BP BHEAD INT S

AN ACT Relating to disclosure of offenders' HIV and other communicable disease test results to department of corrections and jail staff; amending RCW 70.24.105, 70.24.340, 70.24.360, 70.24.370, and 70.24.024; adding new sections to chapter 72.10 RCW; adding a new section to chapter 70.48 RCW; adding new sections to chapter 70.28 RCW; creating new sections; and prescribing penalties.

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

NEW SECTION. Sec. 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 under RCW 70.24.340, 70.24.360, or 70.24.370, or tuberculosis tests conducted on an offender or detainee under section 7 or 12 of this act be disclosed to the superintendent or administrator of the department of corrections facility or local jail housing the offender or detainee, and also be disclosed to any corrections staff or jail staff who may come in close physical proximity to offenders with communicable diseases, including any member of a jail staff or department of corrections staff who has been substantially exposed to the bodily fluids of an offender or detained person. The legislature finds that the system of universal precautions required under federal and state law in all settings where risk of occupational exposure to communicable diseases exists are an 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.

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, except as authorized by this chapter. 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, under (a) through (g), (i), and (j) of this subsection, may receive such information; and the following persons under (h) and (k) of this subsection shall 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~~)) under RCW 70.24.340 ((~~or 70.24.024~~)), 70.24.360, or 70.24.370;

(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 department of corrections superintendent or administrator, a jail administrator, a transportation officer, staff in receiving facilities, or other corrections staff, who, in the course of their regularly assigned job responsibilities, may come in close physical proximity to offenders with communicable diseases, including any member of a jail staff or department of corrections staff who has been substantially exposed to the bodily fluids of an offender or detained person.

(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~~)) otherwise required by ((~~that subsection~~)) law.

(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 and the results of any tests conducted under 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 under 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 shall then 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 an individual of information disclosed under 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~~)) that 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 72.10 RCW to read as follows:

(1) The department must 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 must include, but not be limited to, information learned from tests conducted under RCW 70.24.340, 70.24.360, 70.24.370, and section 7 of this act.

(2) The protocols must identify the offender and special precautions necessary to reduce the risk of transmission of the communicable disease but must 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 that 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 must 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 must include, but need not be limited to, information learned from tests conducted under RCW 70.24.340, 70.24.360, 70.24.370, and section 7 of this act.

(2) The protocols must identify the offender or detainee and special precautions necessary to reduce the risk of transmission of the communicable disease but must not identify the offender's or detainee's particular communicable disease.

NEW SECTION. Sec. 5. The department of health and the department of corrections must each adopt rules to implement this act. The department of health and the department of corrections must also report to the legislature by January 1, 1998, 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 under RCW 70.24.105.

Sec. 6. 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, and testings for hepatitis A and B 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~~)); or

(d) Who have subjected a law enforcement officer, fire fighter, health care provider, health care facility staff person, department of corrections staff person, jail staff person, or other category of employee, as determined by the board, to substantial exposure to their bodily fluids.

(2) ((~~Such~~)) Testing of persons convicted under subsection (1)(a) through (c) of this section shall be conducted ((~~as soon as possible~~)) no later than thirty days after sentencing and shall be so ordered by the sentencing judge. Testing of persons causing a substantial exposure under subsection (1)(d) of this section shall be conducted as soon as possible, but not later than seventy-two hours after the exposure.

(3) ((~~This section applies~~)) Subsection (1)(a) through (c) of this section applies only to offenses committed after March 23, 1988, and subsection (1)(d) of this section applies only to exposures occurring after the effective date of this act.

(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.

NEW SECTION. Sec. 7. A new section is added to chapter 70.28 RCW to read as follows:

Local health departments shall conduct or cause to be conducted in local correctional facilities an inspection, examination, and test for the purposes of determining the presence of tuberculosis in the infectious stage of all persons detained or incarcerated in a local correctional facility for more than five days. Initial testing shall be conducted within ten days of reception into the correctional facility, with follow-up testing as medically indicated.

Sec. 8. RCW 70.24.360 and 1988 c 206 s 706 are each amended to read as follows:

Jail administrators, ((~~with the approval of the local public health officer,~~)) after consultation with and receiving written recommendations from a licensed health care provider, may order pretest counseling, HIV testing, and posttest counseling for persons detained in the jail if the ((~~local public health officer~~)) jail administrator determines that actual or threatened behavior presents a possible risk to the staff, general public, or other persons. ((~~Approval of the local public health officer shall be based on RCW 70.24.024(3) and may be contested through RCW 70.24.024(4).~~)) The administrator shall establish, pursuant to RCW 70.48.071, a procedure to document the possible risk ((~~which~~)) that is the basis for the HIV testing. (("Possible risk," as used in this section, shall be defined by the board in rule. Documentation of the behavior, or threat thereof, shall be reviewed with the person to try to assure that the person understands the basis for testing.))

Sec. 9. RCW 70.24.370 and 1988 c 206 s 707 are each amended to read as follows:

(1) Department of corrections facility administrators may order pretest counseling, HIV testing, and posttest counseling for inmates if the secretary of corrections or the secretary's designee determines that actual or threatened behavior presents a possible risk to the staff, general public, or other inmates. The department of corrections shall establish a procedure to document the possible risk which is the basis for the HIV testing. (("Possible risk," as used in this section, shall be defined by the department of corrections after consultation with the board. Possible risk, as used in the documentation of the behavior, or threat thereof, shall be reviewed with the inmate.))

(2) Department of corrections administrators and superintendents who are authorized to make decisions about testing and dissemination of test information shall, at least annually, participate in training seminars on public health considerations conducted by the assistant secretary for public health or her or his designee.

(3) Administrative hearing requirements set forth in chapter 34.05 RCW do not apply to the procedure developed by the department of corrections pursuant to this section. This section shall not be construed as requiring any hearing process except as may be required under existing federal constitutional law.

(4) RCW 70.24.340 does not apply to the department of corrections or to inmates in its custody or subject to its jurisdiction.

Sec. 10. RCW 70.24.024 and 1988 c 206 s 909 are each amended to read as follows:

(1) Subject to the provisions of this chapter, the state and local public health officers or their authorized representatives may examine and counsel or cause to be examined and counseled persons reasonably believed to be infected with or to have been exposed to a sexually transmitted disease.

(2) Orders or restrictive measures directed to persons with a sexually transmitted disease shall be used as the last resort when other measures to protect the public health have failed, including reasonable efforts, which shall be documented, to obtain the voluntary cooperation of the person who may be subject to such an order. The orders and measures shall be applied serially with the least intrusive measures used first. The burden of proof shall be on the state or local public health officer to show that specified grounds exist for the issuance of the orders or restrictive measures and that the terms and conditions imposed are no more restrictive than necessary to protect the public health.

(3) When the state or local public health officer within his or her respective jurisdiction knows or has reason to believe, because of direct medical knowledge or reliable testimony of others in a position to have direct knowledge of a person's behavior, that a person has a sexually transmitted disease and is engaging in specified conduct, as determined by the board by rule based upon generally accepted standards of medical and public health science, that endangers the public health, he or she shall conduct an investigation in accordance with procedures prescribed by the board to evaluate the specific facts alleged, if any, and the reliability and credibility of the person or persons providing such information and, if satisfied that the allegations are true, he or she may issue an order according to the following priority to:

(a) Order a person to submit to a medical examination or testing, seek counseling, or obtain medical treatment for curable diseases, or any combination of these, within a period of time determined by the public health officer, not to exceed fourteen days.

(b) Order a person to immediately cease and desist from specified conduct ((~~which~~)) that endangers the health of others by imposing such restrictions upon the person as are necessary to prevent the specified conduct that endangers the health of others only if the public health officer has determined that clear and convincing evidence exists to believe that such person has been ordered to report for counseling as provided in (a) of this subsection and continues to demonstrate behavior ((~~which~~)) that endangers the health of others. Any restriction shall be in writing, setting forth the name of the person to be restricted and the initial period of time, not to exceed three months, during which the order shall remain effective, the terms of the restrictions, and such other conditions as may be necessary to protect the public health. Restrictions shall be imposed in the least-restrictive manner necessary to protect the public health.

(4)(a) Upon the issuance of any order by the state or local public health officer or an authorized representative pursuant to subsection (3) of this section ((~~or RCW 70.24.340(4)~~)), such public health officer shall give written notice promptly, personally, and confidentially to the person who is the subject of the order stating the grounds and provisions of the order, including the factual bases therefor, the evidence relied upon for proof of infection and dangerous behavior, and the likelihood of repetition of such behaviors in the absence of such an order, and notifying the person who is the subject of the order that, if he or she contests the order, he or she may appear at a judicial hearing on the enforceability of the order, to be held in superior court. He or she may have an attorney appear on his or her behalf in the hearing at public expense, if necessary. The hearing shall be held within seventy-two hours of receipt of the notice, unless the person subject to the order agrees to comply. If the person contests the order, no invasive medical procedures shall be carried out prior to a hearing being held pursuant to this subsection. If the person does not contest the order within seventy-two hours of receiving it, and the person does not comply with the order within the time period specified for compliance with the order, the state or local public health officer may request a warrant be issued by the superior court to insure appearance at the hearing. The hearing shall be within seventy-two hours of the expiration date of the time specified for compliance with the original order. The burden of proof shall be on the public health officer to show by clear and convincing evidence that the specified grounds exist for the issuance of the order and for the need for compliance and that the terms and conditions imposed therein are no more restrictive than necessary to protect the public health. Upon conclusion of the hearing, the court shall issue appropriate orders affirming, modifying, or dismissing the order.

(b) If the superior court dismisses the order of the public health officer, the fact that the order was issued shall be expunged from the records of the department or local department of health.

(5) Any hearing conducted pursuant to this section shall be closed and confidential unless a public hearing is requested by the person who is the subject of the order, in which case the hearing will be conducted in open court. Unless in open hearing, any transcripts or records relating thereto shall also be confidential and may be sealed by the order of the court.

NEW SECTION. Sec. 11. A new section is added to chapter 70.28 RCW to read as follows:

(1) The tuberculosis 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. The information made available to superintendents and administrators under this subsection (1) shall be utilized by a superintendent or administrator only as provided in section 3 of this act.

(2) The tuberculosis status of a person detained in a jail shall be made available by department of corrections health care providers and local public health officers to a department of corrections superintendent or administrator. The information made available to superintendents and administrators under this subsection (2) shall be utilized by a superintendent or administrator only as provided in section 4 of this act.

NEW SECTION. Sec. 12. A new section is added to chapter 72.10 RCW to read as follows:

(1) The department shall conduct or cause to be conducted an inspection, examination, and test for the purposes of determining the presence of tuberculosis in the infectious stage of all offenders sentenced to the department. Initial testing shall be conducted within five days of reception, with follow-up testing as medically indicated.

(2) All offenders received by the department, those offenders who are remanded from community custody or work training release, and all offenders who return or are received at a department facility from the community or a local jail after being out of the department's custody for ninety days or more shall be tested for tuberculosis within five days of reception or return to the department's custody, followed by a second test after another ninety days.