BILL NUMBER: AB 682 ENROLLED
BILL TEXT
PASSED THE SENATE SEPTEMBER 6, 2007
PASSED THE ASSEMBLY SEPTEMBER 10, 2007
AMENDED IN SENATE SEPTEMBER 4, 2007
AMENDED IN SENATE JULY 18, 2007
AMENDED IN ASSEMBLY JUNE 4, 2007
AMENDED IN ASSEMBLY APRIL 24, 2007
AMENDED IN ASSEMBLY MARCH 27, 2007
INTRODUCED BY Assembly Members Berg, Garcia, and Huffman
(Coauthors: Assembly Members Beall and Laird)
FEBRUARY 21, 2007
An act to amend Sections 125090 and 125107 of, and to repeal and
add Section 120990 of, the Health and Safety Code, relating to
HIV/AIDS.
LEGISLATIVE COUNSEL'S DIGEST
AB 682, Berg. HIV/AIDS testing.
Existing law prohibits, except in certain cases, a person from
testing a person's blood for evidence of antibodies to the probable
causative agent of acquired immunodeficiency syndrome (AIDS) without
the written consent of the subject of the test or the written consent
of the subject, as provided, confirming that he or she obtained the
consent from the subject.
This bill would delete those provisions, and would, instead,
require a medical care provider, prior to ordering a test that
identifies infection with human immunodeficiency virus (HIV), to
inform the patient that the test is planned, provide information
about the test, inform the patient regarding specified treatment
options and further testing needed, and advise the patient that he or
she has the right to decline the test. The bill would require the
medical provider, if a patient declines the test, to note that fact
in the patient's medical file.
Existing law requires the physician and surgeon or other person
engaged in the prenatal care of a pregnant woman or attending the
woman at the time of delivery, prior to obtaining a prescribed blood
specimen, to ensure that the woman is informed of the intent to
perform a test for HIV infection, the routine nature of the test, the
purpose of the testing, the risks and benefits of the test, and
certain other information about the risks associated with the
transmission of HIV, and specifies that a woman has a right to accept
or refuse this testing. Existing law requires that acceptance of
testing for HIV be documented in writing on a prescribed form, with a
copy to be maintained in the patient's medical file. Existing law
authorizes a multispecialty medical group that provides health care
services to enrollees of a health care service plan to use a form
incorporating specified HIV information.
This bill would delete those provisions regarding the acceptance
of HIV testing by a patient, and would, instead, specify that a woman
has a right to decline this testing.
Existing law requires the physician and surgeon or other person
engaged in the prenatal care of the pregnant woman or attending the
woman at the time of labor, delivery, or post partum, after the
results of HIV testing done pursuant to these provisions have been
received, to explain the results and the implications for the mother'
s and infant's health, including any followup care that is needed.
Existing law states that health care providers are strongly
encouraged to seek consultation with other providers specializing in
the care of HIV-positive women.
This bill would require that the woman also receive any followup
testing that is needed. The bill would also state that health care
providers are strongly encouraged to seek consultation with HIV
specialists who provide care for pregnant and post partum
HIV-positive women.
Existing law provides, notwithstanding any other provision of law,
that completion of a statement of acceptance of an HIV test pursuant
to specified existing law constitutes sufficient consent for HIV
testing for a pregnant woman or woman at the time of labor and
delivery, and prohibits a laboratory or health care provider from
requesting further consent for HIV testing.
This bill would delete the provisions designating completion of
the statement of acceptance of an HIV test as sufficient consent for
the HIV testing under the circumstances described above.
This bill would prohibit a person from administering a test for
HIV infection pursuant to those provisions, unless the person being
tested or his or her parent, guardian, conservator, or other
specified person, signs a written statement documenting the person's
informed consent to the test. The bill would provide an exception to
that requirement for tests to detect HIV on a cadaver when an autopsy
is performed, or when blood is tested as part of a scientific
investigation conducted by a medical researcher operating under the
approval of an institutional review board or by the department, in
accordance with a prescribed protocol.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 120990 of the Health and Safety Code is
repealed.
SEC. 2. Section 120990 is added to the Health and Safety Code, to
read:
120990. (a) Prior to ordering a test that identifies infection
with HIV, a medical care provider shall inform the patient that the
test is planned, provide information about the test, inform the
patient that there are numerous treatment options available for a
patient who tests positive for HIV and that a person who tests
negative for HIV should continue to be routinely tested, and advise
the patient that he or she has the right to decline the test. If a
patient declines the test, the medical care provider shall note that
fact in the patient's medical file.
(b) Subdivision (a) shall not apply when a person independently
requests an HIV test from the provider.
(c) Except as provided in subdivision (a), no person shall
administer a test for HIV infection unless the person being tested or
his or her parent, guardian, conservator, or other person specified
in Section 121020, signs a written statement documenting the person's
informed consent to the test. This requirement does not apply to
such a test performed at an alternative site pursuant to Sections
120890 or 120895. Nothing in this section shall be construed to allow
a person to administer a test for HIV unless that person is
otherwise permitted under current law to administer an HIV test.
(d) Nothing in this section shall preclude a medical examiner or
other physician from ordering or performing a test to detect HIV on a
cadaver when an autopsy is performed or body parts are donated
pursuant to the Uniform Anatomical Gift Act (Chapter 3.5 (commencing
with Section 7150) of Part 1 of Division 7).
(e) (1) The requirements of subdivision (c) do not apply when
blood is tested as part of a scientific investigation conducted
either by a medical researcher operating under the approval of an
institutional review board or by the department, in accordance with a
protocol for unlinked testing.
(2) For purposes of this subdivision, "unlinked testing" means
blood samples that are obtained anonymously, or that have the name or
identifying information of the individual who provided the sample
removed in a manner that prevents the test results from ever being
linked to a particular individual who participated in the research or
study.
(f) Nothing in this section shall be construed to permit any
person to unlawfully disclose an individual's HIV status, or to
otherwise violate provisions of Section 54 of the Civil Code, the
Americans With Disabilities Act of 1990 (Public Law 101-336), or the
California Fair Employment and Housing Act (Part 2.8 (commencing with
Section 12900) of Division 3 of Title 2 of the Government Code),
which prohibit discrimination against individuals who are living with
HIV, or who test positive for HIV, or are presumed to be
HIV-positive.
SEC. 3. Section 125090 of the Health and Safety Code is amended to
read:
125090. (a) Subdivision (a) of Section 125085 shall not be
applicable if the licensed physician and surgeon or other person
engaged in the prenatal care of a pregnant woman or attending the
woman at the time of delivery has knowledge of the woman's blood type
and accepts responsibility for the accuracy of the information.
(b) Subdivision (b) of Section 125085 shall not be applicable if
the licensed physician and surgeon or other person engaged in the
prenatal care of a pregnant woman or attending the woman at the time
of delivery has knowledge that the woman has previously been
determined to be chronically infected with hepatitis B or human
immunodeficiency virus (HIV) and accepts responsibility for the
accuracy of the information.
(c) Prior to obtaining a blood specimen collected pursuant to
subdivision (b) of Section 125085 or this section, the physician and
surgeon or other person engaged in the prenatal care of a pregnant
woman, or attending the woman at the time of labor or delivery, shall
ensure that the woman is informed of the intent to perform a test
for HIV infection, the routine nature of the test, the purpose of the
testing, the risks and benefits of the test, the risk of perinatal
transmission of HIV, that approved treatments are known to decrease
the risk of perinatal transmission of HIV, and that the woman has a
right to decline this testing.
(d) If, during the final review of standard of prenatal care
medical tests, the medical records of the pregnant woman do not
document a test for rhesus (Rh) antibody blood type, a test for
hepatitis B, or a test for HIV, the physician and surgeon or other
person engaged in the prenatal care of the woman, or attending the
woman at the time of labor or delivery, shall obtain a blood specimen
from the woman for the tests that have not been documented. Prior to
obtaining this blood specimen, the provider shall ensure that the
woman is informed of the intent to perform the tests that have not
been documented prior to this visit, including a test for HIV
infection, the routine nature of the test, the purpose of the
testing, the risks and benefits of the test, the risk of perinatal
transmission of HIV, that approved treatments are known to decrease
the risk of perinatal transmission of HIV, and that the woman has a
right to decline the HIV test. The blood shall be tested by a method
that will ensure the earliest possible results, and the results shall
be reported to both of the following:
(1) The physician and surgeon or other person engaged in the
prenatal care of the woman or attending the woman at the time of
delivery.
(2) The woman tested.
(e) After the results of the tests done pursuant to this section
and Section 125085 have been received, the physician and surgeon or
other person engaged in the prenatal care of the pregnant woman or
attending the woman at the time of labor, delivery, or post partum
care at the time the results are received shall ensure that the woman
receives information and counseling, as appropriate, to explain the
results and the implications for the mother's and infant's health,
including any followup testing and care that are indicated. If the
woman tests positive for HIV antibodies, she shall also receive,
whenever possible, a referral to a provider, provider group, or
institution specializing in prenatal and post partum care for
HIV-positive women and their infants. Health care providers are also
strongly encouraged to seek consultation with HIV specialists who
provide care for pregnant and post partum HIV-positive women and
their infants.
(f) The provisions of Section 125107 for counseling are equally
applicable to every pregnant patient covered by subdivisions (c) and
(d).
(g) Nothing in this section shall be construed to permit a
licensed physician and surgeon or other person engaged in the
prenatal care of a pregnant woman or attending the woman at the time
of delivery to unlawfully disclose an individual's HIV status, or to
otherwise violate provisions of Section 54 of the Civil Code, the
Americans With Disabilities Act of 1990 (Public Law 101-336), or the
California Fair Employment and Housing Act (Part 2.8 (commencing with
Section 12900) of Division 3 of Title 2 of the Government Code),
which prohibit discrimination against individuals who are living with
HIV, or who test positive for HIV, or are presumed to be
HIV-positive.
SEC. 4. Section 125107 of the Health and Safety Code is amended to
read:
125107. (a) For purposes of this section, "prenatal care provider"
means a licensed health care professional providing prenatal care
within his or her lawful scope of practice. This definition shall not
include a licensed health care professional who provides care other
than prenatal care to a pregnant patient.
(b) The prenatal care provider primarily responsible for providing
prenatal care to a pregnant patient shall offer human
immunodeficiency virus (HIV) information and counseling to every
pregnant patient. This information and counseling shall include, but
shall not be limited to, all of the following:
(1) A description of the modes of HIV transmission.
(2) A discussion of risk reduction behavior modifications
including methods to reduce the risk of perinatal transmission.
(3) If appropriate, referral information to other HIV prevention
and psychosocial services including anonymous and confidential test
sites approved by the Office of AIDS.
(c) Nothing in this section shall be construed to require
mandatory testing. Any documentation or disclosure of HIV-related
information shall be made in accordance with Chapter 7 (commencing
with Section 120975) of Part 4 of Division 105 regarding
confidentiality and informed consent.
(d) Nothing in this section shall be construed to permit a
prenatal care provider to unlawfully disclose an individual's HIV
status, or to otherwise violate provisions of Section 54 of the Civil
Code, or the Americans With Disabilities Act of 1990 (Public Law
101-336), or the California Fair Employment and Housing Act (Part 2.8
(commencing with Section 12900) of Division 3 of Title 2 of the
Government Code), which prohibit discrimination against individuals
who are living with HIV, or who test positive for HIV, or are
presumed to be HIV-positive.