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
(more)
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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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