Amended in Assembly May 14, 2013

Amended in Assembly April 30, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 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 require that the medical care providerbegin insert or the person who administers the testend insert also provide a patient with information about risk reduction strategies and with specified information after the test results are received. The bill would 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.begin delete The bill would require an HIV test to be performed for each draw of blood that is ordered for a patient in 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.end delete

begin insert

This bill would require every patient who has blood drawn at a primary care clinic, as defined, who is between 18 and 65 years of age and who has consented to the test to be offered an HIV test and would specify the manner in which the results of that test are provided.

end insert

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: begin deleteno end deletebegin insertyesend insert. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 120990 of the Health and Safety Code
2 is amended to read:

3

120990.  

(a) Prior to ordering a test that identifies infection of
4a patient with HIV, a medical care provider shall inform the patient
5that the test is planned, provide information about the test, inform
6the patient that there are numerous treatment options and risk
7reduction strategies available for a patient who tests positive for
8HIV, and advise the patient that he or she has the right to decline
9the test. If a patient declines the test, the medical care provider
10shall note that fact in the patient’s medical file.

11(b) Subdivision (a) does not apply when a person independently
12requests an HIV test from a medical care provider,begin delete public health
13clinicend delete
begin insert a primary care clinic as defined in subdivision (a) of Section
141204 or any clinic specified in subdivision (g), (h), or (j) of Section
151206end insert
, laboratory, or HIV counseling and testing site that employs
16a trained HIV counselor pursuant to Section 120917.

17(c) Except as provided in subdivision (a), a person shall not
18administer a test for HIV infection unless the person being tested
P3    1or his or her parent, guardian, conservator, or other person specified
2in Section 121020 has provided informed consent for the
3performance of the test. Informed consent may be provided orally
4or in writing, but the person administering the test shall maintain
5documentation of consent, whether obtained orally or in writing,
6in the client’s medical record. This consent requirement does not
7apply to a test performed at an alternative site pursuant to Section
8120890 or 120895. This section does not authorize a person to
9administer a test for HIV unless that person is otherwise lawfully
10permitted to administer an HIV test.

11(d) Nothing in this section shall preclude a medical examiner
12or other physician from ordering or performing a test to detect
13HIV on a cadaver when an autopsy is performed or body parts are
14donated pursuant to the Uniform Anatomical Gift Act (Chapter
153.5 (commencing with Section 7150) of Part 1 of Division 7).

begin insert

16(e) (1) The requirements of subdivision (c) do not apply when
17blood is tested as part of a scientific investigation conducted either
18by a medical researcher operating under the approval of an
19institutional review board or by the department, in accordance
20with a protocol for unlinked testing.

end insert
begin insert

21(2) For purposes of this subdivision, “unlinked testing” means
22blood samples that are obtained anonymously, or that have the
23name or identifying information of the individual who provided
24the sample removed in a manner that prevents the test results from
25ever being linked to the particular individual who participated in
26the research or study.

end insert
begin delete

20 27(e)

end delete

28begin insert(f)end insert Nothing in this section permits a person to unlawfully
29disclose an individual’s HIV status, or to otherwise violate
30provisions of Section 54 of the Civil Code, the Americans With
31Disabilities Act of 1990 (Public Law 101-336), or the California
32Fair Employment and Housing Act (Part 2.8 (commencing with
33Section 12900) of Division 3 of Title 2 of the Government Code),
34which prohibit discrimination against individuals who are living
35with HIV, or who test positive for HIV, or are presumed to be
36HIV-positive.

begin delete

29 37(f)

end delete

38begin insert(g)end insert After the results of a test performed pursuant to this section
39have been received, the medical care providerbegin insert or the person who
40administers the testend insert
shall ensure that the patient receives timely
P4    1information and counseling, as appropriate, to explain the results
2and the implications for the patient’s health. If the patient tests
3positive for HIV infection, thebegin insert medical end insert providerbegin insert or the person
4who adminsters the testend insert
shall inform the patient that there are
5numerous treatment options available and identify followup testing
6and care that may be recommendedbegin insert, including contact information
7for medical and psychological servicesend insert
. If the patient tests negative
8for HIV infection and is known to be at high risk for HIV infection,
9thebegin insert medicalend insert providerbegin insert or the person who administers the test end insert shall
10advise the patient of the need for periodic retestingbegin insert, explain the
11limitations of current testing technology and the current window
12period for verification of results,end insert
and may offer prevention
13counseling or a referral to prevention counseling.

begin delete
14

SEC. 2.  

Section 120991 is added to the Health and Safety Code,
15to read:

16

120991.  

Each draw of blood ordered for a patient in a public
17health clinic or an urgent care center shall be tested for HIV,
18provided that the patient has consented to the HIV test pursuant
19to Section 120990. The public health clinic or urgent care center
20shall provide the test results to the patient before he or she leaves
21the facility, unless the patient leaves the facility prior to being
22released.

end delete
23begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 120991 is added to the end insertbegin insertHealth and Safety Codeend insertbegin insert,
24to read:end insert

begin insert
25

begin insert120991.end insert  

(a) Each patient who has blood drawn at a primary
26care clinic, who is between 18 and 65 years of age, and who has
27consented to the HIV test pursuant to Section 120990 shall be
28offered an HIV test. The primary care clinic shall be in compliance
29with this subdivision if it chooses to test the patient using a rapid
30HIV test. This subdivision shall not apply if the primary care clinic
31has tested the patient for HIV or if the patient has been offered the
32HIV test and declined the test within the previous 12 months. Any
33subsequent testing of a patient who has been tested by the primary
34care clinic shall be consistent with the most recent guidelines
35issued by the federal Centers for Disease Control and Prevention
36and the United States Preventive Services Task Force.

37(b) HIV testing of minors 12 years of age or older shall comply
38with Section 6926 of the Family Code.

39(c) This section shall not prohibit a primary care clinic from
40charging a patient to cover the cost of HIV testing. The primary
P5    1care clinic shall be deemed to have complied with this section if
2an HIV test is offered.

3(d) A primary care clinic shall attempt to provide test results
4to the patient before he or she leaves the facility. If that is not
5possible, the facility may inform the patient who tests negative for
6HIV by letter or by telephone, and shall inform a patient with a
7positive test result in a manner consistent with state law. However,
8in any case, the primary care clinic shall comply with subdivision
9(g) of Section 120990.

10(e) For purposes of this section, “primary care clinic” means
11a primary care clinic as defined in subdivision (a) of Section 1204
12or subdivision (g), (h), or (i) of Section 1206.

end insert
13

SEC. 3.  

Section 123148 of the Health and Safety Code is
14amended to read:

15

123148.  

(a) Notwithstanding any other law, a health care
16professional at whose request a test is performed shall provide or
17arrange for the provision of the results of a clinical laboratory test
18to the patient who is the subject of the test if so requested by the
19patient, in oral or written form. The results shall be disclosed in
20plain language and in oral or written form, except the results may
21be disclosed in electronic form if requested by the patient and if
22deemed most appropriate by the health care professional who
23requested the test. The telephone shall not be considered an
24electronic form of disclosing laboratory results subject to the limits
25on electronic disclosure of test results for the purpose of this
26section.

27(b) (1) Consent of the patient to receive his or her laboratory
28results by Internet posting or other electronic means shall be
29obtained in a manner consistent with the requirements of Section
3056.10 or 56.11 of the Civil Code. In the event that a health care
31professional arranges for the provision of test results by Internet
32posting or other electronic manner, the results shall be disclosed
33to a patient in a reasonable time period, but only after the results
34have been reviewed by the health care professional. Access to
35clinical laboratory test results shall be restricted by the use of a
36secure personal identification number when the results are disclosed
37to a patient by Internet posting or other electronic manner.

38(2) Nothing in paragraph (1) shall prohibit direct communication
39by Internet posting or the use of other electronic means to disclose
40clinical laboratory test results by a treating health care professional
P6    1who ordered the test for his or her patient or by a health care
2professional acting on behalf of, or with the authorization of, the
3treating health care professional who ordered the test.

4(c) When a patient requests access to his or her laboratory test
5results by Internet posting, the health care professional shall advise
6the patient of any charges that may be assessed directly to the
7patient or insurer for the service and that the patient may call the
8health care professional for a more detailed explanation of the
9laboratory test results when delivered.

10(d) The electronic disclosure of test results under this section
11shall be in accordance with any applicable federal law governing
12privacy and security of electronic personal health records.
13However, any state statute, if enacted, that governs privacy and
14security of electronic personal health records, shall apply to test
15results under this section and shall prevail over federal law if
16federal law permits.

17(e) The test results to be reported to the patient pursuant to this
18section shall be recorded in the patient’s medical record, and shall
19be reported to the patient within a reasonable time period after the
20test results are received at the offices of the health care professional
21who requested the test.

22(f) Notwithstanding subdivision (a), unless the patient requests
23the disclosure, the health care professional deems this disclosure
24as an appropriate means, and a health care professional has first
25discussed in person, by telephone, or by any other means of oral
26communication, the test results with the patient, in compliance
27with any other applicable laws, none of the following clinical
28laboratory test results and any other related results shall be
29disclosed to a patient by Internet posting or other electronic means:

30(1) HIV antibody test, unless the test result is posted on a secure
31Internet Web site and can only be viewed with the use of a secure
32personal identification number provided to the patient at the time
33of testing.begin insert The test result shall be posted only if there is no link to
34any information that identifies the subject of the test.end insert

35(2) Presence of antigens indicating a hepatitis infection.

36(3) Abusing the use of drugs.

37(4) Test results related to routinely processed tissues, including
38skin biopsies, Pap smear tests, products of conception, and bone
39marrow aspirations for morphological evaluation, if they reveal a
40malignancy.

P7    1(g) Patient identifiable test results and health information that
2have been provided under this section shall not be used for any
3commercial purpose without the consent of the patient, obtained
4in a manner consistent with the requirements of Section 56.11 of
5the Civil Code. In no event shall patient identifiable HIV-related
6test results and health information disclosed in this section be used
7in violation of subdivision (f) of Section 120980.

8(h) Any third party to whom laboratory test results are disclosed
9pursuant to this section shall be deemed a provider of
10administrative services, as that term is used in paragraph (3) of
11subdivision (c) of Section 56.10 of the Civil Code, and shall be
12subject to all limitations and penalties applicable to that section.

13(i) A patient may not be required to pay any cost, or be charged
14any fee, for electing to receive his or her laboratory results in any
15manner other than by Internet posting or other electronic form.

16(j) A patient or his or her physician may revoke any consent
17provided under this section at any time and without penalty, except
18to the extent that action has been taken in reliance on that consent.



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