Amended in Senate July 8, 2013

Amended in Senate June 17, 2013

Amended in Assembly May 24, 2013

Amended in Assembly May 14, 2013

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. Existing law exempts from these provisions HIV tests that are independently requested by the patient from specified providers.

This bill would require that the medical care provider or the person who administers the test also provide a patient with begin delete information about risk reduction strategies and with end delete specified information after the test results are received. The bill would require informed consent, as specified, either orally or in writing, begin delete and would require the person administering the test to record the informed consent in the person’s medical record. end delete begin insert except when a person independently requests an HIV test from an HIV counseling and testing site, as specified. end insert The bill would require the person administering a test for a provider covered by the exemption to document the person’s independent request for the test. The bill would also exempt clinical laboratories from the informed consent requirements.

This bill would require every patient who has blood drawn at a primary care clinic, as defined, who is between 12 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.

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 code that can access only a single set of test results and that is provided to the patient at the time of testing.

Vote: majority. Appropriation: no. Fiscal committee: yes. 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 begin delete and risk
reduction strategies end delete available for a patient who tests positive for
HIV begin insert and that a person who tests negative for HIV should continue
to be routinely tested 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 file.

(b) Subdivision (a) does not apply when a person independently
requests an HIV test from a medical care begin delete provider, a primary care
clinic as defined in subdivision (a) of Section 1204 or any clinic
specified in subdivision (g), (h), or (j) of Section 1206, laboratory,
or HIV counseling and testing site that employs a trained HIV
counselor pursuant to Section 120917, provided that the person’s
independent request for an HIV test is documented by the person
administering the test. end delete begin insert provider. end 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.

begin insert

(d) Subdivision (c) shall not apply when a person independently
requests an HIV test from an HIV counseling and testing site that
employs a trained HIV counselor, pursuant to Section 120917,
provided that the person is provided with information required
pursuant to subdivision (a) and his or her independent request for
an HIV test is documented by the person administering the test.

end insert begin delete

(d)

end delete

begin insert (e) 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

(e)

end delete

begin insert (f) end insert  (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 the particular individual who participated in
the research or study.

begin delete

(f)

end delete

begin insert (g) end insert  Nothing in this section permits 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, who test positive for HIV, or who are presumed to be
HIV-positive.

begin delete

(g)

end delete

begin insert (h) end insert  After the results of a test performed pursuant to this section
have been received, the medical care provider or the person who
administers the test 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 medical provider or the person who
begin delete adminsters end delete begin insert administers end insert the test shall inform the patient that there
are numerous treatment options available and identify followup
testing and care that may be recommended, including contact
information for medical and psychological services. If the patient
tests negative for HIV infection and is known to be at high risk
for HIV infection, the medical provider or the person who
administers the test shall advise the patient of the need for periodic
retesting, explain the limitations of current testing technology and
the current window period for verification of results, and may offer
prevention counseling or a referral to prevention counseling.

begin delete

(h)

end delete

begin insert (i) end insert  This section shall not apply to a clinical laboratory.

SEC. 2.  

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

120991.  

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

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

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

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

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

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 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
code that can access only a single set of test results and that is
provided to the patient at the time of testing. The test result shall
be posted only if there is no link to any information that identifies
or refers to the subject of the test.

(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) A 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 a cost, or be charged a
fee, for electing to receive his or her laboratory results in a manner
other than by Internet posting or other electronic form.

(j) A patient or his or her physician may revoke 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.