S-2090

AN ACT Relating to HIV testing of alleged sex offenders; amending RCW 70.24.105 and 70.24.340; adding new sections to chapter 70.24 RCW; and creating a new section.

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:

(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), 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; and

(k) A person named as a victim of any criminal offense, or that person's legal representative for health care decisions in accordance with RCW 7.70.065, where the victim was substantially exposed to the bodily fluids of the accused, as defined by the board by rule, and testing was conducted pursuant to RCW 70.24.340 or section 4 of this act.

(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.

Sec. 2. 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~~)) criminal offense involving a victim who was substantially exposed to the bodily fluids of the accused and the exposure presents a possible risk of infection, as defined by the board by rule;

(b) Convicted of prostitution ((~~or offenses relating to prostitution under chapter 9A.88 RCW~~)), under RCW 9A.88.030, or patronizing a prostitute, under RCW 9A.88.110; 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 shall be conducted as soon as possible after sentencing and shall be so ordered by the sentencing judge.

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

(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, or any good samaritan who experienced a substantial exposure and who qualifies for immunity under RCW 4.24.300, 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.

NEW SECTION. Sec. 3. A new section is added to chapter 70.24 RCW to read as follows:

The board of health shall by October 1, 1991, adopt rules that specify a schedule for testing at sufficient intervals to detect the HIV infection for persons requiring testing under RCW 70.24.340 and section 4 of this act.

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

(1) The victim of a charged criminal offense, or that person's legal representative for health care decisions in accordance with RCW 7.70.065, shall have the right to request that the accused submit to certain tests, as defined by the board in rule, to determine if the accused carries the HIV antibody.

(2) The prosecuting attorney in the county where the charge was filed shall advise the victim, in writing, of the right to request testing of the accused. To assist the victim in determining whether he or she should make this request, the prosecutor shall refer the victim to the local health officer or health care provider, who shall make available prerequest counseling and testing. The counseling shall be designed: (a) To assist the person in understanding the risk of transmission of the HIV antibody based on the particular circumstances of the crime, (b) to ensure the person understands both the benefits and limitations of the current tests, and (c) to help the victim in deciding whether to be tested and whether to request the testing of the accused.

(3) Upon request of the victim, the prosecuting attorney shall petition the court, as soon as possible, for an order mandating that the accused be tested for the HIV antibody.

(4) The court shall order the accused to submit to testing 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 bodily fluids of the accused and the exposure presents a possible risk of infection. The order shall require the accused to report to the local public health department for testing if the person is not in custody or if the accused is released from custody prior to testing. The court shall use the board's definition of "substantial exposure" and "exposure presenting possible risk," as adopted by rule.

(5) The court shall base its findings upon affidavits submitted by the victim, accused, public health officer, prosecutor, or any other witnesses. The affidavit of the public health officer shall set forth the type of circumstances under which a victim may be substantially exposed to the bodily fluids of another, presenting a possible risk of transmission of the HIV antibody. The prosecutor may present the petition and affidavits to the court and obtain the order without the presence of the victim or the public health officer.

(6) Upon issuance of the order the prosecutor shall immediately notify the public health officer of the order and of the location of the accused if the accused is in custody. The public health officer shall initiate the testing process as soon as possible, and shall conduct testing at the intervals determined necessary by the board under section 3 of this act. Testing shall not occur under this section after the accused is acquitted or charges are dismissed.

(7) Any blood tested under this section shall be subjected to appropriate confirmatory tests to ensure accuracy of the first test results. Initially reactive test results shall not be released until confirmed for positive reactors. When available, the public health officer shall report the results to the victim and to the accused. Positive test results shall not be disclosed without providing or offering to provide professional counseling as appropriate to the circumstances.

(8) The results of any blood tested pursuant to this section shall not be used in any criminal proceeding as evidence of guilt or innocence.

(9) A victim may also use the procedure provided in this section to request the testing of a person convicted of a criminal offense involving a substantial exposure to the bodily fluids of the accused and the exposure presents a possible risk of infection to the victim, as defined by the board by rule.

NEW SECTION. Sec. 5. If specific funding for the purposes of this act, referencing this act by bill number, is not provided by June 30, 1991, in the omnibus appropriations act, this act shall be null and void.