SECTIONS 120260-120263 - California Statutes

HEALTH AND SAFETY CODE

SECTION 120260-120263

120260. (a) The Legislature finds and declares all of the
following:
(1) Early knowledge of infection with communicable disease is
important in order to permit exposed persons to make informed health
care decisions as well as to take measures to reduce the likelihood
of transmitting the infection to others.
(2) Individual health care providers, agents and employees of
health care facilities and individual health care providers, and
first responders, including police, firefighters, rescue personnel,
and other persons who provide the first response to emergencies,
frequently come into contact with the blood and other potentially
infectious materials of individuals whose communicable disease
infection status is not known.
(3) Even if these exposed individuals use universal infection
control precautions to prevent transmission of communicable diseases,
there will be occasions when they experience significant exposure to
the blood or other potentially infectious materials of patients.
(b) Therefore, it is the intent of the Legislature to provide a
narrow exposure notification and information mechanism to permit
individual health care providers, the employees or contracted agents
of health care facilities and individual health care providers, and
first responders, who have experienced a significant exposure to the
blood or other potentially infectious materials of a patient, to
learn of the communicable disease infection status of the patient.

120260.5. The communicable disease testing and notification
procedures provided for in this chapter are in addition to the
notification to which prehospital emergency medical care persons or
personnel are entitled under Section 1797.188.

120261. For the purposes of this chapter, the following definitions
apply:
(a) "Attending physician of the source patient" means any
physician and surgeon licensed pursuant to Chapter 5 (commencing with
Section 2000) of Division 2 of the Business and Professions Code and
any person licensed pursuant to the Osteopathic Initiative Act, who
provides health care services to the source patient. Notwithstanding
any other provision of this subdivision to the contrary, the
attending physician of the source patient shall include any of the
following persons:
(1) The private physician of the source patient.
(2) The physician primarily responsible for the patient who is
undergoing inpatient treatment in a hospital.
(3) A registered nurse or licensed nurse practitioner who has been
designated by the attending physician of the source patient.
(b) "Available blood or patient sample" means blood or other
tissue or material that was legally obtained in the course of
providing health care services, and is in the possession of the
physician or other health care provider of the source patient prior
to the release of the source patient from the physician's or health
care provider's facility.
(c) "Certifying physician" means any physician consulted by the
exposed individual for the exposure incident. A certifying physician
shall have demonstrated competency and understanding of the then
applicable guidelines or standards of the Division of Occupational
Safety and Health.
(d) "Communicable disease" means any disease that was transferable
through the exposure incident, as determined by the certifying
physician.
(e) "Exposed individual" means any individual health care
provider, first responder, or any other person, including, but not
limited to, any employee, volunteer, or contracted agent of any
health care provider, who is exposed, within the scope of his or her
employment, to the blood or other potentially infectious materials of
a source patient.
(f) "Health care provider" means any person licensed or certified
pursuant to Division 2 (commencing with Section 500) of the Business
and Professions Code, any person licensed pursuant to the Osteopathic
Initiative Act or the Chiropractic Initiative Act, any person
certified pursuant to Division 2.5 (commencing with Section 1797),
any clinic, health dispensary, or health facility licensed or exempt
from licensure pursuant to Division 2 (commencing with Section 1200),
any employee, volunteer, or contracted agent of any group practice
prepayment health care service plan regulated pursuant to the
Knox-Keene Health Care Service Plan Act of 1975 (Chapter 2.2
(commencing with Section 1340) of Division 2), and any professional
student of one of the clinics, health dispensaries, or health care
facilities or health care providers described in this subdivision.
(g) "First responder" means a police officer, firefighter, rescue
worker, or any other person who provides emergency response, first
aid care, or other medically related assistance either in the course
of the person's occupational duties or as a volunteer.
(h) "Other potentially infectious materials" means those body
fluids identified by the Division of Occupational Safety and Health
as potentially capable of transmitting a communicable disease.
(i) "Significant exposure" means direct contact with blood or
other potentially infectious materials of a patient in a manner that,
according to the then applicable guidelines of the Division of
Occupational Safety and Health, is capable of transmitting a
communicable disease.
(j) "Source patient" means any person receiving health care
services whose blood or other potentially infectious material has
been the source of a significant exposure to an exposed individual.

120262. Notwithstanding Chapter 7 (commencing with Section 120975)
or any other provision of law, the blood or other tissue or material
of a source patient may be tested, and an exposed individual may be
informed whether the patient has tested positive or negative for a
communicable disease if the exposed individual and the health care
facility, if any, have substantially complied with the then
applicable guidelines of the Division of Occupational Safety and
Health and the State Department of Health Services and if the
following procedure is followed:
(a) (1) Whenever a person becomes an exposed individual by
experiencing an exposure to the blood or other potentially infectious
material of a patient during the course of rendering health
care-related services or occupational services, the exposed
individual may request an evaluation of the exposure by a physician
to determine if it is a significant exposure, as defined in
subdivision (h) of Section 120261. No physician or other exposed
individual shall certify his or her own significant exposure.
However, an employing physician may certify the exposure of one of
his or her employees. Requests for certification shall be made in
writing within 72 hours of the exposure.
(2) A written certification by a physician of the significance of
the exposure shall be obtained within 72 hours of the request. The
certification shall include the nature and extent of the exposure.
(b) (1) The exposed individual shall be counseled regarding the
likelihood of transmission, the limitations of the testing performed,
the need for followup testing, and the procedures that the exposed
individual must follow regardless of whether the source patient has
tested positive or negative for a communicable disease. The exposed
individual may be tested in accordance with the then applicable
guidelines or standards of the Division of Occupational Safety and
Health. The result of this test shall be confirmed as negative before
available blood or other patient samples of the source patient may
be tested for evidence of infection to a communicable disease,
without the consent of the source patient pursuant to subdivision
(d).
(2) Within 72 hours of certifying the exposure as significant, the
certifying physician shall provide written certification to an
attending physician of the source patient that a significant exposure
to an exposed individual has occurred, and shall request information
on whether the source patient has tested positive or negative for a
communicable disease, and the availability of blood or other patient
samples. An attending physician shall respond to the request for
information within three working days.
(c) If test results of the source patient are already known to be
positive for a communicable disease then, except as provided in
subdivisions (b) and (c) of Section 121010, when the exposed
individual is a health care provider or an employee or agent of the
health care provider of the source patient, an attending physician
and surgeon of the source patient shall attempt to obtain the consent
of the source patient to disclose to the exposed the testing results
of the source patient regarding communicable diseases. If the source
patient cannot be contacted or refuses to consent to the disclosure,
then the exposed individual may be informed of the test results
regarding communicable diseases of the source patient by an attending
physician of the source patient as soon as possible after the
exposure has been certified as significant, notwithstanding Section
120980 or any other provision of law.
(d) If the communicable disease status of the source patient is
unknown to the certifying physician or an attending physician, if
blood or other patient samples are available, and if the exposed
individual has tested negative on a baseline test for communicable
diseases, the source patient shall be given the opportunity to give
informed consent to a test for communicable diseases in accordance
with the following:
(1) Within 72 hours after receiving a written certification of
significant exposure, an attending physician of the source patient
shall do all of the following:
(A) Make a good faith effort to notify the source patient or the
authorized legal representative of the source patient about the
significant exposure. A good faith effort to notify includes, but is
not limited to, a documented attempt to locate the source patient by
telephone or by first-class mail with a certificate of mailing. An
attempt to locate the source patient and the results of that attempt
shall be documented in the medical record of the source patient. An
inability to contact the source patient, or legal representative of
the source patient, after a good faith effort to do so as provided in
this subdivision, shall constitute a refusal of consent pursuant to
paragraph (2). An inability of the source patient to provide informed
consent shall constitute a refusal of consent pursuant to paragraph
(2), provided all of the following conditions are met:
(i) The source patient has no authorized legal representative.
(ii) The source patient is incapable of giving consent.
(iii) In the opinion of the attending physician, it is likely that
the source patient will be unable to grant informed consent within
the 72-hour period during which the physician is required to respond
pursuant to paragraph (1).
(B) Attempt to obtain the voluntary informed consent of the source
patient or the authorized legal representative of the source patient
to perform a test for a communicable disease, on the source patient
or on any available blood or patient sample of the source patient.
The voluntary informed consent shall be in writing. The source
patient shall have the option not to be informed of the test result.
An exposed individual shall be prohibited from attempting to obtain
directly informed consent for testing for communicable diseases from
the source patient.
(C) Provide the source patient with medically appropriate pretest
counseling and refer the source patient to appropriate posttest
counseling and followup, if necessary. The source patient shall be
offered medically appropriate counseling whether or not he or she
consents to testing.
(2) If the source patient or the authorized legal representative
of the source patient refuses to consent to test for a communicable
disease after a documented effort has been made to obtain consent,
any available blood or patient sample of the source patient may be
tested. The source patient or authorized legal representative of the
source patient shall be informed that an available blood sample or
other tissue or material will be tested despite his or her refusal,
and that the exposed individual shall be informed of the test results
regarding communicable diseases.
(3) If the informed consent of the source patient cannot be
obtained because the source patient is deceased, consent to perform a
test for a communicable disease on any blood or patient sample of
the source patient legally obtained in the course of providing health
care services at the time of the exposure event shall be deemed
granted.
(4) A source patient or the authorized legal representative of a
source patient shall be advised that he or she shall be informed of
the results of the test for communicable diseases only if he or she
wishes to be so informed. If a patient refuses to provide informed
consent to testing for communicable diseases and refuses to learn the
results of the testing, he or she shall sign a form documenting this
refusal. The source patient's refusal to sign this form shall be
construed to be a refusal to be informed of the test results
regarding communicable diseases. Test results for communicable
diseases shall only be placed in the medical record when the patient
has agreed in writing to be informed of the results.
(5) Notwithstanding any other provision of law, if the source
patient or authorized legal representative of a source patient
refuses to be informed of the results of the test, the test results
regarding communicable diseases of that source patient shall only be
provided to the exposed individual in accordance with the then
applicable regulations established by the Division of Occupational
Safety and Health.
(6) The source patient's identity shall be encoded on the
communicable disease test result record.
(e) If an exposed individual is informed of the status of a source
patient with regard to a communicable disease pursuant to this
section, the exposed individual shall be informed that he or she is
subject to existing confidentiality protections for any identifying
information about the communicable disease test results, and that
medical information regarding the communicable disease status of the
source patient shall be kept confidential and may not be further
disclosed, except as otherwise authorized by law. The exposed
individual shall be informed of the penalties for which he or she
would be personally liable for violation of Section 120980.
(f) The costs for the test and counseling for communicable
diseases of the exposed individual, or the source patient, or both,
shall be borne by the employer of the exposed individual, if any. An
employer who directs and controls the exposed individual shall
provide the postexposure evaluation and followup required by the
California Division of Occupational Safety and Health as well as the
testing and counseling for source patients required under this
chapter. If an exposed individual is a volunteer or a student, then
the health care provider or first responder that assigned a task to
the volunteer or student may pay for the costs of testing and
counseling as if that volunteer or student were an employee. If an
exposed individual, who is not an employee of a health facility or of
another health care provider, chooses to obtain postexposure
evaluation or followup counseling, or both, or treatment, he or she
shall be financially responsible for the costs thereof and shall be
responsible for the costs of the testing and counseling for the
source patient.
(g) Nothing in this section authorizes the disclosure of the
source patient's identity.
(h) Nothing in this section shall authorize a health care provider
to draw blood or other body fluids except as otherwise authorized by
law.
(i) The provisions of this section are cumulative only and shall
not preclude testing of source patients for a communicable disease,
as authorized by any other provision of law.
(j) Except as otherwise provided under this section, all
confidentiality requirements regarding medical records that are
provided for under existing law apply to this section.

120263. (a) No health care provider, as defined in this chapter,
shall be subject to civil or criminal liability or professional
disciplinary action for performing tests for a communicable disease
on the available blood or patient sample of a source patient, or for
disclosing the communicable disease status of a source patient to the
source patient, an attending physician of the source patient, the
certifying physician, the exposed individual, or any attending
physician of the exposed individual, if the health care provider has
acted in good faith in complying with this chapter.
(b) Any health care provider or first responder, or any exposed
individual, who willfully performs or permits the performance of a
test for a communicable disease on a source patient, that results in
economic, bodily, or psychological harm to the source patient,
without adhering to the procedure set forth in this chapter is guilty
of a misdemeanor, punishable by imprisonment in the county jail for
a period not to exceed one year, or a fine not to exceed ten thousand
dollars ($10,000), or by both.