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