BILL ANALYSIS Ó SB 422 Page 1 Date of Hearing: June 28, 2011 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair SB 422 (Wright) - As Amended: April 25, 2011 SENATE VOTE : 39-1 SUBJECT : REPORTING OF CERTAIN COMMUNICABLE DISEASES KEY ISSUES : 1)should staff of the local public health agency for HIV partner services be included in the group of those to which physicians can disclose positive hiv test information? 2)Should local health staff be exempted from criminal and civil liability for informing partners of a positive hiv test as specified? FISCAL EFFECT : As currently in print this bill is keyed non-fiscal. SYNOPSIS This non-controversial bill authorizes physicians to disclose positive HIV test information to public health agency staff for HIV partner services with the written consent of the patient. The bill exempts from criminal and civil liability authorized public health authorities who alert the specified partners of an HIV positive person, without disclosing any identifying information about the person believed to be infected with HIV. The bill permits local health authorities to expunge the identification information of a partner once a reasonable effort to contact the partner has been undertaken. According to the author, the bill is essential to ensure that local health authorities can properly do their important job of notifying those potentially exposed to HIV without risking significant criminal and civil liability. This bill is supported by disease prevention groups and has no known opposition. SUMMARY : Revises existing law that permits the sharing of information related to a positive HIV test between a physician, a local health officer, and the HIV-positive person's sexual partner, spouse, and/or persons with whom hypodermic needles have been shared. Specifically, this bill : SB 422 Page 2 1)Includes the "designated staff of the local public health agency for HIV partner services" among the people to whom a physician, who has a confirmed positive test for HIV of an individual, may disclose that information without criminal or civil liability. 2)Permits disclosure of identifying information of a person who tests positive for HIV with the written consent of the individual, as specified. 3)Exempts the designated local public health agency staff for HIV partner services from civil and criminal liability resulting from their informing potentially infected partners of HIV patients of their potential exposure to HIV. 4)Makes technical, conforming changes. EXISTING LAW : 1)Requires physicians and medical laboratories to report to the local health officer all confirmed cases of HIV infection, using the patient name, to ensure knowledge of current trends in the HIV epidemic and to ensure that California remains competitive for federal HIV and AIDS funding. (Heath & Saf. Code Sec. 121022 (a).) 2)Provides that no physician who has the results of a confirmed positive test for HIV infection of a patient under his or her care may be held criminally or civilly liable for disclosing non-identifying patient information to a person reasonably believed to be the spouse, sexual partner, a person whom the patient has shared a needle with, or to the local health officer. (Health & Saf. Code Sec. 121015 (a).) 3)Authorizes a local health officer to alert any persons reasonably believed to be a spouse, sexual partner or partner of shared needles of an individual who has tested positive for HIV about their potential exposure without disclosing identifying patient information. (Health & Saf. Code Sec. 121015 (d).) 4)Provides that upon completion of the local health officer's efforts to contact any of the specified partners, all records containing any individual identifying information must be expunged by the local health officer. (Health & Saf. Code Sec. 121015 (d).) SB 422 Page 3 5)Imposes a fine of $5,000 to $25,000 and potential incarceration for any person who wrongfully discloses the results of an HIV test, except pursuant to a written authorization, as defined. (Health and Saf. Code Sec. 120980 et seq.) COMMENTS : This non-controversial bill seeks to promote greater partner notification for those persons potentially exposed to HIV by expanding the liability coverage for authorized physicians and public health officials who notify potentially infected partners of HIV patients. The author states: Senate Bill 422 is needed in order to better empower California's local public health departments to help to prevent HIV transmission. There is a need to specify a legal process for a physician to identify an HIV-infected patient to designated local public health staff, so that the patient can be interviewed for information about exposed partners. The current law can be interpreted as absolutely prohibiting a physician from identifying a patient to local public health for partner services. Only if the local public health staff know who the patient is and how to reach him/her, can it be possible for an experienced public health partner services specialist to communicate with the patient to encourage him/her to identify all possible exposed persons and how the public health specialist can help to contact them. There is a need to reassure local public health staff that communication with exposed partners is exempt from criminal or civil liability. By doing this, SB 422 will encourage more partner services that can help interrupt the spread of HIV and thus save lives, as well as saving significant health care expenses to the state that would result from preventable new infections. There is also a need to clarify a legal requirement that information about exposed partners be expunged from public health records. This requirement can currently be interpreted to require premature expunging of contact information, after an exposed person has been contacted but before adequate information and proper referrals have been arranged. SB 422 would clarify that information about partners would not be expunged from public health records until the partners had been alerted to their exposure and SB 422 Page 4 referred for appropriate care and follow-up, as authorized in current law. For any other communicable disease, this bill would not be necessary, because local public health agencies would automatically be communicating in this manner. But because there are significant penalties in the Health and Safety Code for "unauthorized disclosure" of HIV information, including information in public health records, it is necessary to clarify in the law what types of disclosure are exempt from these penalties. Protects Physicians from Criminal and Civil Liability for Disclosures of Information of Positive HIV Tests to Local Public Health Agency Staff for Partner Notification Services: Under existing law a physician is permitted to notify a person potentially infected with HIV by sexual contact or needle-sharing about their potential exposure without incurring liability. The physician must additionally inform the local health officer of all confirmed HIV cases and submit the name of the infected patient to local health officials in charge of tracking potential clusters of infections. However, the law prohibits doctors from referring that patient to local health staff for counseling and interviews about potential partner contact. Even though the local health department is given the patient's name they cannot contact an HIV patient for follow-up. This bill seeks to protect physicians who identify an HIV-infected patient for the purposes of referring them to local public health authorities for follow-up and partner identification interviews. Supporters contend these referrals are essential to preventing further spread of HIV, as public health staff must be able to interview the patient and determine the identity of individuals who may have been exposed to HIV. This bill creates a standard process whereby physicians can legally refer infected patients to public health officials in order to better identify and locate the patient's partners. Protects Public Health Staff for Partner Services from Liability for Disclosing Non-Identifying Information of Positive HIV Tests: Under existing law, the local health officer and treating physicians may alert any persons reasonably believed to be a spouse, sexual partner or partner of shared needles of an HIV positive patient, without disclosing any identifying information. This bill extends this protection to the public health officials responsible for HIV partner notifications. SB 422 Page 5 Without this protection public health officials face significant fines for improper disclosure and may hesitate to notify persons potentially infected with HIV. This bill ensures that HIV partner services staff who, as a part of their official duties, track down and inform those who may have been exposed to HIV, do not face significant civil and criminal penalties for improper disclosure. Giving Public Health Officials the Tools to Thoroughly Reach Out to Those Potentially Infected with HIV: Existing law unnecessarily limits the ability of public health officials to adequately perform their duties in two key ways (beyond the unclear liability discussed above). First, existing law permits only the local health officer to notify patients they believe have been exposed to HIV. Historically, local health officers ran the daily operations of the department, but as health departments have grown, local health officers are now administrative and political heads and rarely perform day-to-day functions like partner notifications. To confront this reality, this bill expands those legally permitted to notify those potentially exposed to HIV to include those health department officials who specialize in partner notification services. By expanding the group permitted to notify those potentially exposed to HIV, this bill shifts the burden from the individual public health officer to the staff of partner notification services, who are trained in notifying those exposed to communicable diseases can undertake this delicate function. Secondly, under existing law, if a public health officer's initial attempt to contact a potentially infected partner is unsuccessful, the record of that partner must, nonetheless, still be immediately expunged. Under this bill, the public health staff gain greater flexibility and time to further investigate and attempt to locate the potentially infected partner before their records must be destroyed. By permitting the public health agency to maintain records until referral for care and follow-up is completed, public health officials can use all necessary means to track down a potentially infected person, thus at minimum notifying a potential carrier of the disease. This provision is consistent with the bill's general goal of increasing the ability of local health officials to notify potentially infected partners of HIV patients. By giving the officials more opportunity to contact a partner, this provision aims to lessen the number of people unknowingly infected with HIV. SB 422 Page 6 ARGUMENTS IN SUPPORT : Beyond AIDS writes that this bill will "connect the dots" to improve current law by empowering necessary public health communication for the prevention and control of the spread of HIV infections. The California Medical Association writes that it is very important that physicians are able to communicate with the appropriate personnel to help control the transmission HIV. The California Academy of Preventive Medicine states that by facilitating communication and disclosure among health departments, health care providers, and patients, this bill can result in more complete and accurate surveillance to track who is being infected with HIV, so that preventive efforts can be targeted to the people at risk. The Infectious Disease Association of California writes that when providing information about suspected contacts to a local health officer, an HIV positive patient cannot be identified to allow the health department staff to interview him or her in order to get information that they do not have time and techniques to collect, and that this bill will help assure such communication is possible. Prior Legislation : AB 2541 (Portantino and Fletcher), Chapter 470, Statutes of 2010, deleted the HIV exemption from authorized electronic reporting and explicitly provided disclosure authority to state and local public health personnel for the purpose of providing complete information regarding sexually transmitted disease surveillance to the federal government. AB 2658 (Horton), Chapter 449, Statutes of 2008 required laboratories to electronically submit all cases of "reportable diseases and conditions" (including AIDS) within one year of the establishment of the new state electronic laboratory reporting system. However, AB 2658 exempts HIV reporting from this requirement in order to allow the Department of Public Health sufficient time to ensure the new system's data architecture is in line with HIV-specific reporting requirements and that the system would meet federal standards for HIV reporting. SB 699 (Soto), Chapter 20, Statutes of 2006, required health care providers and laboratories to report HIV cases by the patient's name rather than code in order to comply with federal funding requirements. REGISTERED SUPPORT / OPPOSITION : Support SB 422 Page 7 AIDS Healthcare Foundation Beyond AIDS California Academy of Preventive Medicine California Medical Association Infectious Disease Association of California 3 individuals Opposition None on file Analysis Prepared by : Drew Liebert and Nicholas Liedtke / JUD. / (916) 319-2334