Background:

Governor's Proclamation to End AIDS in Washington.

On December 1, 2014, Governor Inslee issued a Proclamation to End AIDS (Proclamation) in Washington, setting a goal of reducing new HIV diagnoses by 50 percent, by 2020. The Proclamation tasked the HIV Planning Steering Group, the statewide HIV treatment and prevention planning body, with overseeing a task force to put forward a set of recommendations on how the state can achieve its goals. One of the End AIDS Steering Team 2016 Report recommendations included modernizing Washington HIV exposure and transmission laws to reflect current science and reduce HIV-related stigma.

Transmission of Sexually Transmitted Diseases.

A person is guilty of HIV-related assault in the first degree if the person, with intent to inflict great bodily harm, administers, exposes, or transmits to or causes to be taken by another, the human immunodeficiency virus. A person who has a sexually transmitted disease, except HIV when the person knows he or she is infected and has been informed that the disease may be communicated through intercourse, is prohibited from having sexual intercourse unless the person has been informed about the sexually transmitted disease.

Minor's consent to treatment.

A minor fourteen years of age or older who may have come in contact with any sexually transmitted disease or suspected sexually transmitted disease may give consent for medical care related to the diagnosis or treatment of a sexually transmitted disease.

Public Health Orders.

State and local public health officers may examine and counsel persons reasonably believed to be infected with or to have been exposed to a sexually transmitted disease. 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 to obtain the voluntary cooperation of the person who may be subject to such an order.

When the state or local public health officer within his or her respective jurisdiction knows, or has reason to believe, that a person has a sexually transmitted disease and is engaging in specified conduct that endangers the public health, he or she must conduct an investigation to evaluate the specific facts alleged, if any, and the reliability and credibility of the information. If the officer is satisfied that the allegations are true, the officer may:

order the person to submit to a medical examination or testing, seek counseling, or obtain medical treatment, within a period of time determined by the public health officer, not to exceed fourteen days, or
order a person to immediately cease and desist from specified conduct which endangers the health of others by imposing such restrictions upon the person as are necessary to prevent the specified conduct that endangers the health.

Any restriction must be in writing and include the person's name, the initial time period, not to exceed three months, during which the order shall remain effective, the terms of the restrictions, and any other conditions necessary to protect the public health. Restrictions shall be imposed in the least-restrictive manner necessary to protect the public health.

If the person 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. Upon conclusion of the hearing, the court shall issue appropriate orders affirming, modifying, or dismissing the order. 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.

HIV/AIDS Training and Education.

The Department of Health (DOH) and the various boards and commissions for the health professions must adopt rules requiring AIDS education and training for all credentialed health professionals, and other individuals who work in a state licensed or certified health care facilities. The Superintendent of Public Instruction must adopt rules that require appropriate education and training to be included in continuing education requirement for employees on the prevention, transmission, and treatment of AIDS. The Washington Personnel Resources Board and each unit of local government must determine whether any employees have a substantial likelihood of exposure in the course of their employment to HIV, and if so, adopt rules requiring appropriate training and education for those employees on the prevention, transmission, and treatment of AIDS. The statutorily created Office on AIDS, which resides in the DOH, is the repository and clearinghouse for all education and training material related to the treatment, transmission, and prevention of AIDS.

Testing for Insurance Purposes.

For purposes of insurance, an insurer who is requesting an insured, a subscriber, or a potential insured or subscriber provide the results of an HIV test for underwriting purposes as a condition for obtaining or renewing coverage must:

provide written information to the individual to be tested which explains what an HIV test is, behaviors that place a person at risk for HIV, that the purpose of the testing is to determine eligibility for coverage, the potential risks of HIV testing, and where to obtain HIV pretest counseling;
obtain informed consent for the testing, which includes an explanation of the confidential treatment of the test results; and
establish procedures to inform an applicant that post-test counseling is required if an HIV test is positive or indeterminate, that post-test counseling occurs every time there is a positive or indeterminate test, that the applicant may designate a health care provider or agency to who the insurer will provide test results indicative of infection with a blood-borne pathogen and that positive or indeterminate test results will not be sent directly to the applicant.

Mandatory testing and counseling for certain offenses.

Local health departments must conduct pre-test counseling, HIV testing, and post-test counseling of all persons convicted of certain sexual offenses, prostitution, and certain drug related offenses if associated with the use of hypodermic needles. The testing must be conducted as soon as possible after sentencing.

A law enforcement officer, firefighter, health care provider, health care facility staff person, Department of Corrections' (DOC) staff person, jail staff person, or other categories of employment determined by the board 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 pre-test counseling, HIV testing, and post-test counseling, as well as testing for other blood-borne pathogens, 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, the person who made the request may petition the superior court for a hearing to determine whether an order shall be issued.

The person who is subject to the officer's order to receive counseling and testing must be given written notice of the order promptly, personally, and confidentially, stating the grounds and provisions of the order. 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.

Jail administrators, with approval of a local public health officer, may order pre-test counseling, HIV testing, and post-test counseling for all persons detained in the jail if the local public health officer determines that actual or threatened behavior presents a possible risk to staff, the general public, or other persons. The administrator must establish a procedure to document the possible risk which is the basis for the HIV testing.

Department of Corrections facility administrators may order pre-test counseling, HIV testing, and post-test counseling for inmates if the Secretary of Corrections determines that actual or threatened behavior presents a possible risk to the staff, general public, or other inmates. The DOC must establish a procedure to document the possible risk which is the basis for the HIV testing.

Summary of Bill:

Public Health Order.

A state or local health officer may conduct an investigation when:

the health officer has reason to believe that a person in the health officer's jurisdiction has a sexually transmitted disease and is engaging in specified behavior that endangers the public health; and
the basis for the investigation is the health officer's direct medical knowledge or reliable testimony of another who is in a position to have direct knowledge of the person's behavior.

During the investigation, the health officer must evaluate the allegations and the reliability or credibility of persons who provided the information related to the behaviors alleged to endanger the public's health. Health officers must document measures taken to protect the public's health, including efforts to obtain the person's cooperation, if the allegations are true and the person constitutes to endanger the public's health.

If attempts to get the person's voluntary cooperation fails to protect the public health, the health officer may issue a health order requiring the person to submit to a medical examination or testing, receive counseling, or receive medical treatment; or immediately cease and desist from specified behavior that endangers the public health by imposing restrictions necessary to prevent the behavior.

If the order requires a person to receive medical treatment, the health officer must provide the person with at least one additional appropriate option to choose from in the health order. The restriction must be in writing and state the name of the person, the initial term period the order is effective, the terms of the restrictions, and other conditions. Restrictions must be imposed in the least-restrictive manner necessary. The effective period must be reasonably related to the purpose of the restrictions, up to a maximum of 12 months. The health officer must provide the person subject to the order with prompt written notice, personally and confidentially. The notice must inform the person that the person may file an appeal.

The health officer may apply to the superior court for a court order requiring a person to comply with the health order if the person fails to comply with the health order. At a hearing held regarding the order, the person subject to the order may have an attorney appear on his or her behalf at the public's expense, if necessary.

A person who violates or fails to comply with an issued health order is guilty of a gross misdemeanor punishable by confinement until the order has been complied with or terminated. In lieu of confinement, the court may place the person on probation upon the condition that the person comply with the order for the time period of the order. If the person is placed on probation and subsequently violates or fails to comply, the court must revoke the probation and reinstate the original sentence of confinement.

Transmission of Sexually Transmitted Diseases.

It is illegal for a person who knows that he or she has a sexually transmitted disease of special public health significance to have sexual intercourse if:

the person has been counseled by a health care provider or public health professional regarding the risk of transmitting the disease to others;
sexual intercourse was consensual and the partner exposed to the disease did not know that the person had the disease; and
transmission of the disease occurred.

The person is presumed to have transmitted the disease to a partner if the partner is diagnosed with the disease after having sexual intercourse with the person. It is a defense to prosecution if the person took or attempted to take practical means to prevent transmission of the disease. Violation of this provision is a misdemeanor, unless the person misrepresented the person's infection status to the partner, in which case violation is a gross misdemeanor. Violation of this provision does not require registration on the sex offender registry.

A Sexually transmitted disease of special public health significance means HIV and other diseases determined by the State Board of Health (Board) by rule based on generally accepted standards of medical and public health science.

Minor Consent for Treatment of Sexually Transmitted Disease.

A minor of 14 years of age or older may give consent to treatment to avoid HIV infection without a parent or guardian's consent.

Definitions and terminology.

Blood-borne pathogen means a pathogenic microorganism that is present in human blood and can cause disease in humans, and includes Hepatitis B, Hepatitis C, Human Immunodeficiency Virus (HIV), and any other pathogen identified by the Board in rule. The definition of HIV-related condition is removed. Throughout the chapter references to AIDS or HIV are changed to sexually transmitted disease or blood-borne pathogen. References to state and local public health officer are changed to state and local health officer. References to functionally disabled persons are changes to persons with functional disabilities.

Testing for Insurance Purposes.

For purposes of insurance, insurers who are requesting an insured, a subscriber, or a potential insured or subscriber provide the results of a blood-borne pathogen test for underwriting purposes as a condition for obtaining or renewing coverage must:

provide written information to the individual to be tested which explains which blood-borne pathogen test is being administered and the purpose of the testing,
obtain informed consent for the testing, which includes an explanation of the confidential treatment of the test results; and
establish procedures to inform an applicate that the applicant may designate a health care provider or agency to who the insurer will provide test results indicative of infection with a blood-borne pathogen and that the test results will be sent directly to the applicant.

Mandatory testing and counseling for certain offenses.

A law enforcement officer, firefighter, health care provider, health care facility staff person, Department of Corrections' (DOC) staff person, jail staff person, or person employed in other categories of employment determined by the board to be at risk of exposure that presents a possible risk of transmission of a blood-borne pathogen, who has experienced an exposure to another person's bodily fluids in the course of his or her employment, may request a state or local health officer to order blood-borne pathogen testing, for the person whose bodily fluids he or she has been exposed to. If the state or local public health officer refuses to order testing, the person who made the request may petition the superior court for a hearing to determine whether an order shall be issued.

The person who is subject to the officer's order to receive testing must be given written notice of the order promptly, personally, and confidentially, stating the grounds and provisions of the order. 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.

Jail administrators, with approval of a local public health officer, may order blood-borne pathogen testing for a person detained in the jail if the local health officer determines the detainee's behavior exposed the staff, the general public, or other persons, and that exposure presents a possible risk of transmitting a blood-borne pathogen.

The Chief Medical Officer or the DOC may order blood-borne pathogen testing for an inmate if the Chief Medical Officer determines the inmate's behavior exposed the staff, general, public, or other inmates, and the exposure presents a possible risk of transmitting a blood-borne pathogen.

Provisions related to counseling or requiring persons convicted of certain crimes to be tested are removed.

Rulemaking.

The Board is authorized to adopt rules:

establishing reporting requirements for sexually transmitted disease;
establishing procedures for investigations into persons believed to be infected with or exposed to a sexually transmitted disease;
specifying behaviors that endanger the public health for purposes of a public health order;
defining specimens that may be obtained and tests that may be administered for investigations of sexually transmitted diseases and blood-borne pathogens;
determining the categories of employment that are at risk of substantial exposure to a blood-borne pathogen for purposes of allowing specific individuals who have been exposed to another person's bodily fluids in the course of employment to request a public health officer order blood-borne pathogen testing for the person whose bodily fluid the employee was exposed to;
defining what constitutes exposure that presents a possible risk of transmission of a blood-borne pathogen; and
that are necessary to implement and enforce the chapter.

Repealed Statutes.

Statutes related to the following are repealed:

requiring health care providers treating pregnant women or individuals seeking treatment for a sexually transmitted disease to ensure AIDS counseling is provided to the patient;
establishing approval requirements for a standard serological test for syphilis;
rule-making authority for the Department of Health (DOH) and the DOC to adopt rules related to testing for HIV of individuals in the custody of jails or incarcerated and the disclosure of HIV tests;
authority for the Board to establish reporting requirements for sexually transmitted diseases by rule;
prohibition for a person who has a sexually transmitted disease, except HIV, when the person knows he or she is infected and has been informed that the disease may be communicated through intercourse, to have sexual intercourse unless the person has been informed about the sexually transmitted disease;
requirements that information directed to the public and providing education about any sexually transmitted disease paid for in whole or in part by public money must emphasize the important of sexual abstinence, sexual fidelity, and avoidance of substance abuse in controlling disease;
requirements that material directed to children in kindergarten through twelfth grade providing education regarding sexually transmitted diseases that is paid in whole or in part by public money must emphasize the importance of sexual abstinence outside lawful marriage and avoidance of substance abuse in controlling disease;
creation of the Office on AIDS and the AIDS Advisory Committee;
requirements related to training and education for the prevention, transmission, and treatment of AIDS for health care professionals, school employees, licensed health care facility workers, and government employees with substantial likelihood of exposure to HIV;
definitions related to AIDS and HIV for purposes of counseling and testing for HIV and AIDS;
requirements that local health departments make available voluntary testing and counseling services for HIV to all persons arrested for prostitution or certain drug offenses; and
requirements that the Board adopt rules establishing minimum standards for pre-test counseling, HIV testing, post-test counseling, and AIDS counseling.