BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 506 (Mitchell)
          As Amended June 14, 2013
          Hearing Date: June 25, 2013
          Fiscal: No
          Urgency: No
          NR


                                        SUBJECT
                                           
                                HIV testing: infants

                                      DESCRIPTION  

          This bill would authorize 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, if  
          the social worker has made reasonable attempts to contact the  
          parent or guardian, as specified.  This bill would also require  
          the attending physician or surgeon and the social worker to  
          comply with all applicable state and federal confidentiality  
          laws. 

                                      BACKGROUND  

          According to the American Academy of Pediatrics (AAP), an  
          estimated 500,000 children and adolescents in the United States  
          are in foster care.  These children enter the system because of  
          abuse, neglect, or loss of biological parents because of  
          abandonment, incarceration, disability, or death.  As many as 78  
          percent of children in foster care have a parent with a history  
          of substance abuse, and as many as 94 percent of infants in  
          foster care are born to women who abuse substances.  (American  
          Academy of Pediatrics, Committee on Pediatric AIDS,  
          Identification and Care of HIV-Exposed and HIV-Infected Infants,  
          Children and Adolescents in Foster Care, (2000)  
           [as of June 20, 2013].) 

          When a child is suspected to be a victim of abuse or neglect, a  
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          county welfare social worker is required to immediately  
          investigate the complaint.  If the complaint is valid, the child  
          is removed from a parent's physical custody and may be placed in  
          the temporary custody of the social worker, responsible  
          relative, or guardian. The social worker is required to  
          immediately file a petition with the juvenile court, and the  
          court then holds a detention hearing to determine whether the  
          child should be further detained. This gives the child welfare  
          agency and court time to investigate whether the child should  
          remain in custody and be ruled a dependent of the state, or be  
          returned to his or her parent. If the child is detained, the  
          court must hold a dispositional hearing to ascertain whether  
          there are child welfare services that would permit the child to  
          return home, and, if appropriate, order services to reunify the  
          child and family.  The dispositional hearing is often held  
          immediately after the jurisdictional hearing, but must be held  
          within 10 days of the jurisdictional hearing, subject to  
          specified circumstances. Alternatively, if the child is made a  
          dependent of the court at the dispositional hearing, 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.  Or, 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.

          Temporary loss of custody of a child does not eliminate all  
          rights of a parent. Generally, until a parent's rights have been  
          limited or terminated by the court, parental consent is  
          necessary for medical treatment.  When a parent cannot be  
          located or is unwilling to provide consent, the social worker  
          may seek authorization from the court to provide medical  
          treatment.  In emergency situations, where immediate medical  
          attention is required, the social worker is permitted to provide  
          consent to treatment after he or she makes reasonable efforts to  
          obtain consent from the parent.  (Welf. & Inst. Code Sec. 369.)

          Often, parents are difficult to locate or refuse to give  
          consent, therefore 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  
                                                                      



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          example, Los Angeles County gives all county social workers the  
          right to consent to health care for children in temporary care  
          if the parent is unavailable.  (Los Angeles County Juvenile  
          Court Rule 7.4.)  Los Angeles also has a rule that allows HIV  
          testing of a child who has been taken into temporary custody,  
          prior to the filing of a petition with the court, if the parent  
          or guardian cannot be located or refuses to consent to HIV  
          testing, and the child has known risk factors for exposure to  
          HIV.  However, after a petition has been filed, the local rule  
          requires the child welfare agency obtain to court authorization  
          if parental consent has not been granted.

          Physicians are advised to test for and identify HIV in infants  
          as early as physically possible, since early initiation of  
          antiretroviral therapy in infants with HIV has been shown to  
          dramatically reduce infant mortality. In addition, disease  
          progression in infants is much more rapid than in older children  
          and adults, with infant mortality exceeding 50 percent by two  
          years of age in the absence of antiretroviral therapy.   
          Consequently, the AAP recommends that physicians and foster care  
          agencies should be jointly responsible for the determination of  
          HIV exposure and infection status for all infants in foster  
          care.  In order to ensure that infants in foster care are able  
          to be tested for HIV as quickly as possible, this bill would  
          provide that a social worker may provide written consent to HIV  
          testing of an infant less than 12 months of age, if deemed  
          necessary by the physician, and after making reasonable efforts  
          to contact the parent or guardian for consent. This bill would  
          also allow an infant who tests positive for HIV to be connected  
          to immediate medical care.  

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that a minor may be removed from the  
          physical custody of his or her parents and become a dependent  
          for the juvenile court for abuse or neglect, or risk of abuse or  
          neglect. (Welf. & Inst. Code Sec. 300.)

           Existing law  provides that unless certain exceptions apply, as  
          specified, the primary objective of the juvenile dependency  
          system is reunification of the minor with his or her family, and  
          the court must order the social worker to provide services to  
          reunify children legally removed from a parent. (Welf. & Inst.  
          Code Secs. 202, 300.2, 361.5.)

           Existing law  authorizes the court to limit parental control over  
                                                                      



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          a dependent child, to the extent necessary to protect the child,  
          and requires the court to clearly and specifically set forth  
          those limitations. (Welf. & Inst. Code Sec. 361.)

           Existing law  authorizes the court to make any and all reasonable  
          orders for the care, supervision, custody, conduct, maintenance,  
          and support of a dependent child, including medical treatment,  
          subject to further order of the court. (Welf. & Inst. Code Sec.  
          362.)

           Existing law  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. Existing law further authorizes the  
          court to provide written consent for the HIV test of a minor who  
          is a dependent child of the court (Health & Saf. Code Sec.  
          121020 (a).)

           Existing law  allows a social worker to authorize the performance  
          of medical, surgical, dental, or other remedial care for a child  
          in temporary custody upon the recommendation of the attending  
          physician or surgeon. Existing law requires the social 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. (Welf. & Inst. Code Sec.   
          369 (a).)

           Existing law  allows 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.  
          Existing law requires the social worker to make reasonable  
          efforts to obtain the consent of, or to notify, the parent or  
          guardian. (Welf. & Inst. Code Sec. 369 (d).)

           Existing law  prohibits, under the State Confidentiality of  
          Medical Information Act (CMIA), providers of health care, health  
          care service plans, or contractors, as defined, from sharing  
          medical information without the patient's written authorization,  
          subject to certain exceptions.  (Civ. Code Sec. 56 et seq.) 

           Existing law  , authorizes 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  
                                                                      



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          health care services and medical treatment provided to the  
          minor. (Civ. Code Sec. 56.103.)

           Existing law  defines "medical information" to mean any  
          individually identifiable information, in electronic or physical  
          form, in possession of or derived from a provider of health  
          care, health care service plan, pharmaceutical company, or  
          contractor regarding a patient's medical history, mental or  
          physical condition, or treatment.  Existing law defines  
          "individually identifiable" to mean medical information that  
          includes or contains any element of personal identifying  
          information sufficient to allow identification of the  
          individual, such as the patient's name, address, electronic mail  
          address, telephone number, or social security number, or other  
          information that, alone or in combination with other publicly  
          available information, reveals the individual's identity.  (Civ.  
          Code Sec. 56.05(g).)


           Existing law  protects the privacy of individuals who are the  
          subject of blood testing for antibodies to human  
          immunodeficiency virus (HIV), as specified.  (Health & Saf. Code  
          Sec. 120975.)

           Existing law  requires health care providers and laboratories to  
          report cases of HIV infection to the local health officer (LHO)  
          using patient names, as specified, and  requires the LHO to  
          report unduplicated HIV cases by name to Department of Public  
          Health.  (Health & Saf. Code Sec. 121022.)

           Existing law  requires health records containing personally  
          identifying information relating to HIV or AIDS, which were  
          developed or acquired by state or local public health agencies,  
          to be confidential and not be disclosed, except as provided by  
          law for public health purposes or in accordance with a written  
          authorization by the patient, as specified. (Health & Saf. Code  
          Sec. 121025 (a).)

           Existing law  permits the disclosure of health records related to  
          HIV or AIDS for the purpose of facilitating appropriate medical  
          care and treatment between various entities, including the state  
          public health agency HIV surveillance staff, AIDS Drug  
          Assistance Program (ADAP) staff, and care services staff.  
          (Health & Saf. Code Sec. 121025 (c).)

           
                                                                      



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          This bill  would authorize 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, if  
          the following conditions are satisfied: 
                 the attending physician and surgeon determines that HIV  
               testing is necessary to render appropriate care to the  
               infant, as specified;
                 the social worker provides known information concerning  
               the infant's possible risk factors regarding exposure to  
               HIV to the attending physician and surgeon; and
                 the attending physician and surgeon and the social  
               worker shall comply with all applicable state and federal  
               confidentiality laws.

           This bill  would allow an infant who tests positive for HIV to  
          receive emergency medical care, as defined, if the physician and  
          surgeon determines that immediate HIV medical care is necessary  
          to render appropriate care to the infant.

                                        COMMENT
           
           1.Stated need for the bill
           
          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.

           2.Privacy concerns surrounding HIV testing and treatment

           This bill would authorize a social worker to provide written  
          consent for the HIV testing of an infant after making reasonable  
          efforts to contact the parent or guardian for consent, as  
          specified. In support of this bill the Los Angeles Centers for  
          Drug and Alcohol Abuse write that "this measure would give  
          social workers and health care providers an important tool in  
          their efforts to protect the health and wellness of defenseless  
                                                                      



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          children." However, because of the existing law concerning the  
          confidentiality of medical information and duties imposed on  
          health care providers and local health officers (LHO) regarding  
          HIV infections, this bill implicates the privacy interests of  
          the biological mother, and potentially her infant's access to  
          care. 

          The Health Insurance Portability and Accountability Act (HIPAA)  
          and the  Confidentiality of Medical Information Act (CMIA),  
          guarantee the privacy and confidentiality of an individual's  
          health and medical information. Generally, protected health  
          information (PHI) is any information held by a covered entity  
          which concerns health status, provision of health care, or  
          payment for health care that can be connected to an individual.  
          HIPAA privacy regulations also require health care providers to  
          develop procedures that ensure the confidentiality and security  
          of PHI when it is transferred, received, handled, or shared.  In  
          addition, the CMIA provides that medical information may not be  
          disclosed by providers of health care, health care service  
          plans, or contractors without the patient's written  
          authorization, unless it is shared with other health care  
          professionals for the purposes of diagnosis or treatment of the  
          patient.

          Beyond the protections discussed above, existing law further  
          protects the privacy of individuals who are the subject of blood  
          testing for HIV, and any healthcare records relating to HIV or  
          AIDS which were developed or acquired by the state or local  
          public health agencies.   (Health & Saf. Code Sec. 121025 (a).   
          At the same time, health care providers are required to report  
          cases of HIV infection to the LHO. (Health & Saf. Code Sec.  
          121022.) The LHO then has the obligation to take necessary  
          measures to prevent the occurrence of additional cases, and may  
          alert any persons reasonably believed to be a spouse, sexual  
          partner, or partner of shared needles of an individual who has  
          tested positive on an HIV test, without disclosing any  
          identifying information HIV positive person. (Health & Saf. Code  
          Sec. 120175.) The LHO must then refer to appropriate care and  
          follow up.  (Health & Saf. Code Sec. 121015.)

              a)   Confidentiality of mother's information

             HIV tests typically require informed consent from a patient,  
            where the medical care provider administering the test is  
            required to provide information about the test, and inform the  
            patient that there are numerous treatment options available  
                                                                      



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            for a patient who tests positive for HIV. (Health & Saf. Code  
            Sec. 120990 (a).)  Yet, when an infant, absent parental  
            consent, tests positive for HIV, the biological mother's own  
            status is implicated, even though she did not receive the HIV  
            test herself.  
               
            The American Civil Liberties Union (ACLU) and other  
            stakeholders have raised concerns regarding the privacy of the  
            biological mother's HIV status when her infant tests positive  
            for HIV.  In large part this concern stemmed from the fact  
            that existing confidentiality requirements are typically owed  
            to a "patient," and in this particular context the infant is  
            the patient, not the mother. Initially the ACLU requested an  
            amendment that would have treated an infant's HIV test result  
            as the confidential medical information of the mother.  That  
            approach, however, would have likely led to confusion and  
            potentially limited the availability of care to the infant,  
            because it would not be clear to health care providers what  
            information may be shared with regards to treatment of the  
            infant. 

            Ultimately, stakeholders (including the ACLU and the sponsors  
            of this bill) agreed that the medical information of the  
            infant and the medical information of the biological mother  
            should be treated as distinct.  However, all parties also  
            agreed that as a practical matter, an infant's positive HIV  
            result would implicate protected medical information about the  
            mother.  
            The amendments below would clarify that a mother's medical  
            information is separate from that of the infant, but would  
            require the attending physician or surgeon, and social worker  
            to comply with all applicable confidentiality and privacy laws  
            to protect the interests of both the infant and the mother.   
            Specifically, these amendments would reference existing law  
            that requires the confidentiality of any public record  
            relating to HIV, which is arguably broad enough to protect  
            both the mother's and the child's interests.    

                Suggested amendments 

                1)     On page four, line two, after "confidentiality"  
                 insert "and privacy"

               2)     On page four, line three, after "laws" insert  
                 "including section 121025 to protect the confidentiality  
                 and privacy interests of both the infant and the  
                                                                      



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                 biological mother"
           
             a)   Connecting mother to necessary care
             
            In addition to the privacy concerns discussed above, the ACLU  
            raised concerns regarding the need, when an infant tests  
            positive for HIV, to connect the biological mother to  
            HIV-related information and care.  From a public policy  
            perspective, connecting the mother with resources and  
            information is important.  Unlike other persons with HIV, a  
            biological mother under this bill may not be aware of her HIV  
            status, and not have received the counseling and information  
            that a person who gives informed consent to be tested receive.  
              As a result, she may have limited knowledge of the virus,  
            how it progresses, spreads, or what resources are available to  
            her.  Additionally, it is important that the State know of  
            cases of HIV, so that it may take measures to prevent the  
            spread of the disease. 

            In recognizing these important public policies, the law  
            imposes a number of obligations on professionals and officers  
            of the state.  For example, physicians must report positive  
            HIV test results to the LHO.   LHOs who have a "reason to  
            believe that any case of [a specified disease or infection  
            including HIV] exists, or has recently existed, within the  
            territory under his or her jurisdiction, shall take measures  
            as may be necessary to prevent the spread of the disease or  
            occurrence of additional cases." (Health & Saf. Code Sec.  
            120175.)  

            In addressing the ACLU's concern that biological mothers are  
            connected to HIV-related information and care, stakeholders  
            have agreed on language which incorporates obligations under  
            existing law and ensures that they are applicable to the  
            situation where an infant has tested positive for HIV without  
            a parent's consent to that testing. 

            Accordingly, the following amendments would require the social  
            worker to provide the biological mother's contact information  
            to the physician or surgeon administering the HIV test for the  
            infant, so that the physician may include that information in  
            his or her report to the LHO.  Staff notes that the existing  
            form the physician or surgeon must submit to the LHO to report  
            cases of pediatric HIV has designated space for the biological  
            mother's information, and additional space for comments.  (See  
            Pediatric HIV?AIDS Confidential Case Report,  [as of June  
            20, 2013].)

            Notably, these amends would also clarify that the obligation  
            the LHO has to take necessary measures to prevent the spread  
            of HIV regarding persons who have themselves tested positive  
            for HIV do extend to the biological mother of a child who  
            tested positive for HIV, as specified. 

                  Suggested amendments: 
             
               1)     On page four, line 18, after "(d)" insert "(1)"

               2)     On page four, after line 24 insert "(d)(2)  If an  
                 infant tests positive for HIV in a test performed  
                 pursuant to this section, the social worker shall provide  
                 any available contact information for the biological  
                                                          mother to the physician and surgeon for purposes of  
                 reporting the HIV infection to the local health officer  
                 under section 121022. Cases reported to the local health  
                 officer under this subdivision are subject to the  
                 requirements of section 120175."
           
          1.Other concerns have been largely addressed by prior amendments

           This bill, as introduced, would have given a social worker or  
          treating physician the authority to consent to HIV testing of an  
          infant less than one year of age who had been removed from the  
          custody of his or her parent.  That version of the bill was met  
          with significant opposition from stakeholders who felt that the  
          bill was overly broad, and did little to protect the mother's  
          rights or interests.  The opposition was also concerned that the  
          bill did not ensure that infants who tested positive for HIV  
          would be immediately linked to adequate care.  

          Subsequently, this bill has been amended to address those  
          concerns.  In its current version, this bill would require the  
          attending physician to determine that HIV testing is necessary  
          to render appropriate care to the infant, and would require the  
          social worker to have made reasonable efforts to contact the  
          parent or guardian for consent.  The social worker would also be  
          required to document his or her efforts to contact a parent or  
          guardian.  In addition, this bill would now require the social  
          worker to provide consent for HIV testing in writing, and would  
          ensure that an infant who tests positive for HIV will be able to  
          receive immediate care if the physician determines that it is  
                                                                      



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          necessary. 

          The Los Angeles Dependency Lawyers, who argue that this bill is  
          unnecessary because existing procedure allows for timely testing  
          of infants, remain in opposition to this bill. 
           
          Support  :  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

           Opposition  :  ACLU (unless amended); Los Angeles Dependency  
          Lawyers, Inc.; Youth Law Center (prior version)

                                        HISTORY
           
           Source  :  County of Los Angeles Board of Supervisors

           Related Pending Legislation  : AB 446 (Mitchell) would require  
          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. This bill would  
          also require that 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 Health  
          Committee.

           Prior Legislation  :

          SB 699 (Soto, Chapter 20, Statutes of 2006) required HIV cases  
          to be reported to the local health officer by name rather than  
          by code and required local health officers to report HIV cases  
          by name to the Department of Health Services.

          SB 945 (Soto, 2005) would have required health care providers  
          and laboratories to report cases of HIV infection to the local  
          health officer using the patient's name and would have required  
          local health officers to report HIV cases by name to the  
          Department of Health Services.  This bill died prior to hearing  
                                                                      



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          in the Senate Judiciary Committee. 

           Prior Vote  :

          Senate Human Services Committee (Ayes 6, Noes 0)
          Assembly Floor (Ayes 77, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Human Services Committee (Ayes 5, Noes 0)

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