BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: SB 909
S
AUTHOR: Pavley
B
VERSION: March 20, 2014
HEARING DATE: April 8, 2014
9
FISCAL: No
0
9
CONSULTANT: Sara Rogers
SUBJECT
Dependent children: health screenings
SUMMARY
Permits a social worker to authorize an initial medical,
dental, and mental health screening of a child taken into
temporary custody, prior to a detention hearing, for
specified purposes. Additionally, adds mental health care
to the list of health care services that may be authorized
by the court or a social worker under various situations
and adds mental health providers to the list of health
professionals who may recommend such care.
ABSTRACT
Existing Law:
1)Establishes the criteria by which a child who has
suffered, or is at risk of suffering, significant abuse
or harm shall be within the jurisdiction of the juvenile
court which may adjudge that person to be a dependent
child of the court. (WIC 300)
Continued---
STAFF ANALYSIS OF SENATE BILL 909 (Pavley)
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2)Permits the juvenile court to direct all such orders to
the parent, parents, or guardian of a minor who is
subject to any juvenile court proceeding as the court
deems necessary and proper for the best interests of the
minor. Provides that these orders may concern the care,
supervision, custody, conduct, maintenance, and support
of the minor, including education and medical treatment.
(WIC 245.5)
3)Through case law, provides that proceedings in juvenile
court must conform to the constitutional guarantee of due
process. (152 Cal. App. 2d 458, 313 P.2d 182)
4)Permits the court to limit parental control over an
adjudged dependent child and requires the court to
clearly and specifically set forth those limitations.
Provides that such limitations may not exceed those
necessary to protect the child. (WIC 361)
5)Permits the court to make any and all reasonable orders
for the care, supervision, custody, conduct, maintenance,
and support of an adjudged dependent child, including
medical treatment, subject to further order of the court.
(WIC 362)
6)Permits a social worker to authorize the performance of
the 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. (WIC 369(a))
7)Permits the court, upon the recommendation of a licensed
physician or surgeon, to authorize remedial care or
treatment for a child for whom a petition has been filed
but there is no parent, guardian or person standing in
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loco parentis capable of or willing to authorize the
treatment. ((WIC 369 (b))
8)Permits the court to order that a social worker may
authorize the medical, surgical, dental or other remedial
care for a dependent child that has been placed by the
court under the custody or supervision of a social worker
if it appears there is no parent or guardian capable of
authorizing or willing to authorize medical, surgical,
dental or other remedial care. (WIC 369 (c))
9)Permits 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. (WIC 369 (d))
10)Permits a minor who is 12 years of age or older to
consent to mental health treatment or counseling services
if, in the opinion of the attending professional person,
the minor is mature enough to participate intelligently
in the mental health treatment or counseling services.
(HSC 124260)
This bill:
1)Makes various uncodified findings and declarations
stating that the state has a compelling interest in
ensuring the physical and mental health of children in
the child welfare system and referencing American Academy
of Pediatrics recommendations for initial health
screenings for foster children.
2)Permits a social worker to authorize an initial medical,
dental, and mental health screening of a child taken into
temporary custody, prior to a detention hearing, for the
following purposes:
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To determine whether the child has an urgent
medical, dental or mental health need that requires
immediate attention.
To determine whether the child poses a health
risk to other persons.
To determine an appropriate placement to meet
the child's medical and mental health care needs
identified in the initial health screening.
1)Adds mental health care to the list of health care
services that may be authorized by the court or a social
worker under various situations pursuant to WIC 369 and
adds mental health providers to the health professionals
who may recommend such care as follows:
Permits a social worker to authorize the
performance of mental health care for a child in
temporary custody upon the recommendation of the
attending mental health provider and following
notification of the parent or guardian, or if
objected to, only upon order of the court.
Permits the court, upon the recommendation of a
mental health provider to authorize mental health
care for a child for whom a petition has been filed
but there is no parent, guardian or person standing
in loco parentis capable of or willing to authorize
the treatment.
Permits the court to order that a social worker
may authorize mental health care for a dependent
child that has been placed by the court under the
custody or supervision of a social worker if it
appears there is no parent or guardian capable of
authorizing or willing to authorize the care.
Permits a social worker to authorize, in an
emergency situation, as defined, mental health care
for a child in temporary custody, a dependent child,
or a child for whom a petition has been filed.
Requires the social worker to make reasonable
efforts to obtain the consent of, or to notify, the
parent or guardian.
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1)Replaces the term "person" with "child" throughout the
statute.
2)Provides that this section shall not affect the
application of communicable disease prevention and
control duties of the California Department of Health
Care Services and local public health officers pursuant
to HSC 120100.
3)Defines "mental health provider" to have the same meaning
as Business and Professions Code Section 865 which
defines this as a physician and surgeon specializing in
the practice of psychiatry, a psychologist, a
psychological assistant, intern, or trainee, a licensed
marriage and family therapist, a registered marriage and
family therapist, intern, or trainee, a licensed
educational psychologist, a credentialed school
psychologist, a licensed clinical social worker, an
associate clinical social worker, a licensed professional
clinical counselor, a registered clinical counselor,
intern, or trainee, or any other person designated as a
mental health professional under California law or
regulation.
FISCAL IMPACT
This bill has not been identified as a fiscal bill, however
the Appropriations committee has requested to hear it.
BACKGROUND AND DISCUSSION
According to the author, existing law does not provide
clear authority for a social worker to provide consent for
a health care provider to conduct initial medical, dental
and mental health assessments during the 72 hours prior to
a detention hearing. The author states that without clear
authority for conducting these initial assessments and
screenings for newly detained children, many counties have
relied on a variety of local rules and blanket orders from
the juvenile court to provide authority for the
assessments. According to the author, each local rule or
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blanket order uses its own criteria for what the screening
includes which has resulted in a great deal of
inconsistency statewide. The author states that this bill
would provide county social workers with clear authority to
consent to initial health assessments and screenings for
detained children which are needed prior to the initial
petition hearings.
Juvenile Dependency Process - Limitations on Parental
Rights
The juvenile dependency process is designed to strike a
balance between the responsibility to provide maximum
safety and protection for abused and neglected children and
those at risk, while at the same time maintaining a focus
on the preservation and due-process rights of the family.
In this regard, the court has broad authority to direct
"all such orders to the parent, parents, or guardian of a
minor who is subject to any proceeding under this chapter
as the court deems necessary and proper for the best
interests of?the minor. These orders may concern the care,
supervision, custody, conduct, maintenance, and support of
the minor, including education and medical treatment."
Existing law permits a social worker to take a minor into
"temporary custody" if it is suspected that a child is
being, or is at risk of being, abused or neglected.
However, in such cases, abuse has not yet been validated,
the child has not yet been adjudged to be a dependent of
the court, and parental rights have not been formally
limited. The authority for the juvenile dependency system
to limit parental authority over children is subject to a
series of rigorous and lengthy hearings and extensive court
oversight designed to ensure that parental rights are only
limited to the extent necessary to protect the child.<1>
After taking a minor into custody, existing law requires a
social worker to immediately file a petition with the
juvenile court, if the social worker has determined that
the minor shall be retained in custody, or else to release
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<1> WIC 300 et seq.
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the minor within 48 hours.<2> The law then requires the
court to hold a "detention hearing" before the expiration
of the next judicial day after such a petition has been
filed to determine whether the minor shall continue to be
detained.<3> Following the detention hearing, the court is
required to hold a "jurisdictional hearing" to determine
whether the minor is a person described by WIC Section 300
and, if a minor is detained in custody, to hold that
hearing within 15 days after the detention hearing.<4>
After finding that a minor is a person described by Section
300, the court is then required to hold a "disposition
hearing" within 60 days after the detention hearing to
determine whether the child is a dependent child of the
court, to potentially limit parental rights, establish a
guardian, determine an appropriate placement, or to order
the provision of services to the child or family.<5>
Generally, in cases where children are in temporary
custody, parental notification of any medical treatment
that may be authorized is required since parental rights
have not been terminated or limited, or even yet heard by
the court. If it is determined by a physician that medical
care is needed, but the parent or guardian is unavailable
or unwilling to consent to the treatment, a social worker
is generally required to seek written consent from the
court to provide such care or to receive authorization from
the court for the social worker to provide the consent.<6>
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<2> WIC 311 and WIC 313
<3> WIC 315
<4> WIC 334 and WIC 355
<5> WIC 360 and WIC 361
<6> WIC 369
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Existing law provides no specific permission for social
workers to authorize initial medical screens. This bill
would permit social workers to authorize an initial medical
screening for children who have not had a court hearing
without the need to seek any consent from a parent or
guardian, and regardless of whether the parent or guardian
may object. Under current law, only in cases of emergency
where it appears the child requires immediate emergency
treatment, is a social worker permitted to provide
unilateral consent after making reasonable efforts to
obtain consent from the parent or guardian. In this case,
"emergency situation" is defined as when:
[A] child requires immediate treatment for the
alleviation of severe pain or an immediate diagnosis
and treatment of an unforeseeable medical, surgical,
dental, or other remedial condition or contagious
diseases which if not immediately diagnosed and
treated would lead to serious disability or death. <7>
Additionally, in numerous instances a minor dependent may
themselves consent to medical treatment depending on the
type of treatment and the age of the child. For example, a
minor who is 12 years of age or older may consent to mental
health treatment or counseling services if, in the opinion
of the attending professional person, the minor is mature
enough to participate intelligently in the mental health
treatment or counseling services (HSC 124260). Family Code
provides that a minor over the age of 15 living outside a
parent's home may consent to medical and dental care and a
youth who is 12 years or older may consent to medical,
hospital and surgical care related to the diagnosis or
treatment of infectious, contagious, communicable and
sexually transmitted diseases, as specified. Additionally,
a child of any age that has been a victim of a sexual
assault may consent to the diagnosis, treatment, collection
of medical evidence and care related to the assault
following attempts to contact the parent of guardian
(unless the perpetrator).
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<7> WIC 369 (d)
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Once a child has been placed by order of the court within
the care and custody or under the supervision of a social
worker, that social worker may consent to remedial medical
care if there is no parent, guardian or person standing in
loco parentis capable or willing to authorize the care
after due notice. California regulations require a medical
examination for children to be conducted following
detention. This exam is required to be conducted within 10
days of initial placement following detention for high risk
children and children 0 to 3 years of age. Medical exams
for all other children must occur within the first 30 days
of initial placement.
Standing or Blanket Court Orders regarding Medical Consent
In order to facilitate the timely approval of medical
consent requests, many courts have established blanket or
standing orders permitting social workers to authorize
medical treatment for youth in certain circumstances.
In Santa Clara County Superior Court, the court has issued
a standing order which finds that "children and youth [in
out-of-home placement] would benefit from prompt provision
of routine medical, mental health, and dental treatment to
maintain and enhance their physical and mental health and
well-being, and delay in treatment would be detrimental or
even life-threatening." The order authorizes the Santa
Clara Valley Health and Hospital System and any other
licensed health care facility or provider to provide
specified services to these children.<8>
Alameda County Superior Court uses a standard two-page form
for child welfare workers or probation officers to request
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<8> Santa Clara County Superior Court of California.
Standing Order re: Ordinary Medical, Mental Health, and
Dental Treatment for Juvenile Justice and Dependent
Children and Youth in Temporary Custody and Out of Home
Placement. Filed May 3, 2013.
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the court grant an order for provision of remedial medical
care. Los Angeles County Superior Court had a blanket order
regarding medical consent until very recently. Currently,
the blanket order has been rescinded and it is not clear if
the court intends to issue another.
Medical literature
The sponsor, Los Angeles County, cites an article published
in the Journal of the American Academy of Pediatrics (AAP)
authored by the Committee on Early Childhood, Adoption and
Dependent Care, which notes the erratic contact that many
children have had with health care providers prior to
placement. The article makes a distinction between an
initial health screening, which is recommended to occur
before or shortly after placement, and a comprehensive
medical assessment, which is recommended to occur within
one month of placement. The stated purpose of the initial
health screen is to identify any immediate medical, urgent
mental health or dental needs the child may have and of
which the caseworker and foster parents should be aware.<9>
Additionally, the sponsor cites a manual published by the
AAP and authored by the Task Force on Health Care for
Children in Foster Care which defines the medical "practice
parameters" recommended in the initial screen in further
detail including:
A review of available medical, developmental and
mental health history
Review of symptoms
Vital signs, height, weight, body mass index
If indicated, a physical examination by a physician
or nurse practitioner
An unclothed external body inspection for signs of
acute illness, signs of abuse, or rash suggestive of
-----------------------
<9> Health Care of Young Children in Foster Care. Committee
on Early Childhood, Adoption, and Dependent Care.
Pediatrics 2002; 109;536
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contagious or infectious disease, range of motion
joint inspection
External genitalia inspection
Assessment of chronic conditions
Developmental and mental health screen for
significant delay, major depression, suicidal thoughts
or violent behavior
These recommended practice parameters for an initial
medical screen are significantly more intrusive than would
be permitted under existing law without parental consent.
Although the sponsor states it is not their intent for the
AAP screen to guide the medical screen authorized under
this bill, this bill provides no alternative clear
definition of "medical screen" yet it references the AAP
guidelines in the uncodified findings and declarations.
The AAP manual states that developmental, educational and
emotional problems affect more than 80 percent of children
and adolescents placed in foster care and that successful
permanency planning requires developmental and mental
health treatment plans that are comprehensive,
well-coordinated and ongoing.
Additional Medical Screenings for Abused or Neglected
Children
Protocol for child abuse examinations are delineated under
Penal Code 11171 and 13823.5, and have been established in
conjunction with the Office of Emergency Services, the
California Department of Public Health and the state
Department of Justice. Forensic examinations are authorized
to be provided to a child who has been placed into
protective custody if the child has been detained due to
allegations of physical or sexual abuse and the medical
providers who are consulting or performing the examination
have specialized training in detecting and treating child
abuse injuries. The forensic examination must be performed
within 72 hours of the time the allegations were made or,
if possible, within 72 hours of the detention (WIC 324.5).
Federal appellate courts have additionally determined that
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such examinations may only be provided with parental or
court approval unless there are exigent circumstances
requiring an immediate exam.<10>
In the case of probation youth, county probation officers
may authorize medical treatment for a juvenile prior to the
detention hearing when either the parent or guardian are
unable to be located or do not respond to requests for
consent following reasonable efforts.<11> County probation
departments are required to provide a routine medical exam
to juveniles within the first 96 hours of their detainment,
and the specific practice parameters for this medical care
are defined in Title 15 CCR Section 1432.
Use of psychotropic medications
Psychotropic medication or psychotropic drugs are defined
in statute as "those medications administered for the
purpose of affecting the central nervous system to treat
psychiatric disorders or illnesses. These medications
include, but are not limited to, anxiolytic agents,
antidepressants, mood stabilizers, antipsychotic
medications, anti-Parkinson agents, hypnotics, medications
for dementia, and psychostimulants."
California is one of a handful of states that requires
court authority to approve the use of psychotropic
medications for children in foster care. Welfare and
Institutions Code 369.5 provides that only a juvenile court
judicial officer shall have authority to make orders to
administer psychotropic medications to a child and that
such authorization shall be based on a request from a
physician.
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<10> Los Angeles County Procedural Guide 0600-500.00
<11> SB 913, Chapter 256, Statutes of 2011
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As of 2013, according to CDSS child welfare indicators
data, the state average for use of psychotropic medications
among children in foster care is 12.5%, however there is
wide variation among counties, even in counties with
relatively similar numbers of children in care. For example
20.1% of foster children in San Joaquin County are
prescribed psychotropic medication, while in Sacramento
County, the number is 13.1%.
Currently CDSS is engaged in a Quality Improvement Project:
Improving the Use of Psychotropic Medication among Children
and Youth in Foster Care which is intended to improve
oversight and monitoring of psychotropic medication use and
to develop data tools to identify "quality concerns"
described as overutilization of medication, inappropriate
prescribing, gaps of service including insufficient
monitoring or not basing decisions on evidence based care.
Opposition Concerns
The National Center for Youth Law writes that this bill as
currently drafted would give social workers unreviewable
authority to agree to any psychiatric interventions for
dependent children and youth in temporary custody while
under current law, such interventions require consent of
the parent or the court. The American Family Rights
Association (AFRA) cites similar concerns stating that any
emergency need for mental health assessment would be
covered under the current 5150 codes and that there would
be no other need for a mental health screening during
temporary custody.
Additionally, AFRA states that this bill would allow a
social worker to adjudicate medical, dental and mental
health screenings which could violate Federal and State law
by allowing controls and treatments of the juvenile during
the period of temporary custody and before a judge
determines official custody. AFRA writes that "[w]e feel
that a judge as a licensed and credentialed professional in
jurisprudence should have the opportunity to determine that
federal and state laws have been followed. Our position is
STAFF ANALYSIS OF SENATE BILL 909 (Pavley)
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that until a judge has had the opportunity of review, the
rights of the parents and the rights of the juvenile have
to be respected and followed. A social worker, in any or
all circumstances will not have this training or experience
in American Jurisprudence."
Staff Comments:
1.The fundamental question raised by this bill is: Should
the state grant county social workers the right to
consent to medical screenings of children who have not
yet been legally detained by the court? Existing law,
both state and federal, reflect a balance between the
constitutional rights of families and the potential harm
to children. In general the law is clear that short of
emergency circumstances, only the parents or the court
may authorize medical treatment in temporary custody. The
sponsor states that non-invasive medical screens are
essential to be performed on children in temporary
custody prior to the detention hearing even in cases
where the potential health need is not an emergency, and
without seeking parental consent.
The scope of a medical screen provided for under this
bill is undefined. The sponsor offers adding the term
"non-invasive" to describe the medical screen which
simply means non-penetrating of skin or orifices. A
"non-invasive medical screen" could still involve a child
being unclothed, and is not well defined with regard to
mental health care. Because this bill does not provide
parents with the authority to consent or object to such a
screen it is potentially a very substantial expansion of
a social workers authority to authorize medical care. The
sponsor, Los Angeles County, has stated that it does not
currently support a more clear delineation of the scope
of a medical screen.
Should the bill move forward, staff recommends that the
author consider directing the California Department of
Social Services to provide clear regulatory parameters
for the scope of a medical screen for these purposes and
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that it should not include an unclothed medical screen
for older children absent parental consent, a court order
or exigent circumstances. At this time staff recommends
amending the bill to add the term "non-invasive" to
describe the medical screen.
2.Adding mental health to the medical treatment laws for
dependent children may be interpreted to expand
permission for the authorization of psychotropic
medications for children in foster care. Welfare and
Institutions Code 369.5 addresses the approval of
psychotropic medications for children in out of home
placements. Additionally, there are currently numerous
federal and state efforts aimed at improving safe and
appropriate prescribing and monitoring of psychotropic
medication use among children and youth in foster care.
Staff recommends amending this bill to clarify that this
section shall not permit the authorization of
psychotropic medication.
The specific recommended amendments are as follows:
Amendment 1: Page 2 Line 9-13:
The Legislature finds and declares all of the following:
(a) The state has a compelling interest in ensuring the
physical and mental health of children in the child
welfare system.
(b) Both the American Academy of Pediatrics and the Child
Welfare League of America have found children entering
foster care to be in poor health with chronic and acute
health, developmental, and psychiatric disorders.
(c) The American Academy of Pediatrics recommends that
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upon entry into foster care every child receive an
initial health screening to identify any immediate
medical, dental, or mental health care needs.
(d) The completion of an initial health screening as
recommended by the American Academy of Pediatrics will
improve the health of children entering foster care.
Amendment 2: Page 2, line 20:
(a) Whenever a child is taken into temporary custody
under Article 7 (commencing with Section 305), the social
worker may authorize a n non-invasive initial medical,
dental, and mental health screening of the child, prior
to the detention hearing held pursuant to Section 319,
for any of the following purposes:
Amendment 3: Page 5 after line 10:
(l) "Mental health care" means the provision of mental
health services, including
assessment, treatment, or counseling, on an outpatient
basis. This section does not authorize a child to receive
psychotropic medication without consent either from the
child's parent or guardian or from the court as provided
for in section 369.5. Nothing in this section shall be
construed as superseding sections 319.1, 357, 369.5, or
6550 et seq. regarding authorization for mental health
services.
(m) Nothing in this section shall be construed to limit
or expand the laws pertaining to confidentiality and/or
the physician-patient privilege and/or
psychotherapist-patient privilege provisions contained in
state or federal law for medical records.
3. As drafted adding "mental health care" to the provisions
of WIC 369 dealing with emergency situations may conflict
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with existing law pertaining to Health and Safety Code
5150, the Lanterman-Petris-Short Act (LPS), which addresses
circumstances where an individual may a danger to self of
other and permits the individual to be transported to a
designated psychiatric inpatient facility for evaluation
and treatment for up to 72-hours against their will. Should
the bill move forward, staff recommends the author work
with interested stakeholders to address these concerns.
Prior Legislation:
SB 913 (Pavley) Chapter 256, Statutes of 2011 permits a
chief probation officer to provide consent to medical
examinations and non-emergency medical care for youth
detained in county juvenile facilities.
AB 506 (Mitchell) Chapter 153, Statutes of 2013 authorizes
a social worker to provide consent for an HIV test to be
performed on an infant who is less than 12 months of age
when the infant has been taken into temporary custody or
has been, or has a petition filed with the court to be,
adjudged a dependent child of the court, as specified.
POSITIONS
Support: California State PTA
County Welfare Directors Association of
California
Glendale City Employees Association
National Center for Youth Law
Urban Counties Caucus
Ventura County Board of Supervisors
Oppose: American Civil Liberties Union of California
(unless amended)
American Family Rights Association
The National Center for Youth Law (unless
amended)
-- END --
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