BILL NUMBER: AB 491 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 15, 2011
AMENDED IN ASSEMBLY APRIL 5, 2011
INTRODUCED BY Assembly Member Portantino
FEBRUARY 15, 2011
An act to amend Sections 120990 and 123148
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 amended, 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 make related
changes.
Existing law specifies the manner in which a health care
professional at whose request a test is performed for HIV provides
results.
This bill would authorize a clinical laboratory test result of a
negative HIV antibody test to be posted on a secure Internet Web site
if specified conditions are met.
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. This subdivision shall apply to testing in a clinical
or nonclinical setting, provided that for a
the test performed in a nonclinical setting the setting
has a certificate of waiver is classified as waived
under the federal Clinical Laboratory Improvement Act (CLIA)
(42 U.S.C. Sec. 263a).
(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 an HIV antibody test 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 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.
(e)
(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. 4. Section 123148 of the Health and Safety
Code is amended to read:
123148. (a) Notwithstanding any other provision of law, a health
care professional at whose request a test is performed shall provide
or arrange for the provision of the results of a clinical laboratory
test to the patient who is the subject of the test if so requested by
the patient, in oral or written form. The results shall be conveyed
in plain language and in oral or written form, except the results may
be conveyed in electronic form if requested by the patient and if
deemed most appropriate by the health care professional who requested
the test.
(b) (1) Consent of the patient to receive his or her laboratory
results by Internet posting or other electronic means shall be
obtained in a manner consistent with the requirements of Section
56.10 or 56.11 of the Civil Code. In the event that a health care
professional arranges for the provision of test results by Internet
posting or other electronic manner, the results shall be delivered to
a patient in a reasonable time period, but only after the results
have been reviewed by the health care professional. Access to
clinical laboratory test results shall be restricted by the use of a
secure personal identification number when the results are delivered
to a patient by Internet posting or other electronic manner.
(2) Nothing in paragraph (1) shall prohibit direct communication
by Internet posting or the use of other electronic means to convey
clinical laboratory test results by a treating health care
professional who ordered the test for his or her patient or by a
health care professional acting on behalf of, or with the
authorization of, the treating health care professional who ordered
the test.
(c) When a patient requests to receive his or her laboratory test
results by Internet posting, the health care professional shall
advise the patient of any charges that may be assessed directly to
the patient or insurer for the service and that the patient may call
the health care professional for a more detailed explanation of the
laboratory test results when delivered.
(d) The electronic provision of test results under this section
shall be in accordance with any applicable federal law governing
privacy and security of electronic personal health records. However,
any state statute, if enacted, that governs privacy and security of
electronic personal health records, shall apply to test results under
this section and shall prevail over federal law if federal law
permits.
(e) The test results to be reported to the patient pursuant to
this section shall be recorded in the patient's medical record, and
shall be reported to the patient within a reasonable time period
after the test results are received at the offices of the health care
professional who requested the test.
(f) Notwithstanding subdivisions (a) and (b), none of the
following clinical laboratory test results and any other related
results shall be conveyed to a patient by Internet posting or other
electronic means:
(1) HIV antibody test, except as provided in subdivision (k).
(2) Presence of antigens indicating a hepatitis infection.
(3) Abusing the use of drugs.
(4) Test results related to routinely processed tissues, including
skin biopsies, Pap smear tests, products of conception, and bone
marrow aspirations for morphological evaluation, if they reveal a
malignancy.
(g) Patient identifiable test results and health information that
have been provided under this section shall not be used for any
commercial purpose without the consent of the patient, obtained in a
manner consistent with the requirements of Section 56.11 of the Civil
Code.
(h) Any third party to whom laboratory test results are disclosed
pursuant to this section shall be deemed a provider of administrative
services, as that term is used in paragraph (3) of subdivision (c)
of Section 56.10 of the Civil Code, and shall be subject to all
limitations and penalties applicable to that section.
(i) A patient may not be required to pay any cost, or be charged
any fee, for electing to receive his or her laboratory results in any
manner other than by Internet posting or other electronic form.
(j) A patient or his or her physician may revoke any consent
provided under this section at any time and without penalty, except
to the extent that action has been taken in reliance on that consent.
(k) The clinical laboratory test result of a negative HIV antibody
test may be posted on a secure Internet Web site provided that all
of the following conditions are met:
(l) The test subject can view only his or her test result on the
Internet Web site by using a unique access code provided to the test
subject at the time of testing.
(2) The test result is not posted on the Internet Web site any
earlier than 10 calendar days after the test is administered and the
test subject is advised that the result will not be posted until 10
days after the test is administered.
(3) A test subject who has a positive test result is informed of
the positive test result no more than nine calendar days after the
test is administered.