BILL NUMBER: AB 221 CHAPTERED
BILL TEXT
CHAPTER 421
FILED WITH SECRETARY OF STATE OCTOBER 11, 2009
APPROVED BY GOVERNOR OCTOBER 11, 2009
PASSED THE SENATE SEPTEMBER 3, 2009
PASSED THE ASSEMBLY SEPTEMBER 11, 2009
AMENDED IN SENATE AUGUST 17, 2009
AMENDED IN SENATE JUNE 11, 2009
INTRODUCED BY Assembly Member Portantino
(Coauthors: Assembly Members Fuentes and Jeffries)
FEBRUARY 4, 2009
An act to amend Section 120917 of the Health and Safety Code,
relating to public health, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 221, Portantino. HIV testing: skin punctures.
Existing law provides for various programs relating to treatment
of persons with the human immunodeficiency virus (HIV) and the
acquired immunodeficiency syndrome (AIDS).
Existing law permits the Office of AIDS in the department to
participate in a rapid HIV test research program conducted with the
federal Centers for Disease Control and Prevention.
This bill would repeal this authority.
Existing law also authorizes HIV counselors trained by the office
to perform skin punctures for purposes of withdrawing blood for HIV
test purposes, if the HIV counselor meets prescribed requirements.
One of these requirements is that the HIV counselor must hold a valid
certification as a phlebotomist technician by the department.
This bill would exempt an HIV counselor who works under a licensed
physician and surgeon, and who is trained in rapid HIV test
proficiency and universal infection control precautions, as
specified, from the requirement that he or she hold a valid
certification as a phlebotomist technician.
This bill would declare that it is to take effect immediately as
an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The United States Centers for Disease Control and Prevention
estimates that HIV incidence is 40 percent higher than previously
thought.
(b) The Office of AIDS in the State Department of Public Health
estimates that between 30,000 and 40,000 Californians are unaware
that they are HIV-positive and, therefore, are not receiving
appropriate HIV treatment and are possibly jeopardizing their own
health, and that of their sex partners and intravenous drug-using
partners.
(c) It is therefore in the interest of the people of the State of
California to take steps to ensure that people have greater access to
HIV testing.
SEC. 2. Section 120917 of the Health and Safety Code is amended to
read:
120917. (a) An HIV counselor who is trained by the Office of AIDS
and working in an HIV counseling and testing site funded by the
department through a local health jurisdiction, or its agents, may do
all of the following:
(1) Perform any HIV test that is classified as waived under the
federal Clinical Laboratory Improvement Act (CLIA) (42 U.S.C. Sec.
263a and following) if all of the following conditions exist:
(A) The performance of the HIV test meets the requirements of CLIA
and, subject to subparagraph (B), Chapter 3 (commencing with Section
1200) of Division 2 of the Business and Professions Code.
(B) Notwithstanding Section 1246 of the Business and Professions
Code, an HIV counselor may perform skin punctures for the purpose of
withdrawing blood for HIV testing, upon specific authorization from a
licensed physician and surgeon, provided that the person meets both
of the following requirements:
(i) He or she works under the direction of a licensed physician
and surgeon.
(ii) He or she has been trained in both rapid HIV test proficiency
for skin puncture blood tests and oral swab tests and in universal
infection control precautions, consistent with best infection control
practices established by the Division of Occupational Safety and
Health in the Department of Industrial Relations and the federal
Centers for Disease Control and Prevention.
(C) The person performing the HIV test meets the requirements for
the performance of waived laboratory testing pursuant to subdivision
(a) of Section 1206.5 of the Business and Professions Code. For
purposes of this subdivision and subdivision (a) of Section 1206.5 of
the Business and Professions Code, an HIV counselor trained by the
Office of AIDS shall be "other health care personnel providing direct
patient care" as referred to in paragraph (12) of subdivision (a) of
Section 1206.5 of the Business and Professions Code.
(D) The patient is informed that the preliminary result of the
test is indicative of the likelihood of HIV infection and that the
result must be confirmed by an additional more specific test, or, if
approved by the federal Centers for Disease Control and Prevention
for that purpose, a second different rapid HIV test. Nothing in this
subdivision shall be construed to allow an HIV counselor trained by
the Office of AIDS to perform any HIV test that is not classified as
waived under the CLIA.
(2) Notwithstanding Sections 1246.5 and 2053 of the Business and
Professions Code, order and report HIV test results from tests
performed pursuant to paragraph (1) to patients without authorization
from a licensed health care professional or his or her authorized
representative. Patients with indeterminate or positive test results
from tests performed pursuant to paragraph (1) shall be referred to a
licensed health care provider whose scope of practice includes the
authority to refer patients for laboratory testing for further
evaluation.
(b) An HIV counselor who has been certified pursuant to
subdivision (b) of Section 120871 prior to September 1, 2009, and who
will administer rapid HIV skin puncture tests shall obtain training
required by clause (ii) of subparagraph (B) of paragraph (1) of
subdivision (a) prior to September 1, 2011. The HIV counselor shall
not, unless also certified as a limited phlebotomist technician,
perform a skin puncture pursuant to this section until he or she has
completed the training required by that clause.
(c) An HIV counselor who meets the requirements of this section
with respect to performing any HIV test that is classified as waived
under the CLIA may not perform any other test unless that person
meets the statutory and regulatory requirements for performing that
other test.
(d) This section shall not be construed to certify an HIV
counselor as a phlebotomy technician or a limited phlebotomy
technician, or to fulfill any requirements for certification as a
phlebotomy technician or a limited phlebotomy technician, unless the
HIV counselor has otherwise satisfied the certification requirements
imposed pursuant to Section 1246 of the Business and Professions
Code.
SEC. 3. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
Because HIV screening is so critical to containing the AIDS
epidemic, and therefore, persons who can administer rapid HIV testing
must be employed as soon as possible, it is necessary that this act
go into immediate effect.