1     
POST-EXPOSURE BLOOD TESTING AMENDMENTS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Edward H. Redd

5     
Senate Sponsor: Brian E. Shiozawa

6     

7     LONG TITLE
8     General Description:
9          This bill allows an emergency service provider to request a blood sample if
10     significantly exposed to a person's bodily fluids in the course of performing the
11     provider's duties.
12     Highlighted Provisions:
13          This bill:
14          ▸     allows a law enforcement agency to request a court order on behalf of an emergency
15     services provider authorizing a blood sample from an individual if, during the
16     course of performing the provider's duties, the provider is significantly exposed to
17     the individual's bodily fluids.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          78B-8-402, as last amended by Laws of Utah 2013, Chapter 114
25     

26     Be it enacted by the Legislature of the state of Utah:
27          Section 1. Section 78B-8-402 is amended to read:
28          78B-8-402. Petition -- Disease testing -- Notice -- Payment for testing.
29          (1) An emergency services provider or first aid volunteer who is significantly exposed
30     during the course of performing the emergency services provider's duties or during the course
31     of performing emergency assistance or first aid may:
32          (a) request that the person to whom the emergency services provider or first aid
33     volunteer was significantly exposed voluntarily submit to testing; or
34          (b) petition the district court or a magistrate for an order requiring that the person to
35     whom the emergency services provider or first aid volunteer was significantly exposed submit
36     to testing to determine the presence of a disease, as defined in Section 78B-8-401, and that the
37     results of that test be disclosed to the petitioner by the Department of Health.
38          (2) (a) A law enforcement agency may submit on behalf of the petitioner by electronic
39     or other means an ex parte request for a warrant ordering a blood draw from the respondent.
40          (b) The court or magistrate shall issue a warrant ordering the respondent to provide a
41     specimen of the respondent's blood within 24 hours, and that reasonable force may be used, if
42     necessary, if the court or magistrate finds that:
43          (i) the petitioner was significantly exposed during the course of performing the
44     petitioner's duties as an emergency services or first aid provider;
45          (ii) the respondent has refused consent to the blood draw or is unable to give consent;
46          (iii) there may not be an opportunity to obtain a sample at a later date; and
47          (iv) a delay in administering available FDA-approved post-exposure treatment or
48     prophylaxis could result in a lack of effectiveness of the treatment or prophylaxis.
49          (c) The petitioner shall request a person authorized under Section 41-6a-523 perform
50     the blood draw.
51          (d) A sample drawn in accordance with a warrant following an ex parte request shall be
52     sent to the Department of Health for testing.
53          [(2) (a) The] (3) If a petitioner does not seek or obtain a warrant pursuant to Subsection
54     (2), the petitioner [shall] may file a petition with the district court seeking an order to submit to
55     testing and to disclose the results in accordance with the provisions of this section.
56          [(b) The petition shall be sealed upon filing and made accessible only to the petitioner,
57     the subject of the petition, and their attorneys, upon court order.]
58          [(3)] (4) (a) The petition described in Subsection [(2)] (3) shall be accompanied by an
59     affidavit in which the petitioner certifies that the petitioner has been significantly exposed to
60     the individual who is the subject of the petition and describes that exposure.
61          (b) The petitioner shall submit to testing to determine the presence of a disease, when
62     the petition is filed or within three days after the petition is filed.
63          [(4)] (5) The petitioner shall cause the petition required under this section to be served
64     on the person who the petitioner is requesting to be tested in a manner that will best preserve
65     the confidentiality of that person.
66          [(5)] (6) (a) The court shall set a time for a hearing on the matter within 10 days after
67     the petition is filed and shall give the petitioner and the individual who is the subject of the
68     petition notice of the hearing at least 72 hours prior to the hearing.
69          (b) The individual who is the subject of the petition shall also be notified that the
70     individual may have an attorney present at the hearing and that the individual's attorney may
71     examine and cross-examine witnesses.
72          (c) The hearing shall be conducted in camera.
73          [(6)] (7) The district court may enter an order requiring that an individual submit to
74     testing, including blood testing, for a disease if the court finds probable cause to believe:
75          (a) the petitioner was significantly exposed; and
76          (b) the exposure occurred during the course of the emergency services provider's
77     duties, or the provision of emergency assistance or first aid by a first aid volunteer.
78          [(7)] (8) The court may order that the blood specimen be obtained by the use of
79     reasonable force if the individual who is the subject of the petition is a prisoner.
80          [(8)] (9) The court may order that additional, follow-up testing be conducted and that
81     the individual submit to that testing, as it determines to be necessary and appropriate.
82          [(9)] (10) The court is not required to order an individual to submit to a test under this
83     section if it finds that there is a substantial reason, relating to the life or health of the
84     individual, not to enter the order.
85          [(10)] (11) (a) Upon order of the district court that a person submit to testing for a
86     disease, that person shall report to the designated local health department to have the person's
87     blood drawn within 10 days from the issuance of the order, and thereafter as designated by the
88     court, or be held in contempt of court.
89          (b) The court shall send the order to the Department of Health and to the local health
90     department ordered to draw the blood.
91          (c) Notwithstanding the provisions of Section 26-6-27, the Department of Health and a
92     local health department may disclose the test results pursuant to a court order as provided in
93     this section.
94          (d) Under this section, anonymous testing as provided under Section 26-6-3.5 [shall]
95     may not satisfy the requirements of the court order.
96          [(11)] (12) The local health department or the Department of Health shall inform the
97     subject of the petition and the petitioner of the results of the test and advise both parties that the
98     test results are confidential. That information shall be maintained as confidential by all parties
99     to the action.
100          [(12)] (13) The court, its personnel, the process server, the Department of Health, local
101     health department, and petitioner shall maintain confidentiality of the name and any other
102     identifying information regarding the individual tested and the results of the test as they relate
103     to that individual, except as specifically authorized by this chapter.
104          [(13)] (14) (a) Except as provided in Subsection [(13)] (14)(b), the petitioner shall
105     remit payment for the drawing of the blood specimen and the analysis of the specimen for the
106     mandatory disease testing to the entity that draws the blood.
107          (b) If the petitioner is an emergency services provider, the agency that employs the
108     emergency services provider shall remit payment for the drawing of the blood specimen and
109     the analysis of the specimen for the mandatory disease testing to the entity that draws the
110     blood.
111          [(14)] (15) The entity that draws the blood shall cause the blood and the payment for
112     the analysis of the specimen to be delivered to the Department of Health for analysis.
113          [(15)] (16) If the individual is incarcerated, the incarcerating authority shall either draw
114     the blood specimen or shall pay the expenses of having the individual's blood drawn.
115          (17) The ex parte request or petition shall be sealed upon filing and made accessible
116     only to the petitioner, the subject of the petition, and their attorneys, upon court order.