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 SB 312 Page 2 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 SB 312 Page 3 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 SB 312 Page 4 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 SB 312 Page 5 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 SB 312 Page 6 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. SB 312 Page 7 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