HB 1454-FN – AS INTRODUCED
2010 SESSION
01/04
HOUSE BILL 1454-FN
AN ACT requiring parental consent for medical procedures and medications provided to minors.
SPONSORS: Rep. Willette, Hills 6; Rep. W. Smith, Rock 18; Rep. J. Roberts, Carr 3; Rep. Seidel, Hills 20; Sen. Barnes, Jr., Dist 17; Sen. Roberge, Dist 9; Sen. Bragdon, Dist 11
This bill requires the consent of a parent or guardian for any person to provide medication or provide or perform any medical procedure, including vaccinations, immunizations, and abortions upon any unemancipated minor, except in a medical emergency. A minor may seek court approval for such medication or procedure, if the minor elects not to seek consent or does not receive the consent of a parent or guardian. Any person who violates such a law shall be guilty of a misdemeanor.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
10-2074
01/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT requiring parental consent for medical procedures and medications provided to minors.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Parental Consent for Medications and Certain Procedures Rendered to Minors. Amend RSA 132 by inserting after section 28 the following new subdivision:
Parental Consent Prior to Medications and Certain Procedures Rendered to Minors
132:29 Definitions. In this subdivision:
I. “Guardian” means the guardian or conservator appointed under RSA 464-A.
II. “Medical emergency” means that condition which, on the basis of the physician’s good faith clinical judgment, so complicates the medical or dental condition of a minor as to necessitate the immediate rendering of medication or medical or dental services to avert the death of the minor or for which a delay will create serious risk of substantial and irreversible impairment of major bodily function.
III. “Minor” means any person under the age of 18 years.
IV. “Parent” means one parent of the minor if one is living or the guardian or conservator if the minor has one.
V. “Unemancipated minor” means any minor who is not or has not been married or has by court order or otherwise not been freed from the care, custody, and control of his or her parents.
132:30 Consent Required. Notwithstanding any provision of law to the contrary, no medication or medical procedure shall be performed or provided, including dentistry, vaccinations and immunizations, and abortions to or upon any unemancipated minor without the written consent of a parent or guardian of such minor, as provided in paragraphs II and III, except in the case of a medical emergency.
132:31 Waiver of Consent.
I. If an unemancipated minor elects not to seek the consent or does not receive the consent of one of the minor’s parents or guardian, any judge of a court of competent jurisdiction shall, upon petition, or motion, and after an appropriate hearing, authorize the medication or medical procedure if the judge determines that the minor is mature and capable of giving informed consent to the proposed medication or procedure. If the judge determines that the minor is not mature, or if the minor does not claim to be mature, the judge shall determine whether the administration of the medication or the performance of the procedure without consent of the minor’s parent or guardian would be in the minor’s best interests and shall authorize the medication or procedure without such consent if the judge concludes that the minor’s best interests would be served if the medication was administered or if the procedure was performed. Access to a judge for the purpose of this paragraph shall be afforded such a minor 24 hours a day, 7 days a week.
II. A minor may participate in proceedings in the court on the minor’s own behalf, and the court may appoint a guardian ad litem for the minor. The court shall, however, advise the minor that the minor has a right to court-appointed counsel, and shall, upon the minor’s request, provide the minor with such counsel.
III. Proceedings in the court under this section shall be confidential and shall be given such precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interests of the minor. In no case shall the court fail to rule within 7 calendar days from the time the petition is filed. A judge of the court who conducts proceedings under this section shall make in writing specific factual findings and legal conclusions supporting the decision and shall order a record of the evidence to be maintained including the judge’s own findings and conclusions.
IV. An expedited confidential appeal shall be available to any such minor from whom the court denies an order authorizing the procedure without consent. The court shall make a ruling within 7 days from the time of the docketing of the appeal. An order authorizing the procedure without consent shall not be subject to appeal. No filing fees shall be required of any minor at either the trial or the appellate level. Access to the trial court for the purposes of such a petition or motion, and access to the appellate courts for the purposes of making an appeal from denial of the same, shall be afforded such minor 24 hours a day, 7 days a week.
132:32 Penalty. Any person who knowingly provides medication or provides or performs any medical procedure upon any unemancipated minor in violation of RSA 132:30 shall be guilty of a misdemeanor.
132:33 Severability. If any provision of this subdivision or the application thereof to any person or circumstances is held invalid, the invalidity shall not affect other provisions or applications of the subdivision which can be given effect without the invalid provision or application, and to this end the provisions of this subdivision are severable.
2 Effective Date. This act shall take effect January 1, 2011.
LBAO
10-2074
11/19/09
HB 1454-FN - FISCAL NOTE
AN ACT requiring parental consent for medical procedures and medications provided to minors.
FISCAL IMPACT:
The Judicial Branch, Judicial Council, Department of Justice, and the New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2011 and each year thereafter. This bill will have no fiscal impact on local expenditures or state, county, and local revenue.
METHODOLOGY:
The Judicial Branch states this bill concerns parental consent for medical procedures and medications, including abortions, provided to minors. The bill has potential cost ramifications for the Branch in several sections. Proposed RSA 132:31, I, allows for a hearing if a minor wishes to avoid seeking or does not receive the consent of his or her parents. Proposed RSA 132:31, II provides for a court-appointed guardian ad litem and for court-appointed counsel. Proposed RSA 132:31, IV makes available to an unemancipated minor an expedited appeal should an order authorizing the medical or psychological procedure without consent be denied. Proposed RSA 132:32 provides for criminal penalties for violations of the statute. Finally, the proposed bill requires the Branch to provide access to both the trial courts and the appellate courts twenty-four hours per day, seven days per week for actions by or on behalf of an unemancipated minor. While the Branch is unable to accurately estimate the additional costs of the above referenced provisions because there is no way to estimate the number of hearings which would result from unemancipated minors seeking to avoid the parental consent required by the proposed bill, it is reasonable to assume the costs will exceed $10,000 annually because of the costs of each individual case. The Branch assumes the average hearing will require a full day at a cost of $1,298.33 in fiscal year 2010 and beyond based on a seven and one-half hour day and the estimated costs associated with a Judge, court monitor, deputy clerk and baliff. Adding time to write a decision and for clerical processing would make the cost of a hearing exceed $1,500. The court-appointed guardian ad litem is paid $60 per hour, with a maximum of $1,400 per case in the type of case most analogous to that in proposed RSA 132:31, II. It is unclear whether this cost would be borne by the Branch. The court-appointed counsel is paid $60 per hour, with a maximum of $1,700 per case in the type of case most similar to that in proposed RSA 132:31, II. It is unclear whether this cost would be borne by the Branch. Should a decision be appealed, several thousand dollars of additional costs would be incurred in Judge, law clerk, and staff time at the Supreme Court, as well as guardian ad litem and counsel costs at the Supreme Court level.
Therefore, the Branch states the cost of one case could easily exceed several thousand dollars, without considering the potential costs for criminal actions for violations of the statute. The Branch has no information on which to estimate how many new misdemeanors will be brought pursuant to proposed RSA 132:32. The Branch does, however, have information on the average cost of processing a misdemeanor charge in the trial courts. Misdemeanor charges can be either class A or class B, with the presumption being class B in accordance with RSA 625:9, IV, as enacted in 2009. The cost to the Branch to process an average class A misdemeanor charge in the District Court is $51.14 in fiscal year 2010 and beyond. For class B misdemeanor charges that cost is $36.89 in fiscal year 2010 and beyond. These numbers are without consideration of any salary increases or decreases that may occur. These numbers also do not consider the cost of any appeals that may be taken following trial in any potential criminal case arising from proposed RSA 132:32. The possibility of appeals makes the likelihood of a fiscal impact to the Branch in excess of $10,000 from the proposed bill significantly greater. Finally, additional costs will be incurred by the Branch to provide access to the trial courts and to the Supreme Court twenty-four hours per day, seven days per week as required by proposed RSA 132:31, IV. Since the manner of providing that access has not been determined, no cost estimate can be given. In sum, the proposed bill has multiple points of potential fiscal impact to the Branch. While no accurate estimate of the total cost of the proposed bill can be made, the Branch states it could reasonably be assumed that it would result in a fiscal impact well in excess of $10,000 annually.
The Judicial Council states this bill requires parental notification of a parent or guardian by medical and dental professionals when treating a minor. The Judicial Council states this bill may result in an indeterminable increase in general fund expenditures. The Council states if an individual is found to be indigent, the flat fee of $275 per misdemeanor is charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with a cap of $1,400 for a misdemeanor charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal. The exact fiscal impact cannot be determined at this time.
The Department of Justice states this bill would require anyone who performs a medical procedure, including dentistry, vaccinations and immunizations and abortions, on an unemancipated minor to provide written notification to a parent or guardian, except in a medical emergency. A violation of this bill would be a misdemeanor and grounds for civil action. The criminal offense created by this bill would typically be prosecuted by a county attorney’s office. There would be some fiscal impact to the Department in instances when an appeal would be taken to the Supreme Court. Because it is difficult to estimate if any of these cases would be appealed, no fiscal impact can be determined at this time. The Department states a violation of this bill may also trigger a complaint before the applicable medical licensing board. There would be some fiscal impact to the Department’s Civil Bureau for client counseling duties to the relevant board. If the Administrative Prosecutions Unit investigates and prosecutes a compliant filed before a licensing board for violations under the bill, the services of an assistant attorney general, investigator and paralegal would be necessary. The Department states it is unable to determine the number of cases, if any, would be generated and therefore are unable to determine the exact fiscal impact at this time.
The New Hampshire Association of Counties states to the extent an individual is convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained or incarcerated as a result of this bill. The average cost to incarcerate an individual in a county facility is $35,342 a year.