AN
ACT Relating to disclosure of information concerning diseases; amending RCW
70.24.105 and 70.24.340; 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(1), 70.24.360, or 70.24.370 shall be disclosed to the health
care administrator or infection control coordinator of the department of
corrections facility or the local jail that houses the offender or detainee.
The legislature intends that these test results also be disclosed to any
corrections or jail staff who have been substantially exposed to the bodily
fluids of the offender or detainee when the disclosure is provided by a
licensed health care provider in accordance with Washington Administrative Code
rules governing employees' occupational exposure to bloodborne pathogens.
(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, department of correction's staff person, jail 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
who has had a mandatory test conducted pursuant to RCW 70.24.340(1),
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))
the department of corrections ((superintendent or administrator as
necessary)) health care administrator or infection control coordinator
of the facility in which the offender is housed. The information made
available to the health care administrator or the infection control coordinator
under this subsection (4)(a) shall be used only 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 according to the
provisions of (d) and (e) of this subsection.
(b)
The sexually transmitted disease status of a person detained in a jail who
has had a mandatary test conducted pursuant to RCW 70.24.340(1), 70.24.360, or
70.24.370 shall be made available by the local public health officer to a
jail ((administrator as necessary)) health care administrator or
infection control coordinator. The information made available to a health care
administrator under this subsection (4)(b) shall be used 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 be
submitted to transporting officers and receiving facilities according to the
provisions of (d) and (e) of this subsection.
(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))
health care administrator or infection control coordinator or
local jail health care administrator or infection control coordinator
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 a 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(1), 70.24.360, or 70.24.370, shall be immediately disclosed to
the staff person in accordance with the Washington Administrative Code rules
governing employees' occupational exposure to bloodborne pathogens. Disclosure
must be accompanied by appropriate counseling for the staff member, including
information regarding follow-up testing and treatment. Disclosure shall also
include notice that subsequent disclosure of the information in violation of
this chapter or use of the information to harass or discriminate against the
offender or detainee may result in disciplinary action, in addition to the
penalties prescribed in RCW 70.24.080, and imposition of other penalties
prescribed by law.
(e)
The staff member shall also be informed whether the offender or detained person
had any other communicable disease, as defined in section 4(3) of this act,
when the staff person was substantially exposed to the offender's or detainee's
bodily fluids.
(f)
The test results of voluntary and anonymous HIV testing or HIV-related
condition may not be disclosed to a staff person except as provided in
subsection (2)(h) of this section and RCW 70.24.340(4). A health care
administrator or infection control coordinator may provide the staff member
with information about how to obtain the offender's or detainee's test results
under subsection (2)(h) of this section and RCW 70.24.340(4).
(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.
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 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, department of corrections' staff person, jail 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. If the state or local public health
officer refuses to order counseling and testing under this subsection, the
person who made the request may petition the superior court for a hearing to
determine whether an order shall be issued. The hearing on the petition shall
be held within seventy-two hours of filing the petition, exclusive of
Saturdays, Sundays, and holidays. The standard of review to determine whether
the public health officer shall be required to issue 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
person who is subject to the state or local public health officer's
order to receive counseling and testing 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 hearing on the
petition shall be held within seventy-two hours of filing the petition,
exclusive of Saturdays, Sundays, and holidays. 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 or if he
or she is ordered to do so by a court.
The
counseling and testing required under this subsection shall be completed as
soon as possible after the substantial exposure or after an order is issued by
a court, but shall begin not later than seventy-two hours after the substantial
exposure or an order is issued by the court.
NEW
SECTION. Sec. 4. 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 guidelines 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.
(2)
The guidelines shall identify special precautions necessary to reduce the risk
of transmission of communicable diseases.
(3)
For the purposes of this section, "communicable disease" means
sexually transmitted diseases, as defined in RCW 70.24.017, diseases caused by
bloodborne pathogens, or any other 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. 5. 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 guidelines 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.
(2)
The guidelines shall identify special precautions necessary to reduce the risk
of transmission of communicable diseases.
(3)
For the purposes of this section, "communicable disease" means a
sexually transmitted disease, as defined in RCW 70.24.017, diseases caused by
bloodborne pathogens, or any other 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. 6. 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, 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 of times and the circumstances under which individual corrections staff
and jail staff members were informed that a particular offender or detainee had
a sexually transmitted disease or other communicable disease. The department
of health and the department of corrections shall cooperate with local jail administrators
to obtain the information from local jail administrators that is necessary to
comply with this section.
