6285-S.E

AN ACT Relating to disclosure of offenders' HIV test results to department of corrections and jail staff; amending RCW 70.24.015 and 70.24.105; and creating new sections.

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

Sec. 1. RCW 70.24.015 and 1988 c 206 s 901 are each amended to read as follows:

The legislature declares that sexually transmitted diseases constitute a serious and sometimes fatal threat to the public and individual health and welfare of the people of the state. The legislature finds that the incidence of sexually transmitted diseases is rising at an alarming rate and that these diseases result in significant social, health, and economic costs, including infant and maternal mortality, temporary and lifelong disability, and premature death. The legislature further finds that sexually transmitted diseases, by their nature, involve sensitive issues of privacy, and it is the intent of the legislature that all programs designed to deal with these diseases afford patients privacy, confidentiality, and dignity. The legislature also finds that medical knowledge and information about sexually transmitted diseases are rapidly changing. It is therefore the intent of the legislature to provide a program that is sufficiently flexible to meet emerging needs, deals efficiently and effectively with reducing the incidence of sexually transmitted diseases, and provides patients with a secure knowledge that information they provide will remain private and confidential. The legislature further finds that department of corrections staff and jail staff perform essential public functions that are vital to our communities. The health and safety of these workers is often placed in jeopardy while they perform the responsibilities of their jobs. Therefore, the legislature intends that department of corrections staff and jail staff who, in the course of their regularly assigned job responsibilities, may come within close physical proximity to offenders and detained people be notified of the results of an HIV antibody test when the test is mandated by law pursuant to this chapter. However, the legislature recognizes that the mandatory disclosure of the HIV status of individual offenders may cause some corrections and jail staff to use more precautions with those offenders and detained people they know to be HIV positive. The legislature also recognizes the risk exists that some corrections and jail staff may correspondingly use fewer precautions with those offenders and detained people they are not informed are HIV positive. The legislature finds, however, that the system of universal precautions required under federal and state law in all settings where risk of occupational exposure to communicable diseases exists remains the most effective way to reduce the risk of communicable disease transmission. The legislature does not intend to discourage the use of universal precautions but to provide supplemental information for corrections and jail staff to utilize as part of their universal precautions with all offenders and detained people.

NEW SECTION. Sec. 2. The legislature finds that, through the efforts of health care professionals and corrections staff, offenders in department of corrections facilities and people detained in local jails are being encouraged to take responsibility for their health by requesting voluntary and anonymous pretest counseling, HIV testing, posttest counseling, and AIDS counseling. The legislature does not intend, through this act, to mandate disclosure of the results of voluntary and anonymous tests. The legislature intends to continue to protect the confidential exchange of medical information related to voluntary and anonymous pretest counseling, HIV testing, posttest counseling, and AIDS counseling as provided by chapter 70.24 RCW.

Sec. 3. RCW 70.24.105 and 1994 c 72 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.

(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 or detained person, 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 and local public health officers to a department of corrections superintendent or administrator ((~~as necessary~~)). The information made available to superintendents and administrators under this subsection (4)(a) shall be utilized by a superintendent or administrator only for disease prevention or control and for protection of the safety and security of the staff, offenders, and the public. The information ((~~may~~)) shall also be submitted to transporting officers and receiving facilities, including facilities that are not under the department of ((~~correction's~~)) corrections' 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~~)). The information made available to administrators under this subsection (4)(b) shall be utilized only for disease prevention or control and for protection of the safety and security of the staff, offenders, detainees, and the public. The information ((~~may~~)) shall also be submitted to transporting officers and receiving facilities.

(c) Information regarding ((~~a department of corrections offender's~~)) the sexually transmitted disease status of an offender or detained person 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)), except that any department of corrections staff or jail staff who has requested a test of an offender or detained person, whose bodily fluids he or she has been substantially exposed to, shall be informed of the results if a test is conducted pursuant to RCW 70.24.360 or 70.24.370. In addition, information received by a superintendent or administrator under (a) and (b) of this subsection as a result of a mandatory test conducted pursuant to RCW 70.24.340, 70.24.360, or 70.24.370 shall be disclosed to all department of corrections staff and jail staff who, in the course of their regularly assigned job responsibilities, may come within close physical proximity to the offender or detained person. Unauthorized disclosure of this information to any person may result in disciplinary action, in addition to the penalties prescribed in RCW 70.24.080 or any other penalties as may be prescribed by law.

(d) The receipt by any individual of any information disclosed pursuant to this subsection shall be utilized only for disease prevention or control and for protection of the safety and security of the staff, offenders, detainees, and the public. Use of this information for any other purpose, including harassment or discrimination, may result in disciplinary action, in addition to thepenalties prescribed in RCW 70.24.080 or 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) Upon request of the victim, disclosure of test results under this section to victims of sexual offenses under chapter 9A.44 RCW shall be made if the result is negative or positive. The county prosecuting attorney shall notify the victim of the right to such disclosure. Such disclosure shall be accompanied by appropriate counseling, including information regarding follow-up testing.

NEW SECTION. Sec. 4. The department of health and the department of corrections shall each adopt rules to implement this act. The department of health and the department of corrections shall also report to the legislature by January 1, 1997, on the following: (1) Changes made in rules, policies, and procedures to implement this act; and (2) a summary of the number and circumstances of mandatory test results that were disclosed to department of corrections staff and jail staff pursuant to section 3 of this act.