SECTIONS 120975-121023 - California Statutes

HEALTH AND SAFETY CODE

SECTION 120975-121023

120975. To protect the privacy of individuals who are the subject
of blood testing for antibodies to human immunodeficiency virus
(HIV), the following shall apply:
Except as provided in Section 1603.1, 1603.3, or 121022, no person
shall be compelled in any state, county, city, or other local civil,
criminal, administrative, legislative, or other proceedings to
identify or provide identifying characteristics that would identify
any individual who is the subject of a blood test to detect
antibodies to HIV.

120980. (a) Any person who negligently discloses results of an HIV
test, as defined in subdivision (c) of Section 120775, to any third
party, in a manner that identifies or provides identifying
characteristics of the person to whom the test results apply, except
pursuant to a written authorization, as described in subdivision (g),
or except as provided in Section 1603.1, 1603.3, or 121022 or any
other statute that expressly provides an exemption to this section,
shall be assessed a civil penalty in an amount not to exceed two
thousand five hundred dollars ($2,500) plus court costs, as
determined by the court, which penalty and costs shall be paid to the
subject of the test.
(b) Any person who willfully or maliciously discloses the results
of an HIV test, as defined in subdivision (c) of Section 120775, to
any third party, in a manner that identifies or provides identifying
characteristics of the person to whom the test results apply, except
pursuant to a written authorization, as described in subdivision (g),
or except as provided in Section 1603.1, 1603.3, or 121022 or any
other statute that expressly provides an exemption to this section,
shall be assessed a civil penalty in an amount not less than five
thousand dollars ($5,000) and not more than ten thousand dollars
($10,000) plus court costs, as determined by the court, which penalty
and costs shall be paid to the subject of the test.
(c) Any person who willfully, maliciously, or negligently
discloses the results of an HIV test, as defined in subdivision (c)
of Section 120775, to a third party, in a manner that identifies or
provides identifying characteristics of the person to whom the test
results apply, except pursuant to a written authorization, as
described in subdivision (g), or except as provided in Section
1603.1, 1603.3, or 121022 or any other statute that expressly
provides an exemption to this section, that results in economic,
bodily, or psychological harm to the subject of the test, is guilty
of a misdemeanor, punishable by imprisonment in the county jail for a
period not to exceed one year, or a fine of not to exceed
twenty-five thousand dollars ($25,000), or both.
(d) Any person who commits any act described in subdivision (a) or
(b) shall be liable to the subject for all actual damages, including
damages for economic, bodily, or psychological harm that is a
proximate result of the act.
(e) Each disclosure made in violation of this chapter is a
separate and actionable offense.
(f) Except as provided in Article 6.9 (commencing with Section
799) of Chapter 1 of Part 2 of Division 1 of the Insurance Code, the
results of an HIV test, as defined in subdivision (c) of Section
120775, that identifies or provides identifying characteristics of
the person to whom the test results apply, shall not be used in any
instance for the determination of insurability or suitability for
employment.
(g) "Written authorization," as used in this section, applies only
to the disclosure of test results by a person responsible for the
care and treatment of the person subject to the test. Written
authorization is required for each separate disclosure of the test
results, and shall include to whom the disclosure would be made.
(h) Nothing in this section limits or expands the right of an
injured subject to recover damages under any other applicable law.
Nothing in this section shall impose civil liability or criminal
sanction for disclosure of the results of tests performed on cadavers
to public health authorities or tissue banks.
(i) Nothing in this section imposes liability or criminal sanction
for disclosure of an HIV test, as defined in subdivision (c) of
Section 120775, in accordance with any reporting requirement for a
case of HIV infection, including AIDS by the department or the
Centers for Disease Control and Prevention under the United States
Public Health Service.
(j) The department may require blood banks and plasma centers to
submit monthly reports summarizing statistical data concerning the
results of tests to detect the presence of viral hepatitis and HIV.
This statistical summary shall not include the identity of individual
donors or identifying characteristics that would identify individual
donors.
(k) "Disclosed," as used in this section, means to disclose,
release, transfer, disseminate, or otherwise communicate all or any
part of any record orally, in writing, or by electronic means to any
person or entity.
(l) When the results of an HIV test, as defined in subdivision (c)
of Section 120775, are included in the medical record of the patient
who is the subject of the test, the inclusion is not a disclosure
for purposes of this section.

120985. (a) Notwithstanding Section 120980, the results of an HIV
test that identifies or provides identifying characteristics of the
person to whom the test results apply may be recorded by the
physician who ordered the test in the test subject's medical record
or otherwise disclosed without written authorization of the subject
of the test, or the subject's representative as set forth in Section
121020, to the test subject's providers of health care, as defined in
subdivision (d) of Section 56.05 of the Civil Code, for purposes of
diagnosis, care, or treatment of the patient, except that for
purposes of this section "providers of health care" does not include
a health care service plan regulated pursuant to Chapter 2.2
(commencing with Section 1340) of Division 2.
(b) Recording or disclosure of HIV test results pursuant to
subdivision (a) does not authorize further disclosure unless
otherwise permitted by law.

120990. (a) Prior to ordering a test that identifies infection with
HIV, a medical care provider shall inform the patient that the test
is planned, provide information about the test, inform the patient
that there are numerous treatment options available for a patient who
tests positive for HIV and that a person who tests negative for HIV
should continue to be routinely tested, and advise the patient that
he or she has the right to decline the test. If a patient declines
the test, the medical care provider shall note that fact in the
patient's medical file.
(b) Subdivision (a) shall not apply when a person independently
requests an HIV test from the provider.
(c) Except as provided in subdivision (a), no person shall
administer a test for HIV infection unless the person being tested or
his or her parent, guardian, conservator, or other person specified
in Section 121020, signs a written statement documenting the person's
informed consent to the test. This requirement does not apply to
such a test performed at an alternative site pursuant to Sections
120890 or 120895. Nothing in this section shall be construed to allow
a person to administer a test for HIV unless that person is
otherwise permitted under current law to administer an HIV test.
(d) Nothing in this section shall preclude a medical examiner or
other physician from ordering or performing a test to detect HIV on a
cadaver when an autopsy is performed or body parts are donated
pursuant to the Uniform Anatomical Gift Act (Chapter 3.5 (commencing
with Section 7150) of Part 1 of Division 7).
(e) (1) The requirements of subdivision (c) do not apply when
blood is tested as part of a scientific investigation conducted
either by a medical researcher operating under the approval of an
institutional review board or by the department, in accordance with a
protocol for unlinked testing.
(2) For purposes of this subdivision, "unlinked testing" means
blood samples that are obtained anonymously, or that have the name or
identifying information of the individual who provided the sample
removed in a manner that prevents the test results from ever being
linked to a particular individual who participated in the research or
study.
(f) Nothing in this section shall be construed to permit any
person to unlawfully disclose an individual's HIV status, or to
otherwise violate provisions of Section 54 of the Civil Code, the
Americans With Disabilities Act of 1990 (Public Law 101-336), or the
California Fair Employment and Housing Act (Part 2.8 (commencing with
Section 12900) of Division 3 of Title 2 of the Government Code),
which prohibit discrimination against individuals who are living with
HIV, or who test positive for HIV, or are presumed to be
HIV-positive.

120995. Actions taken pursuant to Section 1768.9 of the Welfare and
Institutions Code shall not be subject to subdivisions (a) to (c),
inclusive, of Section 120980. In addition, the requirements of
subdivision (a) of Section 120990 shall not apply to testing
performed pursuant to Section 1768.9 of the Welfare and Institutions
Code.

121000. Actions taken pursuant to Title 8 (commencing with Section
7500) of Part 3 of the Penal Code shall not be subject to
subdivisions (a) to (c), inclusive, of Section 120980. In addition,
the requirements of subdivision (a) of Section 120990 shall not apply
to testing performed pursuant to that title.

121005. Neither the department nor any blood bank or plasma center,
including a blood bank or plasma center owned or operated by a
public entity, shall be held liable for any damages resulting from
the notification of test results, as set forth in paragraph (3) of
subdivision (a) of, and in subdivision (c) of, Section 1603.3, as
amended by Chapter 23 of the Statutes of 1985.

121010. Notwithstanding Section 120975 or 120980, the results of a
blood test to detect antibodies to the probable causative agent of
AIDS may be disclosed to any of the following persons without written
authorization of the subject of the test:
(a) To the subject of the test or the subject's legal
representative, conservator, or to any person authorized to consent
to the test pursuant to subdivision (b) of Section 120990.
(b) To a test subject's provider of health care, as defined in
subdivision (d) of Section 56.05 of the Civil Code, except that for
purposes of this section, "provider of health care" does not include
a health care service plan regulated pursuant to Chapter 2.2
(commencing with Section 1340) of Division 2.
(c) To an agent or employee of the test subject's provider of
health care who provides direct patient care and treatment.
(d) To a provider of health care who procures, processes,
distributes, or uses a human body part donated pursuant to the
Uniform Anatomical Gift Act (Chapter 3.5 (commencing with Section
7150) of Part 1 of Division 7).
(e) (1) To the designated officer of an emergency response
employee, and from that designated officer to an emergency response
employee regarding possible exposure to HIV or AIDS, but only to the
extent necessary to comply with provisions of the Ryan White
Comprehensive AIDS Resources Emergency Act of 1990 (P.L. 101-381; 42
U.S.C. Sec. 201).
(2) For purposes of this subdivision, "designated officer" and
"emergency response employee" have the same meaning as these terms
are used in the Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (P.L. 101-381; 42 U.S.C. Sec. 201).
(3) The designated officer shall be subject to the confidentiality
requirements specified in Section 120980, and may be personally
liable for unauthorized release of any identifying information about
the HIV results. Further, the designated officer shall inform the
exposed emergency response employee that the employee is also subject
to the confidentiality requirements specified in Section 120980, and
may be personally liable for unauthorized release of any identifying
information about the HIV test results.

121015. (a) Notwithstanding Section 120980 or any other provision
of law, no physician and surgeon who has the results of a confirmed
positive test to detect HIV infection of a patient under his or her
care shall be held criminally or civilly liable for disclosing to a
person reasonably believed to be the spouse, or to a person
reasonably believed to be a sexual partner or a person with whom the
patient has shared the use of hypodermic needles, or to the local
health officer, that the patient has tested positive on a test to
detect HIV infection, except that no physician and surgeon shall
disclose any identifying information about the individual believed to
be infected, except as required in Section 121022.
(b) No physician and surgeon shall disclose the information
described in subdivision (a) unless he or she has first discussed the
test results with the patient and has offered the patient
appropriate educational and psychological counseling, that shall
include information on the risks of transmitting the human
immunodeficiency virus to other people and methods of avoiding those
risks, and has attempted to obtain the patient's voluntary consent
for notification of his or her contacts. The physician and surgeon
shall notify the patient of his or her intent to notify the patient's
contacts prior to any notification. When the information is
disclosed to a person reasonably believed to be a spouse, or to a
person reasonably believed to be a sexual partner, or a person with
whom the patient has shared the use of hypodermic needles, the
physician and surgeon shall refer that person for appropriate care,
counseling, and followup. This section shall not apply to disclosures
made other than for the purpose of diagnosis, care, and treatment of
persons notified pursuant to this section, or for the purpose of
interrupting the chain of transmission.
(c) This section is permissive on the part of the attending
physician, and all requirements and other authorization for the
disclosure of test results to detect HIV infection are limited to the
provisions contained in this chapter, Chapter 10 (commencing with
Section 121075) and Sections 1603.1 and 1603.3. No physician has a
duty to notify any person of the fact that a patient is reasonably
believed to be infected with HIV, except as required by Section
121022.
(d) The local health officer may alert any persons reasonably
believed to be a spouse, sexual partner, or partner of shared needles
of an individual who has tested positive on an HIV test about their
exposure, without disclosing any identifying information about the
individual believed to be infected or the physician making the
report, and shall refer any person to whom a disclosure is made
pursuant to this subdivision for appropriate care and followup. Upon
completion of the local health officer's efforts to contact any
person pursuant to this subdivision, all records regarding that
person maintained by the local health officer pursuant to this
subdivision, including, but not limited to, any individual
identifying information, shall be expunged by the local health
officer.
(e) The local health officer shall keep confidential the identity
and the seropositivity status of the individual tested and the
identities of the persons contacted, as long as records of contacts
are maintained.
(f) Except as provided in Section 1603.1, 1603.3, or 121022, no
person shall be compelled in any state, county, city, or local civil,
criminal, administrative, legislative, or other proceedings to
identify or provide identifying characteristics that would identify
any individual reported or person contacted pursuant to this section.

121020. (a) (1) When the subject of an HIV test is not competent to
give consent for the test to be performed, written consent for the
test may be obtained from the subject's parents, guardians,
conservators, or other person lawfully authorized to make health care
decisions for the subject. For purposes of this paragraph, a minor
shall be deemed not competent to give consent if he or she is under
12 years of age.
(2) Notwithstanding paragraph (1), when the subject of the test is
a minor adjudged to be a dependent child of the court pursuant to
Section 360 of the Welfare and Institutions Code, written consent for
the test to be performed may be obtained from the court pursuant to
its authority under Section 362 or 369 of the Welfare and
Institutions Code.
(b) Written consent shall only be obtained for the subject
pursuant to subdivision (a) when necessary to render appropriate care
or to practice preventative measures.
(c) The person authorized to consent to the test pursuant to
subdivision (a) shall be permitted to do any of the following:
(1) Notwithstanding Sections 120975 and 120980, receive the
results of the test on behalf of the subject without written
authorization.
(2) Disclose the test results on behalf of the subject in
accordance with Sections 120975 and 120980.
(3) Provide written authorization for the disclosure of the test
results on behalf of the subject in accordance with Sections 120975
and 120980.

121022. (a) To ensure knowledge of current trends in the HIV
epidemic and to ensure that California remains competitive for
federal HIV and AIDS funding, health care providers and laboratories
shall report cases of HIV infection to the local health officer using
patient names. Local health officers shall report unduplicated HIV
cases by name to the department.
(b) (1) Health care providers and local health officers shall
submit cases of HIV infection pursuant to subdivision (a) by courier
service, United States Postal Service express mail or registered
mail, other traceable mail, person-to-person transfer, facsimile, or
electronically by a secure and confidential electronic reporting
system established by the department.
(2) This subdivision shall be implemented using the existing
resources of the department.
(c) The department and local health officers shall ensure
continued reasonable access to anonymous HIV testing through
alternative testing sites, as established by Section 120890, and in
consultation with HIV planning groups and affected stakeholders,
including representatives of persons living with HIV and health
officers.
(d) The department shall promulgate emergency regulations to
conform the relevant provisions of Article 3.5 (commencing with
Section 2641.5) of Chapter 4 of Title 17 of the California Code of
Regulations, consistent with this chapter, within one year of the
effective date of this section.
(e) Pursuant to Section 121025, reported cases of HIV infection
shall not be disclosed, discoverable, or compelled to be produced in
any civil, criminal, administrative, or other proceeding.
(f) State and local health department employees and contractors
shall be required to sign confidentiality agreements developed by the
department that include information related to the penalties for a
breach of confidentiality and the procedures for reporting a breach
of confidentiality, prior to accessing confidential HIV-related
public health records. Those agreements shall be reviewed annually by
either the department or the appropriate local health department.
(g) No person shall disclose identifying information reported
pursuant to subdivision (a) to the federal government, including, but
not limited to, any agency, employee, agent, contractor, or anyone
else acting on behalf of the federal government, except as permitted
under subdivision (b) of Section 121025.
(h) (1) Any potential or actual breach of confidentiality of
HIV-related public health records shall be investigated by the local
health officer, in coordination with the department, when
appropriate. The local health officer shall immediately report any
evidence of an actual breach of confidentiality of HIV-related public
health records at a city or county level to the department and the
appropriate law enforcement agency.
(2) The department shall investigate any potential or actual
breach of confidentiality of HIV-related public health records at the
state level, and shall report any evidence of such a breach of
confidentiality to an appropriate law enforcement agency.
(i) Any willful, negligent, or malicious disclosure of cases of
HIV infection reported pursuant to subdivision (a) shall be subject
to the penalties prescribed in Section 121025.
(j) Nothing in this section shall be construed to limit other
remedies and protections available under state or federal law.

121023. (a) Subject to subdivision (b), each clinical laboratory,
as defined in Section 1206 of the Business and Professions Code,
shall report all CD4+ T-Cell test results to the local health officer
for the local health jurisdiction where the health care provider
facility is located within seven days of the completion of the CD4+
T-Cell test.
(b) A clinical laboratory shall not be required to report a CD4+
T-Cell test result, as required by this section, if the clinical
laboratory can demonstrate that the CD4+ T-Cell test result is not
related to a diagnosed case of HIV infection.
(c) The clinical laboratory report with CD4+ T-Cell test results
shall also include, if provided by the ordering health care provider,
all of the following:
(1) The patient's name.
(2) The patient's date of birth.
(3) The patient's gender.
(4) The name, telephone number, and address of the local health
care provider that ordered the test.
(d) The clinical laboratory report with CD4+ T-Cell test results
shall also include all of the following information:
(1) CD4+ T-Cell test results expressed as an absolute count (the
number of lymphocytes containing the CD4 epitope per cubic
millimeter) and, if available, the relative count (the number of
lymphocytes expressing the CD4 epitope as a percentage of total
lymphocytes).
(2) The type of laboratory test performed.
(3) The date the laboratory test was performed.
(4) The name, telephone number, and address of the clinical
laboratory that performed the test.
(5) The laboratory CLIA number.
(6) The laboratory report number.
(e) (1) Each local health officer shall inspect each clinical
laboratory CD4+ T-Cell test report to determine if the test is
related to a case of HIV infection.
(2) If the clinical laboratory CD4+ T-Cell test result is related
to a case of HIV infection, the local health officer shall report the
case of HIV infection or AIDS, as appropriate, to the State
Department of Public Health within 45 days of receipt of the
laboratory report.
(3) If the clinical laboratory CD4+ T-Cell test result is not
related to a case of HIV infection, the local health officer shall
destroy the laboratory CD4+ T-Cell test report.
(f) Pursuant to Section 121025, CD4+ T-Cell test reports shall not
be disclosed, discoverable, or compelled to be produced in any
civil, criminal, administrative, or other proceeding.
(g) CD4+ T-Cell test reports shall be considered confidential
public health records as defined in Section 121035.
(h) For the purposes of this section, "CD4+ T-Cell test" means any
test used to measure the number of lymphocytes containing the CD4
epitope.