BILL NUMBER: AB 491 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Portantino
FEBRUARY 15, 2011
An act to amend Section 120990 of, and to add Section 120889 to,
the Health and Safety Code, relating to public health.
LEGISLATIVE COUNSEL'S DIGEST
AB 491, as introduced, Portantino. HIV testing.
Existing law establishes the State Department of Public Health and
sets forth its powers and duties, including, but not limited to,
administration of a program to provide information, establish testing
sites, and award contracts for AIDS early intervention projects to
provide appropriate medical treatment to prevent or delay the
progression of disease that results from HIV infection, to coordinate
related services, and to provide information and education to
prevent the spread of the infection to others. Existing law sets
forth the powers and duties of an HIV counselor in a project HIV
counseling and testing site funded by the department through a local
health jurisdiction or its agents.
This bill would require the department to, upon appropriation by
the Legislature, allocate state and federal funds that are intended
to be used to test persons for HIV to a local health jurisdiction in
accordance with the prevalence of HIV and AIDS in the local
jurisdiction.
Existing law requires a medical care provider, prior to ordering
an HIV test, to provide information about the test to the patient, to
inform the patient that there are numerous treatment options
available, and to inform the patient that a person who tests negative
for HIV should continue to be routinely tested.
This bill would delete this provision, and would specify that an
HIV counselor is a medical care provider for the purposes of related
provisions. The bill would delete a provision requiring that the
patient sign a specified written statement documenting the person's
consent, and would delete related provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all the following:
(a) HIV testing has entered a new era as policymakers have begun
to understand that ensuring that more people know their HIV status is
critical to maintaining health and reducing the spread of the virus.
A person's awareness of his or her HIV status leads to treatment,
better survival rates, and preventing transmission.
(b) The California Office of AIDS estimates that up to 39,000
Californians have HIV and do not know it. People who do not know
their HIV status do not begin life-prolonging treatments, and they
continue to expose others to HIV through unprotected risk behaviors.
(c) Research shows that when people learn they are infected with
HIV, they take steps to protect their health and the health of their
partners. In a 2005 meta-analysis of sexual behaviors, persons who
knew their HIV status were 68 percent less likely to engage in
unprotected intercourse with uninfected partners.
(d) According to the federal Centers for Disease Control and
Prevention, cohort studies have demonstrated that HIV-infected
persons who are unaware of their infection do not reduce risk
behaviors. Persons tested for HIV who do not return for test results
might even increase their risk for transmitting HIV to partners.
(e) Additionally, the earlier a person is diagnosed, the sooner he
or she can access medical care and other prevention services to
further prevent transmission and disease progression.
(f) Because medical treatment that lowers HIV viral load might
also reduce risk for transmission to others, early referral to
medical care could prevent HIV transmission in communities while
reducing a person's risk for HIV-related illness and death.
(g) For all of these reasons, routine HIV testing is essential to
any comprehensive HIV prevention program.
(h) With an eye toward making HIV testing more routine, the
federal government has adopted a national goal of six million HIV
tests each year.
(i) It is the intent of the Legislature that the State of
California accomplish both of the following:
(1) Make every effort to ensure that HIV testing is routinely
available in physicians' offices, hospitals, clinics, and every other
public and private medical and nonmedical setting in which HIV
testing is administered.
(2) Fulfill its fair share of the national testing goal by seeking
to test 550,000 Californians each year.
SEC. 2. Section 120889 is added to the Health and Safety Code, to
read:
120889. The department shall, upon appropriation by the
Legislature, allocate state and federal funds that are intended to be
used to test persons for HIV to a local health jurisdiction in
accordance with the prevalence of HIV and AIDS in the jurisdiction at
the time of the allocation decision.
SEC. 3. Section 120990 of the Health and Safety Code is amended 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. For the purposes
of this subdivision, "a medical care provider" includes,
but is not limited to, a person who is authorized to administer an
HIV test pursuant to Section 120917.
(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)
(c) 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)
(d) 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.