What Is (or Isn’t) “Treatment” of a Minor Under S.L. 2023-106, Part 3?
On August 16, 2023, Session Law (S.L.) 2023-106, which included the Parent’s Bill of Rights, was passed after a legislative override of the Governor’s veto. Part 3 of the law, which goes into effect on December 1, 2023, requires health care practitioners and health care facilities to obtain written or other documented parental consent prior to providing treatment to minors. The concept of consent is not new to the health care arena; in fact, obtaining informed consent prior to delivering care is a central tenet of ethical health care practice and its importance is reflected in our state’s laws. However, the new language in S.L. 2023-106, Part 3 creates some ambiguity. Over the past several weeks, I have received inquiries from lawyers, public officials, and health care professionals asking what constitutes “treatment” under the new law. The answer is a bit complicated- so let’s discuss.
Part One: Summary of S.L. 2023-106, Part 3
S.L. 2023-106, Part 3 amends G.S. Chapter 90, Article 1A, which addresses the provision of certain health services to minors. Specifically, the session law creates a new Part 3 of Article 1A titled “Parental Consent for Treatment,” which is codified at G.S. 90-21.10A, 90-21.10B, and 90-21.10C. These new statutes become effective on December 1, 2023.
New Definitions
The new G.S. 90-21.10A provides definitions for the terms “health care facility,” “health care practitioner,” “minor,” “parent,” and “treatment.” These definitions will apply throughout G.S. 90, Article 1A. The new definitions for each of these terms are as follows:
“Health care facility” means “[a] health care facility, licensed under Chapter 131E or 122C of the General Statutes, where health care services are provided to patients, including:
- An agent or employee of the health care facility that is licensed, certified, or otherwise authorized to provide health care services.
- The officers and directors of a health care facility.”
Note: This definition does not include local health departments (LHDs), as they are not licensed under G.S. Chapter 131E or 122C. An exception would be a local health department that operates as a public hospital authority under G.S. Chapter 131E, Article 2, Part 2. Although most LHDs will not be considered a “health care facility,” they likely employ staff who meet the definition of a “health care practitioner” under the new law.
“Health care practitioner” means “[a]n individual who is licensed, certified, or otherwise authorized under this Chapter [90], Chapter 90B, Chapter 90C, or Chapter 115C of the General Statutes to provide health care services in the ordinary course of business or practice of a profession or in an approved education or training program, or an agent or employee of that individual.”
Note: There are more than 40 categories of professionals who are licensed, certified, or otherwise authorized under G.S. Chapters 90, 90B, and 90C.[1] The reference to G.S. Chapter 115C is likely intended to include “teachers, including substitute teachers, teacher assistants, student teachers, or any other public school employee” who are authorized pursuant to G.S. 115C-375.1 to administer certain medications prescribed by a doctor and upon written request of a student’s parents, to deliver emergency health care, and to perform first aid or other lifesaving techniques for students.
“Minor” means “[a]ny person under the age of 18 who has not been married or has not been emancipated pursuant to Article 35 of Chapter 7B of the General Statutes.”
“Parent” means “[a] minor’s parent, guardian, or person standing in loco parentis. A person standing in loco parentis is a person who has assumed parental responsibilities, including support and maintenance of the minor.” For more information about who qualifies as a person standing in loco parentis, please see this recent blog post.
“Treatment” means “[a]ny medical procedure or treatment, including X-rays, the administration of drugs, blood transfusions, use of anesthetics, and laboratory or other diagnostic procedures employed by or ordered by a health care practitioner, that is used, employed, or ordered to be used or employed commensurate with the exercise of reasonable care and equal to the standards of medical practice normally employed in the community where the health care practitioner administers treatment to the minor child.”
What Does the New Law Require?
The new G.S. 90-21.10B(a) prohibits a health care practitioner from providing, soliciting, or arranging treatment for a minor without first obtaining written or documented consent from the minor’s parent. The new law does not define what it means to provide, solicit, or arrange treatment, but this language could extend to the delivery (“providing”) of health care services and the coordination (“soliciting” or “arranging”) of referrals for health care. The new G.S. 90-21.10B(b) prohibits a health care facility from allowing treatment to be performed on a minor in its facilities without first obtaining written or documented parental consent. There is a caveat to both of these requirements, which reads: “[e]xcept as otherwise provided in this Article [1A] or by a court order […].” This means that care can still be provided to a minor without advance parental consent in limited situations as permitted under G.S. 90, Article 1A, such as urgent or emergency situations described at G.S. 90-21.1 or when a minor can consent to care on their own under G.S. 90-21.5(a).
The new G.S. 90-21.10B(c) explains that the parental consent requirements do not apply to services provided by clinical laboratories unless those services are rendered during a direct encounter with the minor at the laboratory facility. This exception would cover North Carolina’s many clinical laboratories that provide laboratory services under contract and as a vendor to other health care providers, but that never see or provide care to patients in their own facilities.
What Penalties Does the New Law Create?
The new G.S. 90-21.10C establishes penalties for health care practitioners and any “other person” who violates the requirements for parental consent under G.S. 90-21.10B. The term “other person” is not defined, but is likely meant to include agents, employees, officers, and directors of health care facilities, as defined under the new G.S. 90-21.10A(3). Health care practitioners and other persons who violate the new parental consent requirements are subject to disciplinary action by the board that licensed, certified, or otherwise authorized the health care practitioner to provide treatment and a fine of up to $5,000. It is not yet known what types of disciplinary actions or how large of a fine (up to $5,000) boards will impose on their members who violate the new law. For “other persons,” some of whom may not be licensed, certified, or otherwise authorized by a board to provide treatment, it is unclear what the penalty for violating the new law would be and to whom the potential fine described in G.S. 90-21.10C would be paid. The penalties apply only to violations that occur on or after December 1, 2023, which is the effective date of these new provisions.
Part Two: What Is (or Is Not) “Treatment” Under the New Law?
To comply with the new law, health professionals must be able to determine when the law’s consent requirement is triggered- that is, when is a health care practitioner or health care facility providing “treatment” to a minor and therefore required to obtain parental consent before delivering care? At first blush, the answer may seem obvious; however, a closer read of the new statutory language suggests that the boundaries around what constitutes treatment may not be so clear.
“Treatment” Under the New G.S. 90-21.10A Includes Other Types of Care
The term “treatment” is sometimes colloquially used to refer to health care services that are provided in response to a particular diagnosis, condition, or set of symptoms.[2] When used this way, “treatment” is understood to be different from “prevention” and “diagnosis”- services that often precede treatment. This use of the term “treatment” shows up in some of our state’s laws, including G.S. 90-21.5, North Carolina’s minor’s consent statute. Here, “prevention, diagnosis, and treatment” are set out as distinct (albeit interrelated) types of medical health services. However, this way of thinking about “treatment” is difficult to square with the definition used in the new law. Under the new G.S. 90-21.10A, “treatment” is defined to include diagnostic services (“x-rays” and “laboratory or other diagnostic procedures”). The notion that “treatment” might include other types of care, such as diagnostic services, is further supported if we look back at where the definition of “treatment” appears to have come from: an older North Carolina statute that establishes when care can be provided to a minor without prior parental consent in certain urgent and emergency situations. The historical origins of “treatment” are discussed in the next section.
A Closer Look at the Origins of the Definition of “Treatment”
The definition of “treatment” in the new G.S. 90-21.10A closely mirrors the definition of “treatment” found under G.S. 90-21.2, which reads: “The word ‘treatment’ as used in G.S. 90-21.1 is hereby defined to mean any medical procedure or treatment, including X rays, the administration of drugs, blood transfusions, use of anesthetics, and laboratory or other diagnostic procedures employed by or ordered by a physician licensed to practice medicine in the State of North Carolina that is used, employed, or ordered to be used or employed commensurate with the exercise of reasonable care and equal to the standards of medical practice normally employed in the community where said physician administers treatment to said minor.”
When this definition of “treatment” in G.S. 90-21.2 was added to our state laws in 1965, it served to clarify the types of care that a physician could provide under G.S. 90-21.1 to a minor without parental consent. G.S. 90-21.1 describes four situations in which treatment can be provided to a minor without consent of a parent because the consent cannot be timely obtained without delaying care and threatening the child’s health or life. As a result, the types of care that fall under “treatment” as defined at G.S. 90-21.2 are already limited to those services that might be necessary in urgent or emergency situations. This context also helps explain why “treatment” was defined under G.S. 90-21.2 to include health services such as x-rays, the administration of drugs, blood transfusions, use of anesthetics, and laboratory or other diagnostic procedures. While these services may not all immediately come to mind as types of “treatment,” they are types of care that may be necessary in an urgent or emergency situation.
The definition of “treatment” from G.S. 90-21.2 appears to have been used in the new G.S. 90-21.10A, with one key change to the text: the term “physician” was replaced with “health care practitioner.” This expanded the types of care that could be considered “treatment” from just those that are ordered or employed by a physician to those that could be ordered or employed by more than 40 types of health professionals. Additionally, when the definition of “treatment” at G.S. 90-21.2 was carried over into the new G.S. 90-21.10A, the term was being used in a different context- not to delineate the services that can be provided without parental consent solely in urgent and emergency circumstances, but to describe a much larger universe of services that may be provided in a multitude of situations, from the less common and more complex (e.g., surgeries or appointments with a specialist to manage a child’s chronic condition) to the more frequent and mundane (e.g., trips to the school nurse’s office because of an upset stomach or a student-athlete’s post-practice appointment with the school athletic trainer).
In short- even though the definition of “treatment” in the new G.S. 90-21.10A is almost identical to the definition of the term at G.S. 90-21.2, the replacement of “physician” with “health care practitioner” and the difference in context have significant impact. Under the new G.S. 90-21.10A, “treatment” is a much broader term that encompasses many more types of health services than it does in G.S. 90-21.2. As a result, it becomes critical to distinguish the types of care that do not qualify as “treatment” under the new law.
What Does Not Amount to “Treatment” Under the New Law?
Despite the expansive definition of “treatment” under the new law, there are some likely exclusions, and some services are more readily distinguishable from “treatment” than others. Below is a non-exhaustive list of services that would not seem to constitute “treatment” under the new G.S. 90-21.10A.
1. Services that are not required to be ordered or performed by a “health care practitioner.” The definition of “treatment” only includes care and services that are ordered or employed by a “health care practitioner,” as that term is defined in the new G.S. 90-21.10A. Therefore, care and services that can be provided by lay persons- that is, care and services that do not have to be ordered or carried out by someone who is licensed, certified, or authorized as a health care practitioner- are not “treatment” requiring advance parental consent under the new law. This could include, for example, peer-to-peer tobacco cessation coaching, which is often provided by trained volunteers or staff who are not required to be health care practitioners. Other examples could include work performed by doulas or community health educators, which may require training but not licensure, certification, or authorization as a health care practitioner. These types of services are not “treatment” even if they happen to be provided by a health care practitioner (e.g., a nurse practitioner who volunteers his time as a peer tobacco cessation coach).
2. Pre-school and school health screenings. Health screenings generally do not prevent, diagnose, or treat a disease or illness; rather, they enable early detection of a potential health concern, such as a vision or hearing difference. When a screening identifies a potential concern, children and their families have the option to pursue follow up services, which may include diagnostic testing or treatment. A child’s health concern that is detected earlier may be easier to treat, which may translate to better health outcomes for that child.[3] According to the American Academy of Pediatrics, children in pre-school and school are routinely offered health screenings for common health conditions, such as vision or hearing changes and dental caries (cavities). In some instances, health screenings do not have to be ordered or performed by health care practitioners and can instead be carried out by trained lay staff and volunteers. For example, in North Carolina, children’s vision screenings may be performed by volunteers who are trained and certified by Prevent Blindness North Carolina, and certain hearing screenings can be provided by “unlicensed persons” who have received appropriate training.[4] Dental screenings, although typically provided by public health dental hygienists (a type of health care practitioner), are considered educational and preventive services that are “not clinical procedures.”[5]
Note: Although health screenings do not constitute “treatment” under the new law, health screenings offered in North Carolina public schools may be subject to S.L. 2023-106, Part 2, Sec. 2.(a), which amends G.S. Chapter 115C and addresses certain services provided in the public school setting. Under the new G.S. 115C-76.45(a), the governing body of a public school unit must adopt procedures for notifying parents, at the beginning of each school year, of the “means for the parent to consent” to a health service or use of a health screening form for the parent’s child. This means that public schools must have a procedure for notifying parents of the process for opting in or opting out (as applicable) of any health screenings that may be offered at the school.
3. Provision of first aid, emergency care, or other lifesaving techniques by public school employees, including teachers and school nurses. When S.L. 2023-106 became law, there were questions about whether the requirement to obtain parental consent before providing treatment to a minor would be in tension with G.S. 115C-375.1, which allows certain public school employees to deliver emergency health care and perform first aid or other lifesaving techniques to students. Specifically, the concern was that the new G.S. 90-21.10B would require advance parental consent in these situations, which could impede the timely delivery of first aid, emergency care, or lifesaving techniques. This issue was resolved by Section 7.81.(c) of S.L. 2023-134 (the “budget bill”), which amends G.S. 115C-375.1 to read: “Notwithstanding G.S. 90-21.10B, […].” This means that public school employees, including teachers and school nurses, are not required under G.S. 90-21.10B to obtain parental consent before administering first aid, emergency care, or other lifesaving techniques to a minor student in accordance with G.S. 115C-375.1.
As previously noted, this is not an exhaustive list of services and types of care that do not amount to “treatment” under the new law. Health care practitioners and facilities are encouraged to consult with legal counsel, malpractice insurers, and licensing boards, as appropriate, if they have questions about whether specific care or services meet the definition of “treatment” under the new law.
Additional Analysis of the New Parental Consent Requirement is Forthcoming
This blog post focuses solely on the definition of “treatment” under the new G.S. 90-20.10A, which was created by S.L. 2023-106, Part 3. Additional analysis of S.L. 2023-106, Part 3 is forthcoming and will include discussion of the law’s requirement for obtaining written or documented parental consent. In the meantime, if you have questions about S.L. 2023-106 or another public health legal matter, feel free to send me an email at kirsten@sog.unc.edu.
Notes
[1] The following professionals are licensed, certified, or authorized to carry out their work under G.S. Chapter 90: physicians, physician assistants, anesthesiologist assistants, nurse practitioners, dentists, pharmacists, pharmacy technicians, certain alcohol and drug counselors, optometrists, chiropractors, nurses, medication aides, nurse aides, midwives, veterinarians, podiatrists, funeral services professionals, dental hygienists, dispensing opticians, marriage and family therapy providers, occupational therapists, physical therapists, psychologists, nursing home administrators, assisted living administrators, speech and language pathologists, audiologists, licensed clinic mental health counselors, dietitians and nutritionists, fee-based practicing pastoral counselors, acupuncturists, industrial hygienists, athletic trainers, massage and bodywork therapists, respiratory care practitioners, certain “safety professionals,” perfusionists, registered polysomnography technologists, and behavioral analysts and technicians. Some of these professionals- for example, veterinarians- do not “provide health care services” to humans and therefore are probably not subject to the new law. G.S. Chapter 90B governs the licensure of social workers and Chapter 90C governs the licensure of recreational therapists.
[2] See Merriam-Webster Dictionary Online for their medical definition of “treatment,” available at: https://perma.cc/DAF5-BU3K.
[3] See “Vision Screenings and Eye Exams,” Prevent Blindness North Carolina, last accessed October 16, 2023 and available at: https://preventblindness.org/vision-screenings-and-eye-exams/; “Screening and Diagnosis of Hearing Loss,” United States Centers for Disease Control and Prevention, last accessed October 16, 2023 and available at: https://perma.cc/9SVA-DTFN.
[4] For vision screenings, see G.S. 130A-440.1(a); for hearing screenings, see 21 NCAC 64 .0212(c).
[5] 21 NCAC 16W .0103.
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