BILL NUMBER: AB 446 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Mitchell
FEBRUARY 19, 2013
An act to amend Sections 120990 and 123148 of, and to add Section
120991 to, the Health and Safety Code, relating to HIV testing.
LEGISLATIVE COUNSEL'S DIGEST
AB 446, as introduced, Mitchell. HIV testing.
Existing law requires a medical care provider, prior to ordering
an HIV test, to, among other things, provide information about the
test, inform the patient that there are numerous treatment options
available for a patient who tests positive for HIV, and inform the
patient that a person who tests negative for HIV should continue to
be routinely tested. Existing law, with specified exceptions,
requires a written statement documenting the test subject's informed
consent prior to the performance of an HIV test.
This bill would delete the requirement that the medical care
provider provide a patient with information about the HIV test, the
treatment options, and the advisability of continued testing. The
bill would also delete the requirement for a written statement of
informed consent. The bill would require an HIV test to be performed
for each draw of blood that is ordered for a patient in the emergency
department of a general acute care hospital, a public health clinic,
or an urgent care center, provided that the patient has consented
and would require the results of the HIV test to be given to the
patient before he or she leave the facility unless he or she leaves
before being released.
Existing law regulates the disclosure of test results for HIV and
other diseases. Existing law prohibits the disclosure of HIV test
results by Internet posting or other electronic means unless the
patient requests the disclosure, the healthcare professional deems it
appropriate, and the health care professional has first discussed
the results in person or over the phone.
This bill would authorize disclosure of HIV test results by
Internet posting or other electronic means if the result is posted on
a secure Internet Web site and can only be viewed with the use of a
secure personal identification number provided to the patient at the
time of testing.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 120990 of the Health and Safety Code is amended
to read:
120990. (a) Prior to ordering a test that identifies infection
of a patient 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 , if a medical file exists .
For purposes of this subdivision, a medical care provider includes a
person authorized to administer an HIV test pursuant to Section
120917. This subdivision applies to testing in a clinical and
nonclinical setting, if a 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 does 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 permits 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. 2. Section 120991 is added to the Health and Safety Code, to
read:
120991. Each draw of blood ordered for a patient in the emergency
department of a general acute care hospital, a public health clinic,
or an urgent care center shall be tested for HIV, provided that the
patient has consented to the HIV test pursuant to Section 120990. The
emergency department, public health clinic, or urgent care center
shall provide the test results to the patient before he or she leaves
the facility, unless the patient leaves the facility prior to being
released.
SEC. 3. 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 disclosed in plain language and in oral or written
form, except the results may be disclosed in electronic form if
requested by the patient and if deemed most appropriate by the health
care professional who requested the test. The telephone shall not be
considered an electronic form of disclosing laboratory results
subject to the limits on electronic disclosure of test results for
the purpose of this section.
(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 disclosed 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 disclosed
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 disclose
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 access to 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 disclosure 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 subdivision (a), unless the patient requests
the disclosure, the health care professional deems this disclosure as
an appropriate means, and a health care professional has first
discussed in person, by telephone, or by any other means of oral
communication, the test results with the patient, in compliance with
any other applicable laws, none of the following clinical laboratory
test results and any other related results shall be disclosed to a
patient by Internet posting or other electronic means:
(1) HIV antibody test , unless the test result is posted on a
secure Internet Web site and can only be viewed w ith the
use of a secure personal identification number provided to the
patient at the time of testing .
(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. In no event shall patient identifiable HIV-related test
results and health information disclosed in this section be used in
violation of subdivision (f) of Section 120980.
(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.