BILL NUMBER: SB 422 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 25, 2011
AMENDED IN SENATE APRIL 14, 2011
AMENDED IN SENATE MARCH 25, 2011
AMENDED IN SENATE MARCH 21, 2011
INTRODUCED BY Senator Wright
FEBRUARY 16, 2011
An act to amend Section 121025 121015
of the Health and Safety Code, relating to health reporting.
LEGISLATIVE COUNSEL'S DIGEST
SB 422, as amended, Wright. Reporting of certain communicable
diseases.
Existing law exempts a physician who has the results for a
confirmed positive test for HIV from civil and criminal liability for
disclosing that information to specified people, including the local
health officer, and requires that no identifying information be
disclosed, except as specified. Existing law authorizes the local
health officer to notify the other specified people for appropriate
care and followup.
This bill would include the designated staff of the local public
health agency for HIV partner services in the people to whom the
physician may disclose the information. The bill would authorize
disclosure of identifying information with the written consent of the
individual, as specified. The bill would also exempt from civil and
criminal liability a local health officer and the designated local
public health agency staff for HIV partner services who alert the
other specified people about a positive HIV result.
Existing law prohibits the disclosure of public health records
relating to HIV and AIDS, and the information contained in those
records, with specified exceptions for public health purposes,
including when the person who is the subject of the record is
coinfected with HIV/AIDS and tuberculosis or a sexually transmitted
disease, as specified, or when the disclosure is pursuant to a
written authorization. Existing law requires a disclosure of these
records or information to include only the information necessary for
the purpose of the disclosure, and to be made only upon agreement
that the information will be kept confidential and will not be
further disclosed without written authorization.
This bill would expand, for specified public health purposes, the
authority of local public health agencies to disclose information
contained in public health records relating to HIV and AIDS, to
include when the person who is subject of the record is HIV infected
and there is a high risk for specified coinfections.
The bill would also expand the disclosure authorization for the
purpose of investigation, control, or surveillance of HIV, as
specified.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 121015 of the Health
and Safety Code is amended to read:
121015. (a) Notwithstanding Section 120980 or any other provision
of law, no physician and surgeon who has the results of a confirmed
positive test to detect HIV infection of a patient under his or her
care shall be held criminally or civilly liable for disclosing to a
person reasonably believed to be the spouse, or to a person
reasonably believed to be a sexual partner or a person with whom the
patient has shared the use of hypodermic needles, or to the local
health officer or designated local public health agency staff
for HIV partner services , that the patient has tested positive
on a test to detect HIV infection, except that no physician and
surgeon shall disclose any identifying information about the
individual believed to be infected, except as required in Section
121022 or with the written consent of the individual pursuant to
subdivision (g) of Section 120980 .
(b) No physician and surgeon shall disclose the information
described in subdivision (a) unless he or she has first discussed the
test results with the patient and has offered the patient
appropriate educational and psychological counseling, that shall
include information on the risks of transmitting the human
immunodeficiency virus to other people and methods of avoiding those
risks, and has attempted to obtain the patient's voluntary consent
for notification of his or her contacts. The physician and surgeon
shall notify the patient of his or her intent to notify the patient's
contacts prior to any notification. When the information is
disclosed to a person reasonably believed to be a spouse, or to a
person reasonably believed to be a sexual partner, or a person with
whom the patient has shared the use of hypodermic needles, the
physician and surgeon shall refer that person for appropriate care,
counseling, and followup. This section shall not apply to disclosures
made other than for the purpose of diagnosis, care, and treatment of
persons notified pursuant to this section, or for the purpose of
interrupting the chain of transmission.
(c) This section is permissive on the part of the attending
physician, and all requirements and other authorization for the
disclosure of test results to detect HIV infection are limited to the
provisions contained in this chapter, Chapter 10 (commencing with
Section 121075) and Sections 1603.1 and 1603.3. No physician has a
duty to notify any person of the fact that a patient is reasonably
believed to be infected with HIV, except as required by Section
121022.
(d) The local health officer or the designated local public
health agency staff for HIV partner services may , without
incurring civil or criminal liability, alert any persons
reasonably believed to be a spouse, sexual partner, or partner of
shared needles of an individual who has tested positive on an HIV
test about their exposure, without disclosing any identifying
information about the individual believed to be infected or the
physician making the report, and shall refer any person to whom a
disclosure is made pursuant to this subdivision for appropriate care
and followup. Upon completion of the local health officer's
efforts to contact , alert, and refer any person
pursuant to this subdivision by a local health officer
or the designated local public health agency staff for HIV
partner services , all records regarding that person maintained
by the local health officer pursuant to this subdivision, including,
but not limited to, any individual identifying information, shall be
expunged by the local health officer.
(e) The local health officer shall keep confidential the identity
and the seropositivity status of the individual tested and the
identities of the persons contacted, as long as records of contacts
are maintained.
(f) Except as provided in Section 1603.1, 1603.3, or 121022, no
person shall be compelled in any state, county, city, or local civil,
criminal, administrative, legislative, or other proceedings to
identify or provide identifying characteristics that would identify
any individual reported or person contacted pursuant to this section.
SECTION 1. Section 121025 of the Health and
Safety Code is amended to read:
121025. (a) Public health records relating to human
immunodeficiency virus (HIV) or acquired immunodeficiency syndrome
(AIDS), containing personally identifying information, that were
developed or acquired by a state or local public health agency, or an
agent of that agency, shall be confidential and shall not be
disclosed, except as otherwise provided by law for public health
purposes or pursuant to a written authorization by the person who is
the subject of the record or by his or her guardian or conservator.
(b) In accordance with subdivision (f) of Section 121022, a state
or local public health agency, or an agent of that agency, may
disclose personally identifying information in public health records,
as described in subdivision (a), to other local, state, or federal
public health agencies or to corroborating medical researchers, when
the confidential information is necessary to carry out the duties of
the agency or researcher in the investigation, control, or
surveillance of disease, as determined by the state or local public
health agency.
(c) Except as provided in paragraphs (1) to (4), inclusive, any
disclosure authorized by subdivision (a) or (b) shall include only
the information necessary for the purpose of that disclosure and
shall be made only upon agreement that the information will be kept
confidential and will not be further disclosed without written
authorization, as described in subdivision (a).
(1) Notwithstanding any other provision of law, the following
disclosures shall be authorized for the purpose of enhancing
completeness of HIV/AIDS, tuberculosis, and sexually transmitted
disease coinfection reporting to the federal Centers for Disease
Control and Prevention (CDC):
(A) The local public health agency HIV surveillance staff may
further disclose the information to the health care provider who
provides HIV care to the HIV-positive person who is the subject of
the record for the purpose of assisting in compliance with
subdivision (a) of Section 121022.
(B) Local public health agency tuberculosis control staff may
further disclose the information to state public health agency
tuberculosis control staff, who may further disclose the information,
without disclosing patient identifying information, to the CDC, to
the extent the information is requested by the CDC and permitted by
subdivision (b), for purposes of the investigation, control, or
surveillance of HIV and tuberculosis coinfections or single HIV
infections when there is a high risk for HIV and tuberculosis
coinfection.
(C) Local public health agency sexually transmitted disease
control staff may further disclose the information to state public
health agency sexually transmitted disease control staff, who may
further disclose the information, without disclosing patient
identifying information, to the CDC, to the extent it is requested by
the CDC, and permitted by subdivision (b), for the purposes of the
investigation, control, or surveillance of HIV and syphilis,
gonorrhea, or chlamydia coinfection or single HIV infections when
there is a high risk for HIV and syphilis, gonorrhea, or chlamydia
coinfection.
(2) Notwithstanding any other provision of law, the following
disclosures shall be authorized for the purpose of facilitating
appropriate HIV/AIDS medical care and treatment:
(A) State public health agency HIV surveillance staff, AIDS Drug
Assistance Program staff, and care services staff may further
disclose the information to local public health agency staff, who may
further disclose the information to the HIV-positive person who is
the subject of the record, or the health care provider who provides
his or her HIV care, for the purpose of proactively offering and
coordinating care and treatment services to him or her.
(B) AIDS Drug Assistance Program staff and care services staff in
the State Department of Public Health may further disclose the
information directly to the HIV-positive person who is the subject of
the record or the health care provider who provides his or her HIV
care, for the purpose of proactively offering and coordinating care
and treatment services to him or her.
(3) Notwithstanding any other provision of law, for the purpose of
facilitating appropriate medical care and treatment of persons
coinfected with HIV, tuberculosis, and syphilis, gonorrhea, or
chlamydia, local public health agency sexually transmitted disease
control and tuberculosis control staff may further disclose the
information to state or local public health agency sexually
transmitted disease control and tuberculosis control staff, the
HIV-positive person who is the subject of the record, or the health
care provider who provides his or her HIV, tuberculosis, and sexually
transmitted disease care.
(4) Notwithstanding any other law, local public health agency
staff may further disclose the information to the HIV-positive person
who is the subject of the record or the health care provider who
provides his or her HIV care, for the purpose of the investigation,
control, or surveillance of HIV.
(5) For the purposes of paragraphs (2) to (4), inclusive, "staff"
does not include nongovernmental entities.
(d) No confidential public health record, as defined in
subdivision (c) of Section 121035, shall be disclosed, discoverable,
or compelled to be produced in any civil, criminal, administrative,
or other proceeding.
(e) (1) Any person who negligently discloses the content of any
confidential public health record, as defined in subdivision (c) of
Section 121035, to any third party, except pursuant to a written
authorization, as described in subdivision (a), or as otherwise
authorized by law, shall be subject to a civil penalty in an amount
not to exceed five thousand dollars ($5,000), plus court costs, as
determined by the court, which penalty and costs shall be paid to the
person whose record was disclosed.
(2) Any person who willfully or maliciously discloses the content
of any confidential public health record, as defined in subdivision
(c) of Section 121035, to any third party, except pursuant to a
written authorization, or as otherwise authorized by law, shall be
subject to a civil penalty in an amount not less than five thousand
dollars ($5,000) and not more than twenty-five thousand dollars
($25,000), plus court costs, as determined by the court, which
penalty and costs shall be paid to the person whose confidential
public health record was disclosed.
(3) Any person who willfully, maliciously, or negligently
discloses the content of any confidential public health record, as
defined in subdivision (c) of Section 121035, to any third party,
except pursuant to a written authorization, or as otherwise
authorized by law, that results in economic, bodily, or psychological
harm to the person whose confidential public health record was
disclosed, is guilty of a misdemeanor, punishable by imprisonment in
the county jail for a period not to exceed one year, or a fine of not
to exceed twenty-five thousand dollars ($25,000), or both, plus
court costs, as determined by the court, which penalty and costs
shall be paid to the person whose confidential public health record
was disclosed.
(4) Any person who commits any act described in paragraph (1),
(2), or (3), shall be liable to the person whose confidential public
health record was disclosed for all actual damages for economic,
bodily, or psychological harm that is a proximate result of the act.
(5) Each violation of this section is a separate and actionable
offense.
(6) Nothing in this section limits or expands the right of an
injured person whose confidential public health record was disclosed
to recover damages under any other applicable law.
(f) In the event that a confidential public health record, as
defined in subdivision (c) of Section 121035, is disclosed, the
information shall not be used to determine employability, or
insurability of any person.