As noted in the January 19, 2021, Liebert Cassidy Whitmore bulletin, What Schools Need To Know About The New CDPH Consolidated Guidance For K-12 Schools, the California Department of Public Health issued guidance on January 14, 2021, for public and private K-12 schools titled, Testing Considerations for LEAs and School Communities (Testing Guidance), as a “framework to support school communities as they decide when and how to implement testing as part of a multi-tiered strategy for resuming in-person instruction for the 2020-2021 school year.” The information in this bulletin applies to both public and private schools unless noted otherwise.
While the Testing Guidance does not require schools to implement COVID-19 testing, it recognizes that COVID-19 testing can be a valuable component of a school’s COVID-19 health and safety plan in addition to other COVID-19 mitigation strategies, such as face coverings, physical distancing, and stable cohorts.
The Testing Guidance includes general considerations to guide schools through the COVID-19 testing decision making process, including (1) identifying testing demand in the school’s community; (2) creating a testing plan; (3) determining testing frequency; and (4) developing a testing strategy for asymptomatic surveillance and/or screening testing. The Testing Guidance contains a useful chart with recommended COVID-19 testing cadences for staff and students depending on the tier currently applicable to the school’s location.
The Testing Guidance also contains information on testing students and parental consent. It provides that students 13 and older may consent to being tested. Under the California Family Code there are limited situations where a minor has capacity to consent to medical treatment. (Fam. Code, § 6920, et seq.) Section 6926, permits “[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 … as may be determined by the State Public Health Officer.” (Fam. Code, § 6926 (a).) A minor cannot disaffirm a consent given under Family Code Section 6926 because of his or her minority. (Fam. Code, § 6921.)
The CDPH indicates that “[b]ecause SARS-CoV2 is recognized as a communicable disease, which is required to be reported, California state law provides that minors 13 years and older can consent to diagnosis and treatment of COVID-19.” [1] The CDPH notes that schools must receive parental consent before requiring students under the age of 13 to undergo COVID-19 testing; while schools may, but are not required to, receive parental consent before requiring students ages 13 to 17 to undergo COVID-19 testing. Further, the CDPH indicates that COVID-19 results should be reported to parents only for students under the age of 13, and to the student by default and to the parents as an option for students ages 13 to 17. The CDPH appears to be relying upon California Family Code Section 6926 in providing this guidance.
If the school is receiving a student’s COVID-19 test results, the school must have a valid authorization to receive the information that is consistent with the requirements of the California Confidentiality of Medical Information Act (CMIA) and is signed by the minor (if they are 13-17), the minor student’s parents, or, for high school students who are age 18 and older, signed by the student.
The Testing Guidance also includes testing information and resources, including information on the COVID-19 testing resources available for public schools by the CDPH Valencia Branch Laboratory, as well as the following:
We strongly encourage Schools to review the Testing Guidance carefully, as it contains valuable information on considerations, strategies, and resources for testing students and staff for COVID-19. Liebert Cassidy Whitmore attorneys are available to assist schools that have any questions about this new CDPH guidance.
[1] Although the statute provides that minors age 12 and above may consent to medical care related to the diagnosis or treatment of a communicable disease, the Family Code appears to give the State Public Health Officer some discretion over the application of the statute. Since the new guidance provides that minors age 13 and older may consent to COVID-19 testing, it is possible that this is due to that discretion.