H 3179 Session 109 (1991-1992)
H 3179 General Bill, By T.L. Farr
A Bill to amend Section 44-29-230, Code of Laws of South Carolina, 1976,
relating to the required testing when a health care worker is exposed to the
human immunodeficiency virus, so as to provide a procedure for testing in the
event of exposure to potentially infectious blood or body fluids, and to
provide, among other things, for confidentiality and a criminal penalty.
01/09/91 House Introduced and read first time HJ-9
01/09/91 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-9
A BILL
TO AMEND SECTION 44-29-230, CODE OF LAWS OF SOUTH
CAROLINA, 1976, RELATING TO THE REQUIRED TESTING
WHEN A HEALTH CARE WORKER IS EXPOSED TO THE
HUMAN IMMUNODEFICIENCY VIRUS, SO AS TO PROVIDE A
PROCEDURE FOR TESTING IN THE EVENT OF EXPOSURE TO
POTENTIALLY INFECTIOUS BLOOD OR BODY FLUIDS, AND TO
PROVIDE, AMONG OTHER THINGS, FOR CONFIDENTIALITY
AND A CRIMINAL PENALTY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 44-29-230 of the 1976 Code, as added by Act
490 of 1988, is amended to read:
"Section 44-29-230. While working with a patient or a
patient's blood or body fluids, if a health care worker is involved in an
incident resulting in possible exposure to Human Immunodeficiency
Virus (HIV), and a health care professional has probable cause to
believe that the incident may have caused infection, the professional
may require the patient to be tested. The test results must be given to the
professional who shall report the results to the worker and patient.
(A) As used in this section:
( 1) `Worker' means a health care worker,
emergency medical technician, paramedic, firefighter, law enforcement
officer, jail or prison officer, Department of Youth Services officer,
corrections officer, wildlife officer, nonpaid state constable, coroner,
medical examiner, mortician, public health worker, or other public safety
officer. Health care worker includes all licensed health professionals,
physicians, dentists, any employee of or student assigned to a health care
facility or health care organization, and persons providing health care in
the home whose duties may result in exposure to blood or body fluids of
other persons.
( 2) `Volunteer' means a good samaritan, volunteer health care
worker, a rescue squad worker or volunteer firefighter, who may be
exposed to the blood or body fluids of another person while rendering
voluntary assistance or voluntarily assisting other workers.
( 3) `Voluntary assistance' means a public health or safety
service performed by a volunteer.
( 4) `Person' means an individual, conscious or unconscious,
to whose blood or body fluids a worker or volunteer was exposed or an
individual who was exposed to the blood or body fluids of a worker or
volunteer.
( 5) `Physician' means an individual who is licensed to practice
medicine in South Carolina.
( 6) `Exposure' is defined as contact with blood or other body
fluids to which universal precautions, as defined by the Centers for
Disease Control (CDC), apply through percutaneous inoculation or
contact with an open wound, nonintact skin, or mucous membrane
during the performance of job duties or voluntary assistance.
( 7) `Test', `testing', or `tested' means the collection of a blood
specimen and/or performance of laboratory tests upon a blood specimen
to determine the presence of bloodborne infectious agents or antibodies
to bloodborne infectious agents.
( 8) `Petitioner' means the person, worker, or volunteer seeking
a court order requiring the respondent to be tested.
( 9) `Respondent' means the person, worker, or volunteer
whom the petitioner asks the court to require to be tested.
(10) `Pretest counseling' includes an explanation of the need for
the testing to be conducted, how the specimen will be collected, an
explanation of the meaning of a negative or positive test result, an
explanation of how the results will be utilized and maintained, including
confidentiality requirements regarding the identity of the individual
being tested and the test results, and the consequences of refusing
testing.
(11) `Post-test counseling' includes the results of the test, an
explanation of the meaning and significance of the test results, an
explanation of how the virus is transmitted and how to prevent
transmission, and information regarding additional medical and social
services if needed.
(12) `Potentially infectious blood and body fluids' includes
blood, amniotic fluid, pericardial fluid, peritoneal fluid, pleural fluid,
synovial fluid, cerebrospinal fluid, semen, and vaginal secretions or any
body fluid visibly contaminated with blood. Saliva is considered an
infectious body fluid in dental settings where saliva is likely to be
contaminated with blood and in cases involving human bites.
(13) `Bloodborne infectious agents' includes Hepatitis B Virus
(HBV); Hepatitis C Virus (HCV); Human Immunodeficiency Virus,
Type 1 (HIV); Human Immunodeficiency Virus, Type 2 (HIV-2);
syphilis; Human T-cell Lymphotrophic Virus-type I (HTLV-I);
Cytomegalovirus (CMV); and other communicable microorganisms
designated as bloodborne pathogens by the CDC.
(14) `Health care facility' includes, but is not limited to,
hospitals, including general and specialized hospitals, nursing homes,
residential treatment facilities for children and adolescents, infirmaries,
clinics, ambulatory surgical facilities, community residential care
facilities, facilities for chemically dependent or addicted persons, renal
dialysis units, day care facilities for adults, physicians' offices, dentists'
offices, ambulatory medical care facilities, laboratories, blood banks,
blood or plasma collection centers, and all other settings in which health
care is provided.
(15) `Baseline Test' means a laboratory blood test conducted to
establish whether or not a worker, volunteer, or person tests positive for
any bloodborne infectious agent or antibodies to any bloodborne
infectious agent at the time of, before, or immediately following a
particular exposure.
(16) `Employer' means the entity which employs or contracts
with a worker to perform job duties during which an exposure may
occur.
(B) When, in his professional judgment, a physician has reason to
believe that a worker in the course of his employment or a volunteer in
the course of voluntary assistance has been exposed to the potentially
infectious blood or body fluids of a person, and the employer, worker or
volunteer requests that the person be tested, the physician, after
documenting the type of fluid to which the worker or volunteer was
exposed and a description of the exposure, may order that a blood
specimen be taken and the person's blood be tested without the consent
of the person. By receiving the services rendered by the worker or
volunteer, the person is considered to have consented to testing under
these circumstances in order to protect the health and safety of the
worker or volunteer.
Before the test is performed, the physician or other appropriate health
professional must attempt to offer pretest counseling to the person to be
tested, and if the person accepts pretest counseling, the pretest
counseling must be immediately provided. If the person is unconscious,
unavailable, mentally incompetent, or physically unable to receive
counseling, the physician may obtain the blood specimen and order the
test and offer appropriate counseling when the person is able to receive
it.
If, at the time the testing is sought, the person is deceased, the
physician may order the test.
Whenever a physician orders testing of a person, he must also order
baseline testing of the worker or volunteer, to which the worker or
volunteer is considered to have consented.
When a physician in his professional judgment has reason to believe
that a worker in the course of his employment or a volunteer in the
course of voluntary assistance has exposed a person to potentially
infectious blood or body fluids, and the person or employer requests that
the worker or volunteer's blood be tested, the physician, after
documenting the type of fluid to which the person has been exposed and
a description of the exposure, may order the blood specimen of the
worker or volunteer to be tested without the consent of the worker or
volunteer. By rendering the service, the worker or volunteer is
considered to have consented to testing in these circumstances in order
to protect the health and safety of the person.
Before the test is performed, the physician or other appropriate health
professional must attempt to offer counseling to the worker or volunteer
to be tested, and, if the worker or volunteer accepts counseling, the
counseling must be immediately provided. If the worker or volunteer is
unconscious, unavailable, mentally incompetent, or physically unable to
receive counseling, the physician may obtain the blood specimen and
order the test and offer appropriate counseling when the person is able
to receive it.
If, at the time the testing is sought, the worker or volunteer is
deceased, the physician may order the test.
Whenever a physician orders testing of a worker or volunteer, he
must also order baseline testing of the person, to which the person is
considered to have consented.
Within twenty-four hours of receipt of individual test results, the
physician or other appropriate health professional must make a
reasonable effort to provide the test results and posttest counseling to the
worker, volunteer, or person who was tested. If the test results are
positive, direct in-person counseling is appropriate except in cases where
this is not practical.
(C) If a blood specimen suitable for testing as allowed by this
section does not exist, and the person, worker or volunteer required to
be tested refuses to allow a blood specimen to be obtained, the person,
worker, volunteer, or employer seeking the testing may petition the court
of common pleas for an order requiring the person, worker, or volunteer
to be tested. As these test results are needed to determine proper
treatment and conduct of the worker, volunteer, or person exposed, these
cases must be given priority on the court's calendar. The petition and
other pleadings filed pursuant to this section must substitute pseudonyms
for the true names of the parties. The disclosure to the court and parties
of the true names of the parties must be communicated in documents
sealed by the court. The parties' true names, addresses, and other
identifying information may be released to individuals responsible for
service of the petition and other pleadings. Court proceedings must be
conducted in camera unless the respondent requests a hearing in open
court. The record of the court proceeding must be sealed unless waived
in writing by the respondent.
The court shall order testing if the petitioner proves the following:
(1) the summons and petition were served upon the respondent
not less than twenty-four hours before the hearing;
(2) a baseline test was performed upon a blood specimen
collected from the exposed person, worker, or volunteer, or an order
from the court requiring the baseline testing is also being sought by the
petitioner;
(3) the respondent was counseled concerning the need for the
testing to be conducted; the respondent was offered free, voluntary
testing and refused to consent to the testing; petitioner or, if petitioner
is a worker or a volunteer, petitioner's employer will be responsible for
the cost of the testing;
(4) a physician in his professional judgment has reason to
believe that the petitioner was exposed to the potentially infectious
blood or body fluids of the respondent;
(5) the withdrawal of the specimen of blood will be performed
in a medically approved manner; only a physician, physician's assistant,
registered nurse, licensed practical nurse, medical technician, medical
assistant, phlebotomist, or other trained medical personnel may
withdraw blood specimens for the purposes of this section.
(D) All test results obtained pursuant to this section must be kept
confidential and only be disclosed to specific individuals with a bona
fide need to know or as required or allowed by other provisions of law,
including regulations. An employer of a worker or volunteer who tests
positive for a bloodborne infectious agent may disclose the test results
to those other employees of the employer who have a bona fide need to
know in order to protect against exposure of other individuals to the
blood or body fluids of the worker or volunteer testing positive. Any
employee to which this information is released must keep the
information strictly confidential. Each person, worker, or volunteer
tested shall keep confidential any personal identifying data regarding the
other parties, except as may be necessary to receive medical or
psychological care or advice, pursue other legal remedies, or comply
with other provisions of law, including regulations. Any person, worker,
or volunteer may disclose or consent to the disclosure of his individual
test results. All positive test results must be reported to the Department
of Health and Environmental Control in the manner prescribed in
Sections 44-29-70 and 44-29-80.
A violation of the confidentiality requirements set forth in this
section is a misdemeanor punishable by a fine of not less than one
hundred dollars nor more than five hundred dollars. Nothing in this
section may be construed to bar or limit any civil action which may exist
on behalf of any person, worker, or volunteer for breach of the
confidentiality provisions of this section.
(E) No provision in this chapter supersedes or affects Section 44-29-135. The provisions of this chapter do not, under any circumstances,
allow access to information and records held by the Department of
Health and Environmental Control in violation of Section 44-29-135.
The Department of Health and Environmental Control is not required to
conduct or pay for the testing performed pursuant to this section.
Whether the blood specimen is sent to the Department of Health and
Environmental Control Laboratory, a private laboratory, a hospital
laboratory, or any other laboratory for testing, the results must be
released only to the physician who requested the test and the Department
of Health and Environmental Control as required by Section 44-29-80.
This section is not affected or superseded by any provision of the
Adult Health Care Consent Act, codified at Section 44-66-10, et seq.
All workers, volunteers, persons, employers, physicians, dentists,
physician's assistants, registered nurses, licensed practical nurses,
medical technicians, medical assistants, phlebotomists, and other trained
medical personnel seeking or performing testing as allowed by this
section are immune from any civil action or criminal prosecution
resulting from the testing, except breaches of confidentiality as set forth
in this section."
SECTION 2. This act takes effect upon approval by the Governor.
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