BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Leland Y. Yee, Chair
BILL NO: AB 506
A
AUTHOR: Mitchell
B
VERSION: May 1, 2013
HEARING DATE: June 11, 2013
5
FISCAL: No
0
6
CONSULTANT: Sara Rogers
SUBJECT
HIV testing; infants
SUMMARY
This bill permits a social worker to provide written
consent for an HIV test for an infant less than 12 months
of age who has been taken into temporary custody or has a
petition filed with the court to be adjudged a dependent of
the court, under specified conditions.
ABSTRACT
Existing law :
1.Establishes the criteria by which a child who has
suffered, or is at risk of suffering, significant abuse
or harm shall be within the jurisdiction of the juvenile
court which may adjudge that person to be a dependent
child of the court. (WIC 300)
2.Permits the juvenile court to direct all such orders to
Continued---
STAFF ANALYSIS OF ASSEMBLY BILL AB 506 (Mitchell)
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the parent, parents, or guardian of a minor who is
subject to any juvenile court proceeding as the court
deems necessary and proper for the best interests of the
minor. Provides that these orders may concern the care,
supervision, custody, conduct, maintenance, and support
of the minor, including education and medical treatment.
(WIC 245.5)
3.Under case law, establishes that proceedings in juvenile
court must conform to the constitutional guarantee of due
process. (152 Cal.App. 2d 458, 313 P.2d 182)
4.Permits the court to limit parental control over an
adjudged dependent child and requires the court to
clearly and specifically set forth those limitations.
Provides that such limitations may not exceed those
necessary to protect the child. (WIC 361)
5.Permits the court to make any and all reasonable orders
for the care, supervision, custody, conduct, maintenance,
and support of an adjudged dependent child, including
medical treatment, subject to further order of the court.
(WIC 362)
6.Provides that a minor under the age of 12 is unable to
consent for the provision of an HIV test and provides
that consent may be obtained from the minor's parents,
guardians, conservators, or other person authorized to
make health care decisions for the minor. (HSC
121020(a)(1))
7.Permits the court to provide written consent for the
provision of an HIV test of a minor who is adjudged to be
a dependent child of the court. (HSC 121020 (a)(2))
8.Permits a social worker to authorize the performance of
the medical, surgical, dental, or other remedial care for
a child in temporary custody upon the recommendation of
the attending physician or surgeon. Requires the social
STAFF ANALYSIS OF ASSEMBLY BILL AB 506 (Mitchell)
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worker, before the care is provided, to notify the parent
or guardian, and if the parent or guardian objects,
provides that care shall be given only upon order of the
court. (WIC 369(a))
9.Permits the court to order that a social worker may
authorize the medical, surgical, dental or other remedial
care for a dependent child that has been placed by the
court under the custody or supervision of a social worker
if it appears there is no parent or guardian capable of
authorizing or willing to authorize medical, surgical,
dental or other remedial care. (WIC 369 (c))
10.Permits a social worker to authorize emergency medical,
surgical, or other remedial care, as defined, for a child
in temporary custody, a dependent child, or a child for
whom a petition has been filed, in an emergency
situation. Requires the social worker to make reasonable
efforts to obtain the consent of, or to notify, the
parent or guardian. (WIC 369 (d))
11.Under the Confidentiality of Medical Information Act
permits a provider of health care to disclose medical
information to a county social worker, a probation
officer, or any other person who is legally authorized to
have custody or care of a minor for the purpose of
coordinating health care services and medical treatment
provided to the minor. (CIV Section 56.103)
12.Protects the privacy of individuals who are the subject
of an HIV test by prohibiting any person from being
compelled to identify an individual who is the subject of
an HIV test. (HSC Section 120975)
13.Permits an HIV test to be performed without the
individuals consent if the parent, guardian, conservator,
or other person specified by the juvenile dependency
court signs a written declaration of their consent. (HSC
Section 120990)
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This bill:
1.Permits a social worker to provide written consent for
the provision of an HIV test to an infant under the age
of 12 months who has been taken into temporary custody,
has had a petition filed with the court to be adjudged a
dependent of the court, or has been adjudged to be a
dependent of the court, if certain conditions are met.
2.Establishes the following conditions for this
authorization:
The attending physician and surgeon have
determined and documented that HIV testing is
necessary to render appropriate care to the infant.
The social worker provides known information to
the physician or surgeon concerning the infant's
possible risk factors regarding exposure to HIV.
The social worker is unable to contact the
parent, guardian, or person authorized by the court
to make medical decisions on behalf of the child in
order to seek consent, following reasonable efforts.
1.Requires the attending physician, surgeon and social
worker to comply with all applicable state and federal
confidentiality laws.
FISCAL IMPACT
This bill is not designated as fiscal and has not been
analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
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According to the author, recent advances in HIV treatments
have made early treatment of infants who have been infected
with HIV particularly effective in increasing positive
outcomes. The author states that because court approval is
needed to perform HIV testing of infants taken into
protective custody if the parent is unable to consent, the
window of opportunity to treat the child is quickly
diminished.
The sponsor, Los Angeles County states that in some cases,
the county is unable to locate the parents of children
placed in foster care and is thus unable to secure parental
consent for needed treatment. The sponsor states that court
approval can take six months or longer because of heavy
court caseloads thus severely compromising the health of
the infant.
The author states that this bill will authorize a social
worker or treating health care provider to consent to an
HIV test for a child under the age of one year who is in
temporary custody or who has been adjudged a dependent
child of the court.
Juvenile Dependency Process - Limitations on Parental
Rights
The juvenile dependency process is designed to provide
maximum safety and protection for children who are
currently being physically, sexually, or emotionally
abused, being neglected, or being exploited, and to ensure
the safety, protection and physical and emotional
well-being of children who are at risk of harm, while at
the same time maintaining a focus on the preservation of
the family. (WIC 300.2)
The court has broad authority to direct "all such orders to
the parent, parents, or guardian of a minor who is subject
to any proceeding under this chapter as the court deems
necessary and proper for the best interests of?the minor.
These orders may concern the care, supervision, custody,
STAFF ANALYSIS OF ASSEMBLY BILL AB 506 (Mitchell)
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conduct, maintenance, and support of the minor, including
education and medical treatment."
Existing law permits a social worker to take a minor into
"temporary custody" if it is suspected that a child is
being, or is at risk of being abused or neglected, however
in such cases the abuse has not yet been validated, the
child has not yet been adjudged to be a dependent of the
court, and parental rights have not been formally limited.
The authority for the juvenile dependency system to limit
parental authority over children is subject to a series of
rigorous and lengthy hearings and extensive court oversight
designed to ensure that parental rights are only limited to
the extent necessary to protect the children. (WIC 300 et
seq.)
After taking a minor into custody, existing law requires a
social worker to immediately file a petition with the
juvenile court, if the social worker has determined that
the minor shall be retained in custody, or else to release
the minor within 48 hours.<1> The law then requires the
court to hold a "detention hearing" before the expiration
of the next judicial day after such a petition has been
filed to determine whether the minor shall continue to be
detained.<2> Following the detention hearing, the court is
required to hold a "jurisdictional hearing" to determine
whether the minor is a person described by WIC Section 300
and, if a minor is detained in custody, to hold that
hearing within 15 days after the detention hearing.<3>
After finding that a minor is a person described by Section
300, the court is then required to hold a "disposition
hearing" within 60 days after the detention hearing to
determine whether the child is a dependent child of the
court, to potentially limit parental rights, establish a
-------------------------
<1> WIC 311 and WIC 313
<2> WIC 315
<3> WIC 334 and WIC 355
STAFF ANALYSIS OF ASSEMBLY BILL AB 506 (Mitchell)
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guardian, determine an appropriate placement, or to order
the provision of services to the child or family.<4>
Generally, in cases where children are in temporary
custody, parental consent to medical treatment is required.
If it is determined by a physician that medical care is
needed, but the parent or guardian is unavailable or
unwilling to consent to the treatment, a social worker is
generally required to seek written consent from the court
to provide such care or to receive authorization from the
court for the social worker to provide the consent.<5>
Only in cases of emergency, where it appears the child
requires immediate emergency treatment, is a social worker
permitted to provide unilateral consent after making
reasonable efforts to obtain consent from the parent or
guardian. In this case, "emergency situation" is defined as
when:
[A] child requires immediate treatment for the
alleviation of severe pain or an immediate diagnosis
and treatment of an unforeseeable medical, surgical,
dental, or other remedial condition or contagious
diseases which if not immediately diagnosed and
treated would lead to serious disability or death. <6>
This bill additionally establishes the right of social
workers to consent to HIV testing of a child who is in
temporary custody or is adjudged to be a ward of the court,
without approval of the court, under certain circumstances.
-------------------------
<4> WIC 360 and WIC 361
<5> WIC 369
<6> WIC 369 (d)
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This bill, sponsored by Los Angeles County, would
contradict the existing Juvenile Division Rules of the Los
Angeles County Superior Court which recently enacted
specific provisions related to HIV/AIDS testing of
Dependent Children. As a matter of court policy, Local Rule
7.6 states the finding of the juvenile court that "it is
necessary to engage in early intervention and to provide
treatment for dependent children who are infected with the
human immunodeficiency virus ("HIV"), the probable
causative agent of acquired immune deficiency syndrome
("AIDS")."
The Local Rule further states that if a child is taken into
temporary custody and no petition has yet been filed with
the dependency court , DCFS may conduct HIV testing without
a court order if the child:
Is under 12 years of age
Is placed in out of home care
Has parents/legal guardians who have
refused to provide consent or their whereabouts
are unknown, and
Has a parent with a history of specified
risk behaviors that may have placed the child at
risk of exposure to HIV.
However, once a petition has been filed, the Local Rule
states that DCFS must request a court order for testing
children under the age of 12 (older children are able to
consent themselves).
The Local Rule further requires that DCFS provide the
results of any performed test to the court in a sealed
envelope marked "confidential," and may only provide the
results to pertinent persons including the child's
attorney, out-of-home placement provider, parents, legal
guardian, prospective adoptive parents, and dentist or
mental health practitioner after making the request to the
STAFF ANALYSIS OF ASSEMBLY BILL AB 506 (Mitchell)
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court.<7>
Many county courts have standing rules pertaining to the
provision of medical care for dependent children,
permitting social workers to consent to medical care under
certain circumstances, though not necessarily pertaining to
HIV testing and treatment specifically.
Advances in neonatal and infant HIV treatment
According to the American Academy of Pediatrics (AAP),
Committee on Pediatric AIDS, advances in the management of
HIV infection of newborns and infants require specific
medical interventions to be applied before the first 6
weeks of birth and that "prompt identification permits
early initiation of aggressive antiretroviral therapy with
the potential to prevent the rapid progression of illness."
<8>
AAP further writes that:
[T]o provide appropriate medical care for the infant,
it is necessary that foster care agencies obtain
information about HIV exposure status, if known, for
infants placed in foster care. If the maternal
serologic status is unknown, the HIV exposure status
----------------------
<7> Superior Court of California, Los Angeles County. Local
Rules Chapter 7 Juvenile Division Rule 7.6.
<8> Identification and Care of HIV-Exposed and HIV-Infected
Infants, Children and Adolescents in Foster Care. American
Academy of Pediatrics, Committee on Pediatric AIDS.
Pediatrics 2000; 106;149.
http://pediatrics.aappublications.org/content/106/1/149.full
.pdf
STAFF ANALYSIS OF ASSEMBLY BILL AB 506 (Mitchell)
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of infants in foster care?including infants placed in
foster care who are 1 year or younger, should be
determined by testing the infants for HIV antibody.
Additionally, a recently published peer-reviewed study
looking at the medical treatment of young children with HIV
infection, found a four-fold reduction in infant mortality
associated with early initiation of antiretroviral
medication compared with deferred initiation.<9>
The article cites research finding that, "disease
progression in infants is much more rapid than in older
children and adults, with mortality exceeding 50 percent by
2 years of age in the absence of antiretroviral therapy."
<10>
Recognizing the existence of significant legal medical
consent questions related to HIV testing, the AAP writes:
When the authority to consent to medical care has been
transferred from the biological parents to a foster
care agency, and the HIV-exposure status of the infant
is unknown, the agency should provide consent for HIV
testing of the infant and have an established
mechanism to facilitate testing and to allow exchange
of confidential information with appropriate persons
(eg, physician, nurse, caseworker coordinating care
for the foster child, biological parents, and the
foster parents).
----------------------
<9> Prendergast AJ, Penazzato M, Cotton M, Musoke P,
Mulenga V, et al. (2012) Treatment of Young Children with
HIV Infection: Using Evidence to Inform Policymakers. PLoS
Med 9(7): e1001273. doi:10.1371/journal.pmed.1001273
<10> Newell ML, Coovadia H, Cortina-Borja M, Rollins N,
Gaillard P, et al. (2004) Mortality of infected and
uninfected infants born to HIV-infected mothers in Africa:
a pooled analysis. Lancet 364: 1236-1243.
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AAP recommendations further state the importance of
communicating any positive test results to the biological
or foster parents within a "health care setting with
appropriate social service support available at the time of
the meeting. Infants who are identified as HIV-exposed
should be managed in accordance with established
guidelines."
Privacy of Medical Information related to HIV status
WIC Section 369 provides the court with the authority to
release medical information to certain individuals
responsible for the care of the child. Additionally, HSC
Section 121020 provides that a case worker authorized to
consent for a child may receive the test results without
written authorization and may disclose test results of the
child, if they have written authorization from the court.
HSC Section 121022 provides that health care providers and
laboratories shall report cases of HIV infection to the
local health officer using patient names on a form
developed by the department. The statute further requires
local health officers to report unduplicated HIV cases by
name to the department on a form developed by the
department.
Additionally the Confidentiality of Medical Information Act
permits a health care provider to disclose medical
information to a county social worker, a probation officer,
or any other person who is legally authorized to have
custody or care of a minor for the purpose of coordinating
health care services and medical treatment provided to the
minor.<11>
Opposition Concerns
-------------------------
<11> CIV Section 56.103
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Los Angeles Dependency Lawyers (LADL), an organization
representing biological parents of children in dependency
proceedings, writes that this bill "breaches parental
confidentiality by allowing the social worker to reveal to
a physician a parent's history of behaviors, true or not,
that in the estimation of the reporting social worker may
place the parent at an increased risk of exposure to HIV."
Additionally, LADL writes that the stated concern addressed
in this bill, that it may take months for a social worker
to obtain authority from the court to test a child in
temporary custody for HIV is incorrect, stating that "the
presentation of a written affidavit from a concerned social
worker and a simple application would find the court
issuing a considered order within the day or certainly by
the next. Court review of requests for psychotropic drugs
and other medical procedures are already issued with some
regularity within the 72 hours between the time a child is
taken into custody and the filing of a juvenile dependency
petition. LADL further states that the Juvenile Court for
the County of Los Angeles, Dependency Division, has
"carefully considered and with great care developed
procedures that ensure the needs of a child who may have
been exposed to HIV."
The Williams Institute and Youth Law Center write in
opposition, based on a prior version of the bill, that
social workers should not have unilateral authority to
consent to an HIV test for an infant in temporary custody
as statutory and court authority for social workers to
acquire authority already exists in the law.
ACLU writes that the recent amendments do not address
concerns that an infant who is tested and is positive will
be adequately linked to appropriate care. Additionally, the
ACLU expresses concerns that the HIV status of an infant
has important implications for the HIV status of the mother
and therefore supports the addition of explicit
confidentiality protections for the mother. Additionally,
the ACLU writes that physicians who receive a positive test
STAFF ANALYSIS OF ASSEMBLY BILL AB 506 (Mitchell)
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result for a patient are responsible to report that
information to local public health officers, thus social
workers should help facilitate accurate reporting of
positive test results by providing available contact
information for the biological mother to the physician, who
would then include that information when reporting the test
result to the local health officer.
COMMENTS
1. Staff recommends amending the bill to clarify and
simplify requirements that a social worker may consent
only after making reasonable efforts to contact the
parent or guardian. Specifically staff recommends the
following amendment:
Page 3, line 25 amend as follows:
(ii) (I) The social worker provides known
information concerning the infant's possible risk
factors regarding exposure to HIV to the attending
physician and surgeon.
(iii) The social worker has made reasonable
efforts to contact the parent or guardian but was
unable to do so and the social worker has documented
the efforts made.
Strike lines 28-40 inclusive.
2. Staff recommends amending the bill to ensure that a
social worker also has authority to consent to HIV
related medical care that is determined by the
physician to be necessary. Additionally, in response
to concerns raised by the opposition, the author
wishes to amend the bill such that, if an infant tests
positive, a social worker shall provide any available
contact information to the physician for inclusion in
the mandatory case reporting to the local health
STAFF ANALYSIS OF ASSEMBLY BILL AB 506 (Mitchell)
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officer. Additionally, the author seeks to include a
requirement that the local health department seek to
notify the biological mother and refer her to
appropriate care. Specifically, staff recommends the
following amendment:
Following line 17, insert:
(d)(1) If an infant described in subsection
(a)(3) tests positive for HIV infection and the
physician and surgeon determine that immediate HIV
medical care is necessary to render appropriate care
to that infant, the provision of HIV medical care
shall be considered emergency medical care pursuant to
Welfare and Institutions Code Section 369 (d).
(2) After the results of an HIV test performed
pursuant to this section have been received and if the
infant tests positive for HIV infection, the social
worker shall provide any available contact information
for the biological mother to the physician and surgeon
which shall be included in case reporting to the local
health officer. The physician and surgeon shall report
any infant test result that is positive for HIV with
any available contact information for the biological
mother to the local health officer pursuant to Health
and Safety Code Section 1603.1.
3. The ACLU seeks an amendment to this bill that would
require a positive test result for an infant to be
treated as confidential medical information for the
mother. However, defining a child's HIV test result as
the confidential medical information of the mother
leads to practical questions regarding the appropriate
sharing of information with necessary individuals who
are responsible for the care of the infant.
While current law includes multiple exceptions to
permit the sharing of confidential information for a
dependent child, if the information were also
confidential information of the mother, those
exemptions may not permit sharing on behalf of the
child. Staff recommends this issue be further
considered in Senate Judiciary Committee.
Related Legislation
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AB 446 (Mitchell), Requires each draw of blood ordered for
a patient in a public health clinic or an urgent care
center to be tested for HIV, provided that the patient has
consented to the HIV test, as specified. Requires, before a
person other than a medical provider can administer a test
for HIV infection, the person being tested, his or her
parent, guardian, conservator, or other person as
specified, to provide informed consent for the performance
of the test. This bill is in Senate Rules Committee
awaiting referral.
PRIOR VOTES
Assembly Floor: 77-0
Assembly Judiciary: 10-0
Assembly Human Services:5-0
POSITIONS
Support: County of Los Angeles (Sponsor)
AIDS Healthcare Foundation
AIDS Project Los Angeles
American Academy of Pediatrics
California Black Health Network
California Communities United Institute
California Medical Association
California State Association of Counties
County Health Executives Association of
California
County Welfare Directors Association
Health Officers Association of California
Los Angeles Centers for Alcohol and Drug
Abuse
L.A. Gay and Lesbian Center
National Association of Social Workers
Santa Clara County Board of Supervisors
Oppose: ACLU (unless amended)
Los Angeles Dependency Lawyers, Inc.
Williams Institute (unless amended)
Youth Law Center (prior version)
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