Parent’s Bill of Rights Legislation

Parent’s Bill of Rights Legislation Takes Effect in Florida

Fraser Cobbe, Executive Director

With the Governor’s signature provided late last month, House Bill 241, Parent’s Bill of Rights, takes effect July 1, 2021.  Organized Medicine had requested the Governor to veto the bill given the uncertainty over the impact of the legislation.   The bill sponsor and advocates state the bill does not change anything in the law while other attorneys have expressed some concern.  Given the importance of every moment when a child is hurt, physicians felt additional comfort language was needed to make sure they had the confidence to move forward with emergency and acute care when a parent was not available to provide written consent.  The following is a summary of the legislation and the potential impact moving forward.

Click here to download the legislation that passed.  

Disclaimer – There will be a number of legal opinions and articles written about this law over the coming months.  This article is written by staff to provide timely background information and tips so our members are aware.  This is not intended to be legal advice.  We will continue to share interpretations and background information over the coming months.

Background

The Parent’s Bill of Rights is largely focused on provided more control for parents over the education their children receive during school.  The health care component only comes at the end of the legislation.  Because of the focus on education, the bill did not pass through many of the normal health care committees for review.

Health Care Impact

The health care component of the bill is very short. 

(1) Except as otherwise provided by law, a health care practitioner, as defined in s. 456.001, or an individual employed by such health care practitioner may not provide or solicit or arrange to provide health care services or prescribe medicinal drugs to a minor child without first obtaining written  parental consent.

The only exemptions in the bill is for care requested by 1) court order, 2) abortion, and 3) clinical laboratories.   There are criminal penalties for health care practitioners that violate the new law.

(5) A health care practitioner or other person who violates this section is subject to disciplinary action pursuant  to s. 408.813 or s. 456.072, as applicable, and commits a  misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Does It or Does It Not Change Current Law?

The controversy over whether it changes anything or not derives from interpretations over the phrase in the first paragraph, “Except as otherwise provided by law”.    There are a series of statutes already on the books that create a framework for providing emergency care, written consent, and liability protections.  Some feel these statutes taken together provide physicians with all the comfort they need to render acute as well as emergency care without parental consent.   We will talk about each below.

1)            743.064 - Emergency medical care or treatment to minors without parental consent. – This statute defines Emergency Care and establishes when Emergency Care can be rendered to a minor without parental consent.  The limiting factor on this statute however, is that the Emergency Care contemplated MUST be rendered in a hospital.   Further, it states that “emergency medical care or treatment may also be rendered in the prehospital setting by paramedics, emergency medical technicians, and other emergency medical services personnel.”   It is our interpretation that his statute does not provide any protections from physician obligations to secure written parental consent unless 1) the injury meets the statutory definition of an emergency and 2) that care is rendered in the hospital setting.   The statute is clear that emergency care rendered to minors without parental consent in the prehospital setting can only be provided by paramedics, EMTs and other EMS professionals.

2)            768.13 - Good Samaritan Act; immunity from civil liability. – The Good Samaritan Act has been on the books for a long time and protects physicians from getting sued when they provide care during an emergency situation. 

(2)(a) Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a public health emergency declared pursuant to s. 381.00315, a state of emergency which has been declared pursuant to s. 252.36 or at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent person would have acted under the same or similar circumstances.

The limitations of this act in terms of addressing concerns with HB 241 are 1) this again deals with emergency care and does not address acute care scenarios where immediate care is needed but that situation does not reach the definition of an emergency and 2) the statute is silent on the question of written consent.

3)            766.103 - Florida Medical Consent Law – Finally, we turn to Florida’s Medical Consent Law.  At the outset this law establishes that “In any medical treatment activity not covered by s. 768.13, entitled the “Good Samaritan Act,” this act shall govern.”  Therefore, if we determine that the medical care needing to be rendered acutely does not meet the Good Samaritan standard above, then this statute would be definitive.  The statute establishes that no recovery can be made against a physician in an action brought for treating, examining, or operating on a patient without his or her informed consent under certain circumstances.   Those circumstances include if the physician was acting within the community standard of care, if a reasonable individual would have understood the risks based on information provided by the physician, and the patient would reasonably consent to the treatment if they were able to. 

The limiting factor on this statute is that it is silent on this issue of Parental Rights and consent for medical treatment rendered to minors.   The question for physicians would be whether the standards established by 766.103 would be applied to the new statute created by HB 241 (f.s. 1014.06) or whether the rights granted to parents would supersede.

Legislative Intent & the Need for Comfort Language

The question of Legislative Intent is important to consider as well.  The Legislature and advocates for the bill clearly do not want to create a roadblock for physicians to render emergency care to minors.   Organized Medicine was able to add an amendment into the Senate version of the bill that would have exempted acute care and care rendered by volunteer team physicians from the legislation.   Ultimately the Senate took the House bill that did not have that exemption included.   The Senate bill sponsor opposed adding the amendment back onto the House Bill as he stated it was not necessary as the new law would not impact the ability of physicians to provide emergency and acute care to injured minors.   As enforcement and implementation of this language moves forward, the intent of the legislation will be an important factor as we attempt to protect our physician members.

Jurisdiction and Enforcement

HB 241 is a criminal statute and as such it will be overseen by law enforcement and the State Attorney’s Office.   The Board of Medicine does not have jurisdiction over this statute and therefore cannot provide further clarity for physicians on scenarios that may play out with implementation.   We are in the process of sending correspondence to the appropriate law enforcement agencies to determine how they intend to apply the law.

Looking Ahead

Given the complexity of the legal questions and the potential consequences for minors, Organized Medicine will push for the Acute Care and Volunteer Team Physician protections that we had originally included in the Senate Bill.   The Florida Legislature meets in January 2022 and Committee Meetings will start in September 2021.   We are already working on bill sponsors to file a legislative fix during the next session.

What Physicians Should Do Right Away

There are a series of steps physicians can take right away to be proactive on this issue.

1. For scheduled/routine care in your office, this legislation should not impact your current process for obtaining written consent from a parent before rendering care to a minor.   You may just want to take this opportunity to review those intake and consent forms.

2. For Volunteer Team Physicians, be aware that the Florida High School Athletic Association (FHSAA) is already updating their pre-participation forms for student athletes to include written consent as required by the new statute.  There are lingering concerns on how physicians can document that a pre-participation form/written consent is on file with the school of both home and visiting teams student athletes.  And that is an issue that will need to be addressed further.   

3. If you volunteer to cover any non-FHSAA sanctioned events for minors, you need to be asking event organizers if they have a plan to require pre-participation forms for minors that provide written consent in accordance with HB 241 (f.s. 1014.06).  There needs to be a plan in place to secure written consent and documentation before you consider volunteering.

4. If you are concerned about acute care situations when you are away from your office, you may want to review your patient portal and EMR system to see if there is a way to collect written consent from a parent remotely through delivery of a standard PDF form that can be completed and returned to you.  Again the ability to timely document written consent when a parent is not around will be the challenge.

In conclusion, organized medicine will be working to fix this legislation with some commonsense language that creates clarity for physicians and parents alike.  Physicians should feel comfortable that the intent of the legislation was not to prevent you from responding to emergencies and caring for minors.   We would vigorously defend the right of our physician members to respond in a manner according to your training and expertise.