BILL ANALYSIS �
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 422
S
AUTHOR: Wright
B
AMENDED: March 25, 2011
HEARING DATE: April 13, 2011
4
REFERRAL: Judiciary
2
CONSULTANT:
2
Orr
SUBJECT
Reporting of certain communicable diseases
SUMMARY
Expands existing provisions governing the disclosure of
human immunodeficiency virus HIV patient information
between state and local health departments and patients for
the purpose of investigation, control, or surveillance of
HIV.
CHANGES TO EXISTING LAW
Existing law:
Requires public health records containing personally
identifying information relating to HIV or acquired immune
deficiency syndrome (AIDS) to be kept confidential, unless
authorized by law for public health purposes or upon
written authorization from the person who is the subject of
the record.
Prohibits the negligent, willful or malicious disclosure of
the content of any confidential public health record to any
third party, and establishes civil penalties for violations
of these provisions.
Continued---
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Requires health care providers and clinical laboratories to
report cases of HIV infection by patient name to the local
health officer. Mandates local health officers to report
unduplicated HIV cases by patient name to the California
Department of Public Health (CDPH).
Authorizes state or local public health agencies to
disclose personally identifying information to other state,
local or federal public health agencies or to corroborating
medical researchers when the disclosure is necessary for
the investigation, control, or surveillance of disease.
Provides that any authorized disclosure only contain the
information necessary for the purpose of the disclosure.
For the purpose of HIV/AIDS, tuberculosis (TB) and sexually
transmitted disease (STD) co-infection reporting to the
Centers for Disease Control and Prevention (CDC) and for
the investigation, control, or surveillance of specified
co-infections, authorizes the following disclosures:
From local public health agency TB control staff to
state public health agency TB control staff,
From state public health agency TB control staff to
the CDC,
From local public health agency STD control staff
to state public health agency STD control staff, and
From state public health agency STD control staff
to the CDC.
For the purpose of proactively facilitating care and
treatment, additionally authorizes the following
disclosures:
From state public health agency HIV surveillance
staff, AIDS Drug Assistance Program (ADAP) staff, and
care services staff to local public health agency
staff,
From local public health agency staff to the
HIV-positive person or his or her health care
provider,
From ADAP staff and care services staff to the
HIV-positive person or his or her health care
provider, and
From local public health agency STD control staff
and TB control staff to state or local public health
agency STD control staff, state or local public health
agency TB control staff, and/or the HIV-positive
person or his or her health care provider.
STAFF ANALYSIS OF SENATE BILL 422 (Wright) Page
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For the purpose of compliance with statutory reporting
requirements, additionally authorizes disclosure from local
public health agency HIV surveillance staff to health care
providers.
Existing regulations:
Require all local health department (LHD) employees and
contractors to annually sign a HIV/AIDS Confidentiality
Agreement prior to accessing confidential HIV-related
public health records.
This bill:
Expands authorized disclosure to include HIV cases without
a related TB or STD co-infection for the purposes of
investigation, control, and surveillance of HIV in the
following instances:
From local public health agency TB control staff to
state public health agency TB control staff,
From state public health agency TB control staff to
the CDC,
From local public health agency STD control staff
to state public health agency STD control staff, and
From state public health agency STD control staff
to the CDC.
Authorizes disclosure from state public health agency HIV
surveillance staff, AIDS Drug Assistance Program (ADAP)
staff, and care services staff to unspecified local public
health agency staff for the purposes of investigation,
control, and surveillance of HIV.
Authorizes disclosure from unspecified local public health
agency staff to the HIV-positive person or his or her
health care provider for the purposes of investigation,
control, and surveillance of HIV.
FISCAL IMPACT
This bill has not yet been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
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The author states this bill was introduced to permit local
public health agency staff to communicate about
confidential information in public health records with a
patient infected with HIV or with the patient's health care
provider for the purposes of investigation, control, and
surveillance of HIV. The author states that legislation
passed last year, AB 2541(Portantino and Fletcher, Chapter
470, Statutes of 2010) only provided for confidential
communication in cases of co-infection with both HIV
tuberculosis or both HIV and an STD. the author argues that
local public health agencies need to be able to
confidentially communicate about HIV case information with
both infected patients and their health care providers, in
order to investigate and control the transmission of
communicable diseases, and to perform surveillance as
needed for keeping track of disease transmission patterns,
and for complete reporting to the CDPH and in turn to the
CDC. Local and state public health agency staff also need
to be able to communicate with one another.
The author believes that communication should be able to
proceed both up the chain from patient to health care
provider to local to state to federal, and back down the
chain, for example, in cases where there are missing data
or questions relating to investigation, control, or
surveillance. SB 422 will assist public health departments
in their efforts to control the spread of HIV
(investigation and control), and to help assure that
accurate data are available to fulfill California's
reporting obligations for full funding and to determine
where the disease is spreading (surveillance).
HIV confidentiality
Historically, HIV has been treated differently than many
other diseases, due in part to the misperceptions and
stigmas associated with its transmission. The World Health
Organization cites fear of stigma and discrimination as the
main reason why people are reluctant to be tested for HIV,
to disclose HIV status, or to take prescribed
antiretroviral drugs. As people believed to be infected
with HIV experienced discrimination in housing, health care
settings, employment and other places in society,
confidentiality of one's HIV status became a major issue
within stakeholder communities.
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Discrimination against persons infected with HIV is
prohibited in federal law. Under the Americans with
Disabilities Act of 1990 (ADA), an individual is considered
to be disabled if that person has a physical or mental
impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is
regarded as having such an impairment. Individuals with
clinical HIV disease or AIDS meet the definition of
disabled. The California Fair Employment and Housing Act
also prohibits discrimination in employment or housing
accommodations based on disability, which includes
individuals with HIV or AIDS.
In addition to existing medical privacy laws, legislation
has also been passed to ensure confidentiality and prevent
unauthorized disclosure of a person's HIV status. In
California, voluntary HIV test results, confidential public
health records, and confidential research records are all
protected against unlawful disclosure. All LHD employees
and contractors have to sign an HIV/AIDS Confidentiality
Agreement prior to accessing confidential HIV-related
public health records, which are required to be renewed
annually.
California prohibits the negligent, willful or malicious
disclosure of the content of any confidential public health
record to any third party and establishes civil penalties
for violations of these provisions. Any person who
negligently, willfully or maliciously discloses the content
of any confidential public health record to a third party
that results in economic, bodily, or psychological harm to
the person whose record was disclosed, is guilty of a
misdemeanor, punishable by imprisonment in the county jail
and/or a fine of up to $25,000, and may be liable for
damages. In the event of a disclosure, existing law also
prohibits information contained in a confidential public
health record from being used to make employment or
insurance decisions.
HIV/AIDS surveillance
Public health officials use disease reporting to assist in
surveillance, monitor public health, develop prevention
strategies, set priorities and evaluate programs, allocate
resources and facilitate research. While there are many
surveillance strategies, disease reporting originating from
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health care providers and laboratories is at the core of
surveillance. Disease reporting is mandated by the
California Code of Regulations, and California requires
health care providers to confidentially report more than 80
diseases and conditions to local health officers, including
HIV infection and AIDS.
According to CDPH, surveillance of HIV/AIDS has evolved
over the years to adapt to changes in the HIV/AIDS epidemic
and advances in diagnosis and treatment. In the beginning
of the epidemic, surveillance systems across the country
only reported AIDS cases. California surveillance later
expanded due to increased understanding of the cause and
transmission of AIDS to include HIV reporting. CDC
guidelines outline criteria for ensuring the quality and
confidentiality of HIV data, which set forth the standard
data that needs to be collected from each patient (date of
diagnosis, demographics, risk exposure, etc.), and also set
performance standards that reporting systems must meet.
In California, HIV infections and AIDS diagnoses are
reported through a combination of passive and active
surveillance. Passive surveillance is conducted through
state required reporting of HIV and AIDS cases by health
care providers and reporting of HIV-positive test results
from laboratories to LHDs. Active surveillance is
accomplished through routine visits by LHD staff to
hospitals, physician offices, laboratories, counseling and
testing clinics, and outpatient clinics to ensure
completeness, timeliness, and accuracy of reported data.
HIV/AIDS surveillance case data, reported to local
jurisdictions by health care providers and laboratories, is
then sent to the CDPH Office of AIDS (OA) HIV/AIDS
Surveillance Section. The OA Surveillance Section then
submits electronic HIV/AIDS case reports to the CDC. SB 699
(Soto, Chapter 20, Statutes of 2006) was passed to report
HIV cases by patient's name rather than code in order to
comply with federal funding requirements.
Because co-infection with HIV and one or more other STDs is
common, all persons with a diagnosis of HIV should be
tested for other types of STDs, and vice versa according to
the CDC. The CDC also reports that rates of co-infection
with HIV and syphilis have been particularly high in recent
years. Many persons at risk for these infections also are
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at risk for other infectious diseases, such as TB and viral
hepatitis, as well as various other health conditions. STD
and HIV partner services offer STD, HIV, and other public
health programs an opportunity for collaboration to deliver
comprehensive services to clients, improve program
efficiency, and maximize the positive effects on public
health.
HIV/AIDS investigation, control and prevention
Infectious disease outbreaks can occur anywhere, and while
outbreaks cannot always be predicted or prevented,
recognition of early warning signals, timely investigations
and application of specific control measures can limit the
spread of the outbreak and prevent deaths. Investigating
any disease outbreak requires a combination of diplomacy,
logical thinking, problem solving ability, quantitative
skills, epidemiological know-how and judgment.
Since HIV is spread most commonly through sexual contact
and the sharing of unclean needles and syringes,
controlling the spread of HIV disease and preventing
clusters of outbreaks can be especially challenging.
Nationwide, the CDC estimates that as many as 1.1 million
Americans are living with HIV, but that 21 percent of these
persons do not know they are infected. Persons who have
sexual contact or share needles with a person found to be
infected with HIV are at the highest risk for contracting
the disease and unknowingly spreading it to other partners.
One method of disease control and prevention is partner
notification, which refers to the process of identifying
and notifying the sex and/or needlesharing partners of
someone with a disease communicable through those means
that may have been exposed to the disease. The CDC
guidelines on partner notification encourage states to
devise partner notification services that are voluntary,
confidential, conducted in a collegial and cooperative
manner, and are sensitive to potential consequences of
notification, such as damage to relationships and potential
violence.
Existing law in California states that no physician has a
duty to notify any other person of the fact that a patient
is reasonably believed to be infected with HIV, aside from
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the patient himself or herself. No treating physician who
has the results of a confirmed positive HIV test of a
patient in his or her care can be held criminally or
civilly liable for disclosing to a person reasonably
believed to be the spouse, sexual partner, or a person with
whom the patient has shared the use of hypodermic needles
that the patient has tested positive on a HIV test, except
that no identifying information about the individual
believed to be HIV-infected can be disclosed. The
physician is required to first discuss the test results
with the patient and offer the patient appropriate
educational and psychological counseling that includes
information on the risks of transmitting HIV to other
people and methods of avoiding those risks. The physician
is also required to alert the patient of his or her intent
to notify the patient's partners prior to any notification.
In addition, the local health officer is also allowed by
law to 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. The local health officer
is obligated to refer any person to whom a disclosure is
made for appropriate care and follow up.
According to the American Civil Liberties Union, when
partner notification was first considered as a public
health tool to fight the spread of STDs, there was great
debate about names-based case reporting and coercive
partner notification for "traditional" disease prevention.
They report that even though this debate occurred prior to
the development of our modern understanding of the
importance of privacy as a right, there was strong support
for maintaining the anonymity of patients diagnosed with
STDs and designing programs that would encourage patients
to participate voluntarily in the public health system. The
ability of a person infected with an STD to maintain his or
her anonymity while receiving treatment and counseling has
always been, and remains an important part of the public
health equation for determining appropriate methods of
disease prevention.
Related bills
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AB 186 (Williams) would permit CDPH to modify the list of
communicable diseases and conditions for which clinical
labs must submit specimens to the local public health
laboratory to undergo further testing and allows CDPH to
modify the list at any time in consultation with the
California Conference of Local Health Officers and the
California Association of Public Health Laboratory
Directors. Pending on the Assembly Second Reading File.
Prior legislation
AB 2541 (Portantino and Fletcher), Chapter 470, Statutes of
2010, deleted the HIV exemption from authorized electronic
reporting in order to increase federal funding provided to
California for HIV and AIDS services. Authorized additional
disclosures of public health records relating to HIV or
AIDS between specified local and state public health agency
staff, health care providers, and HIV-positive individuals
who are the subject of the records. Increases the penalties
for negligent, willful or malicious disclosure of content
of any confidential public health record to a third party,
except as otherwise authorized by law.
AB 2786 (Committee on Health) of 2010 was nearly identical
to AB 186. AB 2786 was vetoed by Governor Schwarzenegger,
who stated in part: "The Department of Public Health, in a
public health emergency, already has broad authority to
request and receive laboratory data. I am also
concerned that the Department, without such a public health
emergency, could enact changes that affect both private and
public laboratories without any regulatory
oversight."
AB 2658 (Horton), Chapter 449, Statutes of 2008, required
laboratories to submit all cases of reportable diseases and
conditions electronically, within one year of the
establishment of the new state electronic laboratory
reporting system, with the exception of HIV reports.
AB 682 (Berg), Chapter 550, Statutes of 2007, revised the
written and informed consent standards associated with
testing blood for the HIV, including prenatal HIV testing,
to no longer require affirmative approval prior to
administering an HIV test. Established the new HIV testing
consent standard as the right to decline the test.
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SB 699 (Soto), Chapter 20, Statutes of 2006, required
health care providers and laboratories to report HIV cases
by the patient's name rather than code in order to comply
with federal funding requirements.
Arguments in support
Beyond AIDS believes this bill will help to save lives by
facilitating the ability of local public health to work
closely with health care providers and patients to control
the spread of HIV infections. Beyond AIDS argues that this
bill fixes a gap in current law by permitting communication
from local public health staff to either CDPH or the health
care provider and the patient for public health purposes
such as prevention and surveillance.
The California Academy of Preventive Medicine (CAPM) also
thinks this bill will help health care providers, patients,
and public health departments communicate about HIV for the
prevention of new infections without fear that they are
violating the law. CAPM believes this bill will result in
more complete and accurate surveillance so that preventive
efforts can be targeted to the people at risk.
COMMENTS
1. Double referral. This bill is double referred to the
Judiciary Committee.
2. Co-infection reporting. Paragraph (1) beginning on page
2, line 27 describes the existing allowable disclosures for
the purpose of co-infection reporting to the CDC. On page
3, lines 5 and 13 the author adds "HIV infections or,"
which has the effect of adding single HIV infections to
co-infection reporting. It is unclear if single HIV cases
are appropriate to include in the same paragraph as cases
including more than one disease.
3. Duplicative language? It is unclear if agencies are
currently experiencing problems with communicating or
receiving necessary information from other agencies in
order to carry out HIV investigation, control, or
surveillance, nor is it clear that they do not already have
the ability to communicate with each other under existing
statutes. Existing law, Health and Safety Code 121025(b)
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states that a state or local public health agency, or an
agent of that agency, may disclose personally identifying
information in public health records, as described, 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.
A potential amendment to address this would begin on page
4, line 1: "Notwithstanding any other law, 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 the investigation, control, or surveillance of HIV."
POSITIONS
Support: Beyond AIDS (sponsor)
California Academy of Preventive Medicine
Infectious Disease Association of California
Five Individuals
Oppose: None received.
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