BILL ANALYSIS Ó
AB 506
Page A
Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 506 (Mitchell) - As Introduced: February 20, 2013
SUBJECT : HIV Testing of Infants
SUMMARY : Provides social workers with additional authority to
consent to medical assessments for infants in temporary custody.
Specifically, this bill :
1)Amends Section 121020 of the Health and Safety (H&S) Code to
allow a social worker to unilaterally consent, without
notification to the child's parent, attorney or the court, to
an intravenous Human Immunodeficiency Virus (HIV) test for an
infant under one year of age who is in temporary custody.
EXISTING LAW
1)States that the purpose of foster care law is to provide
maximum safety and protection for children who are currently
being physically, sexually, emotionally abused, neglected, or
exploited, and to ensure the safety, protection, and physical
and emotional well-being of children who are at risk of harm.
2)States the intent of the Legislature to preserve and
strengthen a child's family ties whenever possible and to
reunify a foster youth with his or her biological family
whenever possible, or to provide a permanent placement
alternative, such as adoption or guardianship.
3)Permits a peace officer or social worker to take a minor into
temporary custody if s/he is believed to be or is a victim of
abuse or neglect at the hands of their parent or legal
guardian, including whether the parent or guardian willfully
or negligently fails to provide the child with adequate
medical treatment. (Welfare and Institutions (W&I) Code 305)
4)Provides a process by which a peace officer may transfer a
child in temporary custody to a social worker, who may then
consider whether the child can remain safely in his or her
home and be released to his or her parents, or whether the
child should be retained in an out-of-home placement.(W&I Code
306 and 309)
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5)Deems a child taken into temporary custody by a social worker
when he or she is in a medical facility and the child is under
medical care and cannot be immediately moved. (W&I Code
309(b))
6)Requires a county to file a petition to the court requesting a
detention hearing within 48 hours of placing a child under
temporary custody to determine whether the child should remain
in custody and whether any specific court permissions are
necessary to provide for the health and safety of the child.
(W&I Code 313 and 319)
7)Requires a "detention hearing" to be held within 24 hours of
the next court day whenever a detention petition is filed with
the court. (W&I Code 315)
8)Requires a court to appoint counsel for a child taken in to
temporary custody who shall advocate for the protection,
safety, and physical and emotional well-being of the child.
(W&I Code 317(c))
9)Requires a juvenile court to hold a "jurisdictional hearing"
within 15 judicial days of the petition filed to take the
child into temporary custody to determine whether the court
has jurisdiction to adjudicate the child. (W&I Code 334)
10)Requires a juvenile court to hold a "dispositional hearing"
within 60 days of the detention hearing to determine the
appropriate placement for the youth if he or she is
adjudicated to be a dependent of the court. (W&I Code 352(b))
11)Allows the county to communicate with the court at any time
while the child is either in temporary custody or dependency,
which may include requesting permission from the judge to
conduct an HIV test on an infant. (California Rules of Court,
Title 5 Family and Juvenile Rules, Rule 5.151)
12)Requires a child to undergo a "physical exam" within 72 hours
of being taken into temporary custody if there are allegations
of or the child is suspected of being a victim of, physical or
sexual abuse. (W&I Code 324.5)
13)Requires a social worker to acquire the consent of a parent
or permission from the court to authorize medical, surgical,
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dental or other remedial care to a child who is in temporary
custody. (W&I Code 369(a))
14)Requires a social worker to acquire permission from the court
to authorize medical, surgical, dental or other remedial care
to a child who is in temporary custody if there is no parent
or guardian who is capable of providing consent. (W&I Code
369(b))
15)Permits, under specified emergency conditions, a licensed
physician to provide emergency medical, surgical, or other
remedial care to a child in temporary custody without the
consent of the parent or permission from the court. (W&I Code
369(d))
16)Permits a court, in ordering the provision of medical,
surgical, dental or other remedial care, to release the
information of the ordered care to a social worker, parole
officer or other qualified individual or agency that is under
court order to provide for the child's welfare.(W&I Code
369(e))
17)Requires permission from the court to conduct an HIV test on
a child if she or he is under the age of 12 and is an
adjudicated dependent of the juvenile court. (Health and
Safety (H&S) Code 121020(b))
18)Prohibits a person from being compelled to disclose the
results of a person's HIV test, and prohibits a person from
negligently disclosing the results, as specified. (H&S Code
121020(c))
19)Establishes the Safe Haven Law, which permits a birth mother
to safely surrender her child who is less than 72 hours old to
an approved safe surrender site, as specified. (H&S Code
1255.7)
20)Authorizes the personnel of a safe surrender site to provide
any necessary care to the child without the consent of the
parent or other relative. (H&S Code 1255.7(c))
FISCAL EFFECT : Unknown
BACKGROUND:
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Maintaining the Family
Historically, it has been the stated policy of California that
when a child is removed from the home, first preference should
be given to placing the child with another parent, or with his
or her relatives whenever possible and appropriate. This has
helped to preserve and strengthen the social bedrock of our
society, by keeping families together and reducing society's
reliance on its social welfare system.
Child Welfare Services
The purpose of California's Child Welfare Services (CWS) system
is to provide for the protection and the health and safety of
children. Within this purpose, the desired outcome is to
reunite children with their biological parents, when
appropriate, to help preserve and strengthen families. However,
if reunification with the biological family is not appropriate,
children are placed in the best environment possible, whether
that is with a relative, through adoption, or with a guardian,
such as a nonrelated extended family member, as specified.
In the case of children who are at risk of abuse, neglect or
abandonment, county juvenile courts hold legal jurisdiction and
children are served by the CWS system through the appointment of
a social worker. Through this system, there are multiple stages
where the custody of the child or his or her placement are
evaluated, reviewed and determined by the judicial system, in
consultation with the child's social worker to help provide the
best possible services to the child.
At the time a child is identified as needing child welfare
services and is in the temporary custody of a social worker, the
social worker is required to identify whether there is a
relative or guardian to whom a child may be released, unless the
social worker believes that the child would be at risk of abuse,
neglect or abandonment if placed with that relative or guardian.
(Welfare and Institutions Code Sections 306 and 309)
The Welfare and Institutions Code also lays out the conditions
under which a court may deem a child a dependent or ward of the
court, including when the parent has been incarcerated or
institutionalized and is unable to arrange for care for the
child, such as placement with a known relative or nonrelative
extended family member (NREFM). If the child is deemed a
dependent or ward of the court, the court may maintain the child
in his or her home, remove the child from the home but with the
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goal of reunifying the child with his or her family, or identify
another form of permanent placement. Unless the child is unable
to be placed with the parent, the court is required to give
preference to a relative of the child in order to preserve the
child's association with his or her family. Associated with the
placement, the assigned social worker shall develop a case plan
for the child, which outlines the placement for the child, sets
forth services necessary for the child, and outlines the
provision of reunification services, if necessary and
appropriate.
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Temporary Custody
When it is suspected that a child is a victim of physical,
sexual, or emotional abuse, or neglect or exploitation, any
person may report that abuse or neglect to child protective
services. Additionally certain individuals, such as physicians
and teachers, are mandated under state and federal law to
immediately report any suspicion or identification of child
abuse or neglect to child protective services. After the report
of abuse or neglect is made, a county welfare agency's (CWA)
child protective services social worker is required to
immediately investigate the complaint to determine its validity.
If the complaint is found to be valid, the social worker may
remove the child from the family and place the child into
temporary custody.
This allows for the immediate removal of the child from harm,
while the CWA and the court investigate whether the child should
remain in temporary custody or be ruled a dependent of the
state. Temporary custody does not eliminate all rights of the
parent; rather removal of parental rights depends on what "care,
custody and control" rights the parent(s) may retain, as
determined by the court on a case by case basis. Typically, the
parent retains educational and health rights over the child,
which, again, depends on the ruling of the court.
The timelines and requirements to address temporary custody are
laid out in the W&I Code and provide an adjudicatory process
that must be conducted expeditiously to limit, to the extent
possible, any harm to the child. This includes limiting undue
harm due to the removal of the child from the family for health
and safety purposes, as well as avoiding emotional harm to the
child due to separation from his or her parent(s).
The timeline guiding temporary custody and dependency is as
follows:
1) Detention Petition - Within 48 hours of removal of a
child from the custody of his or her parent(s), the CWA
must file a detention petition with the juvenile court.
The detention petition must include the reasons why the
child was removed from the home, and any request of the
court necessary to provide for the health and safety of the
child, which includes any needed medical or surgical
procedures and treatment.
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2) Detention Hearing - Within 24 hours of the filing of the
detention petition, the court must, at its next court day,
hold a detention hearing where it will consider whether the
child should remain in temporary custody. It is at this
hearing that the court can entertain any requests from the
CWA or the parent(s) as to the care of the child, which
includes any necessary permission to conduct medical care.
3) Jurisdictional Hearing - Within 15 days of the filing of
the detention petition, the court must hold a
jurisdictional hearing to determine whether it has the
jurisdiction to adjudicate the child.
4) Dispositional Hearing - Within 60 days of the filing of
the detention petition, the court must hold a dispositional
hearing, unless continued as permitted by the court, to
rule on whether the child will be reunited with his or her
parent(s) or become a dependent of the state.
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It should be noted that the jurisdictional and dispositional
hearing can be held concurrently.
Further, at any time after the detention hearing, the CWA, with
notification of the interested parties, may communicate with the
court to request any necessary permissions or authority to
provide for the welfare of the child. This can include requests
for permission to provide any type of medical care for the
child, such as an HIV test.
Provision of health care for a child under temporary custody
If a child is suspected of being a victim of physical or sexual
abuse, the CWA is required to have the child undergo a physical
examination by a licensed physician. Current law is unclear as
to what is considered a "physical examination." However,
according to the National Institutes of Health (NIH), a
"physical examination" is referred to as a process a health care
provider undergoes to determine if a person has a physical
problem.<1> It includes:
Inspection; looking at the body;
Palpation; feeling the body with fingers or hands;
Auscultation; listening to sounds; and
Percussion; producing sounds, usually by tapping on
specific areas of the body.
Nowhere in the description of a physical examination does it
reference invasive medical procedures, such as an intravenous
blood draw, as part of the examination.
Parental consent or court permission for medical, surgical,
dental or other remedial care
W&I code 369 lays out requirements under which consent to
medical, surgical, dental or other remedial care may be acquired
for a child in temporary custody. Specifically, it requires
that either parental consent or permission of the juvenile court
be provided in order to provide any medical, surgical, dental or
other remedial care. It also provides specific unilateral
---------------------------
<1> "Physical examination." U.S. National Library of Medicine;
National Institutes of Health. Updated January 21, 2013.
http://www.nlm.nih.gov/medlineplus/ency/article/002274.htm
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consent authority to the social worker, but only in cases where
emergency care is needed to address an emergency situation.
In response to the requirements under W&I Code 369, some
counties have issued standing court orders, which authorizes a
social worker to consent to necessary health care for the child
under specified circumstances. For example, the Los Angeles
County Juvenile Court has issued Rule 7.4, which provides all
county social workers the right to consent to health care,
excluding an HIV test pursuant to court rule 7.6(c) in response
to H&S Code 121020, for minors in temporary custody when the
parent is unable to consent to care or objects to care.
Safe Haven Law
Established pursuant to SB 1368 (Brulte), Chapter 824, Statutes
of 2000, the Safely Surrendered Baby Law (SSBL) provides parents
the opportunity to safely surrender rather than abandon their
child within 72 hours of the child's birth. Passed in response
to increasing numbers of newborn infant deaths due to
abandonment, it is intended to provide a safe environment for
birth parents to safely surrender their child to approved
personnel with no questions asks.
The SSBL provides specific requirements on how and when the
child is taken into temporary custody and what must occur when
the child is safely surrendered. Specifically, it requires the
CWA to be notified immediately to take immediate temporary
custody of the child and states that parental consent is not
needed to provide care for that child, which includes providing
health assessments and conducting related diagnostic tests on
the child, such as an HIV test.
Developments in non-intravenous HIV tests
In July 2012 the Federal Drug Administration (FDA) approved a
new HIV test that can be administered at home by taking a swab
of a person's mouth to determine whether they are positive for
HIV. Test results are typically ascertained within 20 to 40
minutes; however, it is not intended to be a replacement for a
medically administered test. As reported by the New York Times:
While it is extremely accurate when administered by medical
professionals, it is less so when used by consumers.
Researchers found the home test accurate 99.98 percent of
the time for people who do not have the virus. By
comparison, they found it to be accurate 92 percent of the
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time in detecting people who do. One concern is the "window
period" between the time someone gets the virus and begins
to develop the antibodies to it, which the test detects.
That can take up to three months.
So, while only about one person in 5,000 would get a false
positive test, about one person in 12 could get a false
negative. Any positive test needs confirmation in a
doctor's office, the F.D.A. said, and people engaged in
high-risk sex should test themselves regularly.
The agency does not intend for the home test to replace
medical testing, but instead to provide another way for
people to find out their H.I.V. status, said Dr. Karen
Midthun, director of the F.D.A.'s Center for Biologics
Evaluation and Research.<2>
NEED FOR THE BILL
According to the author, this bill is needed to "comply with the
American Academy of Pediatrics (AAP) guidelines that all
children under the age of one year who are placed into the
foster care system to be tested for HIV."
Additionally, writing as the sponsor of the bill, the County of
Los Angeles states:
There are times when it is difficult to locate the parents
of infants who are placed into foster care. If parental
consent cannot be obtained, then approval must be obtained
from the Juvenile Dependency Court which can take six
months or longer because of heavy court caseloads.
Consequently, the health of the infant may be severely
compromised if medical consent is not obtained in a timely
manner.
Los Angeles County goes on further to state:
Medical studies have shown that medications can be
administered to the HIV-exposed infant soon after birth,
-------------------------
<2> McNeil Jr., Donald. "Rapid HIV Home Test Wins Federal
Approval." New York Times, July 3, 2012:
http://www.nytimes.com/2012/07/04/health/oraquick-at-home-hiv-tes
t-wins-fda-approval.html?_r=0
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which can ultimately prevent HIV acquisition and its
adverse health consequences.
COMMENTS :
Basis for unilateral consent authority?
According to California's CWS System Case Management System
(CMS), which is collaboratively operated by DSS and the
University of California, Berkeley's School of Social Work,
there were 5, 557 children under the age of one year who were
placed into foster care in 2012. Of that number, 1,734 children
were placed into foster care in Los Angeles County.
It is unclear how many of these children are 1) being tested for
HIV, and 2) are identified as being HIV positive. Given this
unknown, is it appropriate to grant statewide unilateral
authority to a social worker to consent for this test, and under
the guidance adopted by the AAP, would every child under the age
of one year of age then undergo an HIV test?
Further, in its report "Health Care Needs of Children in the
Foster Care System," under which it recommends that all infants
placed into foster care be tested for HIV, the AAP does not make
specific recommendations as to whether a parent's consent rights
or the authority of the juvenile court should be usurped solely
for the purpose of conducting an HIV test. Rather, it defers to
the need for state welfare agencies to produce regulations to
specify how this should be accomplished:
Child welfare agencies are responsible for ensuring that
children in their care and custody receive services
necessary to optimize their health and development.
However, most agencies have continued to struggle with
significant resource shortages in the face of increasing
case loads, and children's health care has not been a
priority for the child welfare system. Both the Child
Welfare League of America and the American
Academy of Pediatrics have provided general guidelines for
health care to children in foster care, but these have not
been widely implemented. State agency regulations are
needed to specify how this should be accomplished . There
is clearly a need for creative and collaborative
initiatives between the child welfare and health care
systems to improve the health care of foster children.
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Based on this recommendation, rather than pursue a statewide
statutory mandate, should best practices recommendations and
information be distributed to CWAs to clearly reinforce how
current law already provides them the opportunity to promptly
acquire parental consent or the court's permission to have an
HIV test conducted on a child in temporary custody?
Need for authority?
Current law and existing judicial court rules in certain
counties, including Los Angeles, provide a number of different
avenues for a social worker to obtain prompt and necessary
consent to conduct an intravenous blood draw for an HIV test
upon any child who is in temporary custody. As described
earlier in this analysis, the first time a county social worker
has the opportunity to request consent is at two integral
opportunities, as provided by law:
1) Through parental consent, which can occur immediately
when the child is placed into temporary custody; and
2) Through the court at the detention hearing, which must
be held within 72 hours of the child being taken into
temporary custody.
Further, either through subsequent hearings before the court,
such as the jurisdictional or dispositional hearing, a social
worker may request any necessary consent he or she needs to have
an HIV test conducted. Additionally, at any time while the
child is under the temporary custody of the social worker, the
social worker may engage in "ex parte communication" with the
court, which allows, upon notification of all parties involved,
the social worker to request the court's permission for the
test.
According to Los Angeles County, it can take up to six months to
acquire the permission of the court to have an HIV test
conducted. In cases involving an infant, the county argues that
any time lost waiting for the court's permission is time that
could otherwise be used to provide critical and necessary
medical care to the child to prevent HIV acquisition. However,
under state law, no child may be in temporary custody for more
than 60 days without a granted continuance of the child's
dispositional hearing by the court. It is unclear whether Los
Angeles County is stating that infants are remaining in
temporary custody for up to six months, which would require
several requested hearing continuances, and therefore their
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social workers need this authority, or they are not taking
advantage of existing statutory authority for up to six months
or more to request permission to have an HIV test conducted from
the parent or the court.
Caseloads for social workers, foster youth attorneys, and
juvenile court judges are high; however, is that sufficient
reason to forego established parental rights and court authority
to grant consent for an infant's HIV test, especially given the
many opportunities a CWA has to request permission of the court,
either at a mandated hearing or via "ex parte communication?"
Given that there exists, under current law, several statutorily
required opportunities during which a CWA may acquire parental
consent or court permission for an HIV test, it remains unclear
why Los Angeles County's social workers are not using the
existing authority afforded them under current law and why they
need this unilateral authority.
Should authority be granted, how will the information be used?
AB 506 seeks to align disclosure requirements and prohibitions
with current law, which prohibits the social worker to disclose
a minor's HIV test results with an unauthorized person,
prohibits the social worker from being compelled to disclose the
test results with an unauthorized person, and prohibits the
social worker from negligently disclosing the test results.
However, existing disclosure requirements and prohibitions are
not specifically tailored to address the unique circumstances of
how information is shared and used to both benefit and protect
children in foster care. In that regard, neither current law
nor this bill provides any requirements or prohibitions on how
the test results may be used.
If a child tests positive for HIV, it is not difficult to
conclude that the parent may be HIV positive as well. What does
this mean for the parent? Could a social worker use a parent's
HIV status as reason to recommend permanent removal of the
child? Could parent(s) be judged to have willfully or
negligently failed to provide adequate medical care for their
child simply because they are, or their child is, HIV positive?
Could a positive HIV test result for the child be used to compel
the parent to be tested for HIV, as well, or to be mandated to
undergo HIV treatment?
These are profound issues that should be explored further in
order to determine whether statutory, regulatory or other
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guidance should be adopted to better outline how an infant's HIV
test result is used to provide for the health and safety of the
child.
What if a social worker says no?
A social worker is the primary individual who is responsible for
assessing and coordinating placement and services for a child
who is in temporary custody or who has been ruled a dependent of
the court. Social workers are the main point of contact for the
child's attorney, the child's parent, the child's physician, the
parent's attorney, and the juvenile court. W&I Code places a
number of requirements upon the social worker to produce reports
and make formal recommendations to the court so that the court
may make informed rulings on whether and how a child in
temporary custody should or should not be placed into foster
care.
By placing unilateral authority into the hands of the social
worker, this measure could remove the child's attorney, the
child's physician, the child's parent, the parent's attorney,
and the juvenile court from being duly informed of the health
needs of the child so that decisions can be made in the child's
best interest.
PREVIOUS LEGISLATION
AB 1074 (Chu) from 2005
This measure would have authorized a foster parent, relative
caregiver, or assigned social worker for a child who has been
adjudged a dependent of the court to the list of persons to whom
disclosure of HIV test results may be made without consent. It
would have also allowed the a foster parent, a relative
caregiver, or the social worker of a child adjudged to be a
dependent of the court, the authority to consent to an HIV test
on the child's behalf.
This measure was not pursued and died pursuant to Article IV,
Section 10(c) of the Constitution in the Assembly Human Services
Committee.
RECOMMENDED AMENDMENTS
Statutory and court authority for social workers to acquire
permission for an HIV test exists on many levels. In order to
ensure that this authority is pursued, and rather than placing
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unilateral consent authority for an HIV test for an infant in
temporary custody with a social worker, statute should be
amended to ensure that at the detention hearing, a social worker
should be required to include any necessary requested
permissions of the court for the administration of necessary
medical care, such as an HIV test, in their initial report to
the juvenile court at the first possible opportunity, which is
the detention hearing.
Additionally, the measure should be amended to require DSS to
issue an all-county letter (ACL), informing county public health
and welfare agencies of the authority and processes available to
them to promptly request and acquire parental consent or court
permission to have an HIV test conducted upon a child who is in
temporary custody or is a dependent of the state, especially
children under one year of age.
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Specifically, staff recommends the following amendments:
Amendment #1
On page two, delete lines 16 through 22, inclusive, and insert:
Notwithstanding the Administrative Procedure Act, Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code, the department shall
issue all-county letters or similar instructions from the
director informing county public health and welfare
agencies of the authority and processes available to them
under existing statute, regulations or rules of court to
promptly request and acquire parental consent or court
permission to have an HIV test conducted on a child who is
in temporary custody or is a dependent of the state,
especially children under one year of age, no later than 30
days after the enactment of this subdivision and to be
effective on that date.
Amendment #2
On page two, delete lines 1 through 7, inclusive.
Amendment #3
On page three, after line 20 add a new Section 2 to the bill to
amend Section 319(b) of the W&I Code to read:
319(b) The social worker shall report to the court on the
reasons why the child has been removed from the parent's
physical custody, the need, if any, for continued
detention, the available services and the referral methods
to those services that could facilitate the return of the
child to the custody of the child's parents or guardians,
and whether there are any relatives who are able and
willing to take temporary physical custody of the child.
The report shall include any requests necessary to obtain
the court's permission for medical, surgical, dental or
other remedial care, including whether the child should
undergo a human immunodeficiency virus test. The court
shall order the release of the child from custody unless a
prima facie showing has been made that the child comes
within Section 300, the court finds that continuance in the
parent's or guardian's home is contrary to the child's
welfare, and any of the following circumstances exist:
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(1) There is a substantial danger to the physical health of
the child or the child is suffering severe emotional
damage, and there are no reasonable means by which the
child's physical or emotional health may be protected
without removing the child from the parent's or guardian's
physical custody.
(2) There is substantial evidence that a parent, guardian,
or custodian of the child is likely to flee the
jurisdiction of the court.
(3) The child has left a placement in which he or she was
placed by the juvenile court.
(4) The child indicates an unwillingness to return home, if
the child has been physically or sexually abused by a
person residing in the home.
Staff also suggests the following amendment:
Amendment #1
On page three, after line 21 add a new Section 3 of the bill to
read:
SEC. 2. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or
safety within the meaning of Article IV of the Constitution
and shall go into immediate effect. The facts constituting
the necessity are:
In order to ensure that a county welfare agency is aware of
and able to utilize its existing authority to acquire
prompt and immediate parental consent or court permission
to test a child under temporary custody or who is a
dependent of the state for the human immunodeficiency
virus, and to help coordinate health care treatment for the
child, it is necessary for this act to take effect
immediately.
DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to the
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
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Support
Aids Project Los Angeles
California Black Health Network
California State Association of Counties (CSAC)
County Health executives Association of CA (CHEAC)
Los Angeles County Board of Supervisors - sponsor
National Association of Social Workers CA Chapter (NASW-CA)
25 Individuals
Opposition
None on file
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089