Amended in Assembly April 30, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 446

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 amended, 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 begin delete delete the requirement end delete begin insert require end insert that the medical care provider begin insert also end insert provide a patient with information about begin delete the HIV test, the treatment options, and the advisability of continued testing end delete begin insert risk reduction strategies and with specified information after the test results are received end insert . The bill would begin delete also delete the requirement for a written statement of end delete begin insert require end insert informed consent begin insert , as specified, either orally or in writing, and would require the person administering the test to record the informed consent in the person’s medical record end insert . The bill would require an HIV test to be performed for each draw of blood that is ordered for a patient in begin delete the emergency department of a general acute care hospital, end delete a public health begin delete clinic, end delete begin insert clinic end insert 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 begin insert , provide information about the test, inform
the patient that there are numerous treatment options and risk
reduction strategies available for a patient who tests positive for
HIV, end insert 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 begin delete 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). end delete begin insert file. end insert

(b) Subdivision (a) does not apply when a person independently
requests an HIV test from begin delete the provider end delete begin insert a medical care provider,
public health clinic, laboratory, or HIV counseling and testing site
that employs a trained HIV counselor pursuant to Section 120917 end insert .

begin insert

(c) Except as provided in subdivision (a), a person shall not
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 has provided informed consent for the
performance of the test. Informed consent may be provided orally
or in writing, but the person administering the test shall maintain
documentation of consent, whether obtained orally or in writing,
in the client’s medical record. This consent requirement does not
apply to a test performed at an alternative site pursuant to Section
120890 or 120895. This section does not authorize a person to
administer a test for HIV unless that person is otherwise lawfully
permitted to administer an HIV test.

end insert begin delete

(c)

end delete

begin insert (d) end insert  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).

begin delete

(d)

end delete

begin insert (e) end insert  Nothing in this section permits begin delete any end delete begin insert a end insert 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.

begin insert

(f) After the results of a test performed pursuant to this section
have been received, the medical care provider shall ensure that
the patient receives timely information and counseling, as
appropriate, to explain the results and the implications for the
patient’s health. If the patient tests positive for HIV infection, the
provider shall inform the patient that there are numerous treatment
options available and identify followup testing and care that may
be recommended. If the patient tests negative for HIV infection
and is known to be at high risk for HIV infection, the provider
shall advise the patient of the need for periodic retesting and may
offer prevention counseling or a referral to prevention counseling.

end insert

SEC. 2.  

Section 120991 is added to the Health and Safety Code,
to read:

120991.  

Each draw of blood ordered for a patient in begin delete the
emergency department of a general acute care hospital, end delete a public
health begin delete clinic, end delete begin insert clinic end insert 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 begin delete emergency department, end delete public health begin delete clinic, end delete
begin insert clinic end insert 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 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 with 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.