BILL ANALYSIS Ó
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THIRD READING
Bill No: AB 506
Author: Mitchell (D)
Amended: 7/2/13 in Senate
Vote: 21
SENATE HUMAN SERVICES COMMITTEE : 6-0, 6/11/13
AYES: Yee, Berryhill, Emmerson, Evans, Liu, Wright
SENATE JUDICIARY COMMITTEE : 7-0, 6/25/13
AYES: Evans, Walters, Anderson, Corbett, Jackson, Leno, Monning
ASSEMBLY FLOOR : 77-0, 5/6/13 - See last page for vote
SUBJECT : HIV testing: infants
SOURCE : County of Los Angeles Board of Supervisors
DIGEST : This bill authorizes a social worker to provide
consent for a human immunodeficiency virus (HIV) test to be
performed on an infant who is 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. This bill also permits a social worker to
authorize, without court order, emergency medical care to an
infant who tests positive for HIV, as specified. Requires the
social worker, if an infant tests positive for HIV, to provide
to the physician and surgeon any available contact information
for the biological mother for purposes of reporting the HIV
infection to the local health officer (LHO).
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ANALYSIS :
Existing law:
1. Provides that a minor may be removed from the physical
custody of his/her parents and become a dependent for the
juvenile court for abuse or neglect, or risk of abuse or
neglect.
2. Authorizes the court to limit parental control over a
dependent child, to the extent necessary to protect the
child, and requires the court to clearly and specifically set
forth those limitations.
3. 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. Further authorizes the court to
provide written consent for the HIV test of a minor who is a
dependent child of the court
4. 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. 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.
5. 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. Requires
the social worker to make reasonable efforts to obtain the
consent of, or to notify, the parent or guardian.
6. 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.
7. Authorizes a provider of health care to disclose medical
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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.
8. 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. 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.
9. Protects the privacy of individuals who are the subject of
blood testing for antibodies to HIV, as specified.
10.Requires health care providers and laboratories to report
cases of HIV infection to the LHO using patient names, as
specified, and requires the LHO to report unduplicated HIV
cases by name to Department of Public Health.
11.Requires health records containing personally identifying
information relating to HIV or acquired immune deficiency
syndrome (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.
12.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 staff, and care services staff.
This bill:
1. Authorizes a social worker to provide written consent for an
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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:
A. The attending physician and surgeon determines that
HIV testing is necessary to render appropriate care to the
infant, as specified;
B. The social worker provides known information
concerning the infant's possible risk factors regarding
exposure to HIV to the attending physician and surgeon;
and
C. The attending physician and surgeon and the social
worker shall comply with all applicable state and federal
confidentiality and privacy laws, as specified, to protect
the confidentiality and privacy interest of both the
infant and the biological mother.
2. Allows 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.
3. Requires, if an infant tests positive for HIV, the social
worker to provide to the physician and surgeon any available
contact information for the biological mother for purposes of
reporting the HIV infection to the LHO.
Background
According to the Senate Judiciary Committee analysis, 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.
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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
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% by two years of
age in the absence of antiretroviral therapy. Consequently, the
American Academy of Pediatrics 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 provides 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 also allows an infant who tests positive for
HIV to be connected to immediate medical care.
The Health Insurance Portability and Accountability Act (HIPAA)
and the 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,
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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 health care records relating to HIV or
AIDS which were developed or acquired by the state or local
public health agencies. At the same time, health care providers
are required to report cases of HIV infection to the LHO. 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. The LHO must then refer to
appropriate care and follow up.
Prior Legislation
SB 699 (Soto, Chapter 20, Statutes of 2006) required HIV cases
to be reported to the LHO by name rather than by code and
required LHOs to report HIV cases by name to the Department of
Health Services (DHS).
SB 945 (Soto, 2005) would have required health care providers
and laboratories to report cases of HIV infection to the LHO
using the patient's name and would have required LHOs to report
HIV cases by name to the DHS. This bill died in the Senate
Judiciary Committee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 7/2/13)
County of Los Angeles Board of Supervisors (source)
AIDS Healthcare Foundation
AIDS Project Los Angeles
American Academy of Pediatrics
Behavioral Health Services
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Black AIDS Institute
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
L.A. Gay and Lesbian Center
Los Angeles Centers for Alcohol and Drug Abuse
National Association of Social Workers
San Francisco AIDS Foundation
Santa Clara County Board of Supervisors
OPPOSITION : (Verified 7/2/13)
Los Angeles Dependency Lawyers, Inc.
ARGUMENTS IN SUPPORT : 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 children."
ASSEMBLY FLOOR : 77-0, 5/6/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,
Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway,
Cooley, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gordon, Gorell,
Gray, Grove, Hagman, Harkey, Roger Hernández, Jones,
Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,
Mansoor, Medina, Melendez, Mitchell, Morrell, Mullin,
Muratsuchi, Nazarian, Nestande, Olsen, Pan, Patterson, Perea,
V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner,
Stone, Ting, Torres, Wagner, Waldron, Weber, Wieckowski, Wilk,
Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Hall, Holden, Vacancy
JL:k 7/2/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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