BILL ANALYSIS Ó
AB 506
Page 1
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