BILL NUMBER: AB 446 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 30, 2013
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 delete the requirement
require that the medical care provider also provide
a patient with information about the HIV test, the treatment
options, and the advisability of continued testing
risk reduction strategies and with specified information after the
test results are received . The bill would also delete
the requirement for a written statement of require
informed consent , 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 . 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, 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 and risk
reduction strategies available for a patient who tests positive for
HIV, 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).
file.
(b) Subdivision (a) does not apply when a person independently
requests an HIV test from the provider a
medical care provider, public health clinic, laboratory, or HIV
counseling and testing site that employs a trained HIV
counselor pursuant to Section 120917 .
(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.
(c)
(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).
(d)
(e) Nothing in this section permits any
a 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.
(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.
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, 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, 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 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.