WSR 02-08-018

PROPOSED RULES

STATE BOARD OF HEALTH


[ Filed March 25, 2002, 11:17 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 01-08-088.

Title of Rule: Chapter 246-100 WAC, Offering HIV testing to pregnant women.

Purpose: Existing rules regarding HIV counseling and testing in pregnant women were adopted in 1988. Since that time, therapies and medical practices have been identified that prevent most cases of perinatal HIV transmission. Changes are necessary to assure these rules are consistent with current medical science, public health practice, federal recommendations, and community needs. Updating the standards will facilitate HIV testing where there is a medical need and better focus prevention counseling toward those with behavioral risk factors.

Statutory Authority for Adoption: RCW 70.24.380.

Statute Being Implemented: RCW 70.24.095.

Summary: This rule establishes specific HIV counseling and testing requirements for pregnant women, contains provisions to obtain consent for testing, and ensures counseling for those that have behavioral risk factors.

Reasons Supporting Proposal: The rule change is necessary to assure rules are consistent with current medical science, public health practice, federal recommendations, and community needs, and the maximum number of perinatal HIV cases are prevented.

Name of Agency Personnel Responsible for Drafting and Implementation: John F. Peppert, P.O. Box 47840, Olympia, WA 98504-7840, (360) 236-3427; Enforcement: Jack Jourden, P.O. Box 47844, Olympia, WA 98504-7844, (230) [(360)] 236-3466.

Name of Proponent: Washington State Department of Health, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: This rule requires the principal health care provider to assess a pregnant woman's risk of HIV, recommend HIV testing for all as part of the routine battery of other tests, obtain consent for HIV testing, provide information about HIV, and counsel those assessed to be at risk of disease.

This rule change will remove barriers to implementation of national recommendations for HIV counseling and testing in pregnant women, increase the number of tests performed, increase the number of pregnant women receiving a test for HIV, reduce unnecessary behavior change counseling, and through the administration of antiretroviral medications minimize the number of infants born with HIV disease.

Proposal Changes the Following Existing Rules: This rule establishes specific HIV counseling and testing requirements for pregnant women.

No small business economic impact statement has been prepared under chapter 19.85 RCW. See attached [no information supplied by agency].

RCW 34.05.328 applies to this rule adoption. Under the provisions of RCW 70.24.080 and 70.24.084, violation of any lawful rule adopted by the board may subject the person to criminal or monetary penalties.

Hearing Location: Department of Health Public Health Laboratories, 1610 N.E. 150th, Shoreline, WA 98155-9701, on May 8, 2002, at 11 a.m.

Assistance for Persons with Disabilities: Contact Washington State Board of Health by May 1, 2002, TDD (800) 833-6388 or (360) 236-4100.

Submit Written Comments to: John Peppert, P.O. Box 47840, Olympia, WA 98504-7840, fax (360) 236-3400, by April 22, 2002.

Date of Intended Adoption: May 8, 2002.

March 20, 2002

Don R. Sloma

Executive Director

OTS-5072.3


AMENDATORY SECTION(Amending WSR 99-17-077, filed 8/13/99, effective 9/1/99)

WAC 246-100-206   Special diseases -- Sexually transmitted diseases.   (1) Any person who violates a rule adopted by the board for the control and treatment of a sexually transmitted disease is subject to penalty under RCW 70.24.080.

(2) Definitions.

(a) "Anonymous HIV testing" means that the name or identity of the individual tested for HIV will not be recorded or linked to the HIV test result. However, once the individual testing positive receives HIV health care or treatment services, reporting of the identity of the individual to the state or local public health officer is required.

(b) "Behaviors presenting imminent danger to public health (BPID)" means the following activities, under conditions specified below, performed by an individual with a laboratory confirmed HIV infection:

(i) Anal or vaginal intercourse without a latex condom; or

(ii) Shared use of blood-contaminated injection equipment;

(iii) Donating or selling HIV-infected blood, blood products, or semen; and

(iv) Under the following specified conditions:

(A) The infected individual received post-test counseling as described in WAC 246-100-209 prior to repeating activities in subsection (((1))) (2)(b)(i) and (ii) of this section; and

(B) The infected individual did not inform the persons, with whom activities described in subsection (((1))) (2)(b)(i) and (ii) of this section occurred, of his or her infectious status.

(c) "Behaviors presenting possible risk" means:

(i) Actual actions resulting in "exposure presenting a possible risk" limited to:

(A) Anal, oral, or vaginal intercourse excluding conjugal visits; or

(B) Physical assault; or

(C) Sharing of injection equipment or sharp implements; or

(D) Throwing or smearing of blood, semen, or vaginal fluids; or

(ii) Threatened action if:

(A) The threatening individual states he or she is infected with HIV; and

(B) The threatened behavior is listed in subsection (((1))) (2)(b)(i)(A), (B), (C), and (D) of this section; and

(C) The threatened behavior could result in "exposure presenting a possible risk."

(d) "Conduct endangering public health" means:

(i) Anal, oral, or vaginal intercourse for all sexually transmitted diseases;

(ii) For HIV and Hepatitis B:

(A) Anal, oral, or vaginal intercourse; and/or

(B) Sharing of injection equipment; and/or

(C) Donating or selling blood, blood products, body tissues, or semen; and

(iii) Activities described in subsection (((1))) (2)(d)(i) and (ii) of this section resulting in introduction of blood, semen, and/or vaginal fluids to:

(A) Mucous membranes;

(B) Eyes;

(C) Open cuts, wounds, lesions; or

(D) Interruption of epidermis.

(e) "Confidential HIV testing" means that the name or identity of the individual tested for HIV will be recorded and linked to the HIV test result, and that the name of the individual testing positive for HIV will be reported to the state or local health officer in a private manner.

(f) "Exposure presenting possible risk" means one or more of the following:

(i) Introduction of blood, semen, or vaginal fluids into:

(A) A body orifice or a mucous membrane;

(B) The eye; or

(C) An open cut, wound, lesion, or other interruption of the epidermis.

(ii) A needle puncture or penetrating wound resulting in exposure to blood, semen, and/or vaginal fluids.

(g) "Reasonably believed" or "reason to believe," in reference to a sexually transmitted disease, means a health officer's belief which:

(i) For the purpose of investigating the source and spread of disease, is based upon a credible report from an identifiable individual indicating another person is likely to have a sexually transmitted disease (STD) or to have been exposed to a STD; and

(ii) For the purpose of issuing a written order for an individual to submit to examination, counseling, or treatment is based upon:

(A) Laboratory test results confirming or suggestive of a STD; or

(B) A health care provider's direct observation of clinical signs confirming an individual has or is likely to have a STD; or

(C) Obtaining information directly from an individual infected with a STD about the identity of his or her sexual or needle-sharing contacts when:

(I) Contact with the infected individual occurred during a period when the disease may have been infectious; and

(II) The contact was sufficient to transmit the disease; and

(III) The infected individual is, in the health officer's judgment, credible and believable.

(h) "Substantial exposure" means physical contact resulting in exposure presenting possible risk, limited to:

(i) A physical assault upon the exposed person involving blood or semen;

(ii) Intentional, unauthorized, nonconsensual use of needles or sharp implements to inject or mutilate the exposed person;

(iii) An accidental parenteral or mucous membrane or nonintact skin exposure to blood, semen, or vaginal fluids.

(((2))) (3) Health care providers shall:

(a) Report each case of sexually transmitted disease as required in chapter 246-100 WAC, and

(b) Instruct each patient regarding:

(i) Communicability of the disease, and

(ii) Requirements to refrain from acts that may transmit the disease to another.

(c) Ensure completion of a prenatal serologic test for syphilis in each pregnant woman pursuant to RCW 70.24.090 including:

(i) Submission of a blood sample for syphilis to a laboratory approved to perform prenatal serologic tests for syphilis, as required in RCW 70.24.090, at the time of the first prenatal visit, and

(ii) Decide whether or not to omit the serologic test for syphilis if the test was performed elsewhere during the current pregnancy.

(((3))) (4) Laboratories, health care providers, and other persons shall deny issuance of a certificate or statement implying an individual is free from sexually transmitted disease.

(((4))) (5) Local health officers, health care providers, and others, in addition to requirements in chapter 246-100 WAC, shall comply with the provisions in chapter 70.24 RCW.

(((5))) (6) Prevention of ophthalmia neonatorum.

(a) Health care providers diagnosing or caring for a patient with gonococcal or chlamydial ophthalmia neonatorum shall report the case to the local health officer or local health department in accordance with the provisions of this chapter.

(b) The principal health care provider attending or assisting in the birth of any infant or caring for an infant after birth, shall ensure instillation of a department-approved prophylactic ophthalmic agent into the conjunctival sacs of the infant within the time frame established by the department in policy statement of ophthalmia agents approved for the prevention of ophthalmia neonatorum in the newborn, issued June 19, 1981.

(((6))) (7) State and local health officers or their authorized representatives shall:

(a) Have authority to conduct or cause to be conducted an interview and investigation of persons infected or reasonably believed to be infected with a sexually transmitted disease; and

(b) Use procedures and measures described in WAC 246-100-036(4) in conducting investigations.

(((7))) (8) State and local health officers and their authorized representatives shall have authority to:

(a) Issue written orders for medical examination, testing, and/or counseling under chapter 70.24 RCW, only after:

(i) All other efforts to protect public health have failed, including reasonable efforts to obtain the voluntary cooperation of the person to be affected by the order; and

(ii) Having sufficient evidence to "reasonably believe" the individual to be affected by the order:

(A) Has a sexually transmitted disease; and

(B) Is engaging in "conduct endangering public health"; and

(iii) Investigating and confirming the existence of "conduct endangering public health" by:

(A) Interviewing sources to assess their credibility and accuracy; and

(B) Interviewing the person to be affected by the order; and

(iv) Including in a written order all information required in RCW 70.24.024.

(b) Issue written orders for treatment under RCW 70.24.022 only after laboratory test results, or direct observation of clinical signs or assessment of clinical data by a physician, confirm the individual has, or is likely to have, a sexually transmitted disease;

(c) Issue written orders to cease and desist from specified activities, under RCW 70.24.024 only after:

(i) Determining the person to be affected by the order is engaging in "conduct endangering public health"; and

(ii) Laboratory test results, or direct observation of clinical signs or assessment of clinical data by a physician, confirm the individual has, or is likely to have, a sexually transmitted disease; and

(iii) Exhausting procedures described in subsection (((7))) (8)(a) of this section; and

(iv) Enlisting, if appropriate, court enforcement of the orders described in subsection((s (7))) (8) (a) and (b) of this section; and

(d) Seek court orders for detainment under RCW 70.24.034, only for persons infected with HIV and only after:

(i) Exhausting procedures described in subsection (((7))) (8)(a), (b), and (c) of this section; and

(ii) Enlisting, if appropriate, court enforcement of orders to cease and desist; and

(iii) Having sufficient evidence to "reasonably believe" the person is engaging in "behaviors presenting an imminent danger to public health."

(((8))) (9) Conditions for detainment of individuals infected with sexually transmitted disease.

(a) A local health officer may notify the state health officer if he or she determines:

(i) The criteria for "behaviors presenting imminent danger to public health (BPID)" are met by an individual; and

(ii) Such individual fails to comply with a cease and desist order affirmed or issued by a court.

(b) A local or state health officer may request the prosecuting attorney to file an action in superior court to detain an individual specified in subsection (((8))) (9)(a) of this section.

(c) The requesting local or state health officer or authorized representative shall:

(i) Notify the department prior to recommending the detainment setting where the individualized counseling and education plan may be carried out consistent with subsection((s (8))) (9)(d), (e), and (f) of this section;

(ii) Make a recommendation to the court for placement of such individual consistent with subsection((s (8))) (9)(d) and (f) of this section; and

(iii) Provide to the court an individualized plan for education and counseling consistent with subsection (((8))) (9)(e) of this section.

(d) State board of health requirements for detainment of individuals demonstrating BPID:

(i) Sufficient number of staff, caregivers, and/or family members to:

(A) Provide round-the-clock supervision, safety of detainee, and security; and

(B) Limit and restrict activities to prevent BPID; and

(C) Make available any medical, psychological, or nursing care when needed; and

(D) Provide access to AIDS education and counseling; and

(E) Immediately notify the local or state health officer of unauthorized absence or elopement; and

(ii) Sufficient equipment and facilities to provide:

(A) Meals and nourishment to meet nutritional needs; and

(B) A sanitary toilet and lavatory; and

(C) A bathing facility; and

(D) Bed and clean bedding appropriate to size of detainee; and

(E) A safe detention setting appropriate to chronological and developmental age of detainee; and

(F) A private sleeping room; and

(G) Prevention of sexual exploitation.

(iii) Sufficient access to services and programs directed toward cessation of BPID and providing:

(A) Linguistically, socially, culturally, and developmentally appropriate ongoing AIDS education and counseling; and

(B) Psychological and psychiatric evaluation and counseling; and

(C) Implementation of court-ordered plan for individualized counseling and education consistent with subsection (((8))) (9)(e) of this section.

(iv) If required, provide access to isolation and/or restraint in accordance with restraint and seclusion rules in WAC 275-55-263 (2)(c);

(v) Maintain a safe, secure environment free from harassment, physical danger, and sexual exploitation.

(e) Washington state board of health standards for an individualized counseling and education plan for a detainee include:

(i) Consideration of detainee's personal and environmental characteristics, culture, social group, developmental age, and language;

(ii) Identification of habitual and addictive behavior and relapse pattern;

(iii) Identification of unique risk factors and possible cross-addiction leading to behavior presenting imminent danger to public health;

(iv) Identification of obstacles to behavior change and determination of specific objectives for desired behavior;

(v) Provision of information about acquisition and transmission of HIV infection;

(vi) Teaching and training of individual coping skills to prevent relapse to BPID;

(vii) Specific counseling for chemical dependency, if required;

(viii) Identification of and assistance with access to community resources, including social services and self-help groups appropriate to provide ongoing support and maintenance of behavior change; and

(ix) Designation of a person primarily responsible for counseling and/or education who:

(A) Completed pretest and post-test counselor training approved by the office on AIDS; and

(B) Received training, as approved by the office on AIDS, focused on facilitating behavior change related to preventing BPID; and

(C) Has a post-graduate degree in social work, psychology, counseling, psychosocial nursing, or other allied profession; and

(D) Completed at least one year clinical experience after post-graduate education with a primary focus on individualized behavior change; and

(E) Is a certified counselor under chapter 18.19 RCW.

(x) Designation and provision of a qualified counselor under WAC 275-19-145 when the detainee is assessed to have a drug or alcohol problem.

(f) The state board of health designates the following settings appropriate for detainment provided a setting meets requirements in subsection (((8))) (9)(d)(i), (ii), (iii), (iv), and (v) of this section:

(i) Homes, care facilities, or treatment institutions operated or contracted by the department;

(ii) Private homes, as recommended by the local or state health officer;

(iii) Boarding homes licensed under chapter 18.20 RCW;

(iv) Nursing homes licensed under chapter 18.51 RCW;

(v) Facilities licensed under chapter 71.12 RCW, including:

(A) Psychiatric hospitals, per chapter 246-322 WAC;

(B) Alcoholism treatment centers if certified for substance use under chapter 275-19 WAC;

(C) Adult residential rehabilitation centers, per chapter 246-325 WAC;

(D) Private adult treatment homes, per chapter 246-325 WAC;

(E) Residential treatment facilities for psychiatrically impaired children and youth, per chapter 246-323 WAC;

(vi) A hospital licensed under chapter 70.41 RCW.

(((9))) (10) Jail administrators may order pretest counseling, post-test counseling, and HIV testing of persons detained in jail according to RCW 70.24.360 only under the following conditions:

(a) The jail administrator documents and reports to the local health officer, within seven days after the incident, any incident perceived to be actual or threatened "behaviors presenting possible risk"; and

(b) The local health officer:

(i) Determines the documented behavior or behaviors meet the criteria established in the definition of "behaviors presenting a possible risk"; and

(ii) Interviews the detained individual to evaluate the factual basis for alleged actual or threatened behavior; and

(iii) Makes a fact determination, based upon the documented behavior, the interview with the detained individual, and/or independent investigation, that sufficient factual evidence exists to support the allegation of actual or threatened "behaviors presenting possible risk"; and

(iv) Arranges for testing of the individual who is the source of the behavior to occur within seven days of the request from the jail administrator; and

(v) Reviews with the detained individual who is the source of the behavior the documentation of the actual or threatened behavior to try to assure understanding of the basis for HIV testing; and

(vi) Provides written approval of the jail administrator's order prior to HIV testing in accordance with subsection (7)(a)(i) of this section.

(c) The jail administrator maintains HIV test results and identity of the tested individual as a confidential, nondisclosable record, as provided in RCW 70.24.105.

(((10))) (11) When an individual experiences a substantial exposure to another individual's body fluids and requests HIV testing of that other individual, the state and local health officers have authority to order pretest counseling, HIV testing, and post-test counseling of that other individual providing:

(a) The alleged exposure occurred when the individual was employed or acting as an authorized volunteer in one of the following employment categories:

(i) Law enforcement officer;

(ii) Firefighter;

(iii) Health care provider;

(iv) Staff of health care facilities;

(v) Funeral director;

(vi) Embalmer; and

(b) The alleged substantial exposure occurred on the job; and

(c) The request to the health officer for testing and counseling of the individual was made within seven days of the occurrence of the alleged exposure; and

(d) The local health officer:

(i) Determines that the alleged exposure meets the criteria established in the definition of "substantial exposure"; and

(ii) Ensures that pretest counseling of the individual to be tested, or a legal representative, occurs; and

(iii) Arranges for testing of the individual who is the source of the exposure to occur within seven days of the request from the person exposed; and

(e) The exposed individual agrees to be tested for HIV if such testing is determined appropriate by the health officer; and

(f) Records on HIV testing ordered by a health officer are maintained only by the ordering health officer.

(((11))) (12) For the purpose of RCW 49.60.172 concerning the absence of HIV infection as a bona fide occupational qualification only, "significant risk" means a job qualification which requires person-to-person contact likely to result in direct introduction of blood into the eye, an open cut or wound, or other interruption of the epidermis, when:

(a) No adequate barrier protection is practical; and

(b) Determined only on case-by-case basis consistent with RCW 49.60.180.

[Statutory Authority: RCW 70.24.125 and 70.24.130. 99-17-077, 246-100-206, filed 8/13/99, effective 9/1/99. Statutory Authority: RCW 70.24.022, [70.24].340 and Public Law 104-146. 97-15-099, 246-100-206, filed 7/21/97, effective 7/21/97. Statutory Authority: RCW 43.20.050 and 70.24.130. 92-02-019 (Order 225B), 246-100-206, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.20.050. 91-02-051 (Order 124B), recodified as 246-100-206, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 70.24 RCW. 89-07-095 (Order 325), 248-100-206, filed 3/22/89; 88-21-093 (Order 322), 248-100-206, filed 10/19/88; 88-17-056 (Order 316), 248-100-206, filed 8/17/88. Statutory Authority: RCW 43.20.050. 87-11-047 (Order 302), 248-100-206, filed 5/19/87.]


AMENDATORY SECTION(Amending WSR 99-17-077, filed 8/13/99, effective 9/1/99)

WAC 246-100-207   Human immunodeficiency virus (HIV) testing -- Ordering -- Laboratory screening -- Interpretation -- Reporting.   (1) Any person ordering or prescribing an HIV test for another, except for seroprevalent studies under chapter 70.24 RCW or provided under subsections (2) and (3) of this section or provided under WAC 246-100-208(1), shall:

(a) Provide or refer for pretest counseling described under WAC 246-100-209;

(b) Obtain or ensure informed specific consent of the individual to be tested separate from other consents prior to ordering or prescribing an HIV test, unless excepted under provisions in chapter 70.24 RCW;

(c) Inform, orally or in writing, the individual to be tested of the availability of anonymous HIV testing and of the differences between "anonymous HIV testing" and "confidential HIV testing"; and

(d) Provide or refer for post-test counseling described under WAC 246-100-209 if HIV test is positive for or suggestive of HIV infection.

(2) Any person authorized to order or prescribe an HIV test for another may offer anonymous HIV testing without restriction.

(3) Blood banks, tissue banks, and others collecting or processing blood, sperm, tissues, or organs for transfusion/transplanting shall:

(a) Obtain or ensure informed specific consent of the individual prior to ordering or prescribing an HIV test, unless excepted under provisions in chapter 70.24 RCW;

(b) Explain that the reason for HIV testing is to prevent contamination of the blood supply, tissue, or organ bank donations;

(c) At the time of notification regarding a positive HIV test, provide or ensure at least one individual counseling session; and

(d) Inform the individual that the name of the individual testing positive for HIV infection will be confidentially reported to the state or local health officer.

(4) Persons subject to regulation under Title 48 RCW and requesting an insured, subscriber, or potential insured or subscriber to furnish the results of an HIV test for underwriting purposes, as a condition for obtaining or renewing coverage under an insurance contract, health care service contract, or health maintenance organization agreement shall:

(a) Before obtaining a specimen to perform an HIV test, provide written information to the individual tested explaining:

(i) What an HIV test is;

(ii) Behaviors placing a person at risk for HIV infection;

(iii) The purpose of HIV testing in this setting is to determine eligibility for coverage;

(iv) The potential risks of HIV testing; and

(v) Where to obtain HIV pretest counseling.

(b) Obtain informed specific written consent for an HIV test. The written informed consent shall include:

(i) An explanation of confidential treatment of test result reports limited to persons involved in handling or determining applications for coverage or claims for the applicant or claimant; and

(ii) That the name of the individual testing positive for HIV infection will be confidentially reported to the state or local health officer; and

(iii) Requirements under subsection (4)(c) of this section.

(c) Establish procedures to inform an applicant of the following:

(i) Post-test counseling specified under WAC 246-100-209(4) is required if an HIV test is positive or indeterminate;

(ii) Post-test counseling is done at the time any positive or indeterminate HIV test result is given to the tested individual;

(iii) The applicant is required to designate a health care provider or health care agency to whom positive or indeterminate HIV test results are to be provided for interpretation and post-test counseling; and

(iv) When an individual applicant does not identify a designated health care provider or health care agency and the applicant's HIV test results are positive or indeterminate, the insurer, health care service contractor, or health maintenance organization shall provide the test results to the state or local health department for interpretation and post-test counseling.

(5) Laboratories and other places where HIV testing is performed shall demonstrate complete and satisfactory participation in an HIV proficiency testing program approved by the Department Laboratory Quality Assurance Section, Mailstop K17-9, 1610 N.E. 150th, Seattle, Washington 98155.

(6) The department laboratory quality assurance section shall accept substitutions for EIA screening only as approved by the United States Food and Drug Administration (FDA) and a published list or other written FDA communication.

(7) Persons informing a tested individual of positive laboratory test results indicating HIV infection shall do so only when:

(a) HIV is isolated by viral culture technique; or

(b) HIV nucleic acid (RNA or DNA) is detected; or

(c) HIV is detected through a P24 antigen (neutralizable) test; or

(d) HIV antibodies are identified by a sequence of tests which are reactive and include:

(i) A repeatedly reactive screening test such as the enzyme immunoassay (EIA); and

(ii) An additional, more specific, assay such as a positive western blot assay (WBA) or other tests as approved by the United States Food and Drug Administration (FDA) in a published list or other written FDA communication.

(e) Such information consists of relevant, pertinent facts communicated in such a way that it will be readily understood by the recipient.

[Statutory Authority: RCW 70.24.125 and 70.24.130. 99-17-077, 246-100-207, filed 8/13/99, effective 9/1/99. Statutory Authority: RCW 70.24.380. 97-04-041, 246-100-207, filed 1/31/97, effective 3/3/97. Statutory Authority: RCW 43.20.050 and 70.24.130. 92-02-019 (Order 225B), 246-100-207, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.20.050. 91-02-051 (Order 124B), recodified as 246-100-207, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 70.24 RCW and RCW 70.24.130. 89-20-006 (Order 334), 248-100-207, filed 9/22/89, effective 10/23/89. Statutory Authority: Chapter 70.24 RCW. 89-14-003 (Order 329), 248-100-207, filed 6/22/89; 88-17-058 (Order 318), 248-100-207, filed 8/17/88.]


AMENDATORY SECTION(Amending WSR 99-17-077, filed 8/13/99, effective 9/1/99)

WAC 246-100-208   Counseling standard -- AIDS counseling.   (1) Principal health care providers shall counsel or ensure AIDS counseling for((:

(a))) each pregnant woman((; and

(b))). "AIDS counseling" for a pregnant woman means:

(a) Performing a risk screening that includes an assessment of sexual and drug use history as part of the intake process;

(b) Providing written or verbal information on HIV infection that at a minimum includes:

(i) All pregnant women are recommended to have an HIV test;

(ii) HIV is the cause of AIDS and how HIV is transmitted;

(iii) A woman may be at risk for HIV infection, and not know it;

(iv) The efficacy of treatments to reduce vertical transmission;

(v) The availability of anonymous testing, and why confidential testing is recommended for pregnant women;

(vi) The need to report HIV infection;

(vii) Public funds are available to assist eligible HIV-infected women receive medical care and other assistance; and

(viii) Women who decline testing will not be denied care for themselves or their infants;

(c) Obtaining the informed consent of the pregnant woman, separately or as part of the consent for a battery of other routine tests;

(d) Providing HIV testing unless the pregnant woman refuses to give consent;

(e) If the pregnant woman refuses a confidential test, discussing and addressing reasons for refusal and document in the medical record that refusal and the provision of education on the benefits of HIV testing;

(f) If the risk screening indicates, providing or referring for behavioral change counseling for women who:

(i) Have or recently have had a sexual partner(s) who is known to be HIV infected or is a man who has sex with another man or is an injection drug user;

(ii) Uses or recently used injection drugs;

(iii) Has signs or symptoms of HIV seroconversion;

(iv) Currently or has recently exchanged sex for drugs or money or had a sexually transmitted disease or had multiple sex partners; or

(v) Expresses a need for further, more intensive counseling; and

(g) Basing the behavioral change counseling on the standards defined in WAC 246-100-209 and the recommendations of the Federal Centers for Disease Control and Prevention published in Revised Guidelines for HIV Counseling, Testing and Referral, and Revised Recommendations for HIV Screening of Pregnant Women, November 9, 2001; and

(h) Offering referrals and providing follow-up to other necessary medical, social and HIV prevention services.

(2) Health care providers may obtain a sample brochure addressing the elements of subsection (1)(b) of this section by contacting the department of health's HIV prevention program at P.O. Box 47840, Olympia, WA 98504-7840.

(3) Principal health care providers shall counsel or ensure AIDS counseling as defined in WAC 246-100-011(2) for each patient seeking treatment of a sexually transmitted disease.

(((2))) (4) Drug treatment programs under chapter 70.96A RCW shall provide or ensure provision of AIDS counseling as defined in WAC 246-100-011(2) for each person in a drug treatment program.

(((3))) (5) Health care providers, persons, and organizations providing AIDS counseling in subsections (3) and (4) of this section shall:

(a) Assess the behaviors of each individual counseled for risk of acquiring and transmitting human immunodeficiency virus (HIV);

(b) Maintain a nonjudgmental environment during counseling which:

(i) Considers the individual's particular circumstances; and

(ii) Is culturally, socially, linguistically, and developmentally appropriate to the individual being counseled.

(c) Focus counseling on behaviors increasing the risk of HIV acquisition and transmission;

(d) Provide or ensure provision of personalized risk reduction education to individuals who:

(i) Are men who had sex with other men at any time since 1977;

(ii) Used intravenous substances at any time since 1977;

(iii) Engaged in sex for money or drugs at any time since 1977;

(iv) Have had sexual and/or injection equipment-sharing contact with persons listed in ((subsection (3)))(d)(i), (ii), and (iii) of this ((section)) subsection;

(v) Have been exposed to or known to have had a sexually transmitted disease at any time since 1977;

(vi) Are at increased risk of HIV infection by definition of United States Public Health Service, Centers for Disease Control and Prevention;

(vii) Are enrolled in a drug treatment program under chapter 69.54 RCW; or

(viii) Received multiple transfusions of blood, plasma, or blood products from 1977 to 1985.

(e) Encourage individuals assessed to be at other than virtually no risk of HIV infection to:

(i) Receive AIDS risk reduction counseling;

(ii) Consider information about the nature, purpose, and potential ramifications of HIV testing;

(iii) Receive pretest counseling;

(iv) Consider confidential or anonymous voluntary HIV testing if appropriate and understand the differences between "anonymous HIV testing" and "confidential HIV testing"; and

(v) "Virtually no risk of HIV infection" means persons with medical histories absent of and reporting none of the following factors:

(A) Transfusion with blood or blood products at any time since 1977;

(B) Residence at any time in countries where HIV is considered endemic since 1977;

(C) Unprotected sex between men at any time since 1977;

(D) Use of intravenous substances at any time since 1977, especially when sharing injection equipment;

(E) Engagement in sex for money or drugs at any time since 1977;

(F) Sexual and/or injection equipment-sharing contacts at any time since 1977 with persons listed in ((subsection (3)))(e)(v)(C), (D), and (E) of this ((section)) subsection;

(G) Exposure to a sexually transmitted disease; and

(H) Increased risk of HIV infection by definition of United States Public Health Service, Centers for Disease Control and Prevention.

(((4))) (6) Persons and organizations providing AIDS counseling may provide additional or more comprehensive counseling than required in this section.

[Statutory Authority: RCW 70.24.125 and 70.24.130. 99-17-077, 246-100-208, filed 8/13/99, effective 9/1/99. Statutory Authority: RCW 43.20.050 and 70.24.130. 92-02-019 (Order 225B), 246-100-208, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.20.050. 91-02-051 (Order 124B), recodified as 246-100-208, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 70.24 RCW. 88-17-058 (Order 318), 248-100-208, filed 8/17/88.]

Washington State Code Reviser's Office