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 AB 506 Page 2 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 AB 506 Page 3 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.) AB 506 Page 4 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 AB 506 Page 5 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 AB 506 Page 6 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. AB 506 Page 7 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 AB 506 Page 8 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 AB 506 Page 9 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. AB 506 Page 10 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." AB 506 Page 11 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 AB 506 Page 12 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, AB 506 Page 13 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