WSR 97-15-099

PERMANENT RULES

STATE BOARD OF HEALTH

[Filed July 21, 1997, 10:21 a.m., effective July 21, 1997]

Date of Adoption: July 21, 1997.

Purpose: (1) Amend certain sections of chapter 246-100 WAC to assure a "good faith" and "reasonable" effort is made to notify current and/or former spouses of persons with HIV infection of the possible exposure to HIV and of the need for HIV testing.

(2) Amend WAC 246-100-206 (10)(a) to allow funeral directors and embalmers are added to the employment categories that may request the health officer to order HIV testing if a substantial exposure is experienced. Both actions are necessary to comply with 1996 Ryan White CARE Act amendments.

Citation of Existing Rules Affected by this Order: Amending WAC 246-100-011, 246-100-036, 246-100-072, 246-100-206, and 246-100-209.

Statutory Authority for Adoption: RCW 70.24.022 and [70.24].340.

Other Authority: Public Law 104-146.

Adopted under notice filed as WSR 97-06-110 on March 5, 1997.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 5, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 0, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: Based on the testimony of John Peppert, manager of the HIV/AIDS Office of Prevention and Education Services at the Department of Health, the State Board of Health finds that the following reason necessitates an immediate effective date upon filing of the adopted rule:

The amendments to be adopted are designed [to] bring Washington into compliance with Public Law 104-146, the Ryan White CARE Act and amendments of 1996. Section 8 of this act requires states make a good faith effort [to] notify a spouse of a known HIV infected person that such spouse should seek testing. Additionally, the act requires that funeral directors who are occupationally exposed to the bodily fluids of a corpse be provided with the HIV status of that corpse.

The Centers for Disease Control and Prevention has required that the state certify that it has made a good faith effort to incorporate these changes into its protocols. States that fail to certify that they have made a good faith effort to implement these changes are ineligible to receive funds from Part B of the Ryan White CARE Act, administered by the Health Resources Services Administration.

The above described condition constitutes good cause to find threat to the public health, safety or welfare. The amendments are narrowly tailored to meet these conditions. Because funding from the Ryan White CARE Act is crucial to Washington's HIV/AIDS prevention and care services programs, observing the customary thirty day waiting period after filing the CR-103 for the rule to become effective is contrary to the public interest.

Effective Date of Rule: July 21, 1997.

July 11, 1997

Sylvia Beck

Executive Director

AMENDATORY SECTION (Amending Order 354B, filed 4/1/93, effective 5/2/93)

WAC 246-100-011 Definitions. The following definitions shall apply in the interpretation and enforcement of chapter 246-100 WAC:

(1) "Acquired immunodeficiency syndrome (AIDS)" means illness, disease, or conditions defined and described by the Centers for Disease Control, U.S. Public Health Service, Morbidity and Mortality Weekly Report (MMWR), December 18, 1992, Volume 41, Number RR-17.

(2) "AIDS counseling" means counseling directed toward:

(a) Increasing the individual's understanding of acquired immunodeficiency syndrome; and

(b) Assessing the individual's risk of HIV acquisition and transmission; and

(c) Affecting the individual's behavior in ways to reduce the risk of acquiring and transmitting HIV infection.

(3) "Board" means the Washington state board of health.

(4) "Carrier" means a person harboring a specific infectious agent and serving as a potential source of infection to others, but who may or may not have signs and/or symptoms of the disease.

(5) "Case" means a person, alive or dead, having been diagnosed to have a particular disease or condition by a health care provider with diagnosis based on clinical or laboratory criteria or both.

(6) "Category A disease or condition" means a reportable disease or condition of urgent public health importance, a case or suspected case of which must be reported to the local or state health officer immediately at the time of diagnosis or suspected diagnosis.

(7) "Category B disease or condition" means a reportable disease or condition of public health importance, a case of which must be reported to the local health officer no later than the next working day following date of diagnosis.

(8) "Category C disease or condition" means a reportable disease or condition of public health importance, a case of which must be reported to the local health officer within seven days of diagnosis.

(9) "Child day care facility" means an agency regularly providing care for a group of children for less than twenty-four hours a day and subject to licensing under chapter 74.15 RCW.

(10) "Communicable disease" means an illness caused by an infectious agent which can be transmitted from one person, animal, or object to another person by direct or indirect means including transmission via an intermediate host or vector, food, water, or air.

(11) "Contact" means a person exposed to an infected person, animal, or contaminated environment which might provide an opportunity to acquire the infection.

(12) "Department" means the Washington state department of social and health services.

(13) "Detention" or "detainment" means physical restriction of activities of an individual by confinement, consistent with WAC 246-100-206(8), for the purpose of monitoring and eliminating behaviors presenting imminent danger to public health and may include physical plant, facilities, equipment, and/or personnel to physically restrict activities of the individual to accomplish such purposes.

(14) "Food handler" means any person preparing, processing, handling, or serving food or beverages for people other than members of his or her household.

(15) "Food service establishment" means any establishment where food or beverages are prepared for sale or service on the premises or elsewhere, and any other establishment or operation where food is served or provided for the public with or without charge.

(16) "Health care facility" means:

(a) Any facility or institution licensed under chapter 18.20 RCW, boarding home, chapter 18.46 RCW, maternity homes, chapter 18.51 RCW, nursing homes, chapter 70.41 RCW, hospitals, or chapter 71.12 RCW, private establishments, clinics, or other settings where one or more health care providers practice; and

(b) In reference to a sexually transmitted disease, other settings as defined in chapter 70.24 RCW.

(17) "Health care provider" means any person having direct or supervisory responsibility for the delivery of health care or medical care who is:

(a) Licensed or certified in this state under Title 18 RCW; or

(b) Is military personnel providing health care within the state regardless of licensure.

(18) "HIV testing" means conducting a laboratory test or sequence of tests to detect the human immunodeficiency virus (HIV) or antibodies to HIV performed in accordance with requirements to WAC 246-100-207. To assure that the protection, including but not limited to, pre- and post-test counseling, consent, and confidentiality afforded to HIV testing as described in chapter 246-100 WAC also applies to the enumeration of CD4+ (T4) lymphocyte counts (CD4+ counts) and CD4+ (T4) percents of total lymphocytes (CD4+ percents) when used to diagnose HIV infection, CD4+ counts and CD4+ percents will be presumed HIV testing except when shown by clear and convincing evidence to be for use in the following circumstances:

(a) Monitoring previously diagnosed infection with HIV;

(b) Monitoring organ or bone marrow transplants;

(c) Monitoring chemotherapy;

(d) Medical research; or

(e) Diagnosis or monitoring of congenital immunodeficiency states or autoimmune states not related to HIV.

The burden of proving the existence of one or more of the circumstances identified in (a) through (e) of this subsection shall be on the person asserting such existence.

(19) "Infection control measures" means the management of infected persons, persons suspected to be infected, and others in such a manner as to prevent transmission of the infectious agent.

(20) "Isolation" means the separation or restriction of activities of infected persons, or of persons suspected to be infected, from other persons to prevent transmission of the infectious agent.

(21) "Laboratory director" means the director or manager, by whatever title known, having the administrative responsibility in any medical laboratory.

(22) "Local health department" means the city, town, county, or district agency providing public health services to persons within the area, as provided in chapter 70.05 RCW and chapter 70.08 RCW.

(23) "Local health officer" means the individual having been appointed under chapter 70.05 RCW as the health officer for the local health department, or having been appointed under chapter 70.08 RCW as the director of public health of a combined city-county health department.

(24) "Medical laboratory" means any facility analyzing specimens of original material from the human body for purposes of patient care.

(25) "Nosocomial infection" means an infection acquired in a hospital or other health care facility.

(26) "Outbreak" means the occurrence of cases of a disease or condition in any area over a given period of time in excess of the expected number of cases.

(27) "Post-test counseling" means counseling after the HIV test when results are provided and directed toward:

(a) Increasing the individual's understanding of human immunodeficiency virus (HIV) infection;

(b) Affecting the individual's behavior in ways to reduce the risk of acquiring and transmitting HIV infection;

(c) Encouraging the individual testing positive to notify persons with whom there has been contact capable of spreading HIV;

(d) Assessing emotional impact of HIV test results; and

(e) Appropriate referral for other community support services.

(28) "Pretest counseling" means counseling provided prior to HIV testing and aimed at:

(a) Helping an individual to understand:

(i) Ways to reduce the risk of human immunodeficiency virus (HIV) transmission;

(ii) The nature, purpose, and potential ramifications of HIV testing;

(iii) The significance of the results of HIV testing; and

(iv) The dangers of HIV infection; and

(b) Assessing the individual's ability to cope with the results of HIV testing.

(29) "Principal health care provider" means the attending physician or other health care provider recognized as primarily responsible for diagnosis and treatment of a patient or, in the absence of such, the health care provider initiating diagnostic testing or therapy for a patient.

(30) "Quarantine" means the separation or restriction on activities of a person having been exposed to or infected with an infectious agent, to prevent disease transmission.

(31) "Reportable disease or condition" means a disease or condition of public health importance, a case of which, and for certain diseases, a suspected case of which, must be brought to the attention of the local health officer.

(32) "School" means a facility for programs of education as defined in RCW 28A.210.070 (preschool and kindergarten through grade twelve).

(33) "Sexually transmitted disease (STD)" means a bacterial, viral, fungal, or parasitic disease or condition which is usually transmitted through sexual contact, including:

(a) Acute pelvic inflammatory disease;

(b) Chancroid;

(c) Chlamydia trachomatis infection;

(d) Genital and neonatal herpes simplex;

(e) Genital human papilloma virus infection;

(f) Gonorrhea;

(g) Granuloma inguinale;

(h) Hepatitis B infection;

(i) Human immunodeficiency virus infection (HIV) and acquired immunodeficiency syndrome (AIDS);

(j) Lymphogranuloma venereum;

(k) Nongonococcal urethritis (NGU); and

(l) Syphilis.

(34) "Spouse" means any individual who is the marriage partner of an HIV-infected individual, or who has been the marriage partner of the HIV-infected individual within the ten-year period prior to the diagnosis of HIV-infection, and evidence exists of possible exposure to HIV.

(35) "State health officer" means the person designated by the secretary of the department to serve as statewide health officer, or, in the absence of such designation, the person having primary responsibility for public health matters in the state.

(((35))) (36) "Suspected case" means a person whose diagnosis is thought likely to be a particular disease or condition with suspected diagnosis based on signs and symptoms, laboratory evidence, or both.

(((36))) (37) "Unusual communicable disease" means a communicable disease which is not commonly seen in the state of Washington but which is of general public health concern including, but not limited to, Lassa fever, smallpox, typhus, and yellow fever.

(((37))) (38) "Veterinarian" means an individual licensed under provisions of chapter 18.92 RCW, veterinary medicine, surgery, and dentistry and practicing animal health care.

[Statutory Authority: Chapter 70.24 RCW. 93-08-036 (Order 354B), 246-100-011, filed 4/1/93, effective 5/2/93. Statutory Authority: RCW 43.20.050 and 70.24.130. 92-02-019 (Order 225B), 246-100-011, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.20.050. 91-02-051 (Order 124B), recodified as 246-100-011, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 70.24 RCW. 89-07-095 (Order 325), 248-100-011, filed 3/22/89; 88-17-057 (Order 317), 248-100-011, filed 8/17/88. Statutory Authority: RCW 43.20.050. 88-07-063 (Order 308), 248-100-011, filed 3/16/88; 87-11-047 (Order 302), 248-100-011, filed 5/19/87.]

AMENDATORY SECTION (Amending Order 225B, filed 12/23/91, effective 1/23/92)

WAC 246-100-036 Responsibilities and duties--Local health officers. (1) The local health officer shall review and determine appropriate action for:

(a) Each reported case or suspected case of a reportable disease or condition;

(b) Any disease or condition considered a threat to public health;

(c) Each reported outbreak or suspected outbreak of disease, requesting assistance from the department in carrying out investigations when necessary; and

(d) Instituting disease prevention and infection control, isolation, detention, and quarantine measures necessary to prevent the spread of communicable disease, invoking the power of the courts to enforce these measures when necessary.

(2) Local health officers shall:

(a) Submit reports to the state health officer as required in chapter 246-100 WAC;

(b) Establish a system at the local health department for maintaining confidentiality of written records and written and telephoned disease case reports consistent with WAC 246-100-016;

(c) Notify health care providers within the health district regarding requirements in this chapter;

(d) Distribute appropriate report forms to persons responsible for reporting;

(e) Notify the principal health care provider, if possible, prior to initiating a case investigation by the local health department;

(f) Make HIV testing, AIDS counseling, and pretest and post-test counseling, as defined in this chapter, available for voluntary, mandatory, and anonymous testing and counseling as required by RCW 70.24.400;

(g) Make information on anonymous HIV testing, AIDS counseling, and pretest and post-test counseling, as described under WAC 246-100-208 and 246-100-209, available;

(h) Use identifying information on HIV-infected individuals provided according to WAC 246-100-072 only:

(i) For purposes of contacting the HIV-positive individual to provide test results and post-test counseling; or

(ii) To contact sex and injection equipment-sharing partners, including spouses; and

(i) Destroy documentation of referral information established in WAC 246-100-072 and this subsection containing identities and identifying information on HIV-infected individuals and at-risk partners of those individuals immediately after notifying partners or within three months, whichever occurs first.

(3) Each local health officer has the authority to:

(a) Carry out additional steps determined to be necessary to verify a diagnosis reported by a health care provider;

(b) Require any person suspected of having a reportable disease or condition to submit to examinations required to determine the presence of the disease or condition; and

(c) Investigate any case or suspected case of a reportable disease or condition or other illness, communicable or otherwise, if deemed necessary.

(4) Local health officers shall conduct investigations and institute control measures consistent with those indicated in the fifteenth edition 1990 of Control of Communicable Diseases in Man, edited by Abram S. Benenson, published by the American public health association, except:

(a) When superseded by more up-to-date measures, or

(b) When other measures are more specifically related to Washington state.

[Statutory Authority: RCW 43.20.050 and 70.24.130. 92-02-019 (Order 225B), 246-100-036, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.20.050. 91-02-051 (Order 124B), recodified as 246-100-036, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 70.24 RCW. 89-02-008 (Order 324), 248-100-036, filed 12/27/88. Statutory Authority: RCW 43.20.050. 88-07-063 (Order 308), 248-100-036, filed 3/16/88.]

AMENDATORY SECTION (Amending Order 225B, filed 12/23/91, effective 1/23/92)

WAC 246-100-072 Rules for notification of partners at-risk of HIV infection. (1) A health care provider may consult with the local health officer or an authorized representative about an HIV-infected individual without identifying the individual.

(2) Only under the specific circumstances listed below, a principal health care provider shall report the identity of sex or injection equipment-sharing partners, including spouses, of an HIV-infected individual to the local health officer or an authorized representative:

(a) After being informed of the necessity to notify sex and injection-equipment sharing partners, including spouses, and confirm notification to the health care provider, the HIV-infected individual either refuses or is unable to notify partners that partners:

(i) May have been exposed to and infected with HIV; and

(ii) Should seek HIV-pretest counseling and consider HIV testing; and

(b) The HIV-infected individual neither accepts assistance nor agrees to referral to the local health officer or an authorized representative for assistance in notifying partners.

(3) Only in the specific circumstances listed below, a principal health care provider shall report the identity of an individual with a positive HIV test result to the local health officer or an authorized representative:

(a) The principal health care provider provided pretest counseling as described in WAC 246-100-209(1) before the individual was tested; and

(b) The principal health care provider made efforts, but was unable to meet face-to-face with the individual to notify the individual of the HIV-test result and to provide post-test counseling as required in WAC 246-100-209 in order to assure partner notification.

(4) A health care provider shall not disclose the identity of an HIV-infected individual or the identity of sex and injection equipment-sharing partners, including spouses, at risk of HIV infection, except as authorized in RCW 70.24.105, WAC 246-100-072, or 246-100-076.

(5) Local health officers and authorized representatives shall:

(a) Confirm conditions in subsections (2) and (3) of this section were met prior to initiating partner notification or receiving referral of identity of an HIV-infected individual; and

(b) Use identifying information, provided according to this section, on HIV-infected individuals only for contacting the HIV-infected individual to provide post-test counseling or to contact sex and injection equipment-sharing partners, including spouses; and

(c) Destroy documentation of referral information established under this subsection, containing identities and identifying information on the HIV-infected individual and at-risk partners of that individual, immediately after notifying partners or within three months of the date information was received, whichever occurs first.

[Statutory Authority: RCW 43.20.050 and 70.24.130. 92-02-019 (Order 225B), 246-100-072, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.20.050. 91-02-051 (Order 124B), recodified as 246-100-072, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 70.24 RCW. 89-02-008 (Order 324), 248-100-072, filed 12/27/88.]

AMENDATORY SECTION (Amending Order 225B, filed 12/23/91, effective 1/23/92)

WAC 246-100-206 Special diseases--Sexually transmitted diseases. (1) Definitions.

(a) "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)(a)(i) and (ii) of this section; and

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

(b) "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)(b)(i)(A), (B), (C), and (D) of this section; and

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

(c) "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)(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.

(d) "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.

(e) "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.

(f) "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) 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) 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) 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) 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) 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) 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)(a) of this section; and

(iv) Enlisting, if appropriate, court enforcement of the orders described in subsections (7)(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)(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) 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)(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 subsections (8)(d), (e), and (f) of this section;

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

(iii) Provide to the court an individualized plan for education and counseling consistent with subsection (8)(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)(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)(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) 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) 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) 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 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 Order 225B, filed 12/23/91, effective 1/23/92)

WAC 246-100-209 Counseling standards--Human immunodeficiency virus (HIV) pretest counseling--HIV post-test counseling. (1) Health care providers and other persons providing pretest counseling shall:

(a) Assess the individual's risk of acquiring and transmitting HIV by evaluating information about the individual's possible risk-behaviors;

(b) Provide at least one individual counseling session prior to HIV testing;

(c) Inform any individual planning to be tested for HIV that:

(i) If the test result is positive, the tested individual needs to notify sex and injection equipment-sharing partners that partners, including spouses:

(A) May have been exposed to and infected with HIV; and

(B) Should seek HIV pretest counseling and consider HIV testing; and

(ii) Unless HIV testing is anonymous, the principal health care provider is required to refer identities of at-risk partners to the local health officer or authorized representative if:

(A) The HIV-infected individual either refuses or is unable to notify partners of exposure, possible infection, and need for pretest counseling and HIV testing; or

(B) The HIV-infected individual neither accepts assistance nor agrees to referral to the local health officer or an authorized representative for assistance in notifying partners; and

(iii) Unless HIV testing is anonymous, the principal health care provider is required to refer the identify of the individual testing positive to the local health officer or an authorized representative if the principal health ((car [care])) care provider made efforts, but was unable to meet face-to-face with the individual to:

(A) Notify the individual of the HIV test result; and

(B) Provide post-test counseling, as required in this section, to assure partner notification.

(2) When an individual is assessed by a counselor or health care provider as "virtually no risk of HIV infection," as defined in WAC 246-100-208 (3)(e)(v) a counselor or the health care provider shall, in addition to subsection (1)(a) of this section:

(a) 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.

(b) Explain the nature, purpose, value, and reason for the HIV tests;

(c) Explain the possible effect of HIV testing and a positive HIV test result related to employment, insurance, housing, and other potential legal, social, and personal consequences;

(d) Develop and maintain a system of referral and make referrals that:

(i) Are accessible and confidential for those counseled;

(ii) Are acceptable to and supportive of those counseled;

(iii) Provide assistance to those counseled in maintaining risk reduction behaviors.

(e) Provide at least one individual counseling session at the time HIV test results are disclosed to individuals testing positive; and

(f) Maintain disclosure and confidentiality requirements in WAC 246-100-016.

(3) If the individual is assessed by a health care provider to be other than "virtually no risk of HIV infection," as defined in WAC 246-100-208 (3)(e)(v), the person providing pretest counseling shall maintain requirements in subsection (1) and (2) of this section and:

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

(b) Provide personalized risk reduction education to individuals who:

(i) Are men engaging in unprotected intercourse with other men at any time since 1977;

(ii) Used intravenous substances at any time since 1977, especially those sharing injection equipment;

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

(iv) Have had sexual and/or injection equipment-sharing contacts at any time since 1977 with persons listed in subsection (3)(b)(i), (ii), and (iii) of this section;

(v) Have been exposed to or diagnosed with a sexually transmitted disease;

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

(vii) Are required by RCW 70.24.095 and 70.24.340 to receive HIV counseling and testing.

(c) Inform any individual planning to be tested for HIV of the need to notify sexual and injection equipment-sharing partners, including spouses, if test results are positive;

(d) Advise individuals listed in subsection (3)(b)(i), (ii), and (iii) of this section not to donate or sell blood, blood products, semen, organs, or other body tissues; and

(e) Emphasize or reemphasize the following counseling messages:

(i) The following will eliminate or decrease the risk of HIV infection:

(A) Sexual abstinence;

(B) A mutually monogamous relationship between uninfected people; and

(C) Following safer sex guidelines.

(ii) Do not share intravenous drugs and injection equipment;

(iii) Do not engage in behaviors in which blood, vaginal fluid, or semen is exchanged;

(iv) Condoms, even if used properly, do not supply absolute protection from HIV infection;

(v) Condoms may reduce risk of HIV infection if the condom is:

(A) Latex and used with a water-based lubricant rather than an oil-based lubricant, if a lubricant is used;

(B) Used in conjunction with spermicide during vaginal or anal intercourse; and

(C) Worn from start to finish of vaginal, oral, and anal intercourse.

(vi) Dental dams may reduce risk of HIV infection if the dental dam is:

(A) Latex; and

(B) Used from start to finish of oral intercourse.

(vii) The sexual behaviors having highest risk for HIV infection are those involving the exchange of blood or semen, especially receptive anal and vaginal intercourse;

(viii) Anal intercourse may increase the risk of condom failure and HIV infection;

(ix) Infected women should postpone pregnancy until more is known about how to prevent prenatal and perinatal transmission of HIV infection;

(x) Sexual negotiation skills can be learned to enhance risk reduction; and

(xi) Other sexually transmitted diseases, especially those causing genital ulcers, may increase the risk of acquiring or transmitting HIV infection.

(f) Make those counseled aware HIV retesting at a later date may be necessary or recommended.

(4) Persons providing post-test counseling shall:

(a) Follow requirements in subsection (1) of this section;

(b) Provide at least one individual counseling session at the time HIV test results are disclosed for individuals:

(i) Testing positive for HIV; or

(ii) Reporting practice of behaviors listed in (3)(b)(i), (ii), and (iii) of this section.

(c) If the individual being counseled tested positive for HIV infection:

(i) Provide assistance to persons in notifying partners, including spouses, and confirm those partners including spouses have been notified; and/or

(ii) Offer to refer individuals to the local health officer as necessary for assistance in notifying partners; and/or

(iii) Offer to refer partners for counseling and testing; and

(iv) Develop or adopt a system to avoid documenting the names of referred partners in the permanent record of the individual being counseled; and

(v) Offer referral for alcohol and drug and mental health counseling, including suicide prevention, if appropriate; and

(vi) Refer for tuberculosis screening.

[Statutory Authority: RCW 43.20.050 and 70.24.130. 92-02-019 (Order 225B), 246-100-209, filed 12/23/91, effective 1/23/92. Statutory Authority: RCW 43.20.050. 91-02-051 (Order 124B), recodified as 246-100-209, filed 12/27/90, effective 1/31/91. Statutory Authority: Chapter 70.24 RCW. 89-02-008 (Order 324), 248-100-209, filed 12/27/88; 88-17-058 (Order 318), 248-100-209, filed 8/17/88.]

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