Bill Text: VA HB1033 | 2019 | Regular Session | Comm Sub
Bill Title: Testing of bodily fluids; deemed consent.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Engrossed - Dead) 2018-11-30 - Left in Courts of Justice [HB1033 Detail]
Download: Virginia-2019-HB1033-Comm_Sub.html
Be it enacted by the General Assembly of Virginia:
1. That §§32.1-45.1 and 32.1-45.2 of the Code of Virginia are amended and reenacted as follows:
§32.1-45.1. Deemed consent to testing and release of test results related to infection with human immunodeficiency virus or the hepatitis B or C virus.
A. Whenever any health care provider, or any person employed
by or under the direction and control of a health care provider, is directly
exposed to body fluids of a patient in a manner that may, according to the
then current then-current guidelines of the Centers for Disease
Control and Prevention, transmit human immunodeficiency virus or the
hepatitis B or C viruses virus, the patient whose body fluids
were involved in the exposure shall be deemed to have consented to testing for
infection with human immunodeficiency virus or the hepatitis B or C
viruses virus. Such patient shall also be deemed to have consented
to the release of such test results to the person who was exposed. In other
than emergency situations, it shall be the responsibility of the health care
provider to inform patients of this provision prior to providing them with
health care services which create a risk of such exposure.
B. Whenever any patient is directly exposed to body fluids of
a health care provider, or of any person employed by or under the direction and
control of a health care provider, in a manner that may, according to the
then current then-current guidelines of the Centers for Disease
Control and Prevention, transmit human immunodeficiency virus or the
hepatitis B or C viruses virus, the person whose body fluids were
involved in the exposure shall be deemed to have consented to testing for
infection with human immunodeficiency virus or the hepatitis B or C
viruses virus. Such person shall also be deemed to have consented to
the release of such test results to the patient who was exposed.
C. For the purposes of this section, "health care
provider" means any person, facility or agency licensed or certified to
provide care or treatment by the Department of Health, Department of Behavioral
Health and Developmental Services, Department of Rehabilitative Services, or
the Department of Social Services, any person licensed or certified by a
health regulatory board within the Department of Health Professions except for
the Boards of Funeral Directors and Embalmers and Veterinary Medicine or any
personal care agency contracting with the Department of Medical Assistance
Services.
D. "Health care provider," as defined in subsection C, shall be deemed to include any person who renders emergency care or assistance, without compensation and in good faith, at the scene of an accident, fire, or any life-threatening emergency, or while en route therefrom to any hospital, medical clinic or doctor's office during the period while rendering such emergency care or assistance. The Department of Health shall provide appropriate counseling and opportunity for face-to-face disclosure of any test results to any such person.
E. Whenever any law-enforcement officer, salaried or volunteer
firefighter, or salaried or volunteer emergency medical services provider is
directly exposed to body fluids of a person in a manner that may, according to
the then current then-current guidelines of the Centers for
Disease Control and Prevention, transmit human immunodeficiency virus or the
hepatitis B or C viruses virus, the person whose body fluids were
involved in the exposure shall be deemed to have consented to testing for
infection with human immunodeficiency virus or the hepatitis B or C
viruses virus. Such person shall also be deemed to have consented to
the release of such test results to the person who was exposed.
F. Whenever a person is directly exposed to the body fluids of
a law-enforcement officer, salaried or volunteer firefighter, or salaried or
volunteer emergency medical services provider in a manner that may, according
to the then current then-current guidelines of the Centers for
Disease Control and Prevention, transmit human immunodeficiency virus or the
hepatitis B or C viruses virus, the person whose body fluids were
involved in the exposure shall be deemed to have consented to testing for
infection with human immunodeficiency virus or the hepatitis B or C
viruses virus. The law-enforcement officer, salaried or volunteer
firefighter, or salaried or volunteer emergency medical services provider shall
also be deemed to have consented to the release of such test results to the
person who was exposed.
G. For the purposes of this section, "law-enforcement officer" means a person who is both (i) engaged in his public duty at the time of such exposure and (ii) employed by any sheriff's office, any adult or youth correctional facility, or any state or local law-enforcement agency, or any agency or department under the direction and control of the Commonwealth or any local governing body that employs persons who have law-enforcement authority.
H. Whenever any school board employee is directly exposed to
body fluids of any person in a manner that may, according to the then
current then-current guidelines of the Centers for Disease Control
and Prevention, transmit human immunodeficiency virus or the hepatitis B
or C viruses virus, the person whose body fluids were involved in
the exposure shall be deemed to have consented to testing for infection with
human immunodeficiency virus or the hepatitis B or C viruses
virus. Such person shall also be deemed to have consented to the release of
such test results to the school board employee who was exposed. If the
person whose blood specimen is sought for testing is a minor, the parent,
guardian, or person standing in loco parentis of such minor shall be notified
prior to initiating such testing. In other than emergency situations, it shall
be the responsibility of the school board employee to inform the person of this
provision prior to the contact that creates a risk of such exposure.
I. Whenever any person is directly exposed to the body fluids
of a school board employee in a manner that may, according to the then
current then-current guidelines of the Centers for Disease Control
and Prevention, transmit human immunodeficiency virus or the hepatitis B
or C viruses virus, the school board employee whose body fluids
were involved in the exposure shall be deemed to have consented to testing for
infection with human immunodeficiency virus or the hepatitis B or C
viruses virus. The school board employee shall also be deemed to
have consented to the release of such test results to the person.
J. For the purposes of this section, "school board employee" means a person who is both (i) acting in the course of employment at the time of such exposure and (ii) employed by any local school board in the Commonwealth.
K. For purposes of this section, if the person whose blood
specimen is sought for testing is a minor, and that minor refuses to provide
such specimen, consent for obtaining such specimen shall be obtained from
the parent, guardian, or person standing in loco parentis of such minor prior
to initiating such testing. If the parent or guardian or person standing in
loco parentis withholds such consent, or is not reasonably available, the
person potentially exposed to the human immunodeficiency virus or the
hepatitis B or C viruses virus, or the employer of such person,
may petition the juvenile and domestic relations district court in the county
or city where the minor resides or resided, or, in the case of a nonresident,
the county or city where the health care provider, law-enforcement agency or
school board has its principal office or, in the case of a health care provider
rendering emergency care pursuant to subsection D, the county or city where the
exposure occurred, for an order requiring the minor to provide a blood specimen
or to submit to testing and to disclose the test results in accordance with
this section.
L. Except as provided in subsection K, if the person whose
blood specimen is sought for testing refuses to provide such specimen, any
person potentially exposed to the human immunodeficiency virus or the
hepatitis B or C viruses virus, or the employer of such person,
may petition the general district court of or a magistrate serving the
county or city in which the person whose specimen is sought resides or resided,
or, in the case of a nonresident, the county or city where the health care
provider, law-enforcement agency or school board has its principal office or,
in the case of a health care provider rendering emergency care pursuant to
subsection D, the county or city where the exposure occurred, for an order
requiring the person to provide a blood specimen or to submit to testing and to
disclose the test results in accordance with this section. At any hearing
before the court, the person whose specimen is sought or his counsel may
appear. The court shall be advised by the Commissioner or his designee prior to
entering any testing order. If the general district court or the
magistrate determines that there is probable cause to believe that an exposure
has occurred, he shall issue a testing order. If a testing order is issued,
both the petitioner and the person from whom the blood specimen is sought shall
receive counseling and opportunity for face-to-face disclosure of any test
results by a licensed practitioner or trained counselor. Any person who is
subject to a testing order may appeal the order of the general district court
or magistrate to the circuit court of the same jurisdiction within 10 days of
receiving notice of the order. Any hearing conducted pursuant to this
subsection shall be held in camera as soon as practicable. The record shall be
sealed. The order of the circuit court shall be final and nonappealable.
M. No specimen obtained pursuant to this section shall be tested for any purpose other than that provided for in this section, nor shall the results of any testing pursuant to this section be used as evidence in any criminal matter.
§32.1-45.2. Public safety employees; testing for blood-borne pathogens; procedure available for certain citizens; definitions.
A. If, in the course of employment, an employee of a public safety agency is involved in a possible exposure prone incident, the employee shall immediately, or as soon thereafter as practicable, notify the agency of the incident in accordance with the agency's procedures for reporting workplace accidents.
B. If, after reviewing the facts of the possible exposure prone incident with the employee and after medical consultation, the agency concludes that it is reasonable to believe that an exposure prone incident may have occurred, (i) the agency shall request the person whose body fluids were involved to submit to testing for hepatitis B or C virus and human immunodeficiency virus as provided in §32.1-37.2 and to authorize disclosure of the test results or (ii) if the person is deceased, the agency shall request the custodian of the remains to preserve a specimen of blood and shall request the decedent's next of kin to consent, as provided in §32.1-37.2, to such testing and to authorize disclosure of the test results.
C. If a person is involved in a possible exposure prone incident involving the body fluids of an employee of a public safety agency, the person may request the agency to review the facts of the possible exposure prone incident for purposes of obtaining the employee's consent to test for hepatitis B or C virus and human immunodeficiency virus as provided in § 32.1-37.2 and to authorize disclosure of the test results. If, after reviewing the facts and after medical consultation, the agency concludes it is reasonable to believe an exposure prone incident involving the person and the employee may have occurred, (i) the agency shall request the employee whose body fluids were involved to give consent to submit to testing for hepatitis B or C virus and human immunodeficiency virus and to authorize disclosure of the test results or (ii) if the employee is deceased, the agency shall request the custodian of the remains to preserve a specimen of blood and shall request the decedent's next of kin to provide consent, as provided in §32.1-37.2, to such testing and to authorize disclosure of the test results.
D. If consent is refused under subsection B of this section,
the public safety agency or the employee may petition the general district
court of or a magistrate serving the city or county in which the person
resides or resided, or in the case of a nonresident, the city or county of the
public safety agency's principal office, to determine whether an exposure prone
incident has occurred and to order testing and disclosure of the test results.
If consent is refused under subsection C of this section,
the person involved in the possible exposure prone incident may petition the
general district court of or a magistrate serving the city or county of
the public safety agency's principal office to determine whether an exposure
prone incident has occurred and to order testing and disclosure of the test
results.
E. If the court finds by a preponderance of the evidence
or a magistrate determines that there is probable cause to believe that an
exposure prone incident has occurred, it he shall order testing
for hepatitis B or C virus and human immunodeficiency virus and disclosure of
the test results. The court shall be advised by the Commissioner or his
designee in making this finding. The hearing shall be held in camera as soon as
practicable after the petition is filed. The record shall be sealed.
F. A party who is subject to a testing order may appeal
an the order of the general district court or magistrate to
the circuit court of the same jurisdiction within ten 10 days
from the date of receiving notice of the order. Any such appeal
shall be de novo, hearing conducted pursuant to this section shall be
held in camera, and shall be heard as soon as possible by the circuit
court. The circuit court shall be advised by the Commissioner or his designee
practicable. The record shall be sealed. The order of the circuit court
shall be final and nonappealable.
G. Disclosure of any test results provided by this section shall be made to the district health director of the jurisdiction in which the petition was brought or the district in which the person or employee was tested. The district health director or his designee shall inform the parties of the test results and counsel them in accordance with subsection B of § 32.1-37.2.
H. The results of the tests shall be confidential as provided in §32.1-36.1.
I. No person known or suspected to be positive for infection with hepatitis B or C virus or human immunodeficiency virus shall be refused services for that reason by any public safety agency personnel.
J. For the purpose of this section and for no other purpose, the term "employee" shall include: (i) any person providing assistance to a person employed by a public safety agency who is directly affected by a possible exposure prone incident as a result of the specific crime or specific circumstances involved in the assistance and (ii) any victim of or witness to a crime who is directly affected by a possible exposure prone incident as a result of the specific crime.
K. This section shall not be deemed to create any duty on the part of any person where none exists otherwise, and a cause of action shall not arise from any failure to request consent or to consent to testing under this section. The remedies available under this section shall be exclusive.
L. For the purposes of this section, the following terms shall apply:
"Exposure prone incident" means a direct exposure to
body fluids of another person in a manner which may, according to the then
current then-current guidelines of the Centers for Disease Control
and Prevention, transmit hepatitis B or C virus or human immunodeficiency virus
and which occurred during the commission of a criminal act, during the
performance of emergency procedures, care or assistance, or in the course of
public safety or law-enforcement duties.
"Public safety agency" means any sheriff's office; any adult or youth correctional, law-enforcement, or fire safety organization; the Department of Forensic Science; or any agency or department that employs persons who have law-enforcement authority and which is under the direction and control of the Commonwealth or any local governing body.
M. No specimen obtained pursuant to this section shall be tested for any purpose other than that provided for in this section, nor shall the results of any testing pursuant to this section be used as evidence in any criminal matter.
