71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1728
House Bill 2083
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Health and Human Services)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Requires local public health authorities or health districts to
conduct hepatitis C tests when HIV tests are conducted. Adds
hepatitis C to the diseases for which courts may order tests in
certain cases. Directs Health Division to conduct studies on
prevalence of hepatitis C.
Appropriates moneys from General Fund to Health Division for
hepatitis C studies and testing.
Declares emergency, effective July 1, 2001.
A BILL FOR AN ACT
Relating to mandatory testing for hepatitis C; creating new
provisions; amending ORS 135.139, 419C.475, 433.045, 433.055,
433.060, 433.065, 433.075 and 433.080; appropriating money; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2001 Act is added to and made
a part of ORS 433.060 to 433.085. + }
SECTION 2. { + (1) When a local public health authority or
health district subjects the blood of an individual to an HIV
test, the local public health authority or health district shall
also test the blood for hepatitis C.
(2) A local public health authority or health district required
to conduct hepatitis C tests under the provisions of subsection
(1) of this section shall report the results of the hepatitis C
test to the Health Division and to the individual whose blood was
tested or to the physician of the individual. + }
SECTION 3. ORS 433.045 is amended to read:
433.045. (1) Except as provided in ORS { + 433.055 or + }
433.080, no person shall subject the blood of an individual to an
HIV test { + or hepatitis C test + } without first obtaining
informed consent as described in subsection (2) or (7) of this
section.
(2) A physician licensed under ORS chapter 677 shall comply
with the requirement of subsection (1) of this section through
the procedure in ORS 677.097. Any other licensed health care
provider or facility shall comply with the requirement of
subsection (1) of this section through a procedure substantially
similar to that specified in ORS 677.097. Any other person shall
comply with this requirement through use of such forms,
procedures and educational materials as the Health Division shall
specify.
(3) Regardless of the manner of receipt or the source of the
information, including information received from the tested
individual, no person shall disclose or be compelled to disclose
the identity of any individual upon whom an HIV-related test
{ + or hepatitis C test + } is performed, or the results of such
a test in a manner which permits identification of the subject of
the test, except as required or permitted by federal law, the law
of this state or any rule, including any Health Division rule
considered necessary for public health or health care purposes,
or as authorized by the individual whose blood is tested.
(4) Any person who complies with the requirements of this
section shall not be subject to an action for civil damages.
(5) An HIV test shall be considered diagnosis of venereal
disease for purposes of ORS 109.610.
(6) As used in this section:
(a) 'HIV test' means a test of an individual for the presence
of human immunodeficiency virus (HIV), or for antibodies or
antigens that result from HIV infection, or for any other
substance specifically indicating infection with HIV.
(b) 'Person' includes but is not limited to any health care
provider, health care facility, clinical laboratory, blood or
sperm bank, insurer, insurance agent, insurance-support
organization, as defined in ORS 746.600, government agency,
employer, research organization or agent of any of them. For
purposes of subsection (3) of this section, 'person' does not
include an individual acting in a private capacity and not in an
employment, occupational or professional capacity.
(7) Whenever an insurer, insurance agent or insurance support
organization asks an applicant for insurance to take an HIV test
{ + or hepatitis C test + } in connection with an application
for insurance, the use of such a test must be revealed to the
applicant and the written consent thereof obtained. The consent
form shall disclose the purpose of the test and the persons to
whom the results may be disclosed.
SECTION 4. ORS 433.055 is amended to read:
433.055. (1) The Health Division shall conduct studies of the
prevalence of { - the - } HIV { + and hepatitis C + }
infection in this state. Its findings shall be reported to the
Public Health Advisory Board, the Conference of Local Health
Officials, the Emergency Board and other interested bodies at
regular intervals, commencing in January 1988. The Health
Division may cause the prevalence study of persons sentenced to
the Department of Corrections of this state, as defined in ORS
421.005, to be made.
(2) The Health Division shall contract with an appropriate
education agency to prepare a curriculum regarding HIV infection,
acquired immune deficiency syndrome (AIDS) and prevention of the
spread of AIDS for all school districts and offer workshops to
prepare teachers and parents to implement the curriculum. The
division shall award incentive grants from funds available
therefor to school districts to encourage use of the curriculum
in the schools.
(3) Prior informed consent to HIV antibody testing { + or
hepatitis C testing + } need not be obtained from an individual
if the test is for the purpose of research as authorized by the
Health Division and if the testing is performed in a manner by
which the identity of the test subject is not known, and may not
be retrieved by the researcher.
SECTION 5. ORS 433.060 is amended to read:
433.060. As used in ORS 433.060 to 433.085 unless the context
requires otherwise:
(1) 'Division' means the Health Division of the Department of
Human Services.
(2) 'Health care facility' means a facility as defined in ORS
442.015 and a mental health facility, alcohol treatment facility
or drug treatment facility licensed or operated under ORS chapter
426 and 430.397 to 430.401 or ORS chapter 430.
(3) 'Hepatitis test' means a test of an individual for the
presence of hepatitis B or C or for any other substance
specifically indicating the presence of hepatitis B or C.
(4) 'HIV test' means a test of an individual for the presence
of human immunodeficiency virus (HIV), or for antibodies or
antigens that result from HIV infection, or for any other
substance specifically indicating infection with HIV.
(5) 'Licensed health care provider' or 'health care provider'
means a person licensed or certified to provide health care under
ORS chapter 677, 678, 679, 680, 684 or 685 or ORS 682.157, or
under comparable statutes of any other state.
(6) 'Local public health administrator' means the public health
administrator of the county or district health department for the
jurisdiction in which the reported substantial exposure occurred.
(7) 'Local public health officer' means the health officer, as
described in ORS 431.418, of the county or district health
department for the jurisdiction in which the substantial exposure
occurred.
(8) 'Occupational exposure' means a substantial exposure of a
worker in the course of the worker's occupation.
(9) 'Source person' means a person who is the source of the
blood or body fluid in the instance of a substantial exposure of
another person.
(10) 'Substantial exposure' means an exposure to blood or
certain body fluids as defined by rule of the Health Division to
have a potential for transmitting the human immunodeficiency
virus { + or hepatitis C virus + } based upon current
scientific information.
(11) 'Worker' means a person who is licensed or certified to
provide health care under ORS chapters 677, 678, 679, 680, 684 or
685 or ORS 682.157, an employee of a health care facility, of a
licensed health care provider or of a clinical laboratory, as
defined in ORS 438.010 (1), a firefighter, a law enforcement
officer, as defined in ORS 414.805, a corrections officer or a
probation officer.
SECTION 6. ORS 433.065 is amended to read:
433.065. (1) The Health Division shall by rule prescribe
procedures:
(a) Whereby a worker who has experienced an occupational
exposure may request or cause to be requested the source person's
voluntary informed consent to an HIV { + or hepatitis C + }
test;
(b) Whereby a person who, while being administered health care,
has experienced a substantial exposure from a worker shall be
given notice of such exposure and be given opportunity to request
or cause to be requested the worker's voluntary informed consent
to an HIV { + or hepatitis C + } test; and
(c) Whereby a person who has experienced a substantial exposure
shall be offered information about HIV { + and hepatitis C + }
infection, methods of preventing HIV { + and hepatitis C + }
infection and HIV { + and hepatitis C + } tests.
(2) Rules prescribing procedures under subsection (1)(a) of
this section may require the participation or intervention of the
health care facility and licensed health care provider providing
care to the source person and may require the further
participation or intervention of the local public health
administrator or local public health officer.
(3) Where the source person under subsection (1)(a) of this
section is not known to be under the care of a health care
facility or provider or cannot be located, and in the case of
procedures under subsection (2) of this section, the rules may
require the participation and intervention of the local public
health administrator.
(4) The rules under this section may also include, but need not
be limited to, time frames within which the notice and other
procedures are to be performed and by whom, prescribed forms for
reporting of exposures, and for recording of results of
procedures undertaken and restrictions upon disclosure of such
reports and records only to specific persons.
SECTION 7. ORS 433.075 is amended to read:
433.075. (1) The informed consent provisions of ORS 433.045 (1)
and (2) apply to any request for consent to an HIV { + or
hepatitis C + } test under rules adopted pursuant to ORS 433.065.
(2) When a source person is deceased, consent for voluntary
informed consent under ORS 433.065 shall be from the next of kin.
(3) When an HIV { + or hepatitis C + } test is performed
pursuant to ORS 433.080 or rules adopted under ORS 433.065, the
exposed person requesting the test, or the exposed person's
employer in the case of an occupational exposure, shall be
responsible for the cost of the testing.
(4) Where an employer provides a program of prevention,
education and testing for HIV { + or hepatitis C + } exposures
for its employees, the employee to be tested under the provisions
of this Act shall comply with the procedures provided by such
program. Such program must be approved by the Health Division of
the Department of Human Services.
(5) When an HIV { + or hepatitis C + } test is performed
pursuant to ORS 433.080 or rules adopted under ORS 433.065, the
results shall be reported confidentially to the person who
suffered the substantial exposure giving rise to the test.
(6) The confidentiality provisions of ORS 433.045 (3) apply to
any person who receives an HIV { + or hepatitis C + } test
result pursuant to ORS 433.080 or rules adopted under ORS
433.065. Any person who complies with the requirements of this
subsection shall not be subject to an action for damages.
SECTION 8. ORS 433.080 is amended to read:
433.080. When the Health Division declares by rule that
mandatory testing of source persons could help a defined class of
workers from being infected or infecting others with the human
immunodeficiency { + or hepatitis C + } virus, the following
apply:
(1) When a source person, after having been first requested to
consent to testing by rules adopted under ORS 433.065, has
refused or within a time period prescribed by rule of the
division has failed to submit to the requested test, except when
the exposed person has knowledge that the exposed person has a
history of a positive HIV { + or hepatitis C + } test, the
exposed person may seek mandatory testing of the source person by
filing a petition with the circuit court for the county in which
the exposure occurred. The form for the petition shall be as
prescribed by the division and shall be obtained from the local
public health department.
(2) The petition shall name the source person as the respondent
and shall include a short and plain statement of facts alleging:
(a) The petitioner is a worker subjected to an occupational
exposure or a person who has been subjected to a substantial
exposure by a worker administering health care and the respondent
is the source person;
(b) The petitioner is in the class of workers defined by rule
of the Health Division under this section;
(c) All procedures for obtaining the respondent's consent to an
HIV { + or hepatitis C + } test by rules adopted under ORS
433.065 have been exhausted by the petitioner and the respondent
has refused to consent to the test, or within the time period
prescribed by rule of the division has failed to submit to the
test;
(d) The petitioner has no knowledge that the petitioner has a
history of a positive HIV { + or hepatitis C + } test and has
since the exposure, within a time period prescribed by rule of
the division, submitted a specimen from the petitioner for an HIV
{ + or hepatitis C + } test; and
(e) The injury that petitioner is suffering or will suffer if
the source person is not ordered to submit to an HIV { + or
hepatitis C + }test.
(3) The petition shall be accompanied by the certificate of the
local public health administrator declaring that, based upon
information in the possession of the administrator, the facts
stated in the allegations under subsection (2)(a), (b) and (c) of
this section are true.
(4) Upon the filing of the petition, the court shall issue a
citation to the respondent stating the nature of the proceedings,
the statutes involved and the relief requested and, that if the
respondent does not appear at the time and place for hearing
stated in the citation, that the court will order the relief
requested in the petition.
(5) The citation shall be served on the respondent together
with a copy of the petition by the county sheriff or deputy. The
person serving the citation and petition shall, immediately after
service thereof, make a return showing the time, place and manner
of such service and file it with the clerk of the court.
(6) The hearing shall be held within three days of the service
of the citation upon the respondent. The court may for good cause
allow an additional period of 48 hours if additional time is
requested by the respondent.
(7) Both the petitioner and the local public health
administrator certifying to the matter alleged in the petition
shall appear at the hearing. The hearing of the case shall be
informal with the object of resolving the issue before the court
promptly and economically between the parties. The parties shall
be entitled to subpoena witnesses, to offer evidence and to
cross-examine. The judge may examine witnesses to insure a full
inquiry into the facts necessary for a determination of the
matter before the court.
(8) After hearing all of the evidence, the court shall
determine the truth of the allegations contained in the petition.
The court shall order the respondent to submit to the requested
test by a licensed health care provider without delay if, based
upon clear and convincing evidence, the court finds that:
(a) The allegations in the petition are true;
(b) The injury the petitioner is suffering or will suffer is an
injury that only the relief requested will adequately remedy; and
(c) The interest of the petitioner in obtaining the relief
clearly outweighs the privacy interest of the respondent in
withholding consent.
(9) If the court does not make the finding described in
subsection (8) of this section, the court shall dismiss the
petition.
(10) Failure to obey the order of the court shall be subject to
contempt proceedings pursuant to law.
SECTION 9. ORS 419C.475 is amended to read:
419C.475. (1) Whenever a youth is found to be within the
jurisdiction of the court under ORS 419C.005 (1) for having
committed an act from which it appears that the transmission of
body fluids from one person to another as described in ORS
135.139 may have been involved or a sexual act may have occurred,
the court shall order the youth to submit to HIV { + and
hepatitis C + } testing as provided in ORS 135.139 if the victim,
or parent or guardian of the victim, requests the court to make
such an order.
(2) The court may also order the youth or the parent or
guardian of the youth to reimburse the appropriate agency for the
cost of the test.
SECTION 10. ORS 135.139 is amended to read:
135.139. (1) When a person has been charged with a crime in
which it appears from the nature of the charge that the
transmission of body fluids from one person to another may have
been involved, the district attorney, upon the request of the
victim or the parent or guardian of a minor or incapacitated
victim, shall seek the consent of the person charged to submit to
a test for HIV { + , hepatitis C + } and any other communicable
disease. In the absence of such consent or failure to submit to
the test, the district attorney may petition the court for an
order requiring the person charged to submit to a test for
HIV { + , hepatitis C + } and any other communicable disease.
(2)(a) At the time of an appearance before a circuit court
judge on a criminal charge, the judge shall inform every person
arrested and charged with a crime, in which it appears from the
nature of the charge that the transmission of body fluids from
one person to another may have been involved, of the availability
of testing for HIV { + , hepatitis C + } and other communicable
diseases and shall cause the alleged victim of such a crime, if
any, or a parent or guardian of the victim, if any, to be
notified that testing for HIV { + , hepatitis C + } and other
communicable diseases is available. The judge shall inform the
person arrested and charged and the victim, or parent or guardian
of the victim, of the availability of counseling under the
circumstances described in subsection (7) of this section.
(b) Notwithstanding the provisions of ORS 433.045, if the
district attorney files a petition under subsection (1) of this
section, the court shall order the person charged to submit to
testing if the court determines there is probable cause to
believe that:
(A) The person charged committed the crime; and
(B) The victim has received a substantial exposure, as defined
by rule of the Health Division.
(3) Notwithstanding the provisions of ORS 433.045, upon
conviction of a person for any crime in which the court
determines from the facts that the transmission of body fluids
from one person to another was involved and if the person has not
been tested pursuant to subsection (2) of this section, the court
shall seek the consent of the convicted person to submit to a
test for HIV { + , hepatitis C + } and other communicable
diseases. In the absence of such consent or failure to submit to
the test, the court shall order the convicted person to submit to
the test if the victim of the crime, or a parent or guardian of
the victim, requests the court to make such order.
(4) When a test is ordered under subsection (2) or (3) of this
section, the victim of the crime or a parent or guardian of the
victim, shall designate an attending physician to receive such
information on behalf of the victim.
(5) If an HIV { + or hepatitis C + } test results in a
negative reaction, the court may order the person to submit to
another HIV { + or hepatitis C + } test six months after the
first test was administered.
(6) The result of any test ordered under this section is not a
public record and shall be available only to:
(a) The victim.
(b) The parent or guardian of a minor or incapacitated victim.
(c) The attending physician who is licensed to practice
medicine.
(d) The Health Division.
(e) The person tested.
(7) If an HIV { + or hepatitis C + } test ordered under this
section results in a positive reaction, the individual subject to
the test shall receive post-test counseling as required by the
Health Division, by rule. The results of HIV { + or hepatitis
C + } tests ordered under this section shall be reported to the
Health Division. Counseling and referral for appropriate health
care, testing and support services as directed by the Assistant
Director for Health shall be provided to the victim or victims at
the request of the victim or victims, or the parent or guardian
of a minor or incapacitated victim.
(8) The costs of testing and counseling provided under
subsections (2), (3) and (7) of this section shall be paid
through the compensation for crime victims program authorized by
ORS 147.005 to 147.375 from amounts appropriated for such
purposes. Restitution to the state for payment of the costs of
any counseling provided under this section and for payment of the
costs of any test ordered under this section shall be included by
the court in any order requiring the convicted person to pay
restitution.
(9) When a court orders a convicted person to submit to a test
under this section, the withdrawal of blood may be performed only
by a physician licensed to practice medicine or by a licensed
health care provider acting within the provider's licensed scope
of practice or acting under the supervision of a physician
licensed to practice medicine.
(10) No person authorized by subsection (9) of this section to
withdraw blood, no person assisting in the performance of the
test nor any medical care facility where blood is withdrawn or
tested that has been ordered by the court to withdraw or test
blood shall be liable in any civil or criminal action when the
act is performed in a reasonable manner according to generally
accepted medical practices.
(11) The results of tests or reports, or information therein,
obtained under this section shall be confidential and shall not
be divulged to any person not authorized by this section to
receive the information. Any violation of this subsection is a
Class C misdemeanor.
(12) As used in this section:
(a) 'HIV test' means a test as defined in ORS 433.045.
(b) 'Parent or guardian of the victim' means a custodial parent
or legal guardian of a victim who is a minor or incapacitated
person.
(c) 'Positive reaction' means a positive HIV { + or hepatitis
C + } test with a positive confirmatory test result as specified
by the Health Division.
(d) 'Transmission of body fluids' means the transfer of blood,
semen, vaginal secretions or other body fluids identified by rule
of the Health Division, from the perpetrator of a crime to the
mucous membranes or potentially broken skin of the victim.
(e) 'Victim' means the person or persons to whom transmission
of body fluids from the perpetrator of the crime occurred or was
likely to have occurred in the course of the crime.
SECTION 11. { + In addition to and not in lieu of any other
appropriation, there is appropriated to the Health Division of
the Department of Human Services for the biennium beginning July
1, 2001, out of the General Fund, the amount of $__, which may be
expended for the purposes of section 2 of this 2001 Act and the
studies of the prevalence of hepatitis C required by the
amendments to ORS 433.055 by section 4 of this 2001 Act. + }
SECTION 12. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect
July 1, 2001. + }
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