BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2439


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          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  








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               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;








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               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  








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            (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  








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            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.










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             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  








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               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.  












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               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  








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               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  








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               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  








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               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.











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          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  








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            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  








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            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.  









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             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









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          California Hospital Association


          California Medical Association


          California Society of Pathologists


          Keck Medical Center of USC







          Analysis Prepared by:Lara Flynn / HEALTH / (916) 319-2097