BILL ANALYSIS Ó AB 2439 Page 1 Date of Hearing: April 19, 2016 ASSEMBLY COMMITTEE ON HEALTH Jim Wood, Chair AB 2439 (Nazarian) - As Amended April 12, 2016 SUBJECT: HIV testing. SUMMARY: Creates a pilot project to be administered by the Department of Public Health (DPH), in order to assess and make recommendations regarding the effectiveness of the routine offering of a human immunodeficiency virus (HIV) test in the emergency department (ED) of a hospital. Specifically, this bill: 1)Requires DPH to select four hospitals that have EDs to participate in the pilot project as follows: a) Two of the hospitals must be from large urban areas; b) One hospital must be from a small urban or suburban area; c) One hospital must be from a rural area; d) Each hospital in the pilot project must offer an HIV AB 2439 Page 2 test to any patient in the ED who has consented to the HIV test. Specifies that the ED must comply with all existing notice and counseling requirements, and that the ED may comply with those requirements by either using ED or other hospital personnel or engaging the services of an HIV organization that has experience in prevention counseling for persons at risk for HIV; e) Specifies that a hospital in the pilot project must not offer a test to any person who is being treated for a life-threatening emergency or who lacks the capacity to consent to an HIV test; f) Requires a hospital in the pilot project to comply with existing HIV testing requirements for testing a minor 12 years of age or older; g) Authorizes a hospital in the pilot project to charge a patient for the cost of the HIV testing; h) Requires a hospital in the pilot project to collect and report data on the following topics to DPH: i) The frequency of HIV test offers; ii) The frequency of consent or nonconsent to an HIV test and any reasons given by the patient for the consent or nonconsent; iii) The time taken to offer an HIV test and secure consent from a patient and the time taken to provide information and counseling; AB 2439 Page 3 iv) The aggregate HIV positivity rate; v) The frequency with which patients agree information and counseling and the reasons that patients give for refusing counseling; and, vi) The frequency of patients leaving the ED without receiving their test results. 2)Requires hospitals in the pilot project to provide information to DPH regarding the hospitals practices and protocols for implementing the offer of an HIV test; the required follow up to the test; as well as an assessment of the effectiveness of those practices and protocols; 3)Specifies that the pilot project must commence on March 1, 2017, and end on February 28, 2019; and, 4)Requires DPH, by July 1, 2019, to complete a report to the Legislature on the finding of the four hospitals in the pilot and make recommendations about routine HIV testing in hospital EDs. Requires DPH to solicit input form a broad range of HIV testing and hospital stakeholders when preparing the report. EXISTING LAW: 1)Requires each patient who has blood drawn at a primary care clinic, and who has consented, to be offered an HIV test, consistent with the U.S. Preventive Services Task Force AB 2439 Page 4 (USPSTF) recommendation for screening HIV infection. 2)Requires a medical provider, prior to ordering an HIV test, to inform the patient that there are numerous treatment options available for a patient who tests positive for HIV and that a person who tests negative for HIV should continue to be routinely tested, and advise the patient that he or she has the right to decline the tests. Requires a medical provider, if a patient declines the test, to note that fact in the patient's medical file. Specifies that these provisions do not apply when a person independently requests an HIV test. 3)Prohibits an HIV test from being administered unless the person being tested, or his or her parent, guardian, or conservator has provided informed consent for the performance of the test. Specifies that informed consent may be provided orally or in writing, and must be noted in the client's medical record. 4)Requires, after the results of an HIV test have been received, that the medical care provider ensure that the patient receives timely information and counseling to explain the results and the implication for the patient's health. Requires the medical provider, if the patient tests positive, 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 psychological services. 5)Requires the medical care provider, if the patient tests negative for HIV infection and is known to be at high risk for HIV infection, 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 authorizes the medical care provider to offer AB 2439 Page 5 prevention counseling or a referral to prevention counseling. FISCAL EFFECT: This bill has not been analyzed by a fiscal committee. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, over the past three decades, almost every imaginable location to provide routine HIV testing has been employed to capture as many people as possible who may have engaged in risk behaviors. The author contends we continue to come up short, in large part because HIV testing is occurring only sporadically in the ED, the last major health care institution in California where HIV testing does not occur routinely. The author states despite dramatic advances in treatment options, there are more than 5,000 new infections in California every year and according to DPH, 16% of Californians who are HIV-positive do not know they are HIV-positive and thus are not getting treatment and unwittingly exposing uninfected people to HIV, and that number jumps to 58% for young people under the age of 24. The author continues, despite the many successes, the failures of our testing protocols are most pronounced among young people and people of color, noting that the state's HIV demographics are trending younger, notably increasing in those aged 20 to 29, and climbing infection rates among Black and Latino Californians, especially Black women. 2)BACKGROUND. At the end of 2012, an estimated 1.2 million persons aged 13 and older were living with HIV infection in the United States, including 156,300 (12.8%) persons whose infections had not been diagnosed. The estimated incidence of HIV has remained stable overall in recent years, at about 50,000 new HIV infections per year. AB 2439 Page 6 a) HIV in California. The California Office of AIDS (OA) estimates that approximately 126,000 Californians are living with HIV, and of these, 23,000 or 18% are unaware of their HIV status. An estimated 6,000 Californians are newly diagnosed with HIV each year. Gay, bisexual, and other men who have sex with men (MSM) continue to be the risk group most heavily affected by HIV in California, accounting for over 70% of all persons diagnosed with HIV in 2013. Unlike national statistics, new HIV diagnoses among all MSM in California decreased by over 13% (from 3,789 to 3,281) from 2005 to 2013 (versus a national increase of 6%). White MSM in California account for this decline, with an almost 35% decrease in new diagnoses (versus a national decrease of 18%). Both Latino and Black MSM in California had a net zero change in new HIV diagnoses from 2005 to 2013 (versus national increases of 24% and 22%, respectively). Only "other" race/ethnicities in California that had an increase in new HIV diagnoses during this period (an increase of 30% from 2005 to 2013, driven primarily by a 73% increase among Asians). "Other" race/ethnicity includes American Indian/Alaska Native, Asian, Native Hawaiian/Pacific Islander, and multi-racial persons. However, young MSM aged 13 to 24 years old in California had an overall increase of 27% in new HIV diagnoses from 2005 to 2013 (from 536 in 2005 to 680 in 2013). This increase was driven by young Hispanic MSM, whose numbers increased by 35% (from 246 to 333). Diagnoses among young Black MSM in California increased by 16% (from 124 to 144) during this period. Among young white MSM new diagnoses increased approximately 8% (from 130 to 140), compared to AB 2439 Page 7 56% nationally. New HIV diagnoses among young MSM of other race/ethnicities in California increased by an even higher percentage (75%) from 2005 to 2013, but there are relatively few cases in this group (36 in 2005 to 63 in 2013). b) HIV screening recommendations. In September 2006, the Centers for Disease Control and Prevention (CDC) released, "Revised Recommendations for HIV Testing of Adults, Adolescents, and Pregnant Women in Health-Care Settings." These recommendations advise routine HIV screening of adults, adolescents, and pregnant women in health care settings in the United States. The CDC also recommends reducing barriers to HIV testing. In April 2013, the USPSTF issued similar recommendations. According to these recommendations, clinicians should routinely screen adolescents and adults ages 15 to 65 years for HIV infection. Younger adolescents and older adults who are at increased risk should also be screened. USPSTF also recommends screening all pregnant women for HIV, including those who present in labor whose HIV status is unknown. A general rule for those with risk factors is to get tested at least annually. Additionally, CDC has recently reported that sexually active gay and bisexual men may benefit from getting an HIV test more often, perhaps every three to six months. AB 2439 Page 8 New data from a National Institutes of Health sponsored trial indicates there is a clear personal advantage to achieving an HIV diagnosis and starting therapy in the early course of an infection. This new information further highlights the importance of routine HIV testing and the potential impact on better health outcomes. c) Testing Statistics. According to a Kaiser Family Foundation report, as of 2012, more than half (54%) of U.S. adults, aged 18 to 64, reported ever having been tested for HIV, including 22% who reported being tested in the last year. The share of the public saying they have been tested for HIV at some point increased between 1997 and 2004, but has remained fairly steady since then. Of those U.S. adults, aged 18-64, who say they have never been tested for HIV, nearly six in 10 (57%) say it is because they do not see themselves as at risk. HIV testing varies by state, age, and race/ethnicity, for example, Blacks and Latinos are significantly more likely to report having been tested for HIV than whites. d) Insurance coverage of HIV testing. HIV testing that is "medically necessary" - recommended by a physician due to risk - is generally covered by insurance. For those without insurance, HIV testing can be obtained at little or no cost in some settings (e.g., stand-alone HIV testing sites, mobile testing clinics). In April 2013, the USPSTF gave routine HIV screening of all adolescents and adults, ages 15 to 65, an "A" rating - generally aligning the rating with the CDC's HIV screening guidelines. This rating expanded the already existing "A" rating for people at increased risk for HIV (such as injection drug users and MSM), and for all pregnant women. The USPSTF ratings, developed by an independent panel of clinicians and scientists, are important because many private and public insurers link their coverage of preventive services to AB 2439 Page 9 those rated "A" or "B" by the USPSTF. Moreover, the Patient Protection and Affordable Care Act (ACA), passed in 2010, requires or incentivizes insurers to cover preventive services rated "A" or "B" and do so without cost-sharing, as follows: i) Private Insurance: the ACA requires that all private plans (except those that are grandfathered, meaning they were in place before the ACA was passed and have made no significant changes to coverage) must cover routine HIV testing without cost-sharing; ii) Medicaid (Medi-Cal in California): while all state Medicaid programs must cover "medically necessary" HIV testing, state coverage of "routine" HIV screening varies because it is an optional benefit under Medicaid. A recent analysis has found that more than two thirds of state Medicaid programs do cover routine HIV screening, including California; and, iii) Medicare: In April 2015, the Centers for Medicare & Medicaid Services expanded Medicare coverage to include annual HIV testing for beneficiaries ages 15-65 regardless of risk, and those outside this age range at increased risk. Additionally, Medicare will cover up to three tests for pregnant beneficiaries. e) New York HIV testing in the ED. Effective September 1, 2010, the state of New York mandated numerous changes to its HIV testing requirements, including that all persons seeking care in the ED be offered a test. In 2012 the New AB 2439 Page 10 York State Department of Health published a report evaluating the impact of the statute on the number of persons tested for HIV and the number of persons who access care and treatment. The review included a modeling prediction of the impact of the new law. Assuming the law is implemented as designed; the model predicts a reduction in the number of new infections as well as the proportion of undiagnosed cases. The model also predicts an initial surge in the annual number of newly diagnosed HIV infections followed by a decline, and a steady decline in the number of newly diagnosed AIDS cases, explained by the identification of persons earlier in the course of infection before progressing to late stage disease. The report concluded that the law was not expected to result in an increase in the number of persons newly linked to care per year. f) California HIV testing in the ED. In 2015, the DPH OA began funding three medical centers/hospitals within the California Project Area (all California counties excluding Los Angeles and San Francisco which receive direct federal funding) to provide HIV testing in their EDs: University of California at Irvine (UCI) Medical Center, Ventura County Medical Center, and Santa Paula Hospital. Combined, these three ED sites conducted 12,289 test events through the program in 2015, 16 of which were newly identified confirmed positive test events (0.13%) and 23 of which were previously identified confirmed positive test events (0.19%). The UCI Medical Center ED conducted 4,544 test events through the program in 2015, 11 of which were newly-identified confirmed positive test events (0.24%) and five of which were previously-identified confirmed positive test events (0.11%). The Ventura County Medical Center ED AB 2439 Page 11 conducted 5,604 test events through the program in 2015, four of which were newly-identified confirmed positive test events (0.07%) and 16 of which were previously-identified confirmed positive test events (0.29%). The Santa Paula Hospital ED conducted 2,141 test events through the program in 2015, one of which was a newly-identified confirmed positive test event (0.05%) and two of which were previously-identified confirmed positive test events (0.09%). Hospitals in two of California's largest urban settings, the Alameda County Medical Center (ACMC) and Los Angeles County + University of Southern California Medical Center (LAC+USC) have been successful in integrating routine HIV testing in their EDs, although neither facility has offered HIV testing to every patient receiving a blood draw as this bill would require. As an early adopter of HIV testing in their ED, ACMC utilized medical staff for the introduction and provision of HIV tests. Over a three year demonstration project (2010-2012), ACMC identified 52 new HIV cases from 45,210 HIV tests conducted with a positivity yield of 0.1%. In 2005, LAC+USC utilized a rapid test approach, embedding test counselors to introduce and provide HIV tests, and identified 13 new cases of HIV among 1,713 patients tested yielding a positivity yield of 0.8%. In addition, a regional hospital, Desert Regional Medical Center in Palm Springs, has implemented HIV testing in its ED. In 2015, it tested 810 patients of which 17 were HIV positive for a positivity rate of 2%. These positivity yields meet the benchmark of 0.1% determined by the CDC to demonstrate cost effectiveness of HIV testing in healthcare settings. AB 2439 Page 12 3)SUPPORT. The AIDS Healthcare Foundation (AHF) is the sponsor of this bill and states despite dramatic advances in treatment options, there are more than 5,000 new infections in California every year, and everyday more than a dozen Californians are being infected with HIV. AHF contends that while almost every imaginable location that provides routine HIV testing has been employed to capture as many people as possible who may have engaged in risk behaviors, we continue to come up short in large part because HIV testing is occurring only sporadically in hospital EDs, the last major health care institution where HIV testing does not occur routinely. 4)OPPOSITION. The California Chapter of the American College (Cal/ACEP) opposes this bill stating that the pilot project requires every patient in an ED to be offered an HIV test, whether they are having their blood drawn already or not, and as a practical matter, this means that a patient who is there for a broken foot, stiches, a concussion, or any other medical condition that does not require blood to be drawn, will have their blood drawn as a purely public health screening measure. Cal/ACEP notes that it is aware that the CDC has stated that hospitals with an AIDS diagnosis rate greater than one per 1,000 discharges should adopt a policy of offering HIV counseling and testing routinely to patients aged 15 to 54 years, however if ED prophylactically tested for all diseases with a .001% prevalence, life-saving care to acutely ill patients would come to a screeching halt. The California Hospital Association (CHA) states that the pilot study does not attempt to address the significant requirements related to pre and post HIV testing, including: prior to ordering a test that identifies infection of a patient with HIV, a medical care provider must inform the patient that the test is planned, provide information about the test, inform the patient that there are numerous treatment AB 2439 Page 13 options available for a patient who tests positive for HIV and that a person who tests negative for HIV should continue to be routinely tested, and advise the patient that he or she has the right to decline the test. CHA concludes that EDs are designed to address emergency issues, not to address population health management screenings in an efficient or cost-effective manner. The California Medical Association (CMA) opposes this bill stating, currently, EDs suffer from overcrowding, lack of resources, and extremely low reimbursement rates as they are required to treat all individuals who enter the ED regardless of ability to pay. CMA notes this bill would require emergency physicians to devote time and resources away from other patients to offer HIV tests to patients who might be at an extremely low risk. CMA also notes concerns about false positives tests and requiring that counseling be provided within the ED, explaining that there are different types of tests for HIV and the ones that would presumably be done in the ED would be what are referred to as "rapid tests." CMA says these tests look for HIV antibodies that an individual's immune system would create if the virus was present and contends that false positives occur more frequently in these "rapid tests" and because the relationship between the emergency physician and the emergency patient is transient, there is no opportunity for follow up. 5)REQUESTED AMENDMENTS. A coalition of organizations which includes the American Civil Liberties Union of California, AIDS Project Los Angeles, and the Positive Women's Network had a position of oppose unless amended on the prior version of this bill. The coalition letter raises numerous concerns with the bill including, replacing in-person counseling with printed materials, confidentiality requirements (especially as they pertain to minors being treated in the ED), occupational exposures to HIV, and the exception for patients being treated for a life-threatening emergency. The coalition states that AB 2439 Page 14 due to the sensitive environment of the ED, they would like the opportunity to discuss appropriate procedures before testing, including the information provided to the patient and how consent is obtained and documented, to ensure the patient's medical autonomy is protected and that the best foundation for an ongoing relationship with HIV medical care is created from the moment of testing. 6)RELATED LEGISLATION. AB 2640 (Gipson) requires a medical care provider or person administering a test for HIV to inform individuals who test negative for HIV infection, yet are at high risk for HIV infection, of the effectiveness and safety of all federal Food and Drug Administration approved methods that prevent or reduce the risk of contracting HIV, including pre-exposure prophylaxis and post-exposure prophylaxis, consistent with guidance of the CDC. AB 2640 is pending a hearing in Assembly Health Committee. 7)PREVIOUS LEGISLATION. AB 521 (Nazarian) of 2015 would have required a patient admitted as an inpatient to a hospital through the ED that had blood drawn after being admitted to the hospital, and who consented, to be offered an HIV test. 8)POLICY COMMENT. This bill is similar to AB 521 which was vetoed by the Governor, who indicated, in part that, "?hospitals are not appropriately staffed nor are they the place to provide counseling, routine preventive screenings, or follow-up care for sensitive HIV testing. Limited resources would be better spent supporting outreach and education activities by existing providers which have the staff and training for HIV testing and follow-up care." The Committee may wish to ask the author how he plans to address the Governor's veto. 9)SUGGESTED AMENDMENTS. AB 2439 Page 15 a) As currently drafted this bill requires DPH to select four hospitals that have EDs to participate in the pilot project. The Committee may wish to amend the bill to clarify that participation in the pilot project is voluntary on the part of the hospitals. b) In order to address some of the privacy concerns raised by the opponents the author may wish to consider amending the bill to strike the provision requiring minors12 years of age and up be offered HIV tests, and instead mirror federal USPSTF recommendations for testing individuals between the ages of 15 and 65. REGISTERED SUPPORT / OPPOSITION: Support AIDS Healthcare Foundation Opposition California Chapter of the American College of Emergency Physicians AB 2439 Page 16 California Hospital Association California Medical Association California Society of Pathologists Keck Medical Center of USC Analysis Prepared by:Lara Flynn / HEALTH / (916) 319-2097