120262
. Notwithstanding Chapter 7 (commencing with Section 120975)
or any other law, the blood or other tissue or material of a source
patient may be tested, and an exposed individual may be informed
whether the patient has tested positive or negative for a
communicable disease if the exposed individual and the health care
facility, if any, have substantially complied with the then
applicable guidelines of the Division of Occupational Safety and
Health and the State Department of Health Services and if the
following procedure is followed:
(a) (1) If a person becomes an exposed individual by experiencing
an exposure to the blood or other potentially infectious material of
a patient during the course of rendering health care-related services
or occupational services, the exposed individual may request an
evaluation of the exposure by a physician to determine if it is a
significant exposure, as defined in subdivision (h) of Section
120261. A physician or other exposed individual shall not certify his
or her own significant exposure. However, an employing physician may
certify the exposure of one of his or her employees. Requests for
certification shall be made in writing within 72 hours of the
exposure.
(2) A written certification by a physician of the significance of
the exposure shall be obtained within 72 hours of the request. The
certification shall include the nature and extent of the exposure.
(b) (1) The exposed individual shall be counseled regarding the
likelihood of transmission, the limitations of the testing performed,
the need for followup testing, and the procedures that the exposed
individual must follow regardless of whether the source patient has
tested positive or negative for a communicable disease. The exposed
individual may be tested in accordance with the then applicable
guidelines or standards of the Division of Occupational Safety and
Health. The result of this test shall be confirmed as negative before
available blood or other patient samples of the source patient may
be tested for evidence of infection to a communicable disease,
without the consent of the source patient pursuant to subdivision
(d).
(2) Within 72 hours of certifying the exposure as significant, the
certifying physician shall provide written certification to an
attending physician of the source patient that a significant exposure
to an exposed individual has occurred, and shall request information
on whether the source patient has tested positive or negative for a
communicable disease, and the availability of blood or other patient
samples. An attending physician shall respond to the request for
information within three working days.
(c) If test results of the source patient are already known to be
positive for a communicable disease then, except as provided in
subdivisions (b) and (c) of Section 121010, when the exposed
individual is a health care provider or an employee or agent of the
health care provider of the source patient, an attending physician
and surgeon of the source patient shall attempt to obtain the consent
of the source patient to disclose to the exposed individual the
testing results of the source patient regarding communicable
diseases. If the source patient cannot be contacted or refuses to
consent to the disclosure, then the exposed individual may be
informed of the test results regarding communicable diseases of the
source patient by an attending physician of the source patient as
soon as possible after the exposure has been certified as
significant, notwithstanding Section 120980 or any other law.
(d) If the communicable disease status of the source patient is
unknown to the certifying physician or an attending physician, if
blood or other patient samples are available, and if the exposed
individual has tested negative on a baseline test for communicable
diseases, the source patient shall be given the opportunity to give
informed consent to a test for communicable diseases in accordance
with the following:
(1) Within 72 hours after receiving a written certification of
significant exposure, an attending physician of the source patient
shall do all of the following:
(A) Make a good faith effort to notify the source patient or the
authorized legal representative of the source patient about the
significant exposure. A good faith effort to notify includes, but is
not limited to, a documented attempt to locate the source patient by
telephone or by first-class mail with a certificate of mailing. An
attempt to locate the source patient and the results of that attempt
shall be documented in the medical record of the source patient. An
inability to contact the source patient, or legal representative of
the source patient, after a good faith effort to do so as provided in
this subdivision, shall constitute a refusal of consent pursuant to
paragraph (2). An inability of the source patient to provide informed
consent shall constitute a refusal of consent pursuant to paragraph
(2), provided all of the following conditions are met:
(i) The source patient has no authorized legal representative.
(ii) The source patient is incapable of giving consent.
(iii) In the opinion of the attending physician, it is likely that
the source patient will be unable to grant informed consent within
the 72-hour period during which the physician is required to respond
pursuant to paragraph (1).
(B) Attempt to obtain the voluntary informed consent of the source
patient or the authorized legal representative of the source patient
to perform a test for a communicable disease, on the source patient
or on any available blood or patient sample of the source patient.
The voluntary informed consent shall be in writing. The source
patient shall have the option not to be informed of the test result.
An exposed individual shall be prohibited from attempting to obtain
directly informed consent for testing for communicable diseases from
the source patient.
(C) Provide the source patient with medically appropriate pretest
counseling and refer the source patient to appropriate posttest
counseling and followup, if necessary. The source patient shall be
offered medically appropriate counseling whether or not he or she
consents to testing.
(2) If the source patient or the authorized legal representative
of the source patient refuses to consent to test for a communicable
disease after a documented effort has been made to obtain consent,
any available blood or patient sample of the source patient may be
tested. The source patient or authorized legal representative of the
source patient shall be informed that an available blood sample or
other tissue or material will be tested despite his or her refusal,
and that the exposed individual shall be informed of the test results
regarding communicable diseases.
(3) If the informed consent of the source patient cannot be
obtained because the source patient is deceased, consent to perform a
test for a communicable disease on any blood or patient sample of
the source patient legally obtained in the course of providing health
care services at the time of the exposure event shall be deemed
granted.
(4) A source patient or the authorized legal representative of a
source patient shall be advised that he or she shall be informed of
the results of the test for communicable diseases only if he or she
wishes to be so informed. If a patient refuses to provide informed
consent to testing for communicable diseases and refuses to learn the
results of the testing, he or she shall sign a form documenting this
refusal. The source patient's refusal to sign this form shall be
construed to be a refusal to be informed of the test results
regarding communicable diseases. Test results for communicable
diseases shall only be placed in the medical record when the patient
has agreed in writing to be informed of the results.
(5) Notwithstanding any other law, if the source patient or
authorized legal representative of a source patient refuses to be
informed of the results of the test, the test results regarding
communicable diseases of that source patient shall only be provided
to the exposed individual in accordance with the then applicable
regulations established by the Division of Occupational Safety and
Health.
(6) The source patient's identity shall be encoded on the
communicable disease test result record.
(e) If an exposed individual is informed of the status of a source
patient with regard to a communicable disease pursuant to this
section, the exposed individual shall be informed that he or she is
subject to existing confidentiality protections for any identifying
information about the communicable disease test results, and that
medical information regarding the communicable disease status of the
source patient shall be kept confidential and may not be further
disclosed, except as otherwise authorized by law. The exposed
individual shall be informed of the penalties for which he or she
would be personally liable for violation of Section 120980.
(f) The costs for the test and counseling for communicable
diseases of the exposed individual, or the source patient, or both,
shall be borne by the employer of the exposed individual, if any. An
employer who directs and controls the exposed individual shall
provide the postexposure evaluation and followup required by the
Division of Occupational Safety and Health as well as the testing and
counseling for source patients required under this chapter. If an
exposed individual is a volunteer or a student, then the health care
provider or first responder that assigned a task to the volunteer or
student may pay for the costs of testing and counseling as if that
volunteer or student were an employee. If an exposed individual, who
is not an employee of a health facility or of another health care
provider, chooses to obtain postexposure evaluation or followup
counseling, or both, or treatment, he or she shall be financially
responsible for the costs thereof and shall be responsible for the
costs of the testing and counseling for the source patient.
(g) This section does not authorize the disclosure of the source
patient's identity.
(h) This section does not authorize a health care provider to draw
blood or other body fluids except as otherwise authorized by law.
(i) The provisions of this section are cumulative only and shall
not preclude testing of source patients for a communicable disease,
as authorized by any other law.
(j) Except as otherwise provided under this section, all
confidentiality requirements regarding medical records that are
provided for under existing law apply to this section.