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 specified information after the test results are received. The bill would require informed consent, as specified, either orally or in writing, except when a person independently requests an HIV test from an HIV counseling and testing site, as specified. 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,
begin delete who is between 12 and 65 years of ageend delete 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 120990 of the Health and Safety Code
2 is amended to read:
(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 available for
7a patient who tests positive for HIV and that a person who tests
8negative for HIV should continue to be routinely tested, and advise
9the patient that he or she has the right to decline the test. If a patient
P3 1declines the test, the medical care provider shall note that fact in
2the patient’s medical file.
3(b) Subdivision (a) does not apply when a person independently
4requests an HIV test from a medical care provider.
5(c) Except as provided in subdivision (a), a person shall not
6administer a test for HIV infection unless the person being tested
7or his or her parent, guardian, conservator, or other person specified
8in Section 121020 has provided informed consent for the
9performance of the test. Informed consent may be provided orally
10or in writing, but the person administering the test shall maintain
11documentation of consent, whether obtained orally or in writing,
12in the client’s medical record. This consent requirement does not
13apply to a test performed at an alternative site pursuant to Section
14120890 or 120895. This section does not authorize a person to
15administer a test for HIV unless that person is otherwise lawfully
16permitted to administer an HIV test.
17(d) Subdivision (c) shall not apply when a person independently
18requests an HIV test from an HIV counseling and testing site that
19employs a trained HIV counselor, pursuant to Section 120917,
20provided that the person is provided with information required
21pursuant to subdivision (a) and his or her independent request for
22an HIV test is documented by the person administering the test.
23(e) Nothing in this section shall preclude a medical examiner
24or other physician from ordering or performing a test to detect
25HIV on a cadaver when an autopsy is performed or body parts are
26donated pursuant to the Uniform Anatomical Gift Act (Chapter
273.5 (commencing with Section 7150) of Part 1 of Division 7).
28(f) (1) The requirements of subdivision (c) do not apply when
29blood is tested as part of a scientific investigation conducted either
30by a medical researcher operating under the approval of an
31institutional review board or by the department, in accordance with
32a protocol for unlinked testing.
33(2) For purposes of this subdivision, “unlinked testing” means
34blood samples that are obtained anonymously, or that have the
35name or identifying information of the individual who provided
36the sample removed in a manner that prevents the test results from
37ever being linked to the particular individual who participated in
38the research or study.
39(g) Nothing in this section permits a person to unlawfully
40disclose an individual’s HIV status, or to otherwise violate
P4 1provisions of Section 54 of the Civil Code, the Americans With
2Disabilities Act of 1990 (Public Law 101-336), or the California
3Fair Employment and Housing Act (Part 2.8 (commencing with
4Section 12900) of Division 3 of Title 2 of the Government Code),
5which prohibit discrimination against individuals who are living
6with HIV, who test positive for HIV, or who are presumed to be
8(h) After the results of a test performed pursuant to this section
9have been received, the medical care provider or the person who
10administers the test shall ensure that the patient receives timely
11information and counseling, as appropriate, to explain the results
12and the implications for the patient’s health. If the patient tests
13positive for HIV infection, the medical provider or the person who
14 administers the test shall inform the patient that there are numerous
15treatment options available and identify followup testing and care
16that may be recommended, including contact information for
17medical and psychological services. If the patient tests negative
18for HIV infection and is known to be at high risk for HIV infection,
19the medical provider or the person who administers the test shall
20advise the patient of the need for periodic retesting, explain the
21limitations of current testing technology and the current window
22period for verification of results, and may offer prevention
23counseling or a referral to prevention counseling.
24(i) This section shall not apply to a clinical laboratory.
Section 120991 is added to the Health and Safety Code,
(a) Each patient who has blood drawn at a primary
begin delete clinic, who is between 12 and 65 years of age,end delete and who
29has consented to the HIV test pursuant to Section 120990 shall be
30offered an HIV test. The primary care
begin delete clinic shall be in compliance . This subdivision shall not apply if the
31with this subdivision if it chooses to test the patient using a rapid
32HIV testend delete
35primary care clinic has tested the patient for HIV or if the patient
36has been offered the HIV test and declined the test within the
37previous 12 months. Any subsequent testing of a patient who has
38been tested by the primary care clinic shall be consistent with the
39most recent guidelines issued by
begin delete the federal Centers for Disease the United States Preventive Services
P5 1Control and Prevention andend delete
3(b) HIV testing of minors 12 years of age or older shall comply
4with Section 6926 of the Family Code.
5(c) This section shall not prohibit a primary care clinic from
6charging a patient to cover the cost of HIV testing. The primary
7care clinic shall be deemed to have complied with this section if
8an HIV test is offered.
9(d) A primary care clinic shall attempt to provide test results to
10the patient before he or she leaves the facility. If that is not
11possible, the facility may inform the patient who tests negative for
12HIV by letter or by telephone, and shall inform a patient with a
13positive test result in a manner consistent with state law. However,
14in any case, the primary care clinic shall comply with subdivision
15(g) of Section 120990.
16(e) For purposes of this section, “primary care clinic” means a
17primary care clinic as defined in subdivision (a) of Section 1204
18or subdivision (g), (h), or (j) of Section 1206.
Section 123148 of the Health and Safety Code is
20amended to read:
(a) Notwithstanding any other law, a health care
22professional at whose request a test is performed shall provide or
23arrange for the provision of the results of a clinical laboratory test
24to the patient who is the subject of the test if so requested by the
25patient, in oral or written form. The results shall be disclosed in
26plain language and in oral or written form, except the results may
27be disclosed in electronic form if requested by the patient and if
28deemed most appropriate by the health care professional who
29requested the test. The telephone shall not be considered an
30electronic form of disclosing laboratory results subject to the limits
31on electronic disclosure of test results for the purpose of this
33(b) (1) Consent of the patient to receive his or her laboratory
34results by Internet posting or other electronic means shall be
35obtained in a manner consistent with the requirements of Section
3656.10 or 56.11 of the Civil Code. In the event that a health care
37professional arranges for the provision of test results by Internet
38posting or other electronic manner, the results shall be disclosed
39to a patient in a reasonable time period, but only after the results
40have been reviewed by the health care professional. Access to
P6 1clinical laboratory test results shall be restricted by the use of a
2secure personal identification number when the results are disclosed
3to a patient by Internet posting or other electronic manner.
4(2) Nothing in paragraph (1) shall prohibit direct
5by Internet posting or the use of other electronic means to disclose
6clinical laboratory test results by a treating health care professional
7who ordered the test for his or her patient or by a health care
8professional acting on behalf of, or with the authorization of, the
9treating health care professional who ordered the test.
10(c) When a patient requests access to his or her laboratory test
11results by Internet posting, the health care professional shall advise
12the patient of any charges that may be assessed directly to the
13patient or insurer for the service and that the patient may call the
14health care professional for a more detailed explanation of the
15laboratory test results when delivered.
16(d) The electronic disclosure of test results under this section
17shall be in accordance with any applicable federal law governing
18privacy and security of electronic personal health records.
19However, any state statute that governs privacy and security of
20electronic personal health records, shall apply to test results under
21this section and shall prevail over federal law if federal law permits.
22(e) The test results to be reported to the patient pursuant to this
23section shall be recorded in the patient’s medical record, and shall
24be reported to the patient within a reasonable time period after the
25test results are received at the offices of the health care professional
26who requested the test.
27(f) Notwithstanding subdivision (a), unless the patient requests
28the disclosure, the health care professional deems this disclosure
29as an appropriate means, and a health care professional has first
30discussed in person, by telephone, or by any other means of oral
31communication, the test results with the patient, in compliance
32with any other applicable laws, none of the following clinical
33laboratory test results and any other related results shall be
34disclosed to a patient by Internet posting or other electronic means:
35(1) HIV antibody test, unless the test result is posted on a secure Internet Web site
37and can only be viewed with the use of a secure code that can
38access only a single set of test results and that is provided to the
39patient at the time of testing. The test result shall be posted only
40if there is no link to any information that identifies or refers to the
P7 1 subject of the test.
3(2) Presence of antigens indicating a hepatitis infection.
4(3) Abusing the use of drugs.
5(4) Test results related to routinely processed tissues, including
6skin biopsies, Pap smear tests, products of conception, and bone
7marrow aspirations for morphological evaluation, if they reveal a
9(g) Patient identifiable test results and health information that
10have been provided under this section shall not be used for any
11commercial purpose without the consent of the patient, obtained
12in a manner consistent with the requirements of Section 56.11 of
13the Civil Code. In no event shall patient identifiable HIV-related
14test results and health information disclosed in this section be used
15in violation of subdivision (f) of Section 120980.
16(h) A third party to whom laboratory test results are disclosed
17pursuant to this section shall be deemed a provider of
18administrative services, as that term is used in paragraph (3) of
19subdivision (c) of Section 56.10 of the Civil Code, and shall be
20subject to all limitations and penalties applicable to that section.
21(i) A patient may not be required to pay a cost, or be charged a
22fee, for electing to receive his or her laboratory results in a manner
23other than by Internet posting or other electronic form.
24(j) A patient or his or her physician may revoke consent provided
25under this section at any time and without penalty, except to the
26extent that action has been taken in reliance on that consent.