Read 1st time January 29, 1996, and 1,000 copies ordered printed.

Read 2nd time February 6, 1996, and referred to the Committee on Public Health and Welfare.

Reported from the Committee February 20, 1996, with recommendation that the bill do pass and be placed on the Consent Calendar.

Taken up February 29, 1996. Read 3rd time and placed upon its final passage; bill passed.

TERRY L. SPIELER, Secretary.

S3165.01P

To repeal sections 191.650, 191.653, 191.656, 191.663 and 191.686, RSMo 1994, relating to acquired immune deficiency syndrome, and to enact five new sections relating to the same subject.

Be it enacted by the General Assembly of the State of Missouri, as follows:

Section A. Sections 191.650, 191.653, 191.656, 191.663 and 191.686, RSMo 1994, are repealed and five new sections enacted in lieu thereof, to be known as sections 191.650, 191.653, 191.656, 191.663 and 191.686, to read as follows:

191.650. As used in sections 191.650 to 191.698, the following terms mean:

(1) Disclose , to disclose, to release, transfer, disseminate or otherwise communicate all or any part of any record orally, in writing, or by electronic means to any person or entity;

(2) HBV , the hepatitis B virus;

(3) Health care facilities , those licensed under chapters 197, RSMo, and 198, RSMo;

(4) Health care professional , a member of the professional groups regulated by chapters 330, RSMo, 332, RSMo, and 335, RSMo, and sections 334.010 to 334.210, RSMo;

(5) HIV , the human immunodeficiency virus that causes acquired immunodeficiency syndrome;

(6) HIV [blood] sampling , taking or ordering the taking of [a sample of venous blood] any biological specimen from an individual [which is subjected to serological tests] for the purpose of subjecting such specimen to analysis to determine the presence of HIV or [its antibodies] infection;

(7) HIV infection , the pathological state of the human body in response to HIV;

(8) HIV testing , performing a serological test or other tests upon a [sample of venous blood] biological specimen to determine the presence of HIV or its antibodies in the specimen following HIV [blood] sampling;

(9) Invasive procedures , those surgical or obstetric procedures that involve surgical entry into tissues, cavities, or organs and dental procedures involving manipulation, cutting, or removal of oral or perioral tissues, including tooth structure. Routine health care procedures such as physical examinations, blood pressure checks, eye examination, or oral, rectal or vaginal examinations are not considered as invasive procedures;

(10) Person , private individuals and private and public bodies politic and corporate, partnerships, trusts, and unincorporated associations and their officers, directors, agents, or employees.

191.653. 1. No person shall perform or conduct HIV testing except physicians, hospitals, and those persons authorized by the department of health. No person shall be authorized by the department of health to perform or conduct HIV testing unless such person provides suitable verification to the department that such testing shall be performed in accordance with departmental regulations governing the types of tests performed and the manner in which they are administered. The department may monitor the continued compliance of such persons with departmental regulations. Hospitals licensed pursuant to chapter 197, RSMo, shall be deemed to be in compliance with departmental regulations governing HIV testing.

2. All HIV testing shall be performed in accordance with the department rules governing HIV testing procedures.

3. Except as provided in sections 191.671 and 191.686, all physicians, hospitals, or other persons authorized by the department of health who perform or conduct HIV [blood] sampling shall provide consultation with the subject prior to taking the [sample] specimen and during the reporting of the test results and shall report to the department of health the identity of any individual confirmed to be infected with HIV.

191.656. 1. (1) All information known to, and records containing any information held or maintained by, any person, or by any agency, department, or political subdivision of the state concerning an individual s HIV infection status or the results of any individual s HIV testing shall be strictly confidential and shall not be disclosed except to:

(a) Public employees within the agency, department, or political subdivision who need to know to perform their public duties;

(b) Public employees of other agencies, departments, or political subdivisions who need to know to perform their public duties;

(c) Persons other than public employees who are entrusted with the regular care of those under the care and custody of a state agency, including but not limited to operators of day care facilities, group homes, residential care facilities and adoptive or foster parents;

(d) As authorized by subsection 2 of this section;

(2) Further disclosure by public employees shall be governed by subsections 2 and 3 of this section;

(3) Disclosure by a public employee or any other person in violation of this section may be subject to civil actions brought under subsection 6 of this section, unless otherwise required by chapter 330, 332, 334 or 335, RSMo, pursuant to discipline taken by a state licensing board.

2. (1) Unless the person acted in bad faith or with conscious disregard, no person shall be liable for violating any duty or right of confidentiality established by law for disclosing the results of an individual s HIV testing:

(a) To the department of health;

(b) To health care personnel working directly with the infected individual who have a reasonable need to know the results for the purpose of providing direct patient health care;

(c) Pursuant to the written authorization of the subject of the test result or results;

(d) To the spouse of the subject of the test result or results;

(e) To the subject of the test result or results;

(f) To the parent or legal guardian or custodian of the subject of the testing, if he is an unemancipated minor;

(g) To the victim of any sexual offense defined in chapter 566, RSMo, which includes sexual intercourse as an element of the crime;

(h) To employees of a state licensing board in the execution of their duties under chapter 330, 332, 334 or 335, RSMo, pursuant to discipline taken by a state licensing board;

(2) Paragraphs (b) and (d) of subdivision (1) of this subsection shall not be construed in any court to impose any duty on a person to disclose the results of an individual s HIV testing to a spouse or health care professional or other potentially exposed person, parent or guardian;

(3) No person to whom the results of an individual s HIV testing has been disclosed pursuant to paragraphs (b) and (c) of subdivision (1) of this subsection shall further disclose such results;

(4) When the results of HIV testing, disclosed pursuant to paragraph (b) of subdivision (1) of this subsection, are included in the medical record of the patient who is subject to the test, the inclusion is not a disclosure for purposes of such paragraph so long as such medical record is afforded the same confidentiality protection afforded other medical records.

3. All communications between the subject of HIV testing and a physician, hospital, or other person authorized by the department of health who performs or conducts HIV [blood] sampling shall be privileged communications.

4. The identity of any individual participating in a research project approved by an institutional review board shall not be reported to the department of health by the physician conducting the research project.

5. The subject of HIV testing who is found to have HIV infection shall disclose such information to any health care professional from whom such person receives health care services. Said notification shall be made prior to receiving services from such health care professional.

6. Any individual aggrieved by a violation of this section or regulations promulgated by the department of health may bring a civil action for damages. If it is found in a civil action that:

(1) A person has negligently violated this section, the person is liable, for each violation, for:

(a) The greater of actual damages or liquidated damages of one thousand dollars; and

(b) Court costs and reasonable attorney s fees incurred by the person bringing the action; and

(c) Such other relief, including injunctive relief, as the court may deem appropriate; or

(2) A person has willfully or intentionally or recklessly violated this section, the person is liable, for each violation, for:

(a) The greater of actual damages or liquidated damages of five thousand dollars; and

(b) Exemplary damages; and

(c) Court costs and reasonable attorney s fees incurred by the person bringing the action; and

(d) Such other relief, including injunctive relief, as the court may deem appropriate.

7. No civil liability shall accrue to any health care provider as a result of making a good faith report to the department of health about a person reasonably believed to be infected with HIV, or cooperating in good faith with the department in an investigation determining whether a court order directing an individual to undergo HIV testing will be sought, or in participating in good faith in any judicial proceeding resulting from such a report or investigations; and any person making such a report, or cooperating with such an investigation or participating in such a judicial proceeding, shall be immune from civil liability as a result of such actions so long as taken in good faith.

191.663. 1. As used in this section and section 191.659, the term HIV testing means serological test[s] or other test upon a [sample of venous blood] biological specimen to determine the presence of the human immunodeficiency virus that causes acquired immunodeficiency syndrome or its antibodies in the specimen.

2. Any person who is convicted or who pleads guilty or nolo contendere to any sexual offense defined in chapter 566, RSMo, or any juvenile who is adjudicated pursuant to subsection 3 of section 211.181, RSMo, for an offense which would have been a sexual offense defined in chapter 566, RSMo, if committed by an adult, which includes, in accordance with subsection (f) of 42 U.S.C. 3756, a sexual act as defined in subparagraphs (A) and (B) of paragraph (2) of 18 U.S.C. 2245 as an element of the offense, shall be ordered by the court to undergo HIV testing prior to incarceration without the right of refusal.

3. Costs of such HIV testing shall be taxed to the defendant as costs in the criminal proceeding. Such testing costs may be retained by the court from the bond filed by the defendant under subsection 4 of this section. Costs of such HIV testing for juveniles may be collected as provided for in section 211.281, RSMo.

4. Any defendant charged in a court of general jurisdiction with a sexual offense defined in chapter 566, RSMo, which includes, in accordance with subsection (f) of 42 U.S.C. 3756, a sexual act as defined in subparagraphs (A) and (B) of paragraph (2) of 18 U.S.C. 2245 as an element of the crime, shall be required to post a minimum bond amount for his release prior to trial. The minimum bond amount shall be sufficient to cover the cost of any post-trial HIV testing ordered by the court.

5. Notwithstanding any provision of section 191.656, or any other law to the contrary, the victim of any crime defined in chapter 566, RSMo, which includes, in accordance with subsection (f) of 42 U.S.C. 3756, a sexual act as defined in subparagraphs (A) and (B) of paragraph (2) of 18 U.S.C. 2245 as an element, shall have a right to access to the results of any HIV testing performed pursuant to the provisions of this section, and the victim shall be informed of any confirmed positive results of the HIV testing. The administrator of the jail or correctional facility in which the defendant is confined shall also have access to the test results.

191.686. 1. The department of health shall designate one HIV testing site in the St. Louis area, one in the Kansas City area, and one in the Springfield area where those persons not required to undergo HIV testing without the right of refusal may be tested anonymously.

2. All physicians, hospitals, or other persons authorized by the department of health who perform or conduct HIV [blood] sampling may refuse to perform or conduct anonymous HIV [blood] sampling for an individual and may refer such person to the designated HIV testing sites.

3. A coded system that does not link individual identity with the request or result shall be used to report the results of such testing to the department of health.

4. All designated HIV testing sites shall be required to initiate contact notification when submitting test results to individuals who request anonymous testing and who test positive for HIV infection.