This document includes House Committee Amendments incorporated into the bill on Tue, Feb 7, 2017 at 2:59 PM by ryoung.
1     
POST-EXPOSURE BLOOD TESTING AMENDMENTS

2     
2017 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 modifies provisions regarding disease testing after a significant exposure to
10     blood or contaminated body fluids.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     allows a health care provider to request a blood sample if significantly exposed to a
15     person's bodily fluids in the course of performing the provider's duties;
16          ▸     allows a health care provider to request a court order authorizing a blood sample
17     from an individual if, during the course of performing the provider's duties, the
18     provider is significantly exposed to the individual's bodily fluids;
19          ▸     clarifies rulemaking authority; and
20          ▸     makes technical and conforming changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          78B-8-401, as last amended by Laws of Utah 2013, Chapter 114
28          78B-8-402, as last amended by Laws of Utah 2016, Chapter 92
29          78B-8-403, as renumbered and amended by Laws of Utah 2008, Chapter 3
30          78B-8-404, as last amended by Laws of Utah 2013, Chapter 114
31          78B-8-405, as renumbered and amended by Laws of Utah 2008, Chapter 3
32     

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 78B-8-401 is amended to read:
35     
Part 4. Disease Testing for Peace Officers, Health Care Providers, and Volunteers

36          78B-8-401. Definitions.
37          For purposes of this [chapter] part:
38          (1) "Blood or contaminated body fluids" includes blood, saliva, amniotic fluid,
39     pericardial fluid, peritoneal fluid, pleural fluid, synovial fluid, cerebrospinal fluid, semen, and
40     vaginal secretions, and any body fluid visibly contaminated with blood.
41          (2) "Disease" means Human Immunodeficiency Virus infection, acute or chronic
42     Hepatitis B infection, Hepatitis C infection, and any other infectious disease specifically
43     designated by the Labor Commission, in consultation with the Department of Health, for the
44     purposes of this [chapter] part.
45          (3) "Emergency services provider" means:
46          (a) an individual certified under Section 26-8a-302, a [public safety] peace officer,
47     local fire department personnel, or personnel employed by the Department of Corrections or by
48     a county jail, who provide prehospital emergency care for an emergency services provider
49     either as an employee or as a volunteer; or
50          (b) an individual who provides for the care, control, support, or transport of a prisoner.
51          (4) "First aid volunteer" means a person who provides voluntary emergency assistance
52     or first aid medical care to an injured person prior to the arrival of an emergency medical
53     services provider or [public safety] peace officer.
54          (5) "Health care provider" means the same as that term is defined in Section
55     78B-3-403.
56          (6) "Peace officer" means the same as that term is defined in [Title 53, Chapter 13,
57     Peace Officer Classifications] Section 53-1-102.
58          [(5)] (7) "Prisoner" means the same as that term is [as] defined in Section 76-5-101.
59          [(6) "Public safety officer" means a peace officer as]
60          [(7)] (8) "Significant exposure" and "significantly exposed" mean:
61          (a) exposure of the body of one person to the blood or body fluids of another person
62     by:
63          (i) percutaneous injury, including a needle stick, cut with a sharp object or instrument,
64     or a wound resulting from a human bite, scratch, or similar force; or
65          (ii) contact with an open wound, mucous membrane, or nonintact skin because of a cut,
66     abrasion, dermatitis, or other damage; or
67          (b) exposure that occurs by any other method of transmission defined by the Labor
68     Commission, in consultation with the Department of Health, as a significant exposure.
69          Section 2. Section 78B-8-402 is amended to read:
70          78B-8-402. Petition -- Disease testing -- Notice -- Payment for testing.
71          (1) An emergency services provider or first aid volunteer who is significantly exposed
72     during the course of performing the emergency services provider's duties or during the course
73     of performing emergency assistance or first aid, or a health care provider acting in the course
74     and scope of the health care provider's duties as a health care provider may:
75          (a) request that the person to whom the emergency services provider [or], first aid
76     volunteer, or health care provider was significantly exposed voluntarily submit to testing; or
77          (b) petition the district court or a magistrate for an order requiring that the person to
78     whom the emergency services provider [or], first aid volunteer, or health care provider was
79     significantly exposed submit to testing to determine the presence of a disease, as defined in
80     Section 78B-8-401, and that the results of that test be disclosed to the petitioner by the
81     Department of Health.
82          (2) (a) A law enforcement agency may submit on behalf of the petitioner Ĥ→ [who is an
83     emergency services provider or first aid volunteer] ←Ĥ by electronic or other means an ex parte
84     request for a warrant ordering a blood draw from the respondent.
85          Ĥ→ [(b) A health care provider, or the health care provider's designee, may submit by
86     electronic or other means an ex parte request for a warrant ordering a blood draw from the
87     respondent.]
88           [[] (b) [] (c)] ←Ĥ The court or magistrate shall issue a warrant ordering the respondent to
89     provide a specimen of the respondent's blood within 24 hours, and that reasonable force may be
90     used, if necessary, if the court or magistrate finds that:
91          (i) the petitioner was significantly exposed during the course of performing the
92     petitioner's duties as an emergency services [or] provider, first aid [provider] volunteer, or
93     health care provider;
94          (ii) the respondent has refused consent to the blood draw or is unable to give consent;
95          (iii) there may not be an opportunity to obtain a sample at a later date; and
96          (iv) a delay in administering available FDA-approved post-exposure treatment or
97     prophylaxis could result in a lack of effectiveness of the treatment or prophylaxis.
98          Ĥ→ [[] (c) [] (d)] ←Ĥ The petitioner shall request a person authorized under Section
98a     41-6a-523
99     perform the blood draw.
100          Ĥ→ [[] (d) [] (e)] ←Ĥ A sample drawn in accordance with a warrant following an ex parte
100a     request
101     shall be sent to the Department of Health for testing.
102          (3) If a petitioner does not seek or obtain a warrant pursuant to Subsection (2), the
103     petitioner may file a petition with the district court seeking an order to submit to testing and to
104     disclose the results in accordance with [the provisions of] this section.
105          (4) (a) The petition described in Subsection (3) shall be accompanied by an affidavit in
106     which the petitioner certifies that the petitioner has been significantly exposed to the individual
107     who is the subject of the petition and describes that exposure.
108          (b) The petitioner shall submit to testing to determine the presence of a disease, when
109     the petition is filed or within three days after the petition is filed.
110          (5) The petitioner shall cause the petition required under this section to be served on
111     the person who the petitioner is requesting to be tested in a manner that will best preserve the
112     confidentiality of that person.
113          (6) (a) The court shall set a time for a hearing on the matter within 10 days after the
114     petition is filed and shall give the petitioner and the individual who is the subject of the petition
115     notice of the hearing at least 72 hours prior to the hearing.
116          (b) The individual who is the subject of the petition shall also be notified that the
117     individual may have an attorney present at the hearing and that the individual's attorney may
118     examine and cross-examine witnesses.
119          (c) The hearing shall be conducted in camera.
120          (7) The district court may enter an order requiring that an individual submit to testing,
121     including blood testing, for a disease if the court finds probable cause to believe:
122          (a) the petitioner was significantly exposed; and
123          (b) the exposure occurred during the course of the emergency services provider's
124     duties, [or] the provision of emergency assistance or first aid by a first aid volunteer, or the
125     health care provider acting in the course and scope of the provider's duties as a health care
126     provider.
127          (8) The court may order that the blood specimen be obtained by the use of reasonable
128     force if the individual who is the subject of the petition is a prisoner.
129          (9) The court may order that additional, follow-up testing be conducted and that the
130     individual submit to that testing, as it determines to be necessary and appropriate.
131          (10) The court is not required to order an individual to submit to a test under this
132     section if it finds that there is a substantial reason, relating to the life or health of the
133     individual, not to enter the order.
134          (11) (a) Upon order of the district court that a person submit to testing for a disease,
135     that person shall report to the designated local health department to have the person's blood
136     drawn within 10 days from the issuance of the order, and thereafter as designated by the court,
137     or be held in contempt of court.
138          (b) The court shall send the order to the Department of Health and to the local health
139     department ordered to draw the blood.
140          (c) Notwithstanding the provisions of Section 26-6-27, the Department of Health and a
141     local health department may disclose the test results pursuant to a court order as provided in
142     this section.
143          (d) Under this section, anonymous testing as provided under Section 26-6-3.5 may not
144     satisfy the requirements of the court order.
145          (12) The local health department or the Department of Health shall inform the subject
146     of the petition and the petitioner of the results of the test and advise both parties that the test
147     results are confidential. That information shall be maintained as confidential by all parties to
148     the action.
149          (13) The court, its personnel, the process server, the Department of Health, local health
150     department, and petitioner shall maintain confidentiality of the name and any other identifying
151     information regarding the individual tested and the results of the test as they relate to that
152     individual, except as specifically authorized by this chapter.
153          (14) (a) Except as provided in Subsection (14)(b), the petitioner shall remit payment
154     for the drawing of the blood specimen and the analysis of the specimen for the mandatory
155     disease testing to the entity that draws the blood.
156          (b) If the petitioner is an emergency services provider, the agency that employs the
157     emergency services provider shall remit payment for the drawing of the blood specimen and
158     the analysis of the specimen for the mandatory disease testing to the entity that draws the
159     blood.
160          (15) The entity that draws the blood shall cause the blood and the payment for the
161     analysis of the specimen to be delivered to the Department of Health for analysis.
162          (16) If the individual is incarcerated, the incarcerating authority shall either draw the
163     blood specimen or shall pay the expenses of having the individual's blood drawn.
164          (17) The ex parte request or petition shall be sealed upon filing and made accessible
165     only to the petitioner, the subject of the petition, and their attorneys, upon court order.
166          Section 3. Section 78B-8-403 is amended to read:
167          78B-8-403. Confidentiality -- Disclosure -- Penalty.
168          [Any] A person or entity entitled to receive confidential information under this
169     [chapter] part, other than the individual tested and identified in the information, who violates
170     [the provisions of] this [chapter] part by releasing or making public that confidential
171     information, or by otherwise breaching the confidentiality requirements of this [chapter] part, is
172     guilty of a class B misdemeanor.
173          Section 4. Section 78B-8-404 is amended to read:
174          78B-8-404. Department authority -- Rules.
175          The Labor Commission, in consultation with the Department of Health, has authority to
176     establish rules necessary for the purposes of Subsections 78B-8-401(2) and [(7)] (8).
177          Section 5. Section 78B-8-405 is amended to read:
178          78B-8-405. Construction.
179          Nothing in this part may be construed as prohibiting[: (1)] a person from voluntarily
180     consenting to the request of a health care provider[, as defined in Section 78B-3-403,] to
181     submit to testing following a significant exposure[; or].
182          [(2) a court from considering the petition of a health care provider for an order
183     requiring that a person submit to testing to determine the presence of a disease if a significant
184     exposure has occurred in connection with the health care provider's treatment of that person.]




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