S.B. 19

This document includes Senate Committee Amendments incorporated into the bill on Thu, Feb 3, 2005 at 11:23 AM by rday. --> 1

DISEASE TESTING OF INDIVIDUALS
2 EXPOSED TO BLOOD BORNE PATHOGENS
3 2005 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Patrice M. Arent
6
7 LONG TITLE
8 General Description:
9 This bill amends and repeals certain provisions in the Health Code, the Judicial Code,
10 and the Labor Code regarding disease testing for blood borne pathogens.
11 Highlighted Provisions:
12 This bill:
13 . repeals provisions in the Health Code regarding workplace testing for exposure to
14 blood pathogens;
15 . moves provisions from the Health Code to the Labor Code regarding worker's
16 compensation presumption for emergency medical services providers;
17 . amends provisions in the Judicial Code regarding court-ordered disease testing for
18 at risk public safety officers;
19 . adds Hepatitis C to the definition of disease for purposes of disease testing and the
20 presumptions for workers' compensation; and
21 . makes technical amendments.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None
26 Utah Code Sections Affected:
27 AMENDS:

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Senate Committee Amendments 2-3-2005 rd/cjd 28

26-3-11, as enacted by Chapter 201, Laws of Utah 1996
29 78-29-101, as last amended by Chapters 137 and 141, Laws of Utah 1999
30 78-29-102, as last amended by Chapter 137, Laws of Utah 1999
31 78-29-103, as enacted by Chapter 137, Laws of Utah 1999
32 ENACTS:
33 78-29-104, Utah Code Annotated 1953
33a S. 78-29-105, Utah Code Annotated 1953 .S
34 RENUMBERS AND AMENDS:
35 34A-2-901, (Renumbered from 26-6a-10, as last amended by Chapter 137, Laws of
36 Utah 1999)
37 34A-2-902, (Renumbered from 26-6a-11, as last amended by Chapter 137, Laws of
38 Utah 1999)
39 34A-2-903, (Renumbered from 26-6a-12, as last amended by Chapter 375, Laws of
40 Utah 1997)
41 34A-2-904, (Renumbered from 26-6a-13, as last amended by Chapter 375, Laws of
42 Utah 1997)
43 34A-2-905, (Renumbered from 26-6a-14, as last amended by Chapter 375, Laws of
44 Utah 1997)
45 REPEALS:
46 26-6a-1, as last amended by Chapters 137 and 141, Laws of Utah 1999
47 26-6a-1.5, as enacted by Chapter 137, Laws of Utah 1999
48 26-6a-2, as last amended by Chapter 86, Laws of Utah 2000
49 26-6a-3, as last amended by Chapter 137, Laws of Utah 1999
50 26-6a-4, as last amended by Chapter 79, Laws of Utah 1996
51 26-6a-5, as last amended by Chapter 137, Laws of Utah 1999
52 26-6a-6, as last amended by Chapter 137, Laws of Utah 1999
53 26-6a-7, as last amended by Chapter 137, Laws of Utah 1999
54 26-6a-8, as last amended by Chapter 137, Laws of Utah 1999
55 26-6a-9, as last amended by Chapter 137, Laws of Utah 1999
56
57 Be it enacted by the Legislature of the state of Utah:

58 Section 1. Section 26-3-11 is amended to read:

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- 3 - 59 26-3-11. Relation to other chapters.
60 Because Chapters 2, 4, 6, [6a,] and 33a contain specific provisions regarding collection
61 and disclosure of data, the provisions of this chapter do not apply to data subject to those
62 chapters.
63 Section 2. Section 34A-2-901 , which is renumbered from Section 26-6a-10 is
64 renumbered and amended to read:
65 Part 9. Presumptions For Emergency Medical Services Providers
66 [26-6a-10]. 34A-2-901. Workers' compensation presumption for emergency
67 medical services providers.
68 (1) An emergency medical services provider who claims to have contracted a disease,
69 as defined by [Sections 26-6a-1 and] Section 78-29-101 , as a result of a significant exposure in
70 the performance of his duties as an emergency medical services provider, is presumed to have
71 contracted the disease by accident during the course of his duties as an emergency medical
72 services provider if:
73 (a) his employment or service as an emergency medical services provider in this state
74 commenced prior to July 1, 1988, and he tests positive for a disease during the tenure of his
75 employment or service, or within three months after termination of his employment or service;
76 or
77 (b) the individual's employment or service as an emergency medical services provider
78 in this state commenced on or after July 1, 1988, and he tests negative for any disease at the
79 time his employment or service commenced, and again three months later, and he subsequently
80 tests positive during the tenure of his employment or service, or within three months after
81 termination of his employment or service.
82 (2) Each emergency medical services agency shall inform the emergency medical
83 services providers that it employs or utilizes of the provisions and benefits of this section at
84 commencement of and termination of employment or service.
85 Section 3. Section 34A-2-902 , which is renumbered from Section 26-6a-11 is
86 renumbered and amended to read:
87 [26-6a-11]. 34A-2-902. Workers' compensation claims by emergency medical
88 services providers -- Time limits.
89 (1) For all purposes of establishing a workers' compensation claim, the "date of

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91 tests positive for a disease, as defined in [Sections 26-6a-1 and] Section 78-29-101 . However,
92 for purposes of establishing the rate of workers' compensation benefits under Subsection
93 34A-2-702 (5), if a positive test for a disease occurs within three months after termination of
94 employment, the last date of employment is presumed to be the "date of accident."
95 (2) The time limits prescribed by Section 34A-2-417 do not apply to an employee
96 whose disability is due to a disease, so long as the employee who claims to have suffered a
97 significant exposure in the service of his employer gives notice, as required by Section
98 34A-3-108 , of the "date of accident."
99 (3) Any claim for workers' compensation benefits or medical expenses shall be filed
100 with the Division of Adjudication of the Labor Commission within one year after the date on
101 which the employee first becomes disabled or requires medical treatment for a disease, or
102 within one year after the termination of employment as an emergency medical services
103 provider, whichever occurs later.
104 Section 4. Section 34A-2-903 , which is renumbered from Section 26-6a-12 is
105 renumbered and amended to read:
106 [26-6a-12]. 34A-2-903. Failure to be tested -- Time limit for death benefits.
107 (1) An emergency medical services provider who refuses or fails to be tested in
108 accordance with Section [ 26-6a-10 ] 34A-2-901 is not entitled to any of the presumptions
109 provided by [Sections 26-6a-10 through 26-6a-14 ] this part.
110 (2) Death benefits payable under Section 34A-2-702 are payable only if it can be
111 established by competent evidence that death was a consequence of or result of the disease and,
112 notwithstanding Subsection 34A-2-702 (5), that death occurred within six years from the date
113 the employee first became disabled or required medical treatment for the disease that caused
114 his death.
115 Section 5. Section 34A-2-904 , which is renumbered from Section 26-6a-13 is
116 renumbered and amended to read:
117 [26-6a-13]. 34A-2-904. Volunteer emergency medical services providers --
118 Workers' compensation premiums.
119 (1) For purposes of receiving workers' compensation benefits, any person performing
120 the services of an emergency medical services provider is considered an employee of the entity

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- 5 - 121 for whom it provides those services.
122 (2) (a) With regard to emergency medical services providers who perform those
123 services for minimal or no compensation on a volunteer basis, and who are primarily employed
124 other than as emergency medical services providers, the amount of workers' compensation
125 benefits shall be based on that primary employment. Any excess premiums necessary for
126 workers' compensation shall be paid by the entity that utilized that individual as an emergency
127 medical services provider.
128 (b) With regard to emergency medical services providers who perform those services
129 for minimal or no compensation or on a volunteer basis, and who have no other employment,
130 the amount of workers' compensation benefits shall be the minimum benefit. Any premium
131 necessary for workers' compensation shall be paid by the entity that utilizes that individual as
132 an emergency medical services provider.
133 (3) Workers' compensation benefits are the exclusive remedy for all injuries and
134 occupational diseases, as provided by Title 34A, Chapters 2 and 3. However, emergency
135 medical services providers described in Subsection (2) are not precluded from utilizing
136 insurance benefits provided by a primary employer, or any other insurance benefits, in addition
137 to workers' compensation benefits.
138 Section 6. Section 34A-2-905 , which is renumbered from Section 26-6a-14 is
139 renumbered and amended to read:
140 [26-6a-14]. 34A-2-905. Rulemaking authority -- Rebuttable presumption.
141 (1) The Labor Commission has authority to establish rules necessary for the purposes
142 of [Sections 26-6a-10 through 26-6a-13 ] this part.
143 (2) The presumption provided by [Sections 26-6a-10 through 26-6a-14 ] this part is a
144 rebuttable presumption.
145 Section 7. Section 78-29-101 is amended to read:
146 78-29-101. Definitions.
147 For purposes of this chapter:
148 (1) "Blood or contaminated body fluids" includes blood, amniotic fluid, pericardial
149 fluid, peritoneal fluid, pleural fluid, synovial fluid, cerebrospinal fluid, semen, and vaginal
150 secretions, and any body fluid visibly contaminated with blood.
151 (2) "Disease" means [the same as that term is defined in Section 26-6a-1 ] Human

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Immunodeficiency Virus infection, acute or chronic Hepatitis B infection, Hepatitis C
153 infection, and any other infectious disease specifically designated by the S. Labor Commission in
153a consultation with the .S Department of Health
154 for the purposes of this chapter.
155 (3) "Emergency medical services provider" means an individual certified under Section
156 26-8a-302 , a public safety officer, local fire department personnel, or personnel employed by
157 the Department of Corrections or by a county jail, who provide prehospital emergency medical
158 care for an emergency medical services provider either as an employee or as a volunteer.
159 (4) "First aid volunteer" means a person who provides voluntary emergency assistance
160 or first aid medical care to an injured person prior to the arrival of an emergency medical
161 services provider or public safety officer.
162 (5) "Public safety officer" means a peace officer as defined in Title 53, Chapter 13,
163 Peace Officer Classifications.
164 (6) "Significant exposure" and "significantly exposed" mean [the same as the term
165 "significant exposure" is defined in Section 26-6a-1 .]:
166 (a) exposure of the body of one person to the blood or body fluids of another person
167 by:
168 (i) percutaneous injury, including a needle stick or cut with a sharp object or
169 instrument; or
170 (ii) contact with an open wound, mucous membrane, or nonintact skin because of a cut,
171 abrasion, dermatitis, or other damage; or
172 (b) exposure that occurs by any other method of transmission defined by the
173 Department of Health as a significant exposure.
174 Section 8. Section 78-29-102 is amended to read:
175 78-29-102. Petition -- Disease testing -- Notice -- Payment for testing.
176 (1) An emergency medical services provider, or first aid volunteer who is significantly
177 exposed during the course of performing the emergency medical services provider's duties or
178 during the course of performing emergency assistance or first aid may:
179 (a) request that the person to whom he was significantly exposed voluntarily submit to
180 testing [pursuant to Title 26, Chapter 6a]; or
181 (b) petition the district court for an order requiring that the person to whom he was
182 significantly exposed submit to testing to determine the presence of a disease, as defined in

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- 7 - 183 Section 78-29-101 , and that the results of that test be disclosed to the petitioner by the
184 Department of Health.
185 (2) (a) The petitioner shall file a petition with the district court seeking an order to
186 submit to testing and to disclose the results in accordance with the provisions of this section.
187 (b) The petition shall be sealed upon filing and made accessible only to the petitioner,
188 the subject of the petition, and their attorneys, upon court order.
189 (3) (a) The petition described in Subsection (2) shall be accompanied by[: (i) the
190 documentation required under Subsection 26-6a-2 (1); or (ii)] an affidavit in which the
191 emergency medical services provider or first aid volunteer certifies that he has been
192 significantly exposed to the individual who is the subject of the petition and describes that
193 exposure.
194 (b) The petitioner shall submit to testing to determine the presence of a disease, when
195 the petition is filed or within [ten] three days after the petition is filed.
196 (4) The petitioner shall cause the petition required under this section to be served on
197 the person who the petitioner is requesting to be tested in a manner that will best preserve the
198 confidentiality of that person.
199 (5) (a) The court shall set a time for a hearing on the matter within [20] ten days after
200 the petition is filed and shall give the petitioner and the individual who is the subject of the
201 petition notice of the hearing at least 72 hours prior to the hearing.
202 (b) The individual who is the subject of the petition shall also be notified that he may
203 have an attorney present at the hearing, and that his attorney may examine and cross-examine
204 witnesses.
205 (c) The hearing shall be conducted in camera.
206 (6) The district court may enter an order requiring that an individual submit to testing
207 for a disease if the court finds probable cause to believe:
208 (a) the petitioner was significantly exposed; and
209 (b) the exposure occurred during the course of the emergency medical services
210 provider's duties, or the provision of emergency assistance or first aid by a first aid volunteer.
211 (7) The court may order that additional, follow-up testing be conducted, and that the
212 individual submit to that testing, as it determines to be necessary and appropriate.
213 (8) The court is not required to order an individual to submit to a test under this section

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- 8 - 214 if it finds that there is a substantial reason, relating to the life or health of the individual, not to
215 enter the order.
216 (9) (a) Upon order of the district court that a person submit to testing for a disease, that
217 person shall report to the designated local health department to have his blood drawn within ten
218 days from the issuance of the order, and thereafter as designated by the court, or be held in
219 contempt of court.
220 (b) The court shall send the order to the Department of Health and to the local health
221 department ordered to draw the blood.
222 (c) Notwithstanding the provisions of [Title 26, Chapter 6a, or of] Section 26-6-27 , the
223 Department of Health and a local health department may disclose the test results pursuant to a
224 court order as provided in this section.
225 (d) Under this section, anonymous testing as provided under Section 26-6-3.5 [or under
226 Title 26, Chapter 6a,] shall not satisfy the requirements of the court order.
227 (10) The local health department or the Department of Health shall inform the subject
228 of the petition and the petitioner of the results of the test and advise both parties that the test
229 results are confidential. That information shall be maintained as confidential by all parties to
230 the action.
231 (11) The court, its personnel, the process server, the Department of Health, local health
232 department, and petitioner shall maintain confidentiality of the name and any other identifying
233 information regarding the individual tested and the results of the test as they relate to that
234 individual, except as specifically authorized by this chapter [or by Title 26, Chapter 6a].
235 (12) (a) Except as provided in Subsection (12)(b), the petitioner shall remit payment for
236 the drawing of the blood specimen and the analysis of the specimen for the mandatory disease
237 testing to the entity that draws the blood.
238 (b) If the petitioner is an emergency medical services provider, the agency which
239 employs the emergency medical services provider shall remit payment for the drawing of the
240 blood specimen and the analysis of the specimen for the mandatory disease testing to the entity
241 that draws the blood.
242 (13) The entity that draws the blood shall cause the blood and the payment for the
243 analysis of the specimen to be delivered to the Department of Health for analysis.
244 (14) If the individual is incarcerated, the incarcerating authority shall either draw the

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blood specimen or shall pay the expenses of having the individual's blood drawn.
246 Section 9. Section 78-29-103 is amended to read:
247 78-29-103. Confidentiality -- Disclosure -- Penalty.
248 Any person or entity entitled to receive confidential information under this chapter,
249 other than the individual tested and identified in the information, who violates the provisions of
250 this chapter by releasing or making public that confidential information, or by otherwise
251 breaching the confidentiality requirements of this chapter, is guilty of a class B misdemeanor[,
252 unless the information is otherwise released or provided pursuant to the provisions of Title 26,
253 Chapter 6a].
254 Section 10. Section 78-29-104 is enacted to read:
255 78-29-104. Department authority -- Rules.
256 The S. Labor Commission in consultation with the .S Department of Health has
256a authority to establish rules necessary for the purposes of
257 Subsections 78-29-101 (2) and (6).
257a S. Section 11. Section 78-29-105 is enacted to read:
257b 78-29-105. Construction.
257c Nothing in this chapter may be construed as prohibiting:
257d (1) a person from voluntarily consenting to the request of a health care provider, as
257e defined in Section 78-14-3, to submit to testing following a significant exposure; or
257f (2) a court from considering the petition of a health care provider for an order
257g requiring that a person submit to testing to determine the presence of a disease if a significant
257h exposure has occurred in connection with the health care provider's treatment of that person. .S
258 Section 11. Repealer.
259 This bill repeals:
260 Section 26-6a-1, Definitions.
261 Section 26-6a-1.5, Emergency medical services provider -- Choice of action.
262 Section 26-6a-2, Emergency medical services provider's significant exposure --
263 Documentation -- Request for testing -- Refusal or consent.
264 Section 26-6a-3, Unconscious or incapable patient -- Testing -- Death of patient.
265 Section 26-6a-4, Authority for testing -- Responsibility for costs.
266 Section 26-6a-5, Reporting of test results.
267 Section 26-6a-6, Confidentiality of information concerning test results --
268 Exceptions.
269 Section 26-6a-7, Violation of confidentiality requirements -- Penalty.
270 Section 26-6a-8, Patient notification and counseling.

271 Section 26-6a-9, Department authority -- Rules.

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Legislative Review Note
as of 12-7-04 8:41 AM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel

Interim Committee Note
as of 12-08-04 9:32 AM

The Health and Human Services Interim Committee recommended this bill.