BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 506
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          Date of Hearing:  April 30, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                AB 506 (Mitchell) - As Introduced:  February 20, 2013

                              As Proposed to be Amended

           SUBJECT  :  CHILD WELFARE: HIV Testing of Infants

           KEY ISSUE  :  IN ORDER TO HELP FACILITATE EARLIER TREATMENT OF  
          INFANTS WITH HIV, SHOULD A SOCIAL WORKER BE PERMITTED to  
          authorize HIV testing of an Infant in THE child welfare SYSTEM  
          IF the DOCTOR TREATING THE INFANT DETERMINES THAT SUCH TESTING  
          IS MEDICALLY NECESSARY AND the SOCIAL WORKER ATTEMPTED TO  
          CONTACT THE parent, BUT WAS NOT SUCCESSFUL?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.  

                                      SYNOPSIS

          This bill, sponsored by the Los Angeles County Board of  
          Supervisors, permits a social worker to authorize an infant in  
          the foster care system to be tested for HIV if certain  
          conditions are met.  Current law provides a number of different  
          avenues for a social worker to obtain consent to conduct an HIV  
          test - generally either through the parent or the court.  The  
          author and the supporters, including Aids Project Los Angeles,  
          American Academy of Pediatrics California, California Black  
          Health Network, California State Association of Counties, and  
          L.A. Gay & Lesbian Center, argue that the current test approval  
          process can take as long as six months.  For HIV positive  
          children, this delay "may jeopardize their health outcome as  
          studies have shown that intensive HIV treatment soon after birth  
          can ultimately prevent full HIV acquisition and its adverse  
          health consequences."  This bill provides an alternative  
          mechanism for obtaining consent by allowing the social worker to  
          consent to the test if (1) the treating physician determines  
          that testing is necessary based on a consideration of known risk  
          factors, and (2) the social worker has made reasonable efforts  
          to obtain parental consent, but was unable to contact the  
          parent, and has documented those unsuccessful efforts.  

          Opponents, including the American Civil Liberties Union, Center  








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          for HIV Law and Policy, Courage Campaign, Disability Rights  
          Legal Center, and Youth Law Center, argue current law already  
          provides ample opportunities to obtain legal consent to testing  
          and that if a county is still unable to obtain consent for as  
          long as six months, its dependency system's problems extend far  
          beyond HIV testing and should be addressed more globally.   
          Opponents are also very concerned that the bill solely provides  
          for testing, but does not immediately link an HIV-infected  
          infant to appropriate medical care.

           SUMMARY  :  Provides social workers with additional authority to  
          consent to HIV testing for infants in temporary custody or who  
          are adjudicated dependents when such testing is determined to be  
          medically necessary and the parent or guardian cannot be  
          reached.  Specifically,  this bill  :

          1)Allows a social worker to provide consent to an HIV test for  
            an infant, under 12 months of age, who has been taken into  
            temporary custody as the result of possible abuse or neglect,  
            has had a petition filed to be made a dependent, or is a  
            dependent, and is receiving medical care, if all of the  
            following have occurred:

             a)   The attending physician determines that HIV testing is  
               necessary to render appropriate care to the infant and  
               documents that determination.  In deciding whether HIV  
               testing is necessary, requires the physician to consider  
               factors, whether known to the physician or provided to the  
               physician by the social worker, that increase the infant's  
               risk of exposure to HIV.
             b)   The social worker provides known information concerning  
               the infant's possible risk factors to the attending  
               physician.  
             c)   The social worker makes reasonable efforts to contact  
               the infant's parent or guardian, or, if the parent's or  
               guardian's authority to make medical decisions for the  
               child has been terminated or limited by the court, the  
               person authorized by the court to make medical decisions  
               for the child, to seek consent for HIV testing and is  
               unable to contact the parent, guardian or person authorized  
               to make medical decisions for the child, as provided.   
               Requires the social worker to document his or her efforts  
               to contact that person.

          2)Requires the physician and the social worker to comply with  








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            all applicable state and federal confidentiality laws.

           EXISTING LAW  : 

          1)States that the purpose of foster care is to provide maximum  
            safety and protection for children who are currently being  
            physically, sexually, or 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.   
            (Welfare and Institutions Code Section 300.2.  Unless stated  
            otherwise, all further statutory references are to that code.)

          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.  (Section  
            16000.)

          3)Permits a peace officer or social worker to take a minor into  
            temporary custody if he or she is believed to be or is a  
            victim of abuse or neglect at the hands of a parent or legal  
            guardian, including if the parent or guardian willfully or  
            negligently fails to provide the child with adequate medical  
            treatment.  (Section 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, or whether the child should be retained in an  
            out-of-home placement.  (Sections 306 and 309.)

          5)Allows a juvenile court to adjudicate a minor a dependent of  
            the court if the child has been neglected or abused.  (Section  
            300.)

          6)Requires a court to appoint counsel for a child taken into  
            temporary custody who shall advocate for the protection,  
            safety, and physical and emotional well-being of the child.   
            (Section 317(c).)

          7)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.  (Section 324.5.)








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          8)States the rules for seeking consent to provide medical care  
            to a child who is in temporary custody, who has had a petition  
            filed, or who has been made a dependent of the court.   
            Generally requires a social worker to acquire the consent of a  
            parent or, if that parent is unwilling or unable, the  
            permission of the court to authorize medical, surgical, dental  
            or other remedial care to the child.  (Section 369.)

          9)Permits, under specified emergency conditions, a licensed  
            physician to provide emergency medical, surgical, or other  
            remedial care to a dependent child or a child in temporary  
            custody without the consent of the parent or permission from  
            the court.  (Section 369(d).)

          10)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 Code Section 121020.)

           COMMENTS  :  This bill, sponsored by the Los Angeles County Board  
          of Supervisors, permits a social worker to authorize that an  
          infant in the foster care system be tested for HIV if certain  
          conditions are met.  According to the author:

               Infants taken into protective custody are given physical  
               examinations to determine their health status and needs.   
               Recent advancements in HIV treatments have made treating  
               infected infants early particularly effective in increasing  
               positive health outcomes for these children.  Unfortunately  
               HIV testing cannot happen without approval from the courts  
               (if the parent is unavailable to consent) which quickly  
               diminishes the window of opportunity to treat the child.

          The author states that 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."  Adds the sponsor:

               There are times when it is difficult to locate the parents  
               of infants who are placed in 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  








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               compromised if medical consent is not obtained in a timely  
               manner.  Medical studies have shown that medications can be  
               administered to the HIV-exposed infant soon after birth,  
               which can ultimately prevent HIV acquisition and its  
               adverse health consequences.

           Background on the Dependency System and the Role of the Juvenile  
          Court  :  The purpose of California's child welfare 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.  

          When it is suspected that a child is a victim of abuse or  
          neglect, a county welfare 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 child welfare agency and the court  
          investigate whether the child should remain in custody and be  
          ruled a dependent of the state or be returned to his or her  
          family.  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 may retain, as determined  
          by the court on a case by case basis.  Typically, the parent  
          retains educational and health rights over the child, although  
          that depends on the court.  

          When a child has been removed from his or her family, strict  
          timelines and court oversight requirements control:

          Petition Filed:  If the child is removed from his or her parents  
          and taken into custody, a court petition must be filed within 48  
          hours.  
           
          Detention Hearing:  If the child is taken into custody, then an  
          initial "detention" hearing is held either on the same day that  
          the petition is filed or on the next court day "to determine  
          whether the minor shall be further detained."  The court first  
          hears information about the case at this hearing and determines  








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          whether the child should be removed from his or her home during  
          the pendency of the case.  The parents are informed of the  
          reasons for the child's detention as well as their right to  
          counsel.

          Jurisdictional Hearing:  Within 15 days of the dependency  
          court's decision to detain the child, the court must hold a  
          jurisdictional hearing to decide, based on a preponderance of  
          the evidence, whether the child falls within the dependency  
          court's jurisdiction under Section 300.  A child may come within  
          the jurisdiction of the dependency court if he or she has  
          suffered, or is at risk of suffering, serious physical harm or  
          illness, serious emotional harm or sexual abuse.

          Dispositional Hearing:  If the child continues to be detained, a  
          dispositional hearing is held no later than ten days after the  
          jurisdictional hearing.  Often, the jurisdictional hearing and  
          the dispositional hearing are held at the same time.  Before  
          that hearing, the social worker provides the court with a  
          detailed report about the child.  At the dispositional hearing,  
          the court decides what will happen with the child.  The court  
          can dismiss the case, order informal services for the family or  
          make the child a dependent of the court.  

          If the child is made a dependent of the court, the court must  
          decide where the child should live. The court may allow the  
          child to live with a parent on "family maintenance" where the  
          court and a social worker monitor the child.  If the court  
          determines that the child should be removed from his or her  
          parents, it must first try to place the child with relatives,  
          but if no appropriate relative placement is found, the child is  
          typically placed in foster care.  During this period, "family  
          reunification" services may be offered to the parents.  However,  
          if the parents' history indicates that family reunification is  
          not possible, a permanency hearing will be held to determine  
          what will happen to the child. 

          Review Hearings:  The court must review the case of each child  
          who has been removed from his or her parents every six months.   
          At the review hearings, the court assesses the parents' progress  
          towards possible reunification.  The court can reunify the  
          family and dismiss the case, reunify the family and continue to  
          monitor the family through family maintenance services, or  
          maintain the case. 









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          Ongoing Communication with the Court:  At any time after the  
          detention hearing, the child welfare agency, with notification  
          to the 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.

          The Legislature has provided dependency courts with very  
          significant, on-going oversight responsibilities to ensure that  
          children removed from their families and placed under its  
          jurisdiction are not only protected from further harm, but also  
          thrive.

           Provision of Health Care for Children in Temporary Custody and  
          for Dependent Children  :  When a medical emergency arises for a  
          child in the child welfare system, the child's social worker is  
          provided specific unilateral consent authority where immediate  
          care is needed to address the emergency situation.  As a general  
          rule, all non-emergency medical care for children in the child  
          welfare system requires consent before care can be provided.   
          More specifically, Section 369(a) and (b) lay out requirements  
          under which consent to medical, surgical, dental or other  
          remedial care may be acquired for a child in temporary custody.   
          These provisions require that, in non-emergency situations,  
          either parental consent or permission of the juvenile court be  
          provided in order to provide any medical care.  

          In response to these requirements, some counties have issued  
          standing court orders which authorize 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 for children in  
          temporary care if the parent is unavailable.  However, if the  
          parent objects to the treatment, then the child welfare agency  
          is required to seek court approval before providing care.  

          The Los Angeles Juvenile Court also has a local standing order  
          that deals specifically with HIV testing.  Rule 7.6 first states  
          the policy:  "The juvenile court finds that it is necessary to  
          engage in early intervention and to provide treatment for  
          dependent children who are infected with" HIV.  The rule goes on  
          to specifically allow for testing of a child who has been taken  
          into temporary custody and for whom no petition has been filed  
          if the child meets certain specified conditions, including that  








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          the parent or guardian cannot be located or refuses to consent  
          and the child has known risk factors for exposure to HIV.  If  
          the petition is filed, the standing order specifically requires  
          that the child welfare agency must obtain a court order if the  
          parent either is unavailable to consent or refuses to consent. 

          If a child has already been made a dependent of the court,  
          current law requires that the parent or guardian must still  
          consent to treatment, unless the court determines that there is  
          no parent, guardian or other person capable or willing to  
          authorize treatment for the child.  In that case, the court may,  
          by court order, allow the social worker to authorize needed  
          medical care for the child.

           The Importance of Early HIV Detection and Treatment:   The U.S.  
          Department of Health and Human Services notes the importance of  
          early detection and treatment of HIV, especially in young  
          children.  Federally approved pediatric guidelines recommend  
          initiating treatment for all infants under the age of 12 months  
          regardless of their clinical status because of the inverse  
          correlation between a child's age and the risk of disease  
          progression.  Because the risk of rapid HIV progression is  
          highest in young infants, physicians are instructed to test for  
          and identify an HIV infection as early as physically possible,  
          since identification of HIV infection during the first few  
          months of life permits clinicians to initiate treatment during  
          the initial phases of a primary infection.  Many observational  
          studies in the United States and Europe suggest that the earlier  
          an infant receives treatment, the less likely their HIV will  
          progress to AIDS or death when compared to those children who  
          start therapy later.  (See, e.g., Goetghebuer T, Haelterman E,  
          Le Chenadec J, et al., Effect of Early Antiretroviral Therapy on  
          the Risk of AIDS/Death in HIV-Infected Infants, 23 AIDS 5,  
          597-604 (Mar 13, 2009).) 

          AAP, California, a supporter of the bill, adds:

               With no intervention, infants born to HIV positive mothers  
               have a 15-45% chance of acquiring HIV infection.  We have  
               found that when we initiate antiretroviral therapy within  
               48 hours after birth, the chances of infection can decrease  
               to as low as 2-5%.  Therefore, AAP policy is that all  
               newborns should be tested for HIV if maternal status is  
               unknown, and treatment be initiated if the test is  
               positive.  In addition, older infants who are HIV positive  








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               can develop rapid progression to AIDS if they do not  
               receive antiretroviral treatment.  Infants who enter foster  
               care are at high risk of HIV exposure and it is AAP policy  
               that all infants under 1 year of age be screened for HIV  
               upon entering foster care if maternal status is unknown,  
               and if the test is positive that antiretroviral treatment  
               be started.

          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 not only recommends that  
          infants be tested for HIV, but that children in the foster care  
          system receive the health care treatment they need and that more  
          needs to be done to better protect these children:

               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.

           This Bill Provides an Alternative for Obtaining Consent for  
          Testing Infants in the Child Welfare System for HIV  :  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 consent to conduct an intravenous  
          blood draw for an HIV test - generally either through the parent  
          or the court.  This bill provides an alternative for obtaining  
          consent by allowing the social worker to consent to the test if  
          (1) the treating physician determines that testing is necessary  
          based on a consideration of risk factors, and (2) the social  
          worker has made reasonable efforts to obtain parental consent,  
          but was unable to contact the parent, and thereafter documents  
          those unsuccessful efforts.  









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          According to Los Angeles County, this alternative is necessary  
          because 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.  

          This bill is not intended to bypass parental consent when the  
          parents can be reached.  Rather, the social worker is limited to  
          providing consent solely in situations where the parent or  
          guardian cannot be reached.  If the social worker is able to  
          reach the parents and they refuse to consent to HIV testing, the  
          social worker would still be required to go to court and obtain  
          consent.

           Emergency Treatment  :  This bill does not expressly address what  
          should occur if the child tests positive for HIV.  The sponsor  
          makes clear that if a young infant tests positive for HIV, then  
          it is an emergency situation and the infant needs immediate  
          medical treatment.  As such, the treating physician would be  
          able to provide care, without waiting for parental consent or  
          court approval, under the emergency care exemption in Section  
          369(d).  If it is not an emergency situation, then consent would  
          be required for treatment.

           ARGUMENTS IN SUPPORT  :  In support of the bill, the Santa Clara  
          County Board of Supervisors states:

               Infants taken into protective custody are given physical  
               examinations to determine their health status and needs.   
               However, an HIV test requires parental consent or the  
               approval of the court.  It is often difficult to locate and  
               obtain this consent from parents of children taken into  
               protective custody and court approval may take as long as  
               six months to occur.  For those HIV positive children, this  
               delay may jeopardize their health outcome as studies have  
               shown that intensive HIV treatment soon after birth can  
               ultimately prevent full HIV acquisition and its adverse  
               health consequences.

          The California Association of Counties adds that the bill "would  
          streamline the process for testing infants for HIV infection and  
          will increase the chances for these vulnerable children to live  
          a long and healthy life."









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          The L.A. Gay & Lesbian Center writes:  "Medical research shows  
          that early intervention can prevent the acquisition of the virus  
          by an infant who has been exposed to HIV.  Waiting to complete a  
          long process that requires a court order to authorize an HIV  
          test can needlessly compromise the health of the child.  In  
          addition, it places additional strain on an already  
          over-burdened child welfare system and may cause additional cost  
          to the public health system in the long run."

          The California Black Health Network is particularly concerned  
          that, for children taken into protective custody, there may not  
          be adequate records to know if their mothers were tested or  
          treated for HIV:  "We know early treatment effectively lessens  
          the likelihood of an infant becoming HIV positive.  Given this  
          information, it is critical to identify as early as possible  
          whether infants taken into 'protective custody' are healthy and  
          free of diseases including HIV."

          Aids Project Los Angeles adds that this bill is necessary  
          because Los Angeles County "faces difficulty in getting early  
          HIV diagnosis and treatment for babies when there is no  
          custodial parent or guardian available to give permission for an  
          HIV test."

           ARGUMENTS IN OPPOSITION  :  A group consisting of the American  
          Civil Liberties Union, Being Alive Los Angeles, Center for HIV  
          Law and Policy, Courage Campaign, Disability Rights Legal  
          Center, HIV Prevention Justice Alliance, and Los Angeles HIV Law  
          and Policy Project, as well as, individually, the Assistant Dean  
          and Executive Director, and the Legal Director of the 
          Williams Institute at UCLA School of Law and the Director of the  
          Health and Human Rights Law Project at UCLA School of Law write  
          together to oppose the bill.  This group argues that "statutory  
          and court authority for social workers to acquire permission for  
          an HIV test already exists and that a social worker should not  
          have unilateral authority to consent to an HIV test for an  
          infant in temporary custody.  It does not seem necessary to  
          shift the ability to consent to HIV testing of infants who are  
          already in the dependency process from the courts to the social  
          workers and providers.  The current process respects the rights  
          of the child, the parents and the state."

          The group goes on to make three additional points.  First, "with  
          respect to the infant's health care interests, it is essential  
          that any measure such as AB 506 provide that an infant testing  








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          positive for HIV will be linked immediately to appropriate  
          care."  Second, since "the testing of an infant implicates the  
          biological mother's privacy interest and health interests," they  
          argue that it is essential that "if the biological mother is  
          available, reasonable efforts be made to notify her in advance  
          of the testing and that she be asked to provide consent if she  
          is the legal parent of the infant."  The bill, as amended, does  
          require the social worker to make reasonable efforts to contact  
          a parent or guardian.  Finally, the group requests amendments to  
          "ensure that testing is in the best interests of the child and  
          not based on fear, prejudice, or misunderstandings about HIV.

          The Youth Law Center (YLC) also opposes the bill, arguing:

               Current law provides ample opportunities to obtain legal  
               consent.  When parental consent cannot be obtained, state  
               law permits the juvenile court to authorize HIV testing of  
               a minor and Los Angeles Juvenile Court Rules provide  
               procedures for testing with and without a court order.  . .  
               .  [C]urrent law also provides opportunities for county  
               social workers to obtain court authorization for HIV  
               testing, including regularly scheduled hearings and special  
               provisions for ex parte communication.  If, given these  
               provisions, the county is still unable to obtain  
               authorization for six months or more, the problems extend  
               far beyond the HIV testing issue and should be addressed on  
               a larger scale.

               Furthermore, the bill does not meet the terms of the  
               American Academy of Pediatrics (AAP) recommendations.  The  
               AAP recommends testing of all infants as soon as possible  
               after birth, with appropriate consent as required by state  
               and local law, if the HIV status of the mother is not  
               known.  It recommends the foster care agency have an  
               established mechanism to facilitate testing to allow  
               exchange of confidential information with appropriate  
               persons and provide information to biological or foster  
               parent(s) in a health care setting with appropriate social  
               service support.  It also emphasizes that infants who are  
               identified as HIV-exposed should be managed in accordance  
               with established guidelines.

               AB 506 does not  . . . provide sufficient justification for  
               bypassing current consent provisions in state and local  
               law, does not provide a mechanism to facilitate testing,  








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               and does not ensure that appropriate action will be taken  
               once the testing is complete. (Citations omitted.)

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Los Angeles County Board of Supervisors (sponsor)
          Aids Project Los Angeles
          American Academy of Pediatrics, California
          California Black Health Network
          California Communities United Institute
          California State Association of Counties
          County Health Executives Association of California
          County Welfare Directors Association
          L.A. Gay & Lesbian Center
          National Association of Social Workers, California Chapter
          Santa Clara County Board of Supervisors
          Seven individuals

           Opposition
           
          American Civil Liberties Union
          Being Alive Los Angeles
          The Center for HIV Law and Policy
          Courage Campaign
          Disability Rights Legal Center
          HIV Prevention Justice Alliance
          Los Angeles HIV Law and Policy Project
          Youth Law Center
          Four individuals

           Analysis Prepared by  :  Leora Gershenzon / JUD. / (916) 319-2334