Minor Consent for Mental Health Care — Implementing Assembly Bill 665

FREQUENTLY ASKED QUESTIONS (FAQS)

About this resource:

• This resource contains some legal information but does not constitute legal advice. We encourage you to consult with your agency’s or school district’s legal counsel for guidance on these topics.
• This resource was prepared prior to the state issuing implementation guidance regarding AB 665. It may be updated once that guidance is issued.
• This resource includes questions specific to the changes made through AB 665 and some related questions on related topics that are not directly impacted by AB 665 but could arise in AB 665 implementation discussions.
• This resource was jointly developed by the National Center for Youth Law, National Health Law Program, The Children’s Partnership, the California Alliance of Child and Family Services, and the California School-Based Health Alliance. To request that additional questions be added to this resource, please email health@youthlaw.org. 

AB 665: Purpose, Content & Scope

Q: What was the purpose of AB 665?

A: The purpose of AB 665 was to address an existing inequity in California law, which made it harder for youth ages 12 and older using their Medi-Cal benefits to access outpatient mental health care, relative to their privately-insured peers.

Q: What does AB 665 change for youth using Medi-Cal for mental health care?

A:  Prior to AB 665, California Family Code allowed minors to consent to certain mental health care on their own. Specifically, the Family Code 6924 said that minors 12 and older could consent to their own outpatient mental health care if: (1) Their health care provider deems them mature enough to participate intelligently in outpatient mental health services, and (2) the minor either presented a danger of serious physical or mental harm to themself or to others without the mental health treatment or counseling, or was the alleged victim of incest or child abuse.  

AB 665 removed criteria (2) from the Family Code allowing minors 12 years and older to consent to outpatient care if the provider deems them mature enough to participate intelligently in that care.

AB 665 also updated the list of providers eligible to offer minor consent mental health care to align with current licensing standards.

Q: What does this change mean in practice?

This statutory change will have two big effects in practice. First, it will make it easier for minors using their Medi-Cal benefits to access care, by removing the higher acuity standard that historically created a barrier. Second, it will make it possible for providers to bill Medi-Cal for these minor consent outpatient mental health care services.

Q: May youth use their Medi-Cal health insurance to pay for minor consent mental health care?

Yes. AB 665 will make it easier for youth to use their Medi-Cal health insurance to pay for minor consent mental health care. They no longer have to demonstrate that they are in danger of serious physical or mental harm to themself or to others without the mental health treatment or counseling, or are the alleged victim of incest or child abuse in order to access care and use their Medi-Cal coverage to pay for it.

Q: Prior to AB 665, why was it harder for youth using their Medi-Cal benefits to consent to mental health services, as compared to their privately-insured peers?

Prior to AB 665, youth seeking to use their Medi-Cal benefits for minor consent services had to meet the higher standard described in the Family Code (FC § 6924). (See above.)

Another California law, Health and Safety Code (HSC § 124260), allows minors to consent to their own outpatient mental health care if they are mature enough to participate intelligently in the services; but Welfare and Institutions Code § 14029.8 states these services cannot be billed to Medi-Cal. As a result, youth with private insurance could consent to their own mental health care under § 124260 and have those services reimbursed by their private insurance. But youth on Medi-Cal were only able to have minor consent services reimbursed if they qualified under the higher acuity criteria in the Family Code.

AB 665 aligns the standard in the Family Code with the standard in the Health and Safety Code, which will increase access for youth to obtain minor consent mental health care using their Medi-Cal benefits.

Q: When will AB 665 take effect?

A: July 1, 2024.

Q: Can a young person be denied services based on the former (pre-AB 665) Family Code section 6924 heightened acuity standard?

A: No. Starting on July 1, 2024, access to minor consent mental health services must be made available to all young people based on the same consent standard, regardless of insurance type.

Q: Where can I find the full text of the law, as revised by AB 665?

A: The text of the law can be found at Family Code section 6924 and is linked here.

Q: Will there be guidance from the state on implementation?

A: Yes. DHCS plans to release guidance on implementation through a Behavioral Health Information Notice (BHIN) and an All Plan Letter (APL) by July 1, 2024. This resource will be updated once that guidance is issued.

Q: Where else can I learn more about AB 665?

A: The National Center for Youth Law will host a webinar in late summer 2024. Please stay tuned for details.

Implementing Minor Consent Laws

Q: What services may minors consent to under Family Code 6924?

A: Family Code section 6924 allows minors to consent to “mental health treatment or counseling on an outpatient basis,” and “residential shelter services.”

As defined by the statute, “mental health treatment or counseling services” means the provision of mental health treatment or counseling on an outpatient basis by any of the following: (A) A governmental agency. (B) A person or agency having a contract with a governmental agency to provide the services. (C) An agency that receives funding from community united funds. (D) A runaway house or crisis resolution center. (E) A professional person, as defined in paragraph (2).

AB 665 did not change the scope of services to which the statute applies.

Please see the section below for information on residential shelter services.

Q: What services are minors prohibited from consenting to under Family Code 6924?

A: Minors cannot self-consent to inpatient psychiatric care (hospitalization), “convulsive therapy”, “psychosurgery,” or psychotropic medication, as defined in the statute, under the Family Code or Health and Safety Code.

AB 665 did not change the scope of services to which the statute applies.

Q: At what age may a minor consent to services under Family Code 6924?

A: Only minors aged 12 and older can consent to these services.

AB 665 did not change the ages to which the statute applies.

Consent Process & Forms

Q: What does mature enough to intelligently participate mean? Who makes this determination?

A: The law says that a minor may self-consent if “in the opinion of the attending professional person,” the minor is “mature enough to participate intelligently” in outpatient services. The statute does not define “mature enough” for this purpose. It simply says that it turns on the opinion of the attending professional.  In other words, the statute tasks the health care provider to use their professional judgment to determine whether the minor is “mature enough to participate intelligently” in outpatient counseling. The provider can do an assessment to make this determination.

Q: Can the youth sign their own consent form?

A: Yes, a consenting youth meeting the legal standard described above can sign their own consent form.

Q: Does this law prevent parents/guardians¹ from consenting to mental health care on behalf of their minor child, if they are involved in the treatment?

A: No. Parents and legal guardians have always been able to consent to their child’s mental health care. The Family Code and Health and Safety Code do not change that. These two laws just allow a minor to consent in some circumstances, in addition to a parent or guardian.

Parental Involvement

Q: What are the rules regarding parent or guardian involvement?

A: Family Code 6924 states that the health care provider must involve the parent or guardian in the minor’s  mental health care, unless the provider determines, after consulting with the minor, that involvement would be inappropriate. This decision and any attempts to contact the youth’s parent or guardian must be documented in the minor’s record.

This exception is important to ensure the youth’s safety and well-being. The goal of this law is to break down barriers to care and open the door – not to always and forever lock parents out. Additionally, if the minor is able to access care from a trusted professional, it may actually become a pathway to build a healthy connection between the minor and their parent or guardian.

Involving parents or guardians in treatment will necessitate sharing certain confidential information; however, having them participate does not mean parents or guardians have a right to access confidential records (see below for more information).

Parent Access to Records²

Q: Do providers need to obtain a signed Release of Information (ROI) form in order to share all minor consent records with a youth’s parent or guardian?

A: Yes, while the parent involvement rule allows providers to inform and involve parents/guardians in treatment when appropriate, it does not give providers a right to disclose medical records (e.g. therapy notes) to parents/guardians without the minor’s authorization. The provider can only share the minor’s medical records with parents/guardians with a signed authorization from the minor. (Note: This answer reflects the rule when HIPAA and/or the California Confidentiality of Medical Information Act protect the underlying health information. If you work in a school and any mental health treatment records are part of a student education records subject to FERPA, parent/guardian access rules may be different. It is important to know whether your records are subject to HIPAA or FERPA.)

Note: AB 665 did not impact confidentiality or disclosure laws. Existing laws and rules about confidentiality and sharing remain as they were prior to AB 665.

Billing

Q: Are there any changes to the payment for services?

A: Once AB 665 goes into effect on July 1, 2024, providers can bill Medi-Cal when providing outpatient mental health services to self-consenting minors if the minor is 12 or older and the provider determines that the minor is mature enough to participate intelligently in the services.

Q: Is it possible to bill parents’ insurance confidentially? What about EOBs?

A: Yes, it is possible to bill insurance confidentially.

Many health plans must comply with Civil Code (CC) section 56.107 and Insurance Code (IC) section 791.29 which request them to ensure that when a minor seeks services based on their own consent, there is a mechanism to suppress Explanation of Benefits (EOB), Notice of Action documents and any other insurance communications that would violate the minor’s confidentiality by inappropriately notifying plan subscribers that the minor received the services, consistent with the requirements in these laws.

These laws allow youth to instruct insurance companies to direct communications about “sensitive services,” including services provided under Family Code section 6924, to the youth, instead of to the subscriber of their plan (who is typically a parent or guardian). (See definitions of “sensitive services” at CC § 56.05 and IC § 791.02). Because these laws have been in effect since the passage of the California Confidentiality of Information Act in 2014 (SB 138), plans should already have policies and practices in place or made modifications to their technology and billing systems to ensure compliance with this law. Even though not all Medi-Cal plans are covered by the Civil Code and Insurance Code provisions, they should be able to enforce these confidential communications and privacy rights of minors on Medi-Cal.

In addition, HIPAA states that insurers and plans that meet the definition of “covered entity” must permit individuals to request that the insurer send communications containing protected health information “by alternative means or at alternative locations” and must accommodate a “reasonable” request for confidential communications when the individual “clearly states that disclosure of all or part of the information could endanger the individual.” 45 C.F.R § 164.522(b)(1)(ii). Insurers may condition the provision of a reasonable accommodation on:  (A) When appropriate, information as to how payment, if any, will be handled; and  (B) Specification of an alternative address or other method of contact. 45 C.F.R. § 164.522(b)(2)(ii).

Q: Are parents/guardians financially liable for the care that the minor has consented to under Family Code 6924 or Health and Safety Code 124260?

A: Both Family Code section 6924 and Health and Safety Code section 124260 state that when a minor consents to their own care, the provider must engage the parent(s) or guardian(s) in that care unless the provider determines that this engagement would be inappropriate.  A parent/guardian is only liable for the cost of minor consent mental health services when the parent or guardian participates in the mental health treatment or counseling. Thus, if the provider determines that parent engagement is inappropriate and the parent/guardians are not notified, then the parent/guardian is not financially liable.  In such cases, while the parent/guardian may not be financially liable, this does not diminish the insurance company’s responsibility for coverage. If the minor is an enrollee of an insurance plan, the plan still has an obligation to the minor.

Q: Can insurance be billed for services even if the parent/guardian is the primary policyholder of the insurance?

A: Yes. The insurance company is still responsible for the coverage of the youth’s services, regardless of who provided the consent and who holds title as primary policyholder or subscriber.

Residential Shelter Services

Q: Family Code section 6924 refers to “residential shelter services”? What does this mean?

A: In addition to providing minors 12 and older the authority to consent to certain outpatient mental health services, Family Code 6924 also authorizes minors to consent to “residential shelter services.” The statute defines residential shelter services as follows:

“Residential shelter services” means any of the following: (A) The provision of residential and other support services to minors on a temporary or emergency basis in a facility that services only minors by a governmental agency, a person or agency having a contract with a governmental agency to provide these services, an agency that receives funding from community funds, or a licensed community care facility or crisis resolution center. (B) The provision of other support services on a temporary or emergency basis by any professional person as defined in paragraph (2).”

If a minor seeks residential shelter services, the provider of residential shelter services must make their best effort to notify the parent/guardian of the provision of services.

AB 665 did not change the authority to access residential shelter services, the definition of residential shelter services, or the obligation to notify parents and guardians.

Q: Family Code section 6924 uses the terms  “temporary or emergency” in the definition of “residential shelter services”? What does this mean?

The key is that these are services provided on a “temporary” or “emergency” basis for young people who may be in crisis. Receipt of residential shelter services does not authorize minors to consent to inpatient psychiatric treatment or long-term placements. Many youth enter shelters on a temporary or emergency basis because of alleged abuse or neglect, and their parents or guardians are not engaged in the services they receive there due to the nature of the situation and to ensure their own safety and well-being.

AB 665 did not change the existing requirement that a provider of residential shelter services make their best effort to notify the parent/guardian of the provision of services.

Minor Consent Medi-Cal Program

Q: If a youth already has Medi-Cal, but wants to consent to outpatient mental health services, do they need to apply for (and get a card for) the “Minor Consent Medi-Cal Program”?

A: No. When a young person is already enrolled in full scope Medi-Cal, they can consent to these services and their existing Medi-Cal can be billed. They should not be directed to obtain a separate coverage card for the Medi-Cal Minor Consent Program since the youth may use their existing Medi-Cal benefits. Youth do not need to obtain a separate card to receive these services. Obtaining a separate card may result in additional procedural hurdles and delayed access to care for youth.

If a young person is not already enrolled in full scope Medi-Cal, they must apply to receive a Minor Consent Medi-Cal Program card to receive services. The young person does not have to provide any identification when they apply, and eligibility workers are prohibited from requiring documents related to immigration status when assessing eligibility for the program.

The Department of Health Care Services (DHCS) will be providing guidance to further clarify access to Minor Consent Medi-Cal for youth enrolled in full scope Medi-Cal and youth not enrolled in full scope Medi-Cal.  

Child Welfare

Q: Can youth in the foster care system consent to mental health services under Family Code 6924 or Health and Safety Code 124260?

A: Yes. Neither law excludes youth with child welfare involvement from self-consenting to mental health services.

In fact, the foster care bill of rights, found at Welfare and Institutions Code 16001.9, provides that all children in foster care have the right, “[a]t 12 years of age or older, to consent to or decline health care services to prevent, test for, or treat sexually transmitted diseases, including HIV, and mental health services, without the consent or knowledge of any adult.”  Welfare and Institutions Code 16001.9(a)(24)(C).

Providers & Locations

Q: May providers, such as Federally Qualified Health Centers (FQHCs), bill managed care Medi-Cal plans for minor consent mental health services?

A: Any provider who accepts Medi-Cal should be able to bill for outpatient mental health services under minor consent. Providers contracted with a Medi-Cal plan can bill the plan for such services without informing the youth’s parent/guardian or sending notices to the parent’s/guardian’s home address.

Q: Does the consent standard in Family Code 6924 and Health and Safety Code 124260 apply if the services are provided at or through schools?

A: Yes. If the services meet the definition in the statute, there is nothing in either law exempting or excluding services provided at or through schools.

Historical background information

Q: How long has minor consent for mental health care existed in California?

A: The legislature granted minors the ability to consent to outpatient mental health counseling in certain circumstances through the Family Code more than 40 years ago.

Q: What was the standard in the Family Code before AB 665? What changed over time?

A: Specifically, the Family Code stated  minors 12 and older could consent to their own outpatient mental health care if:

1. Their health care provider deemed them mature enough to participate intelligently in outpatient mental health services, and 
2. The minor either presented/would present a danger of serious physical or mental harm to themself or to others without the mental health treatment or counseling, or was/is the alleged victim of incest or child abuse.  

Over time, it became evident that many youth in need of care were being denied access because they were not considered to be in a sufficiently intensive crisis state to meet the standard described in the Family Code. In 2010, the legislature passed, and then-Governor Schwarzennegar signed into law, SB 543, which created Health & Safety Code 124260. It stated  minors 12 and older could consent to their own outpatient mental health care if their health care provider deemed them mature enough to participate intelligently in outpatient mental health services. This  standard made mental health care more accessible.  However, it did not apply to youth on Medi-Cal because SB 543 also added section 14029.8 to the Welfare and Institutions Code which stated Medi-Cal benefits will not cover outpatient mental health  services under the Health and Safety Code 124260 standard.  In this way, two standards were created: (1) a higher standard for youth on Medi-Cal and (2) a lower standard for youth able to use their private insurance. AB 665 corrects that problem.

Links to other resources

• CA Minor Consent and Confidentiality Laws Chart (NCYL) 
• HIPAA-FERPA primer (NCYL)