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H.B. 46
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DISEASE TESTING AMENDMENTS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Brent H. Goodfellow
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AN ACT RELATING TO DISEASE TESTING FOR EMERGENCY MEDICAL SERVICES
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PROVIDERS; REQUIRING CERTAIN PERSONS TO SUBMIT TO IMMEDIATE TESTING
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BASED UPON THE EMS PROVIDER'S DETERMINATION OF PROBABLE CAUSE;
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PROVIDING FOR COURT SUPPRESSION OF TESTING RESULTS; AND MAKING
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TECHNICAL CORRECTIONS.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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26-6a-2, as last amended by Chapter 137, Laws of Utah 1999
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26-6a-5, as last amended by Chapter 137, Laws of Utah 1999
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78-29-102, as last amended by Chapter 137, Laws of Utah 1999
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
26-6a-2
is amended to read:
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26-6a-2. Emergency medical services provider's significant exposure --
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Documentation -- Request for testing -- Refusal or consent.
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(1) Whenever an emergency medical services provider has a significant exposure in the
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process of caring for a patient, he shall document that exposure. That documentation shall be in
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writing, on forms approved by the department, and in the manner and time designated by the
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department.
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(2) (a) Upon notification of a significant exposure, or upon receipt of the documentation
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described in Subsection (1), the hospital, health care facility, or other facility that receives the
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patient or individual shall request that he consent to testing of his blood to determine the presence
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of any disease as defined in Section
26-6a-1
. The patient shall be informed that he may refuse to
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consent to the test and, if he refuses, the fact of his refusal will be forwarded to the designated
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agent and to the department, and the emergency medical services provider may either seek a court
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order, pursuant to Section
78-29-102
, requiring the patient to undergo testing, or require immediate
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testing pursuant to Subsection (2)(c)(ii). The designated agent shall forward that information to
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the emergency medical services provider. The right to refuse a blood test under the circumstances
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described in this section does not apply to an individual who has been convicted of a crime and
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is in the custody or under the jurisdiction of the Department of Corrections, or to any person who
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is otherwise legally required to submit to testing.
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(b) If consent is given, the facility shall obtain and test, or provide for testing of, the
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patient's blood to determine the presence of any disease, in accordance with the provisions of this
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chapter.
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(c) If consent is not given, the emergency medical services provider may:
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(i) petition the district court for an order requiring the patient to submit to testing, pursuant
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to Section
78-29-102
[.]; or
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(ii) require that the individual submit to testing without consent if the emergency medical
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services provider determines, using an objective standard, that there is probable cause to believe
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that the individual will flee or conceal himself, or that it will not be possible to locate that
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individual for testing at a future date.
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(d) An individual who is required to submit to testing pursuant to Subsection (2)(c)(ii) may
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within ten days file a petition with the district court challenging the finding of probable cause, and
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seek to suppress the disclosure of the test results to the provider, designated agent, or agency that
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requested the testing. If the court so orders, information regarding that testing may not be
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disclosed to any person, agency, or facility.
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Section 2.
Section
26-6a-5
is amended to read:
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26-6a-5. Reporting of test results.
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(1) (a) [Results] Except as provided in Subsection
26-6a-2
(d), results of tests conducted
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under this chapter shall be reported by the facility that conducted the test to specified officials of
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the department and to a designated agent of the emergency medical services agency that employs
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or utilizes the emergency medical services provider who reported the significant exposure.
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(b) In the case of tests for AIDS or Human Immunodeficiency Virus infection, the State
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Health Laboratory shall report test results to specified officials in the department, and those
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officials shall report the test results to the appropriate emergency medical services agency's
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designated agent.
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(c) The designated agent shall report the results of tests conducted under this chapter to
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the appropriate emergency medical services provider.
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(d) The facility that receives a patient shall inform the patient of test results for all tests
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conducted under this chapter except tests for AIDS and Human Immunodeficiency Virus infection.
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Results of tests for AIDS and Human Immunodeficiency Virus infection shall be reported to the
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patient by the department or its designee, in accordance with Section
26-6a-8
.
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(2) In making a report to a designated agent under this chapter, the facility that conducted
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the test shall, or in the case of a test for AIDS or Human Immunodeficiency Virus infection the
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department shall, use a case number instead of the patient's name.
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(3) In making a report to the emergency medical services provider who requested the test,
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the designated agent shall use a case number instead of a patient's name.
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(4) The reporting requirements of this section do not apply to court-ordered testing
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conducted pursuant to Title 78, Chapter 29.
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Section 3.
Section
78-29-102
is amended to read:
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78-29-102. Petition -- HIV testing -- Notice -- Payment of testing.
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(1) An emergency medical services provider, or first aid volunteer who is significantly
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exposed during the course of performing the emergency medical services provider's duties or
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during the course of performing emergency assistance or first aid may:
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(a) request that the person to whom he was significantly exposed voluntarily submit to
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testing pursuant to Title 26, Chapter 6a; [or]
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(b) petition the district court for an order requiring that the person to whom he was
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significantly exposed submit to testing to determine the presence of a disease, as defined in Section
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78-29-101
, and that the results of that test be disclosed to the petitioner by the Department of
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Health[.]; or
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(c) require that the person submit to immediate testing, based on a finding of probable
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cause, pursuant to Subsection
26-6a-2
(c)(ii).
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(2) (a) The petitioner shall file a petition with the district court seeking an order to submit
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to testing and to disclose the results in accordance with the provisions of this section.
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(b) The petition shall be sealed upon filing and made accessible only to the petitioner, the
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subject of the petition, and their attorneys, upon court order.
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(3) (a) The petition described in Subsection (2) shall be accompanied by:
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(i) the documentation required under Subsection
26-6a-2
(1); or
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(ii) an affidavit in which the emergency medical services provider or first aid volunteer
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certifies that he has been significantly exposed to the individual who is the subject of the petition
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and describes that exposure.
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(b) The petitioner shall submit to testing to determine the presence of a disease, when the
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petition is filed or within ten days after the petition is filed.
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(4) The petitioner shall cause the petition required under this section to be served on the
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person who the petitioner is requesting to be tested in a manner that will best preserve the
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confidentiality of that person.
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(5) (a) The court shall set a time for a hearing on the matter within 20 days after the
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petition is filed and shall give the petitioner and the individual who is the subject of the petition
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notice of the hearing at least 72 hours prior to the hearing.
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(b) The individual who is the subject of the petition shall also be notified that he may have
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an attorney present at the hearing, and that his attorney may examine and cross-examine witnesses.
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(c) The hearing shall be conducted in camera.
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(6) The district court may enter an order requiring that an individual submit to testing for
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a disease if the court finds probable cause to believe:
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(a) the petitioner was significantly exposed; and
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(b) the exposure occurred during the course of the emergency medical services provider's
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duties, or the provision of emergency assistance or first aid by a first aid volunteer.
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(7) The court may order that additional, follow-up testing be conducted, and that the
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individual submit to that testing, as it determines to be necessary and appropriate.
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(8) The court is not required to order an individual to submit to a test under this section
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if it finds that there is a substantial reason, relating to the life or health of the individual, not to
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enter the order.
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(9) (a) Upon order of the district court that a person submit to testing for a disease, that
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person shall report to the designated local health department to have his blood drawn within ten
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days from the issuance of the order, and thereafter as designated by the court, or be held in
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contempt of court.
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(b) The court shall send the order to the Department of Health and to the local health
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department ordered to draw the blood.
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(c) Notwithstanding the provisions of Title 26, Chapter 6a, or of Section
26-6-27
, the
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Department of Health and a local health department may disclose the test results pursuant to a
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court order as provided in this section.
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(d) Under this section, anonymous testing as provided under Section
26-6-3.5
or under
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Title 26, Chapter 6a, shall not satisfy the requirements of the court order.
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(10) The local health department or the Department of Health shall inform the subject of
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the petition and the petitioner of the results of the test and advise both parties that the test results
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are confidential. That information shall be maintained as confidential by all parties to the action.
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(11) The court, its personnel, the process server, the Department of Health, local health
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department, and petitioner shall maintain confidentiality of the name and any other identifying
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information regarding the individual tested and the results of the test as they relate to that
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individual, except as specifically authorized by this chapter or by Title 26, Chapter 6a.
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(12) (a) Except as provided in Subsection (12)(b), the petitioner shall remit payment for
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the drawing of the blood specimen and the analysis of the specimen for the mandatory disease
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testing to the entity that draws the blood.
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(b) If the petitioner is an emergency medical services provider, the agency which employs
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the emergency medical services provider shall remit payment for the drawing of the blood
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specimen and the analysis of the specimen for the mandatory disease testing to the entity that
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draws the blood.
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(13) The entity that draws the blood shall cause the blood and the payment for the analysis
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of the specimen to be delivered to the Department of Health for analysis.
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(14) If the individual is incarcerated, the incarcerating authority shall either draw the blood
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specimen or shall pay the expenses of having the individual's blood drawn.
Legislative Review Note
as of 1-7-00 10:43 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.