BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 422 (Wright)
As Amended April 25, 2011
Hearing Date: May 3, 2011
Fiscal: No
Urgency: No
EDO
SUBJECT
Reporting of Certain Communicable Diseases
DESCRIPTION
This bill would authorize physicians to disclose nonidentifying
HIV patient information to the designated staff of the local
public health agency for HIV partner services, or identifying
information with the written consent of the individual. This
bill would also clarify that a local health officer and the
designated local public health agency staff for HIV partner
services are exempted from civil and criminal liability for
alerting the specified partners of an HIV positive person,
without disclosing any identifying information about the person
believed to be infected with HIV. This bill would also
authorize a local health officer or designated local public
health agency staff to expunge any identifying information of a
potentially exposed partner only after efforts have been made to
contact, alert, and refer the partners for testing and
treatment.
BACKGROUND
The Centers for Disease Control and Prevention (CDC) estimates
that approximately one million people in the United States are
infected with HIV. Of those, one in five, or twenty-one percent
are not aware that they are infected. It is also estimated by
the CDC that over 50,000 people become infected each year with
HIV. California is among the 40 states that report HIV
infections to the CDC using a confidential name-based reporting
system. SB 699 (Soto, Chapter 20, Statutes of 2006) authorized
the use of the confidential name-based reporting system in
(more)
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California. In 1988, California was also one of the first
states that allowed physicians to contact a person reasonably
believed to be the spouse, sexual partner, or partner of shared
needles of an HIV infected patient under his or her care,
without disclosing identifying patient information. (AIDS: A
Crisis in Confidentiality, Southern California Law Review (1989)
62 S. Cal. L. Rev. 1701, 1732.) This limited disclosure exempted
the physician from civil or criminal liability.
Although anyone may be at risk for HIV infection, according to
the CDC, men who have sex with men and intravenous drug users
are at the highest risk of contracting this infection. This
statistic has contributed to the stigma associated with HIV
infections, often resulting in discrimination. Due to this
discrimination, the American Civil Liberties Union (ACLU) has
taken an active role in ensuring patient confidentiality.
According to the ACLU's Website, "the ACLU AIDS Project uses
impact litigation, public education and advocacy at the state
and federal level to fight discrimination against people with
HIV/AIDS." Additionally, California prohibits the negligent,
willful or malicious disclosure of HIV test results. Current
law authorizes a fine between $2,500 to $25,000, and some
unlawful disclosures are also subject to jail time.
The California Office of AIDS (OA) has chronicled the AIDS
epidemic between 1981 and 2008 and has shown a significant
reduction in the number of AIDS related deaths. OA attributes
this decrease to greater prevention efforts as well as the rapid
advances in medical care and treatment.
This bill would attempt to balance the competing public policy
concerns regarding patient privacy and the public health policy
of preventing the spread of additional HIV infection by
clarifying that a physician may disclose identifying patient
information to the designated local public health agency staff
for HIV partner services (partner services staff) with the
written consent of the patient, or nonidentifying patient
information without the patient's consent. Additionally, this
bill would clarify that the local health officer and partner
services staff may contact specified partners, without
disclosing identifying patient information, without the threat
of civil or criminal liability. Further, this bill would
authorize the local health officer and partner services staff to
contact, alert and refer any partner potentially exposed to the
HIV infection and then must expunge any of those individuals'
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identifying information from the record.
CHANGES TO EXISTING LAW
Existing law provides that no physician who has the results of a
confirmed positive test for HIV infection of a patient under his
or her care may be held criminally or civilly liable for
disclosing nonidentifying patient information to a person
reasonably believed to be the spouse, sexual partner, a person
whom the patient has shared a needle with, or to the local
health officer. (Health & Saf. Code Sec. 121015 (a).)
Existing law authorizes a local health officer to alert any
persons reasonably believed to be a spouse, sexual partner of
partner of shared needles of an individual who has tested
positive for HIV about their potential exposure without
disclosing identifying patient information. (Health & Saf. Code
Sec. 121015 (d).)
Existing law provides that upon completion of the local health
officer's efforts to contact any of the specified partners, all
records containing any individual identifying information must
be expunged by the local health officer. (Health & Saf. Code
Sec. 121015 (d).)
This bill would further authorize the physician to disclose
nonidentifying HIV patient information to the designated local
public agency staff for HIV partner services, or with the
written consent of the patient, the physician may disclose the
patients' identifying information, without the threat of civil
or criminal liability.
This bill would add the designated local public health agency
staff for HIV partner services as a person authorized to alert
potential partners of the potential HIV exposure, and clarify
that both the local health officer and the partner services
staff will not be held civilly or criminally liable for this
disclosure.
This bill would provide for expunging of the records only after
the local health officer or local public health agency staff for
HIV partner services completes their efforts to contact, alert,
and refer any person specified in this section.
COMMENT
1. Stated need for the bill
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The author writes:
The current law can be interpreted as absolutely prohibiting a
physician from requesting partner services that include having
an experienced public health partner services specialist
communicate with the patient to encourage him/her to identify
all possible exposed persons and how the public health
specialist can help contact them. It provides no assurance to
the local public health staff that they are protected from
civil and criminal liability for communicating with exposed
persons in accordance with Section 121012, i.e., that
notifications under this section do not constitute
unauthorized disclosures of HIV information, for which there
are severe penalties under Section 121025. Subdivision (d)
can currently be interpreted to require premature expunging of
contact information, after an exposed person has been
contacted but before adequate information and proper referrals
have been arranged.
SB 422 would expand terminology for local health officer�s] to
include designated local public health agency staff for
partner services. It would permit a physician to identify the
infected person to an exposed partner, or to the local health
officer, with the patient's written consent. This would
provide a way for the physician to legally refer a patient to
local public health staff to be interviewed about contacts
(persons who may have been exposed) and how to reach them.
Local public health staff would be protected from liability in
the course of notifying exposed persons. Local public health
staff would expunge information about the exposed partners
after the efforts for the full process of contacting, alerting
about the exposure, and referring for appropriate care and
follow-up were complete.
2. This bill would clarify that a physician would not be civilly
or criminally liable for disclosing nonidentifying information
for the positive HIV infection results of a patient under his
or her care to a designated local public health agency staff
for HIV partner services
Under existing law, a physician will not be held civilly or
criminally liable for disclosing nonidentifying patient
information for an HIV positive patient under his or her care to
a person reasonably believed to be the spouse, sexual partner,
partner of shared needles, or to the local health officer. This
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bill would additionally protect the physician from civil or
criminal liability for disclosing nonidentifying patient
information to the designated local public health agency staff
for HIV partner services (partner services staff), or
identifying patient information with the written consent of the
patient.
There has been apparent confusion among HIV health providers and
public health officers regarding whether a physician can reveal
patient information to the partner services staff without civil
or criminal liability. The sponsor of this bill, Beyond AIDS
writes, "�our] clinicians have personally experienced barriers
to referrals to public health for partner services. Beyond AIDS
has reviewed this issue with local public health staff from
several counties, who do HIV surveillance and partner services,
and has verified that there is anxiety on the part of both
physicians and public health staff about the process of
physician referrals for partner services." This clarification
authorizing the physician to contact the partner services staff,
without the threat of civil or criminal liability, should lead
to better communication between physicians who are treating HIV
infected patients and the partner services staff. In turn the
partner services staff will be able to directly contact partners
who may have been exposed to the HIV infection.
3. This bill would clarify that a local health officer and the
partner services staff will not be held civilly or criminally
liable for disclosing nonidentifying patient information to
specified partners
Under existing law, the local health officer may alert any
persons reasonably believed to be a spouse, sexual partner or
partner of shared needles of an HIV positive person, without
disclosing any identifying information. This bill would clarify
that the local health officer and partner services staff will
not be held civilly or criminally liable for making such limited
disclosures.
As discussed above, current law prohibits a physician from being
held civilly or criminally liable for disclosing nonidentifying
patient information to a potential partner, however, there is no
similar protection for a local health officer or partner
services staff. The practical effect is that local health
officers are fearful of contacting potential partners at the
risk of being held civilly or criminally liable. Since there
are substantial consequences associated with the unauthorized
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disclosure of HIV test results, it would seem appropriate to
exempt local health officers from civil or criminal liability
for carrying out their duties under this section. So long as
the health officer does not disclose identifying patient
information without the consent of the patient, the local health
officer and partner services staff should be able to contact all
potential partners in order to alert them of their potential
exposure to the HIV infection. This bill will help carry out the
health officer and partner services staff duties.
4. This bill would authorize local health officers and partner
services staff to expunge the record of identifying
information after they have attempted to contact, alert, and
refer partners of an HIV infected patient
Under existing law, the local health officer may contact
partners of an HIV infected person without disclosing
identifying patient information and then must expunge the
partner's identifying information from the record. This bill
would authorize the local health officer and the partner
services staff to contact, alert, and refer partners potentially
exposed to the HIV infection and then expunge the partner's
information from the record.
Rather than expunging the partner's information from the record
after only attempting to contact the potentially exposed person,
this bill would allow local health officers and partner services
staff to conduct a more thorough process for contacting,
alerting and referring persons potentially exposed to the HIV
infection. This additional language seeks to result in local
health officers and partner services staff conducting a more
thorough investigation to contact people who may be infected and
who may not know they are infected. As discussed in the
background, one in five people do not know they are infected
with HIV. If local health officers are required to expunge
partner's identifying information that may potentially be
infected after only trying to contact them, the investigation
may be prematurely truncated leading to the partner continuing
to expose other people to HIV.
Support : California Academy of Preventive Medicine; Infectious
Disease Association of California
Opposition : None Known
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HISTORY
Source : Beyond AIDS
Related Pending Legislation : None Known
Prior Legislation :
AB 2541 (Portantino, Chapter 470, Statutes of 2010), among other
things, expanded the confidential name-based reporting to the
CDC for cases of coinfection of both HIV and tuberculosis and
HIV and a sexually transmitted disease.
SB 699 (Soto, Chapter 20, Statutes of 2006.) See Background.
SB 945 (Soto, 2005) would have switched California from a
code-based HIV reporting system to a confidential name-based
reporting system to the CDC. This bill was held in the Senate
Committee on Judiciary.
Prior Vote : Senate Committee on Health (Ayes 7, Noes 0)
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