BILL NUMBER: AB 491 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 10, 2011
AMENDED IN ASSEMBLY APRIL 15, 2011
AMENDED IN ASSEMBLY APRIL 5, 2011
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 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 , and obtain informed consent, as specified
.
This bill would specify that an HIV counselor is a
medical care provider for the purposes of related provisions. The
bill would make related changes .
revise the requirements for the provision of information to, and
obtaining the informed consent of, a patient in connection with HIV
testing.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . 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. SEC. 2. 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 the test performed in a
nonclinical setting 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. or an HIV counselor who is authorized to
administer an HIV test pursuant to Section 120917 shall obtain the
informed consent of the person being tested, as defined by the
federal Centers for Disease Control and Prevention, and provide
information regarding HIV, the risks and benefits of testing, the
implications of HIV test results, and how test results will be
communicated. The medical care provider or HIV counselor shall
provide the opportunity to ask questions and advise the person being
tested that he or she has the right to decline the test. If a person
declines the test, the medical care provider or HIV counselor shall
document that fact.
(b) This subdivision shall apply to testing in clinical and
nonclinical settings, provided that the test performed in a
nonclinical setting is classified as waived under the federal
Clinical Laboratory Improvement Act (CLIA) (42 U.S.C. Sec. 263a).
(c) A separate written consent form for
obtaining informed consent for HIV testing is not required. This
informed consent for HIV testing may be obtained orally. Nothing in
this section shall be construed to eliminate the need for general
informed consent for medical care in writing, where that written
consent is otherwise required by law. 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) For those patients who have positive test results for a test
that identifies infection with HIV, the medical care provider or HIV
counselor shall provide the person being tested with linkages to
care, and shall document that this information has been provided.
Linkages to care shall include providing information orally or in
writing about available treatment options and voluntary partner
notification services, and answering questions that the patient may
have. It shall also include providing the patient with contact
information for HIV medical care, and support and social services, in
writing.
(d)
(e) 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)
(f) (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)
(g) 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.