BILL ANALYSIS                                                                                                                                                                                                    Ó






                         SENATE COMMITTEE ON EDUCATION
                                Carol Liu, Chair
                           2013-2014 Regular Session
                                        

          BILL NO:       SB 312
          AUTHOR:        Knight
          AMENDED:       April 1, 2013
          FISCAL COMM:   Yes            HEARING DATE:  April 24, 2013
          URGENCY:       No             CONSULTANT:Lynn Lorber

           SUBJECT  :  Confidential medical services.
          
           SUMMARY
           
          This bill limits the age at which a student may be excused  
          from school without the consent of a parent to seek  
          confidential medical services.

           BACKGROUND
           
          Current law requires school districts to annually notify  
          students in grades 7-12, and parents of all students  
          enrolled in the school district, that schools may excuse  
          students for the purpose of obtaining confidential medical  
          services without the consent of the student's parent.   
          (Education Code § 46010.1)

          Generally speaking, parental consent is required for a  
          minor's medical treatment.  (American Academy of Pediatrics  
          v. Lungren (1997))  There are, however, exceptions such as  
          when the public interest in preserving the health of a  
          minor takes precedence over the parent's interest in  
          custody and control of the minor.  (Wisconsin v. Yoder  
          (1972))  In addition, a number of "medical emancipation"  
          statutes allow minors to consent to medical treatment  
          without parental knowledge, approval or consent.

          In 2004, the California Attorney General opined that:

          1)   A school district may not require that a student  
               obtain written parental consent prior to releasing the  
               student from school to receive confidential medical  
               services, and








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          2)   A school district may not adopt a policy pursuant to  
               which the district will notify a parent when a student  
               leaves school to obtain confidential medical services.  
                (Opinion No. 04-112)

          The 2004 Attorney General opinion cited several statutes  
          that allow minors to seek various forms of treatment  
          without parental consent:

             1)   Health & Safety Code § 121020 authorizes written  
               consent for an HIV test, when the subject of the test  
               is not competent to give consent, to be obtained from  
               the subject's parents, guardians, conservators, or  
               other person lawfully authorized to make health care  
               decisions for the subject.  A minor shall be deemed  
               not competent to give consent if he or she is under 12  
               years of age.

             2)   Family Code § 6925 authorizes a minor to consent to  
               medical care related to the prevention or treatment of  
               pregnancy, but does not authorize a minor to be  
               sterilized without the consent of the minor's parent  
               or guardian or to receive an abortion without the  
               consent of a parent or guardian other than as provided  
               in Section 123450 of the Health and Safety Code.

          1)   Family Code § 6926 authorizes a minor who is 12 years  
               of age or older and who may have come into contact  
               with an infectious, contagious, or communicable  
               disease to consent to medical care related to the  
               diagnosis or treatment of the disease, if the disease  
               or condition is one that is required by law or  
               regulation adopted pursuant to law to be reported to  
               the local health officer, or is a related sexually  
               transmitted disease, as may be determined by the State  
               Public Health Officer.  This section also authorizes a  
               minor who is 12 years of age or older to consent to  
               medical care related to the prevention of a sexually  
               transmitted disease.

          2)   Family Code § 6928 authorizes a minor who is alleged  
               to have been sexually assaulted to consent to medical  
               care related to the diagnosis and treatment of the  








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               condition, and the collection of medical evidence with  
               regard to the alleged sexual assault.  The  
               professional person providing medical treatment must  
               attempt to contact the minor's parent or guardian and  
               shall note in the minor's treatment record the date  
               and time the professional person attempted to contact  
               the parent or guardian and whether the attempt was  
               successful or unsuccessful.  This requirement does not  
               apply if the professional person reasonably believes  
               that the minor's parent or guardian committed the  
               sexual assault on the minor.

          3)   Family Code § 6924 authorizes a minor who is 12 years  
               of age or older to consent to mental health treatment  
               or counseling on an outpatient basis, or to  
               residential shelter services, if both of the following  
               requirements are satisfied:

               a)        The minor, in the opinion of the attending  
                    professional person, is mature enough to  
                    participate intelligently in the outpatient  
                    services or residential shelter services.

               b)        The minor (A) would present a danger of  
                    serious physical or mental harm to self or to  
                    others without the mental health treatment or  
                    counseling or residential shelter services, or  
                    (B) is the alleged victim of incest or child  
                    abuse.

               The mental health treatment or counseling of a minor  
                    must include involvement of the minor's parent or  
                    guardian unless, in the opinion of the  
                    professional person who is treating or counseling  
                    the minor, the involvement would be  
                    inappropriate.

          4)   Family Code § 6929 authorizes a minor who is 12 years  
               of age or older to consent to medical care and  
               counseling relating to the diagnosis and treatment of  
               a drug- or alcohol-related problem.  The treatment  
               plan of a minor must include the involvement of the  
               minor's parent or guardian, if appropriate, as  
               determined by the professional person or treatment  








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               facility treating the minor.  

          5)   Family Code § 123110 and 123115, and Civil Code §  
               56.10 and 56.11 addresses the confidentiality of  
               medical records.

          The California Supreme Court, in American Academy of  
          Pediatrics v. Lungren (1997), invalidated a state law that  
          would have required parental consent before minors could  
          obtain abortions.  The court determined that minors'  
          privacy rights under the California Constitution are  
          coextensive with those of adults and that the  
          constitutional right to privacy includes the right to  
          decide whether to continue or terminate a pregnancy.  The  
          court ultimately concluded that the notification statute  
          unconstitutionally infringed on a minor's right to choose,  
          as it is guaranteed under article one of the California  
          Constitution.

           ANALYSIS
           
           This bill  prohibits schools from releasing a student under  
          the age of 16, without parental consent, to seek  
          confidential medical services.  Specifically, this bill:

          1)   Prohibits a school district from excusing a student 15  
               years of age or younger from the school for the  
               purpose of obtaining confidential medical services  
               without the consent of the student's parent or  
               guardian.

          2)   Narrows the grade spans, from grades 7-12 to grades  
               9-12, at which students are to be notified by school  
               districts that they may be excused from school for the  
               purpose of obtaining confidential medical services  
               without the consent of a parent.

           STAFF COMMENTS
           
           1)   Need for the bill  .  According to the author, current  
               case law holds, "based on current code, that school  
               districts must allow students in grades 7-12 to leave  
               campus during official school hours to seek a  
               confidential medical service.  This could potentially  








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               involve treatment of a sexually transmitted disease,  
               or even undergoing an abortion.  The decision to seek  
               medical attention with the possibility of undergoing  
               such procedures is significant, especially for the  
               12-15 year olds.  Children at this age are very  
               innocent and vulnerable.  They do not have the  
               maturity level to understand the seriousness and  
               lasting impact of their decisions."

           2)   What are confidential medical services  ?  The Education  
               Code does not provide a definition of confidential  
               medical services; however, confidential medical  
               services cited in the Health & Safety Code and Family  
               Code include mental health, reproductive health,  
               treatment of a sexually transmitted disease, and drug  
               and alcohol treatment.

           3)   Do schools have discretion  ?  Current law requires  
               school districts to notify students in grades 7-12,  
               and parents of all students in the district, that  
               school authorities may excuse pupils from the school  
               for the purpose of obtaining confidential medical  
               services without the consent of the pupil's parent or  
               guardian.  Questions have been raised whether schools  
               have the discretion to excuse, or to refuse to excuse,  
               students from school to receive confidential medical  
               services.  The 2004 Attorney General opinion states  
               that, taken with all other provisions of law related  
               to the confidentiality of medical treatment, school  
               districts are required to excuse students to seek  
               confidential medical services without parental  
               consent.

           4)   Role of parents  .  This bill prohibits schools from  
               releasing a student under the age of 16, without  
               parental consent, to seek confidential medical  
               services.  Students under the age of 16 would need  
               parental consent prior to leaving school for such  
               services, yet would continue to be afforded  
               confidentiality rights during non-school hours.   
               Arguably, these rights are based on the unfortunate  
               reality that not every student can confide in his/her  
               parent about such sensitive matters, particularly  
               foster youth who may not remain in a residential  








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               placement long enough to have a trusting bond with  
               his/her caregiver.  The Committee may wish to consider  
               what options exist for such youth.

           5)   Governor's Local Control Funding Formula  :  As part of  
               the 2013-14 Governor's Budget, the administration  
               proposes to restructure the existing K-12 finance  
               system and eliminate over 40 existing programs while  
               also repealing, what the administration determines are  
               countless "discretionary" provisions of statute, while  
               implementing a new formula known as the Local Control  
               Funding Formula (LCFF).  The LCFF would consolidate  
               the vast majority of state categorical programs and  
               revenue limit apportionments into a single source of  
               funding (12 categorical programs, including Special  
               Education, Child Nutrition, Preschool, and After  
               School programs, would be excluded).  The LCFF  
               proposal would also eliminate the statutory and  
               programmatic requirements for almost all existing  
               categorical   programs - the programs would be deemed  
               "discretionary" and programs in any of these areas  
               would be dependent on local district discretion.  To  
               the extent that the LCFF or a modified version of it  
               is adopted as part of the budget, the majority of  
               currently required categorical activities would be  
               left to local districts' discretion.  Therefore, the  
               changes proposed by this bill regarding student and  
               parental notification could be diluted, eliminated,  
               rendered obsolete or discretionary at the local level.  
                    

           6)   Prior legislation  .  AB 1348 (Mansoor, 2011) would have  
               prohibited districts from excusing students from  
               school without parental consent, prohibited students  
               from receiving sex education or taking any surveys  
               about gender or sexual orientation without parental  
               consent, and prohibited any mental or psychological  
               screening of a student without parental consent.  
               AB 1348 was never heard. 

               AB 1154 (La Suer, 2004) prohibited schools from  
               excusing any pupil from school for any reason without  
               parental consent.  AB 1154 failed passage in the  
               Assembly Education Committee.








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               AB 1041 (Runner, 2003) was identical to AB 1154 and  
               failed passage in the Assembly Education Committee.

               SB 621 (Harman, 2007) specified that the notification  
               relating to confidential medical services can be  
               included with other notices only if: 
               a) The notice is printed on an "existing piece of  
               paper," and b) the notice is printed in boldface in a  
               font at least 14 point in size and centered on the  
               page.  SB 621 was held on the Senate Appropriations  
               Committee's suspense file.

               SB 753 (Morrow, 2007) was identical to SB 621 and  
               failed passage in the Senate Appropriations Committee.  
                

               SB 1221 (Morrow, 2004) was identical to SB 621 and SB  
               753, and failed passage in the Assembly Education  
               Committee.

           SUPPORT
           
          Capitol Resource Institute
          William S. Hart Union High School District

           OPPOSITION

           California Primary Care Association
          California Psychological Association