similar phenomena. Allison is currently at the forefront of the fight against “medical kidnapping” nationally. This describes a situation where the state permits the forcible removal of a child from their parents’ home in order to administer or continue treatments that the parents genuinely believe are harmful to the child.


Evaluation Rights

These rights are mainly found in the Individuals with Disabilities Education Act (IDEA). They offer parents the chance to get such educational services that keep up with the medical treatment of their special needs child.

As a parent, you have a right to request an evaluation for your special needs child in order to access healthcare or other services. This also goes along with a right to give or refuse consent when an organization or hospital seeks to medically evaluate your child.

You can also demand a prompt, thorough, and unbiased evaluation. This is often important to get a full picture of your child’s functional and developmental abilities in the most convenient way possible.

Parents have a right to demand periodic re-evaluations to keep track of the child’s developmental milestones. They are also entitled to vet the qualifications of any specialist brought in for these evaluations, and to get a copy of the evaluation report at no cost.


How can these rights be infringed?

Living with special needs in the U.S. can be a round tale of discrimination, segregation, and prejudice.

Despite the fact that parental rights are vital to the survival of children with special needs, they are in constant conflict with larger interests of policy. All of these erode a parent’s efforts to access or manage their child’s medical treatment.

Parents are being increasingly deprived of their rights and of their children because of questionable investigations into homes based on allegations of abuse or neglect. Sometimes, these rights are infringed upon simply because medical professionals or government officials would rather act in a forensic role than in the traditional caregiving role of their field.

Attorney Folmar continues to expose the legal and ethical issues that arise when parents are being deprived of their rights over the medical treatment of their special needs children. If your right to help your child access the best and safest treatment possible is being threatened, you should immediately contact Attorney Allison to intervene.


How can you enforce these rights?

Every person has a right to the protection of the law against abusive attacks upon their honor, reputation, and private and family life. If you are unable to access special medical treatment for your child, you have a right to secure legal representation to ensure you receive the justice that you deserve.

In Michigan, one of such means is to report any breach of your rights to the Michigan Department of Health and Human Services (MDHHS). The MDHHS can help with cash/food assistance (SNAP), child support, child care, medical insurance (Medicaid and MIChild), in-home support, and emergency services.

You can also seek legal redress in a court of law where you are being deprived of these services or of your right to make medical decisions on behalf of your child.  For instance, the Americans with Disability Act (ADA) leaves room for the courts to enforce your rights where your child is being deprived of access to medical treatment on discriminatory grounds (race, gender, ethnicity).


Contact Allison today

If you need a tough-as-nails lawyer with the necessary skill set and experience to enforce your parental rights, Allison is the one to call. As a parent herself, she knows what is required to ensure that you and your child can access your rights under the law.

If you are a Michigander or reside elsewhere in the country, you can get in touch through her contact page or call today.