Current Status Introducing Body:House Bill Number:3179 Primary Sponsor:Farr Committee Number:27 Type of Legislation:GB Subject:AIDS testing Residing Body:House Current Committee:Medical, Military, Public and Municipal Affairs Computer Document Number:BBM/9070.JM Introduced Date:Jan 09, 1991 Last History Body:House Last History Date:Jan 09, 1991 Last History Type:Introduced and read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Farr Type of Legislation:General Bill
Bill Body Date Action Description CMN
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3179 House Jan 09, 1991 Introduced and read first 27
time, referred to Committee
View additional legislative information at the LPITS web site.
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.