BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    THIRD READING


          Bill No:  AB 446
          Author:   Mitchell (D)
          Amended:  9/6/13 in Senate
          Vote:     21


           SENATE HEALTH COMMITTEE  :  9-0, 6/26/13
          AYES:  Hernandez, Anderson, Beall, De León, DeSaulnier, Monning,  
            Nielsen, Pavley, Wolk

           SENATE JUDICIARY COMMITTEE  :  6-0, 7/2/13
          AYES:  Walters, Anderson, Corbett, Jackson, Leno, Monning
          NO VOTE RECORDED:  Evans

           SENATE APPROPRIATIONS COMMITTEE  :  6-0, 8/30/13
          AYES:  De León, Walters, Gaines, Hill, Padilla, Steinberg
          NO VOTE RECORDED:  Lara

           ASSEMBLY FLOOR  :  72-1, 5/29/13 - See last page for vote


           SUBJECT  :    HIV testing

           SOURCE  :     AIDS Healthcare Foundation


           DIGEST  :    This bill revises requirements related to information  
          provided at the time an HIV test is administered and after the  
          test results are received; requires 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; requires documentation of the  
          person's independent request for the test and exempts clinical  
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          laboratories from the informed consent requirements; requires  
          every patient who has blood drawn at a primary care clinic, as  
          defined, who has consented to the test, to be offered an HIV  
          test; and authorizes disclosure of HIV test results by Internet  
          posting or other electronic means if the HIV test subject is  
          anonymously tested.

           Senate Floor Amendments  of 9/6/13 delete a reference to the age  
          of a patient who has consented to a HIV test at a primary care  
          clinic; delete a reference to HIV testing guidelines issued by  
          the Centers for Disease Control (CDC) and prevention and instead  
          refer only to the United States Preventative Services Task Force  
          recommendations and guidelines; limit online notification of HIV  
          test results to instances in which the test subject is being  
          anonymously tested; and cross reference other provisions in this  
          bill related to HIV information and counseling in the provisions  
          related to online notification of HIV test results.

           ANALYSIS  :    

          Existing law:

          1.Requires a medical care provider, prior to ordering an HIV  
            test, to provide information about the test to the patient, to  
            inform the patient that there are numerous treatment options  
            available, and to inform the patient that a person who tests  
            negative for HIV should continue to be routinely tested  
            (informed consent in clinical settings).  This requirement  
            does not apply when a person independently requests an HIV  
            test from the medical care provider.

          2.Prohibits an HIV test from being administered, unless the  
            person being tested or his/her parent, guardian, or  
            conservator, signs a written statement documenting his/her  
            informed consent to the test (written informed consent in  
            non-clinical settings).

          3.Sets forth the powers and duties of an HIV counselor in a HIV  
            counseling and testing site funded by the Department of Public  
            Health (DPH) through a local health jurisdiction or its  
            agents.

          4.Establishes DPH and sets forth its powers and duties,  
            including, but not limited to, administration of a program to  

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            provide information, establish testing sites, and award  
            contracts for AIDS early intervention projects to provide  
            appropriate medical treatment to prevent or delay the  
            progression of disease that results from HIV infection, to  
            coordinate related services, and to provide information and  
            education to prevent the spread of the infection to others.



          This bill:

          1.Revises existing law related to informed consent in clinical  
            settings for an HIV test, including adding a new requirement  
            that a medical care provider inform patients that a person who  
            tests negative for HIV should continue to be routinely tested.

          2.Clarifies that a provision in existing law exempting clinical  
            settings from the informed consent requirements applies when a  
            person independently requests a test from a medical care  
            provider.  Requires the person's independent request for an  
            HIV test to be documented by the person administering the  
            test.

          3.Deletes a requirement that a written statement documenting  
            informed consent for an HIV test be signed and instead  
            requires the informed consent to be provided orally or in  
            writing.  Requires the person administering the test to  
            maintain documentation of consent, whether obtained orally or  
            in writing, in the client's medical record.  Clarifies that  
            this provision does not apply when a person independently  
            requests an HIV test from an HIV counseling and testing site  
            that employs a trained HIV counselor, as defined.

          4.Requires, after the results of a test have been received, the  
            medical care provider or the person who administers the test  
            to ensure that the patient receives timely information and  
            counseling, as appropriate, to explain the results and the  
            implications for the patient's health. 

          5.Requires, if the patient tests positive for HIV infection, the  
            medical provider or the person who administers the test to  
            inform the patient that there are numerous treatment options  
            available, and identify follow up testing and care that may be  
            recommended, including contact information for medical and  

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            psychological services. 

          6.Requires, 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 to 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.

          7.Requires a patient who has blood drawn at a primary care  
            clinic, and who has consented to the HIV test to be offered an  
            HIV test.  Deems the primary care clinic to be in compliance  
            with this bill if it chooses to test the patient using a rapid  
            HIV test.  Prohibits this bill from applying if the primary  
            care clinic has tested the patient for HIV, or if the patient  
            has been offered and declined the HIV test within the previous  
            12 months.  Requires subsequent testing of a patient who has  
            been tested by the primary care clinic to be consistent with  
            the most recent guidelines issued by the United States  
            Preventive Services Task Force.

          8.Requires HIV testing of minors 12 years of age or older to  
            comply with existing law related to consent by a minor.

          9.Specifies that nothing in this bill prohibits a primary care  
            clinic from charging a patient to cover the cost of HIV  
            testing. 

          10.Requires a primary care clinic to attempt to provide test  
            results to the patient before he/she leaves the facility.   
            Permits, if that is not possible, the facility inform the  
            patient who tests negative for HIV by letter or telephone, and  
            requires the clinic to inform a patient with a positive test  
            result in a manner consistent with existing law.

          11.Limits the results of an HIV test posted on a secure Internet  
            Web site which 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 to  
            instances in which the test subject is being anonymously  
            tested.  Requires the test result to be posted only if there  
            is no link to any information that identifies or refers to the  
            subject of the test.

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           Background
           
          According to a 2012 CDC report, an estimated 1,148,200 persons  
          who are age 13 and older are living with HIV infection,  
          including approximately 207,600 who are unaware of their  
          infection.  Over the past decade, the number of people living  
          with HIV has increased, while the annual number of new HIV  
          infections has remained relatively stable.  The estimated  
          incidence of HIV has remained stable overall in recent years, at  
          about 50,000 new HIV infections per year.  Within the overall  
          estimates, however, some groups are affected more than others.   
          Men who have sex with men continue to bear the greatest burden  
          of HIV infection, and among races/ethnicities, African Americans  
          continue to be disproportionately affected.  In 2011, an  
          estimated 49,273 people were diagnosed with HIV infection in the  
          United States.  In that same year, an estimated 32,052 people  
          were diagnosed with AIDS.  Since the epidemic began, an  
          estimated 1,155,792 people in the United States have been  
          diagnosed with AIDS.   An estimated 15,529 people with an AIDS  
          diagnosis died in 2010, and approximately 636,000 people in the  
          United States with an AIDS diagnosis have died since the  
          epidemic began.  The deaths of persons with an AIDS diagnosis  
          can be due to any cause; that is, the death may or may not be  
          related to AIDS.

           HIV positive but unaware  .  According to the CDC, 18% of people  
          living with HIV are unaware of their infection.  According to  
          the California Office of AIDS, as of the end of 2011, it is  
          estimated that between 29,523 and 31,948 HIV-positive and  
          unaware individuals reside in California.  According to the CDC,  
          when HIV is diagnosed early, appropriately timed interventions,  
          particularly highly active antiretroviral therapy, can lead to  
          improved health outcomes, including slower clinical progression  
          and reduced mortality.  Additionally, HIV counseling with  
          testing has been demonstrated to be an effective intervention  
          for HIV-infected participants, who increased their safer  
          behaviors and decreased risk behaviors.

           Studies on written consent and testing  .  According to research  
          findings published in the March 14, 2007 issue of the Journal of  
          the American Medical Association, in May 2006, the San Francisco  
          Department of Public Health Medical Care System, which includes  
          an acute care hospital, a long-term care facility, and more than  

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          15 primary health care centers, eliminated the requirement for  
          written consent for HIV tests (but still obtained informed  
          consent).  According to the findings, the monthly rate of HIV  
          testing increased steadily after the change in policy (from 13.5  
          HIV tests per 1000 patient-visits in June 2006 to 17.9 HIV tests  
          per 1000 patient-visits in December 2006).  The authors  
          cautioned that other events may have contributed to this  
          increase of HIV testing.  For example, the XVI International  
          AIDS Conference in mid-August 2006 and the release of the  
          revised CDC recommendations for HIV testing in September 2006  
          may have heightened clinician and patient awareness and affected  
          clinicians' testing practices.  However, the authors stated that  
          the increase in testing appears to have begun before those  
          events and maintained a steady increase thereafter, so that  
          these events are unlikely to explain the increase in HIV  
          testing.  In conclusion, the authors called the results  
          "hypothesis generating," and called for further studies for  
          confirmation.

           Prior Legislation

           AB 491 (Portantino, 2011) would have allocated state and federal  
          funds to test persons for HIV, would have specified that an HIV  
          counselor is a medical care provider, and would have authorized  
          a clinical laboratory test result of a negative HIV antibody  
          test to be posted on a secure Internet Web site if specified  
          conditions were met.  AB 491 was amended to deal with a  
          different subject matter.
          AB 1894 (Krekorian, Chapter 631, Statutes of 2008) requires  
          health care service plans and disability insurers selling health  
          insurance to offer testing for HIV antibodies and AIDS,  
          regardless of whether the testing is related to a primary  
          diagnosis.

          AB 682 (Berg, Chapter 550, Statutes of 2007) revises the written  
          and informed consent standards associated with testing blood for  
          HIV, including prenatal HIV testing, to no longer require  
          affirmative approval prior to administering an HIV test.   
          Establishes the new HIV testing consent standard as the right to  
          decline the test, providing that medical care providers present  
          specified information to the individual about treatment options  
          and the individual's right to decline the test, and the medical  
          care provider notes in the chart when the patient declines to be  
          tested.  Exempts HIV testing at an alternative test site, as  

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          part of an autopsy or when part of scientific research from  
          these provisions.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          According to the Senate Appropriations Committee:

           Minor anticipated costs to provide information and technical  
            assistance to providers of HIV testing services by DPH  
            (General Fund).

           Unknown increase in HIV testing costs by the state's Medi-Cal  
            program (50% General Fund, 50% federal funds).  Under this  
            bill, the number of Medi-Cal enrollees being tested for HIV is  
            likely to increase, increasing program costs.

           Unknown increase in treatment costs for HIV positive Medi-Cal  
            enrollees and participants in the AIDS Drug Assistance Program  
            (General Fund and federal funds).  The state spends about  
            $25,000 per year per HIV positive Medi-Cal enrollee and about  
            $12,000 per year per HIV positive AIDS Drug Assistance Program  
            enrollee.  To the extent that this bill increases testing  
            rates, HIV positive Medi-Cal enrollees will become aware of  
            their HIV status earlier and begin treatment earlier (current  
            clinical guidelines recommend anti-viral treatment begin  
            immediately upon diagnosis).

           Unknown long-term costs savings to Medi-Cal due to earlier  
            medical intervention for HIV-positive Medi-Cal enrollees.  To  
            the extent that HIV-positive Medi-Cal enrollees are diagnosed  
            earlier and begin treatment earlier, it is likely that the  
            long-term health status of those individuals will improve and  
            some of the health effects of HIV will be delayed or avoided.   
            There are indications that untreated HIV causes long-term  
            health impacts such as elevated risk of diabetes and heart  
            disease, even before the effects of compromised immune system  
            function associated with HIV infection become evident.   
            Earlier diagnosis and treatment for HIV-positive individuals  
            is likely to reduce long-term Medi-Cal expenditures for those  
            individuals.

           SUPPORT  :   (Verified  9/9/13)


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          AIDS Healthcare Foundation (source)
          Beyond AIDS
          Black AIDS Institute
          Black Women for Wellness California
          California Medical Association
          Communities United Institute

           OPPOSITION  :    (Verified  9/9/13)

          ACLU-California legislative Office
          APAIT Health Center
          Being Alive
          Disability Rights Legal Center
          Los Angeles HIV Law and Policy Project
          Los Angeles HIV Women's Task Force
          Minority AIDS Project
          The Alliance Health Project
          The Stigma Project

           ARGUMENTS IN SUPPORT  :    AIDS Healthcare Foundation states that  
          this bill addresses two testing reforms.  First, it clarifies  
          that HIV testing can be provided with informed consent in a  
          non-clinical setting by any person statutorily authorized to  
          administer an HIV test.  More and more testing is being  
          administered by HIV counselors who are authorized to administer  
          the rapid HIV test.  However, because of a shortcoming in the  
          law, an HIV counselor is required to get a higher level of  
          consent than other medical providers.  Requiring HIV counselors  
          to seek a more rigid form of consent undermines their ability to  
          provide testing services to people who are out-of-sync with  
          traditional health care delivery.  The Black AIDS Institute  
          writes that in the absence of the legal right of an HIV tester  
          to provide test results to patients in reasonable settings,  
          persons infected with HIV are deprived of the timely benefit of  
          first step in an essential process known as the "treatment  
          cascade."

           ARGUMENTS IN OPPOSITION  :    According to opponents, this bill  
          will encourage patients to forego the receipt of HIV test  
          results with the direct support of a trained mental health  
          professional, instead being able to access information about  
          their HIV status online, alone, without additional counseling or  
          information.  This change means that many people who find out  
          about their HIV status will do so with no mental health  

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          intervention, which may lead to depression, suicidality,  
          increased high-risk behavior, and other negative health  
          outcomes.  

           ASSEMBLY FLOOR  :  72-1, 5/29/13
          AYES:  Achadjian, Alejo, Ammiano, Atkins, Bigelow, Bloom,  
            Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,  
            Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway,  
            Cooley, Dahle, Daly, Dickinson, Eggman, Fong, Frazier, Beth  
            Gaines, Garcia, Gatto, Gomez, Gonzalez, Gorell, Gray, Grove,  
            Hagman, Hall, Harkey, Roger Hernández, Jones, Jones-Sawyer,  
            Levine, Logue, Lowenthal, Maienschein, Mansoor, Medina,  
            Melendez, Mitchell, Morrell, Mullin, Muratsuchi, Nazarian,  
            Nestande, Olsen, Pan, Perea, V. Manuel Pérez, Quirk,  
            Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting, Wagner,  
            Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, John A.  
            Pérez
          NOES:  Donnelly
          NO VOTE RECORDED:  Allen, Fox, Gordon, Holden, Linder,  
            Patterson, Vacancy


          JL:ej  9/10/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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