PRINTER'S NO. 1745
No. 1411 Session of 2003
INTRODUCED BY WANSACZ, BEBKO-JONES, BELFANTI, BUNT, CAUSER, COY,
CREIGHTON, DeWEESE, FREEMAN, GEIST, GILLESPIE, GOODMAN,
GRUCELA, HARHAI, HENNESSEY, HERSHEY, HORSEY, JAMES, LAUGHLIN,
LESCOVITZ, McGEEHAN, McILHATTAN, MELIO, R. MILLER, MUNDY,
PISTELLA, READSHAW, REICHLEY, SOLOBAY, THOMAS, TIGUE, WALKO,
WASHINGTON AND WEBER, MAY 7, 2003
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES, MAY 7, 2003
AN ACT
1 Amending the act of November 29, 1990 (P.L.585, No.148),
2 entitled "An act providing for confidentiality of certain
3 records; providing for the authorized sharing of certain
4 information; providing for written consent prior to an HIV-
5 related test, with certain exceptions; providing for civil
6 immunity for certain licensed physicians; providing for
7 protective procedures and equipment; and creating a civil
8 cause of action," extending portions of the act to hepatitis.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. The title and sections 2(b) and (d) and 3 of the
12 act of November 29, 1990 (P.L.585, No.148), known as the
13 Confidentiality of HIV-Related Information Act, are amended to
14 read:
15 AN ACT
16 Providing for confidentiality of certain records; providing for
17 the authorized sharing of certain information related to
18 certain test results; providing for written consent prior to
19 an HIV-related test, with certain exceptions; providing for
1 civil immunity for certain licensed physicians; providing for
2 protective procedures and equipment; and creating a civil
3 cause of action.
4 Section 2. Legislative intent.
5 * * *
6 (b) Further findings.--The General Assembly further finds
7 that individual health care providers are increasingly concerned
8 about occupational exposure to hepatitis and human
9 immunodeficiency virus (HIV), the causative agent for acquired
10 immune deficiency syndrome (AIDS). Due to the nature of their
11 work, individual health care providers and first responders
12 frequently come into contact with the blood and/or body fluids
13 of individuals whose HIV infection or hepatitis status is not
14 known. Regardless of the use of universal precautions to prevent
15 HIV or hepatitis transmission between patients and individual
16 health care providers, there will be instances of significant
17 exposure to the blood and/or body fluids of patients.
18 * * *
19 (d) Further intent.--It is the further intent of the General
20 Assembly to provide a narrow exposure notification and
21 information mechanism for individual health care providers or
22 first responders, who experience a significant exposure to a
23 patients's blood and/or body fluids, to learn of a patient's HIV
24 infection or hepatitis status and thereby obtain the means to
25 make informed decisions with respect to modes and duration of
26 therapy as well as measures to reduce the likelihood of
27 transmitting an infection to others.
28 Section 3. Definitions.
29 The following words and phrases when used in this act shall
30 have the meanings given to them in this section unless the
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1 context clearly indicates otherwise:
2 "AIDS." Acquired immune deficiency syndrome.
3 "Available blood." Blood that is in the possession of the
4 institutional health care provider or the source patient's
5 physician pursuant to a valid authorization.
6 "CDC." The Centers for Disease Control and Prevention of the
7 United States Public Health Service.
8 "Confidential HIV-related information." Any information
9 which is in the possession of a person who provides one or more
10 health or social services or who obtains the information
11 pursuant to a release of confidential HIV-related information
12 and which concerns whether an individual has been the subject of
13 an HIV-related test, or has HIV, HIV-related illness or AIDS; or
14 any information which identifies or reasonably could identify an
15 individual as having one or more of these conditions, including
16 information pertaining to the individual's contacts.
17 "Contact." A sex-sharing or needle-sharing partner of the
18 subject.
19 "Department." The Department of Health of the Commonwealth.
20 "First responder." Police, firefighters, paid and volunteer
21 emergency medical services (EMS) personnel, rescue personnel or
22 any other person who provides emergency response, first aid or
23 other medically related assistance either in the course of their
24 occupational duties or as a volunteer, which may expose them to
25 contact with a person's bodily fluids.
26 "Health care provider." An individual or institutional
27 health care provider.
28 Hepatitis-related test." Any laboratory test or series of
29 tests for any virus, antibody, antigen or etiologic agent
30 whatsoever thought to cause or to indicate the presence of
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1 hepatitis infection.
2 "HIV." The human immunodeficiency virus.
3 "HIV-related test." Any laboratory test or series of tests
4 for any virus, antibody, antigen or etiologic agent whatsoever
5 thought to cause or to indicate the presence of HIV infection.
6 "Home care agency." Any organization or part of an
7 organization which is staffed and equipped to provide in-home
8 health care services. The term includes, but is not limited to,
9 Pennsylvania-licensed home health agencies, home health aide
10 agencies or private duty care agencies.
11 "Individual health care provider." A physician, nurse, paid
12 and volunteer emergency medical services [worker] (EMS)
13 personnel, chiropractor, optometrist, psychologist, nurse-
14 midwife, physician assistant, dentist or other person, including
15 a professional corporation or partnership, providing medical,
16 nursing, drug or alcohol rehabilitation services, mental health
17 services, other health care services or an employee or agent of
18 such individual or an institutional health care provider.
19 "Institutional health care provider." A hospital, nursing
20 home, hospice, clinic, blood bank, plasmapheresis or other blood
21 product center, organ or tissue bank, sperm bank, clinical
22 laboratory, residential or outpatient drug and alcohol
23 rehabilitation service, mental health facility, mental
24 retardation facility, home care agency as defined in this act,
25 or any health care institution required to be licensed in this
26 Commonwealth whether privately or publicly operated.
27 "Insurer." Any insurance company, association or exchange
28 authorized to do business in this Commonwealth under the act of
29 May 17, 1921 (P.L.682, No.284), known as The Insurance Company
30 Law of 1921, any entity subject to 40 Pa.C.S. Ch. 61 (relating
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1 to hospital plan corporations) or 63 (relating to professional
2 health services plan corporations), the act of December 29, 1972
3 (P.L.1701, No.364), known as the Health Maintenance Organization
4 Act, or the act of July 29, 1977 (P.L.105, No.38), known as the
5 Fraternal Benefit Society Code.
6 "Significant exposure." Direct contact with blood or body
7 fluids of a patient in a manner which, according to the most
8 current guidelines of the Centers for Disease Control and
9 Prevention, is capable of transmitting human immunodeficiency
10 virus or hepatitis, including, but not limited to, a
11 percutaneous injury (e.g., a needle stick or cut with a sharp
12 object), contact of mucous membranes or contact of skin
13 (especially when the exposed skin is chapped, abraded or
14 afflicted with dermatitis) or if the contact is prolonged or
15 involves an extensive area.
16 "Source patient." Any person whose body fluids have been the
17 source of a significant exposure to an individual health care
18 provider.
19 "Subject." An individual or a [guardian of the person of
20 that individual] court-appointed guardian or the parent of an
21 unemancipated minor.
22 "Substitute decisionmaker." Any guardian or person who by
23 law or medical practice is authorized to consent on behalf of an
24 incompetent person for medical treatment.
25 Section 2. The act is amended by adding a section to read:
26 Section 5.1. Hepatitis-related testing.
27 (a) General rule.--Health care providers or first responders
28 who experience significant exposure as outlined in section
29 6(a)(1), (2) and (3) to an individual whose hepatitis status is
30 unknown may request that available blood of a source patient be
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1 tested for the presence of the hepatitis virus and that the test
2 results of the source patient be disclosed to the health care
3 provider and/or first responder.
4 (b) Court order.--If there is no available blood and the
5 source patient refuses to undergo a blood test, the health care
6 provider or first responder may petition the court to order
7 testing pursuant to section 8.
8 Section 3. Sections 6, 8 and 9(a) of the act are amended to
9 read:
10 Section 6. Certification of significant exposure and testing
11 procedures.
12 (a) Physician's evaluation of significant exposure.--
13 (1) Whenever an individual health care provider or first
14 responder experiences an exposure to a patient's blood or
15 bodily fluids during the course of rendering health care or
16 occupational services, the individual may request an
17 evaluation of the exposure, by a physician, to determine if
18 it is a significant exposure as defined in this act. No
19 physician shall certify his own significant exposure or that
20 of any of his employees. Such requests shall be made within
21 72 hours of the exposure.
22 (2) Within 72 hours of the request, the physician shall
23 make written certification of the significance of the
24 exposure.
25 (3) If the physician determines that the individual
26 health care provider or first responder has experienced a
27 significant exposure, the physician shall offer the exposed
28 individual the opportunity to undergo testing[, following the
29 procedure outlined in section 5]. HIV-related testing shall
30 follow the procedure outlined in sections 5 and 9. Hepatitis-
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1 related testing shall follow the procedure outlined in
2 section 5.1.
3 (b) Opportunity for source patient to consent.--
4 (1) In the event that an exposed individual health care
5 provider or first responder is certified to have experienced
6 a significant exposure and has submitted to an HIV-related
7 test, no HIV testing shall be performed on a source patient's
8 available blood unless the certifying physician provides a
9 copy of the written certification of significant exposure to
10 the source patient's physician or institutional health care
11 provider in possession of the available blood and the source
12 patient's physician or institutional health care provider has
13 made a good faith effort to:
14 (i) Notify the source patient or substitute
15 decisionmaker of the significant exposure.
16 (ii) Seek the source patient's voluntary informed
17 consent to the HIV-related testing as specified in
18 section 5(a).
19 (iii) Provide counseling as required under section
20 5(b).
21 (2) The source patient's physician or institutional
22 health care provider that receives a certification of
23 significant exposure shall begin to comply with the request
24 within 24 hours. If the source patient's physician or
25 institutional health care provider is unable to secure the
26 source patient's consent because the source patient or the
27 source patient's substitute decisionmaker refuses to grant
28 informed consent or the source patient cannot be located, the
29 source patient's physician or institutional health care
30 provider shall arrange for an entry to be placed on the
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1 source patient's medical record to that effect. If these
2 procedures are followed and the entry is made on the source
3 patient's medical record, then HIV-related tests shall be
4 performed on the source patient's available blood if
5 requested by the exposed individual health care provider or
6 first responder who has submitted to an HIV-related test.
7 (3) The physician ordering the HIV-related test on a
8 source patient's available blood on behalf of the source
9 patient's physician or institutional health care provider
10 shall comply with section 5(c) through (e).
11 (4) The health care provider or first responder shall be
12 notified of the results of the HIV-related test on the source
13 patient's blood if the health care provider or first
14 responder's baseline HIV-related test is negative. Further
15 disclosure of the test results is prohibited unless
16 authorized under section 7.
17 Section 8. Court order.
18 (a) Order to disclose.--No court may issue an order to
19 allow access to confidential HIV-related or hepatitis-related
20 information unless the court finds, upon application, that one
21 of the following conditions exists:
22 (1) The person seeking the information has demonstrated
23 a compelling need for that information which cannot be
24 accommodated by other means.
25 (2) The person seeking to disclose the information has a
26 compelling need to do so.
27 (b) Order to test and disclose.--No court may order the
28 performance of an HIV-related or hepatitis-related test and
29 allow access to the test result unless the court finds, upon
30 application, that all of the following conditions exist:
20030H1411B1745 - 8 -
1 (1) The individual whose HIV-related test is sought was
2 afforded informed consent and pretest counseling procedures
3 required by section 5(a) and (b) and the subject refused to
4 give consent or was not capable of providing consent.
5 (2) The applicant was exposed to a body fluid of the
6 individual whose test is sought and that exposure presents a
7 significant risk of exposure to HIV or hepatitis infection. A
8 determination that the applicant has incurred a significant
9 risk of exposure to HIV or hepatitis infection must be
10 supported by medical and epidemiologic data regarding the
11 transmission of HIV or hepatitis, including, if available,
12 information about the HIV and hepatitis risk status of the
13 source individual and the circumstances in which the alleged
14 exposure took place.
15 (3) The applicant has a compelling need to ascertain the
16 HIV or hepatitis test result of the source individual.
17 (c) Compelling need.--In assessing compelling need for
18 subsections (a) and (b), the court shall weigh the need for
19 disclosure against the privacy interest of the individual and
20 the public interests which may be harmed by disclosure.
21 (d) Pleadings.--Pleadings under this section shall
22 substitute a pseudonym for the true name of the individual whose
23 test result is sought. Disclosure to the parties of the
24 individual's true name shall be communicated confidentially in
25 documents not filed with the court.
26 (e) Notice.--Before granting an order for testing or
27 disclosure and as soon as practicable after the filing of a
28 petition under this section, the court shall provide the
29 individual whose test result is sought with notice and a
30 reasonable opportunity to participate in the proceeding if the
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1 individual is not already a party.
2 (f) In camera proceedings.--Court proceedings under this
3 section shall be conducted in camera, unless the individual
4 agrees to a hearing in open court or unless the court determines
5 that a public hearing is necessary to the public interest and
6 the proper administration of justice.
7 (g) Expedited proceeding.--The court shall provide for an
8 expedited proceeding if it is requested by the applicant and the
9 application includes verified statements that:
10 (1) The applicant has been exposed to a body fluid that
11 poses a risk of HIV or hepatitis infection from the
12 individual whose test result is sought.
13 (2) The exposure occurred within six weeks of the filing
14 of the application.
15 (3) The [exposure involves] HIV or hepatitis exposure
16 includes, but is not limited to:
17 (i) a percutaneous injury to the applicant's skin
18 from a needle stick or other sharp object;
19 (ii) contact of the applicant's eyes, mouth or other
20 mucous membrane;
21 (iii) contact of chapped or abraded skin of the
22 applicant; or
23 (iv) prolonged contact of the applicant's skin.
24 An expedited proceeding on the application shall be held no
25 later than five days after the court complies with subsection
26 (e), pertaining to notice requirements.
27 (h) Safeguards against disclosure.--Upon the issuance of an
28 order to disclose the information, the court shall impose
29 appropriate safeguards against unauthorized disclosure which
30 shall specify the following:
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1 (1) The particular information which is essential to
2 accommodate the need of the party seeking disclosure.
3 (2) The persons who may have access to the information.
4 (3) The purposes for which the information will be used.
5 (4) The appropriate prohibitions on future disclosure as
6 provided for in section 7.
7 Section 9. Civil immunity for certain physicians.
8 (a) Permissible disclosure.--Notwithstanding the provisions
9 of section 7, a physician may disclose confidential HIV-related
10 or hepatitis-related information if all of the following
11 conditions are met:
12 (1) The disclosure is made to a known contact of the
13 subject.
14 (2) The physician reasonably believes disclosure is
15 medically appropriate, and there is a significant risk of
16 future infection to the contact.
17 (3) The physician has counseled the subject regarding
18 the need to notify the contact, and the physician reasonably
19 believes the subject will not inform the contact or abstain
20 from sexual or needle-sharing behavior which poses a
21 significant risk of infection to the contact.
22 (4) The physician has informed the subject of his intent
23 to make such disclosure.
24 * * *
25 Section 4. This act shall take effect in 60 days.
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