BILL NUMBER: AB 2541 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 20, 2010
AMENDED IN SENATE JUNE 24, 2010
AMENDED IN ASSEMBLY APRIL 28, 2010
AMENDED IN ASSEMBLY APRIL 13, 2010
INTRODUCED BY Assembly Members Portantino and Fletcher
FEBRUARY 19, 2010
An act to amend Sections 120130 and 121022
121022, and 121025 of the Health and Safety Code, relating to
public health.
LEGISLATIVE COUNSEL'S DIGEST
AB 2541, as amended, Portantino. Reporting of certain communicable
diseases.
Existing law establishes various communicable disease prevention
and control programs. Existing law requires the State Department of
Public Health to establish a list of reportable diseases and
conditions and authorizes the department to adopt regulations
requiring isolation or quarantine for any contagious, infectious, or
communicable diseases, if necessary, for the protection of the public
health.
Existing law requires the local health officer to report the
listed diseases to the department, and requires that, within one year
after the establishment of a state electronic laboratory reporting
system, reports generated by a laboratory be submitted electronically
in a manner specified by the department, except for reports of HIV
infections. Existing law requires health care providers and
laboratories to report cases of HIV infection to the local health
officer using patient names.
This bill would delete the exemption from electronic reporting for
HIV infections and would make conforming changes. This bill would
provide that require health care
providers and laboratories to report cases of HIV
infection to the local health officer using patient names and set
guidelines regarding such reports. To the extent that this bill would
impose additional requirements on a local public health officer and
because this bill changes the definition of a crime, this bill would
impose a state-mandated local program.
Existing law prohibits the disclosure of public health records
relating to HIV and AIDS, and the information contained in those
records, with specified exceptions for public health purposes, or
pursuant to a written authorization. Existing law requires a
disclosure of these records or information to include only the
information necessary for the purpose of the disclosure, and to be
made only upon agreement that the information will be kept
confidential and will not be further disclosed without written
authorization. Existing law imposes civil penalties for the
disclosure, whether negligent or willful and malicious, of the
content of a confidential public health record, as defined, as well
as specified criminal penalties, under certain circumstances.
This bill would expand information disclosure provisions
applicable to the information contained in public health records
relating to HIV and AIDS, including when the person who is the
subject of the record is coinfected with HIV/AIDS, tuberculosis, and
a sexually transmitted disease, as specified. The bill would also
increase the maximum civil penalties applicable for the disclosure of
the content of a public health record, as specified.
This bill would incorporate additional changes to Section 120130
of the Health and Safety Code proposed by AB 2786, to be operative
only if AB 2786 and this bill are both chaptered and become effective
on or before January 1, 2011, and this bill is chaptered last.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 120130 of the Health and Safety Code is amended
to read:
120130. (a) The department shall establish a list of reportable
diseases and conditions. For each reportable disease and condition,
the department shall specify the timeliness requirements related to
the reporting of each disease and condition, and the mechanisms
required for, and the content to be included in, reports made
pursuant to this section. The list of reportable diseases and
conditions may include both communicable and noncommunicable
diseases. The list may include those diseases that are either known
to be, or suspected of being, transmitted by milk or milk-based
products. The list shall also include, but not be limited to,
diphtheria, listeria, salmonella, shigella, streptococcal infection
in food handlers or dairy workers, and typhoid. The list may be
modified at any time by the department, after consultation with the
California Conference of Local Health Officers. Modification of the
list shall be exempt from the administrative regulation and
rulemaking requirements of Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code, and
shall be implemented without being adopted as a regulation, except
that the revised list shall be filed with the Secretary of State and
printed in the California Code of Regulations as required under
subdivision (d). Those diseases listed as reportable shall be
properly reported as required to the department by the health
officer.
(b) The department may from time to time adopt and enforce
regulations requiring strict or modified isolation, or quarantine,
for any of the contagious, infectious, or communicable diseases, if
in the opinion of the department the action is necessary for the
protection of the public health.
(c) The health officer may require strict or modified isolation,
or quarantine, for any case of contagious, infectious, or
communicable disease, when this action is necessary for the
protection of the public health.
(d) The list established pursuant to subdivision (a) and any
subsequent modifications shall be published in Title 17 of the
California Code of Regulations.
(e) Notwithstanding any other provision of law, no civil or
criminal penalty, fine, sanction, finding, or denial, suspension, or
revocation of licensure for any person or facility may be imposed
based upon a failure to provide the notification of a reportable
disease or condition that is required under this section, unless the
disease or condition that is required to be reported was printed in
the California Code of Regulations at least six months prior to the
date of the claimed failure to report.
(f) Commencing July 1, 2009, or within one year of the
establishment of a state electronic laboratory reporting system,
whichever is later, a report generated pursuant to this section, or
Section 121022, by a laboratory shall be submitted electronically in
a manner specified by the department. The department shall allow
laboratories that receive incomplete patient information to report
the name of the provider who submitted the request to the local
health officer.
(g) The department may through its Internet Web site and via
electronic mail advise out-of-state laboratories that are known to
the department to test specimens from California residents of the new
reporting requirements.
SEC. 1.5. Section 120130 of the Health
and Safety Code is amended to read:
120130. (a) The department shall establish a list of reportable
diseases and conditions. For each reportable disease and condition,
the department shall specify the timeliness requirements related to
the reporting of each disease and condition, and the mechanisms
required for, and the content to be included in, reports made
pursuant to this section. The list of reportable diseases and
conditions may include both communicable and noncommunicable
diseases. The list may include those diseases that are either known
to be, or suspected of being, transmitted by milk or milk-based
products. The list shall also include, but not be limited
to, diphtheria, listeria, salmonella, shigella, streptococcal
infection in food handlers or dairy workers, and typhoid.
The list may be modified at any time by the department, after
consultation with the California Conference of Local Health Officers.
Modification of the list shall be exempt from the administrative
regulation and rulemaking requirements of Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code, and shall be implemented without being adopted as a
regulation, except that the revised list shall be filed with the
Secretary of State and printed in the California Code of Regulations
as required under pursuant to
subdivision (d) (e) . Those diseases
listed as reportable shall be properly reported as required to the
department by the health officer.
(b) The department shall establish a list of communicable diseases
and conditions for which clinical laboratories shall submit a
culture or a specimen to the local public health laboratory to
undergo characterization. The list shall set forth the conditions
under which the culture and specimen shall also be submitted to the
state public health laboratory to undergo further characterization.
The list may be modified at any time by the department, after
consultation with the California Conference of Local Health Officers
and the California Association of Public Health Laboratory Directors.
Both establishment and modification of the list shall be exempt from
the administrative regulation and rulemaking requirements of Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code, and shall be implemented without being
adopted as a regulation, except that the initial list and any
modifications shall be filed with the Secretary of State and printed
in the California Code of Regulations as required pursuant to
subdivision (e).
(b)
(c) The department may from time to time adopt and
enforce regulations requiring strict or modified isolation, or
quarantine, for any of the contagious, infectious, or communicable
diseases, if in the opinion of the department the action is necessary
for the protection of the public health.
(c)
(d) The health officer may require strict or modified
isolation, or quarantine, for any case of contagious, infectious, or
communicable disease, when this action is necessary for the
protection of the public health.
(d)
(e) The list lists
established pursuant to subdivision
subdivisions (a) and (b) and any subsequent
modifications shall be published in Title 17 of the California Code
of Regulations.
(e)
(f) Notwithstanding any other provision of law, no
civil or criminal penalty, fine, sanction, finding, or denial,
suspension, or revocation of licensure for any person or
facility a licensed physician and surgeon or a
clinical laboratory may be imposed based upon a failure to
provide the notification of a reportable disease or condition or
to provide the submission of a culture or specimen that is
required under pursuant to this
section, unless the name of the disease or condition that
is required to be reported or for which the culture or specimen
is required to be submitted was printed in the California Code
of Regulations and the department notified the licensed
physician and surgeon or clinical laboratory of the disease or
condition at least six months prior to the date of the claimed
failure to report or submit .
(f)
(g) Commencing July 1, 2009, or within one year of the
establishment of a state electronic laboratory reporting system,
whichever is later, a report generated pursuant to this section
or Section 121022 by a laboratory shall be submitted
electronically in a manner specified by the department ,
except that this electronic reporting requirement shall not apply to
reports of HIV infections . The department shall allow
laboratories that receive incomplete patient information to report
the name of the provider who submitted the request to the local
health officer.
(g)
(h) The department may on ,
through its Internet Web site and via electronic
mail , advise out-of-state laboratories that are known to
the department to test specimens from California residents of the new
reporting requirements.
SEC. 2. Section 121022 of the Health and Safety Code is amended to
read:
121022. (a) To ensure knowledge of current trends in the HIV
epidemic and to ensure that California remains competitive for
federal HIV and AIDS funding, health care providers and laboratories
shall report cases of HIV infection to the local health officer using
patient names. Local health officers shall report unduplicated HIV
cases by name to the department.
(b) (1) Health care providers and local health officers shall
submit cases of HIV infection pursuant to subdivision (a) by courier
service, United States Postal Service express mail or registered
mail, other traceable mail, person-to-person transfer, facsimile, or
electronically by a secure and confidential electronic reporting
system established by the department.
(2) This subdivision shall be implemented using the existing
resources of the department.
(c) The department and local health officers shall ensure
continued reasonable access to anonymous HIV testing through
alternative testing sites, as established by Section 120890, and in
consultation with HIV planning groups and affected stakeholders,
including representatives of persons living with HIV and health
officers.
(d) The department shall promulgate emergency regulations to
conform the relevant provisions of Article 3.5 (commencing with
Section 2641.5) of Chapter 4 of Title 17 of the California Code of
Regulations, consistent with this chapter, within one year of the
effective date of this section.
(e) Pursuant to Section 121025, reported cases of HIV infection
shall not be disclosed, discoverable, or compelled to be produced in
any civil, criminal, administrative, or other proceeding.
(f) State and local health department employees and contractors
shall be required to sign confidentiality agreements developed by the
department that include information related to the penalties for a
breach of confidentiality and the procedures for reporting a breach
of confidentiality, prior to accessing confidential HIV-related
public health records. Those agreements shall be reviewed annually by
either the department or the appropriate local health department.
(g) No person shall disclose identifying information reported
pursuant to subdivision (a) to the federal government, including, but
not limited to, any agency, employee, agent, contractor, or anyone
else acting on behalf of the federal government, except as permitted
under subdivision (b) of Section 121025.
(h) (1) Any potential or actual breach of confidentiality of
HIV-related public health records shall be investigated by the local
health officer, in coordination with the department, when
appropriate. The local health officer shall immediately report any
evidence of an actual breach of confidentiality of HIV-related public
health records at a city or county level to the department and the
appropriate law enforcement agency.
(2) The department shall investigate any potential or actual
breach of confidentiality of HIV-related public health records at the
state level, and shall report any evidence of such a breach of
confidentiality to an appropriate law enforcement agency.
(i) Any willful, negligent, or malicious disclosure of cases of
HIV infection reported pursuant to subdivision (a) shall be subject
to the penalties prescribed in Section 121025.
(j) Nothing in this section shall be construed to limit other
remedies and protections available under state or federal law.
SEC. 3. Section 121025 of the Health
and Safety Code is amended to read:
121025. (a) Public health records relating to human
immunodeficiency virus (HIV) or acquired immunodeficiency syndrome
(AIDS), containing personally identifying information, that were
developed or acquired by a state or local public health
agencies agency , or an agent of
such an that agency, shall be
confidential and shall not be disclosed, except as otherwise provided
by law for public health purposes or pursuant to a written
authorization by the person who is the subject of the record or by
his or her guardian or conservator.
(b) In accordance with subdivision (f) of Section 121022, a
state or local public health agencies
agency , or an agent of such an that
agency, may disclose personally identifying information in
public health records, as described in subdivision (a), to other
local, state, or federal public health agencies or to corroborating
medical researchers, when the confidential information is necessary
to carry out the duties of the agency or researcher in the
investigation, control, or surveillance of disease, as determined by
the state or local public health agency.
(c) Any Except as provided in paragraphs
(1) to (3), inclusive, any disclosure authorized by subdivision
(a) or (b) shall include only the information necessary for the
purpose of that disclosure and shall be made only upon agreement that
the information will be kept confidential and will not be further
disclosed without written authorization, as described in subdivision
(a).
(1) Notwithstanding any other provision of law, the following
disclosures shall be authorized for the purpose of enhancing
completeness of HIV/AIDS, tuberculosis, and sexually transmitted
disease coinfection reporting to the federal Centers for Disease
Control and Prevention (CDC):
(A) The local public health agency HIV surveillance staff may
further disclose the information to the health care provider who
provides HIV care to the HIV-positive person who is the subject of
the record for the purpose of assisting in compliance with
subdivision (a) of Section 121022.
(B) Local public health agency tuberculosis control staff may
further disclose the information to state public health agency
tuberculosis control staff, who may further disclose the information,
without disclosing patient identifying information, to the CDC, to
the extent the information is requested by the CDC and permitted by
subdivision (b), for purposes of the investigation, control, or
surveillance of HIV and tuberculosis coinfections.
(C) Local public health agency sexually transmitted disease
control staff may further disclose the information to state public
health agency sexually transmitted disease control staff, who may
further disclose the information, without disclosing patient
identifying information, to the CDC, to the extent it is requested by
the CDC, and permitted by subdivision (b), for the purposes of the
investigation, control, or surveillance of HIV and syphilis,
gonorrhea, or chlamydia coinfection.
(2) Notwithstanding any other provision of law, the following
disclosures shall be authorized for the purpose of facilitating
appropriate HIV/AIDS medical care and treatment:
(A) State public health agency HIV surveillance staff, AIDS Drug
Assistance Program staff, and care services staff may further
disclose the information to local public health agency staff, who may
further disclose the information to the HIV-positive person who is
the subject of the record, or the health care provider who provides
his or her HIV care, for the purpose of proactively offering and
coordinating care and treatment services to him or her.
(B) AIDS Drug Assistance Program staff and care services staff in
the State Department of Public Health may further disclose the
information directly to the HIV-positive person who is the subject of
the record or the health care provider who provides his or her HIV
care, for the purpose of proactively offering and coordinating care
and treatment services to him or her.
(3) Notwithstanding any other provision of law, for the purpose of
facilitating appropriate medical care and treatment of persons
coinfected with HIV, tuberculosis, and syphilis, gonorrhea, or
chlamydia, local public health agency sexually transmitted disease
control and tuberculosis control staff may further disclose the
information to state or local public health agency sexually
transmitted disease control and tuberculosis control staff, the
HIV-positive person who is the subject of the record, or the health
care provider who provides his or her HIV, tuberculosis, and sexually
transmitted disease care.
(4) For the purposes of paragraphs (2) and(3), "staff" does not
include nongovernmental entities.
(d) No confidential public health record, as defined in
subdivision (c) of Section 121035, shall be disclosed, discoverable,
or compelled to be produced in any civil, criminal, administrative,
or other proceeding.
(e) (1) Any person who negligently discloses the content of any
confidential public health record, as defined in subdivision (c) of
Section 121035, to any third party, except pursuant to a written
authorization, as described in subdivision (a), or as otherwise
authorized by law, shall be subject to a civil penalty in an amount
not to exceed two thousand five hundred dollars ($2,500)
five thousand dollars ($5,000) , plus court
costs, as determined by the court, which penalty and costs shall be
paid to the person whose record was disclosed.
(2) Any person who willfully or maliciously discloses the content
of any confidential public health record, as defined in subdivision
(c) of Section 121035, to any third party, except pursuant to a
written authorization, or as otherwise authorized by law, shall be
subject to a civil penalty in an amount not less than five thousand
dollars ($5,000) and not more than ten thousand dollars
($10,000) twenty-five thousand dollars ($25,000)
, plus court costs, as determined by the court, which penalty and
costs shall be paid to the person whose confidential public health
record was disclosed.
(3) Any person who willfully, maliciously, or negligently
discloses the content of any confidential public health record, as
defined in subdivision (c) of Section 121035, to any third party,
except pursuant to a written authorization, or as otherwise
authorized by law, that results in economic, bodily, or psychological
harm to the person whose confidential public health record was
disclosed, is guilty of a misdemeanor, punishable by imprisonment in
the county jail for a period not to exceed one year, or a fine of not
to exceed twenty-five thousand dollars ($25,000), or both, plus
court costs, as determined by the court, which penalty and costs
shall be paid to the person whose confidential public health record
was disclosed.
(4) Any person who commits any act described in paragraph (1),
(2), or (3), shall be liable to the person whose confidential public
health record was disclosed for all actual damages for economic,
bodily, or psychological harm that is a proximate result of the act.
(5) Each violation of this section is a separate and actionable
offense.
(6) Nothing in this section limits or expands the right of an
injured person whose confidential public health record was disclosed
to recover damages under any other applicable law.
(f) In the event that a confidential public health record, as
defined in subdivision (c) of Section 121035, is disclosed, the
information shall not be used to determine employability, or
insurability of any person.
SEC. 4. Section 1.5 of this bill incorporates
amendments to Section 120130 of the Health and Safety Code proposed
by both this bill and AB 2786. It shall only become operative if (1)
both bills are enacted and become effective on or before January 1,
2011, (2) each bill amends Section 120130 of the Health and Safety
Code, and (3) this bill is enacted after AB 2786, in which case
Section 1 of this bill shall not become operative.
SEC. 3. SEC. 5. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution for certain costs that may be incurred by a
local agency or school district because, in that regard, this act
creates a new crime or infraction, eliminates a crime or infraction,
or changes the penalty for a crime or infraction, within the meaning
of Section 17556 of the Government Code, or changes the definition of
a crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.