H-2354

AN ACT Relating to counseling and testing for HIV diseases of persons charged with criminal offenses; amending RCW 70.24.105, 70.24.320, and 70.24.340; adding a new section to chapter 70.24 RCW; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 70.24.105 and 1989 c 123 s 1 are each amended to read as follows:

(1) No person may disclose or be compelled to disclose the identity of any person who has investigated, considered, or requested a test or treatment for a sexually transmitted disease, except as authorized by this chapter.

(2) No person may disclose or be compelled to disclose the identity of any person upon whom an HIV antibody test is performed, or the results of such a test, nor may the result of a test for any other sexually transmitted disease when it is positive be disclosed. This protection against disclosure of test subject, diagnosis, or treatment also applies to any information relating to diagnosis of or treatment for HIV infection and for any other confirmed sexually transmitted disease. The following persons, however, may receive such information including the results of an HIV antibody test:

(a) The subject of the test or the subject's legal representative for health care decisions in accordance with RCW 7.70.065, with the exception of such a representative of a minor child over fourteen years of age and otherwise competent;

(b) Any person who secures a specific release of test results or information relating to HIV or confirmed diagnosis of or treatment for any other sexually transmitted disease executed by the subject or the subject's legal representative for health care decisions in accordance with RCW 7.70.065, with the exception of such a representative of a minor child over fourteen years of age and otherwise competent;

(c) The state public health officer, a local public health officer, or the centers for disease control of the United States public health service in accordance with reporting requirements for a diagnosed case of a sexually transmitted disease;

(d) A health facility or health care provider that procures, processes, distributes, or uses: (i) A human body part, tissue, or blood from a deceased person with respect to medical information regarding that person; (ii) semen, including that provided prior to March 23, 1988, for the purpose of artificial insemination; or (iii) blood specimens;

(e) Any state or local public health officer conducting an investigation pursuant to RCW 70.24.024, provided that such record was obtained by means of court ordered HIV testing pursuant to RCW 70.24.340 or 70.24.024;

(f) A person allowed access to the record by a court order granted after application showing good cause therefor. In assessing good cause, the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of the order, the court, in determining the extent to which any disclosure of all or any part of the record of any such test is necessary, shall impose appropriate safeguards against unauthorized disclosure. An order authorizing disclosure shall: (i) Limit disclosure to those parts of the patient's record deemed essential to fulfill the objective for which the order was granted; (ii) limit disclosure to those persons whose need for information is the basis for the order; and (iii) include any other appropriate measures to keep disclosure to a minimum for the protection of the patient, the physician-patient relationship, and the treatment services, including but not limited to the written statement set forth in subsection (5) of this section;

(g) Persons who, because of their behavioral interaction with the infected individual, have been placed at risk for acquisition of a sexually transmitted disease, as provided in RCW 70.24.022, if the health officer or authorized representative believes that the exposed person was unaware that a risk of disease exposure existed and that the disclosure of the identity of the infected person is necessary;

(h) A law enforcement officer, fire fighter, health care provider, health care facility staff person, or other ((~~persons as defined by the board in rule pursuant to RCW 70.24.340(4),~~)) person who has requested a test ((~~of a person whose bodily fluids he or she has been substantially exposed to,~~)) pursuant to RCW 70.24.340(4)((~~, if a state or local public health officer performs the test~~));

(i) Claims management personnel employed by or associated with an insurer, health care service contractor, health maintenance organization, self-funded health plan, state-administered health care claims payer, or any other payer of health care claims where such disclosure is to be used solely for the prompt and accurate evaluation and payment of medical or related claims. Information released under this subsection shall be confidential and shall not be released or available to persons who are not involved in handling or determining medical claims payment; ((~~and~~))

(j) A department of social and health services worker, a child placing agency worker, or a guardian ad litem who is responsible for making or reviewing placement or case-planning decisions or recommendations to the court regarding a child, who is less than fourteen years of age, has a sexually transmitted disease, and is in the custody of the department of social and health services or a licensed child placing agency; this information may also be received by a person responsible for providing residential care for such a child when the department of social and health services or a licensed child placing agency determines that it is necessary for the provision of child care services;

(k) A person named as a victim of a charged criminal offense where he or she has requested a test of the accused pursuant to RCW 70.24.340(3); and

(l) A person named as a victim of a criminal offense where the offender is tested for HIV under RCW 70.24.340(2).

(3) No person to whom the results of a test for a sexually transmitted disease have been disclosed pursuant to subsection (2) of this section may disclose the test results to another person except as authorized by that subsection.

(4) The release of sexually transmitted disease information regarding an offender, except as provided in subsection (2)(e) of this section, shall be governed as follows:

(a) The sexually transmitted disease status of a department of corrections offender shall be made available by department of corrections health care providers to a department of corrections superintendent or administrator as necessary for disease prevention or control and for protection of the safety and security of the staff, offenders, and the public. The information may be submitted to transporting officers and receiving facilities, including facilities that are not under the department of correction's jurisdiction.

(b) The sexually transmitted disease status of a person detained in a jail shall be made available by the local public health officer to a jail administrator as necessary for disease prevention or control and for protection of the safety and security of the staff, offenders, and the public. The information may be submitted to transporting officers and receiving facilities.

(c) Information regarding a department of corrections offender's sexually transmitted disease status is confidential and may be disclosed by a correctional superintendent or administrator or local jail administrator only as necessary for disease prevention or control and for protection of the safety and security of the staff, offenders, and the public. Unauthorized disclosure of this information to any person may result in disciplinary action, in addition to any other penalties as may be prescribed by law.

(5) Whenever disclosure is made pursuant to this section, except for subsections (2)(a) and (6) of this section, it shall be accompanied by a statement in writing which includes the following or substantially similar language: "This information has been disclosed to you from records whose confidentiality is protected by state law. State law prohibits you from making any further disclosure of it without the specific written consent of the person to whom it pertains, or as otherwise permitted by state law. A general authorization for the release of medical or other information is NOT sufficient for this purpose." An oral disclosure shall be accompanied or followed by such a notice within ten days.

(6) The requirements of this section shall not apply to the customary methods utilized for the exchange of medical information among health care providers in order to provide health care services to the patient, nor shall they apply within health care facilities where there is a need for access to confidential medical information to fulfill professional duties.

(7) If the victim of a charged or convicted criminal offense is a minor, the victim's parents or legal guardian shall have all of the rights and remedies of a victim under this section. If the victim is a child, the prosecutor may petition the court pursuant to RCW 70.24.340 to require the charged or convicted person to submit to counseling and testing if the prosecutor in his or her discretion believes the testing would be in the best interests of the child.

Sec. 2. RCW 70.24.320 and 1988 c 206 s 701 are each amended to read as follows:

Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Pretest counseling" means counseling aimed at helping the individual understand ways to reduce the risk of HIV infection, the nature and purpose of the tests, the significance of the results, and the potential dangers of the disease, and to assess the individual's ability to cope with the results.

(2) "Posttest counseling" means further counseling following testing usually directed toward increasing the individual's understanding of the human immunodeficiency virus infection, changing the individual's behavior, and, if necessary, encouraging the individual to notify persons with whom there has been contact capable of spreading HIV.

(3) "AIDS counseling" means counseling directed toward increasing the individual's understanding of acquired immunodeficiency syndrome and changing the individual's behavior.

(4) "HIV testing" means a test indicative of infection with the human immunodeficiency virus ((~~as specified by the board of health by~~)), and subsequent tests at such intervals sufficient to detect HIV infection, as determined by the board in rule.

Sec. 3. RCW 70.24.340 and 1988 c 206 s 703 are each amended to read as follows:

(1) ((~~Local health departments authorized under this chapter shall conduct or cause to be conducted pretest counseling, HIV testing, and posttest counseling of all persons:~~

~~(a) Convicted of a sexual offense under chapter 9A.44 RCW;~~

~~(b) Convicted of prostitution or offenses relating to prostitution under chapter 9A.88 RCW; or~~

~~(c) Convicted of drug offenses under chapter 69.50 RCW if the court determines at the time of conviction that the related drug offense is one associated with the use of hypodermic needles.~~

~~(2) Such testing~~)) The purposes of the testing and disclosure provided in this section are: (a) To benefit the victim of a crime or assault which involved the substantial exposure to another's bodily fluids, creating a risk of transmission of HIV, by informing the victim whether the defendant or assailant is infected with the AIDS virus; (b) to protect the health of both victims of crime and assault and of those accused or convicted of committing a crime, or assailants; and (c) to protect the health of the public.

The legislature respects the need for confidentiality; requirements of confidentiality must be maintained as prescribed in RCW 70.24.105.

(2)(a) All persons who are convicted of the following offenses where the offense involved substantial exposure of bodily fluids presenting a possible risk of HIV infection, shall submit to pretest counseling, HIV testing, and posttest counseling to be performed by a local public health officer.

(i) Sexual offenses under chapter 9A.44 RCW or under local ordinance;

(ii) Prostitution or offenses relating to prostitution under chapter 9A.88 RCW or under local ordinance;

(iii) Drug offenses under chapter 69.50 RCW or under local ordinance, if a court determines at the time of conviction that the related drug offense is one associated with the use of hypodermic needles.

(b) Pretest counseling, HIV testing, and posttest counseling shall be conducted as soon as possible after sentencing and shall be so ordered by the sentencing judge.

((~~(3)~~)) (c) This section applies only to offenses committed after March 23, 1988.

(3)(a) The victim of a charged criminal offense may request, at any time, that the defendant submit to pretest counseling, HIV testing, and posttest counseling.

(b) The prosecuting attorney in the jurisdiction where the criminal charge was filed shall advise the victim, in writing, of the right to request counseling and testing. To assist the victim of the crime to determine whether he or she should make this request, the prosecutor shall refer the victim to the local health officer or other health care provider, who shall make available counseling and testing to help that person understand the extent to which the particular circumstances of the crime may or may not have put the victim at the risk of transmission of HIV and other communicable diseases, to ensure that the victim understands both the benefits and limitations of the current tests, to help the victim decide whether he or she wants to request that the accused be tested, and to help the victim decide whether he or she wants to be tested.

(d) Upon the request of the victim, the prosecuting attorney shall petition the court, as soon as possible after charging, for an order mandating that the defendant submit to counseling and testing, unless the defendant consents to such counseling and testing.

(e) The court in which the criminal charge is filed shall order the defendant to submit to tests to be performed by the local public health officer if the court finds, by a preponderance of the evidence, that during the course of the alleged criminal offense, the victim was substantially exposed to the defendant's bodily fluids, presenting a possible risk of HIV infection. The board in rule shall define "substantial exposure" and "exposure presenting possible risk."

(f) The court shall base its finding upon affidavits submitted by the victim, the defendant, the public health officer, or the prosecuting attorney. Any affidavit of the public health officer should set forth the circumstances under which a victim may be substantially exposed to the bodily fluids of another, presenting a possible risk of transmission. The prosecuting attorney may present the request for an order and supporting affidavits to the court and obtain the order without the presence of the victim or the public health officer.

(g) Once the order is granted, the prosecuting attorney shall notify the public health officer of the order and of the location of the defendant. The public health officer shall complete the counseling and testing process as soon as possible, and at such subsequent intervals as are sufficient to detect infection, as determined by the board in rule under section 4 of this act. The public health officer shall notify the prosecuting attorney of the fact that the initial testing process has been completed.

(h) The public health officer shall have the responsibility for disclosing test results to, and counseling, the victim who requested the test and to the accused who was tested, as soon as possible after the results become available.

(i) The results of any blood tested pursuant to (e) of this subsection shall not be used in any criminal proceeding as evidence of either guilt or innocence or for sentencing on conviction of the charges.

(4) A law enforcement officer, fire fighter, health care provider, health care facility staff person, or other categories of employment determined by the board in rule to be at risk of substantial exposure to HIV, who has experienced a substantial exposure to another person's bodily fluids in the course of his or her employment, may request a state or local public health officer to order pretest counseling, HIV testing, and posttest counseling for the person whose bodily fluids he or she has been exposed to. The person who is subject to the order shall be given written notice of the order promptly, personally, and confidentially, stating the grounds and provisions of the order, including the factual basis therefor. If the person who is subject to the order refuses to comply, the state or local public health officer may petition the superior court for a hearing. The standard of review for the order is whether substantial exposure occurred and whether that exposure presents a possible risk of transmission of the HIV virus as defined by the board by rule. Upon conclusion of the hearing, the court shall issue the appropriate order. The state or local public health officer shall perform counseling and testing under this subsection if he or she ((~~finds that the exposure was substantial and presents a possible risk as defined by the board of health by rule~~)) receives the consent of the person to be tested, or if ordered by the court to do so.

(5) If the victim of a charged criminal offense is a minor, the victim's parent or legal guardian shall have all of the rights and remedies of a victim under this section. If the victim is a child, the prosecutor may petition the court under this section to require the charged or convicted person to submit to counseling and testing if the prosecutor in his or her discretion believes the testing would be in the best interests of the child.

NEW SECTION. Sec. 4. A new section is added to chapter 70.24 RCW to read as follows:

The board shall by October 1, 1991, adopt rules that specify a schedule for testing at sufficient intervals to detect HIV infection under RCW 70.24.320(4).

NEW SECTION. Sec. 5. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 6. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.