AN ACT
Relating to disclosure of offenders' HIV test results to department of
corrections and jail staff; amending RCW 70.24.105; adding a new section to
chapter 72.09 RCW; adding a new section to chapter 70.48 RCW; and creating new
sections.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. (1) The
legislature 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 the
results of any HIV tests conducted on an offender or detainee pursuant to RCW
70.24.340, 70.24.360, or 70.24.370 shall be disclosed to the superintendent or
administrator of the department of corrections facility or local jail housing
the offender or detainee, and shall also be disclosed to any corrections staff
or jail staff who have been substantially exposed to the bodily fluids of the
offender or detainee. 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.
(2)
The legislature further 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.
2. 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
and the results of any tests conducted pursuant to RCW 70.24.340, 70.24.360,
or 70.24.370 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
as provided in section 3 of this act 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)) corrections' jurisdiction.
(b)
The sexually transmitted disease status of a person detained in a jail and
the results of any tests conducted pursuant to RCW 70.24.340, 70.24.360, or
70.24.370 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 as
provided in section 4 of this act for disease prevention or control and for
protection of the safety and security of the staff, offenders, detainees,
and the public. The information may 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. 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)
Notwithstanding the limitations on disclosure contained in (a), (b), and (c) of
this subsection, whenever any member of jail staff or department of corrections
staff has been substantially exposed to the bodily fluids of an offender or
detained person, then the results of any tests conducted pursuant to RCW
70.24.340, 70.24.360, or 70.24.370 shall be immediately disclosed by the
department of corrections health care provider and the local public health
officer or the officer's designee to the correctional superintendent or
administrator or local jail administrator. The superintendent or administrator
is then required to immediately disclose these results to the staff member who
was substantially exposed. Disclosure must be accompanied by appropriate
counseling for the staff member, including information regarding follow-up
testing.
(e)
The receipt by any individual of any information disclosed pursuant to this
subsection (4) 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
the penalties 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. 3. A new
section is added to chapter 72.09 RCW to read as follows:
(1)
The department shall develop and implement policies and procedures for the
uniform distribution of communicable disease prevention protocols to all
corrections staff who, in the course of their regularly assigned job
responsibilities, may come within close physical proximity to offenders with
communicable diseases. The protocols shall include, but not be limited to,
information learned from tests conducted pursuant to RCW 70.24.340, 70.24.360,
and 70.24.370.
(2)
The protocols shall identify the offender and special precautions necessary to
reduce the risk of transmission of the communicable disease but shall not
identify the offender's particular communicable disease.
(3)
For the purposes of this section, "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.
NEW
SECTION. Sec. 4. A new
section is added to chapter 70.48 RCW to read as follows:
(1)
Local jail administrators shall develop and implement policies and procedures
for the uniform distribution of communicable disease prevention protocols to
all jail staff who, in the course of their regularly assigned job
responsibilities, may come within close physical proximity to offenders or
detainees with communicable diseases. The protocols shall include, but not be
limited to, information learned from tests conducted pursuant to RCW 70.24.340,
70.24.360, and 70.24.370.
(2)
The protocols shall identify the offender or detainee and special precautions
necessary to reduce the risk of transmission of the communicable disease but
shall not identify the offender's or detainee's particular communicable
disease.
(3)
For the purposes of this section, "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.
NEW
SECTION. Sec. 5. 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 and department of corrections and local
jail 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 2 of this
act.
