SF 2540

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to public safety; establishing procedures to secure blood testing of
individuals whose bodily fluids contact peace officers; proposing coding for new
law in Minnesota Statutes, chapter 626.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [626.9601] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope of definitions. new text end

new text begin For purposes of sections 626.9601 to 626.9615,
the following terms have the meanings given them.
new text end

new text begin Subd. 2. new text end

new text begin Bloodborne pathogens. new text end

new text begin "Bloodborne pathogens" means pathogenic
microorganisms that are present in human blood and can cause disease in humans. These
pathogens include, but are not limited to, hepatitis B virus (HBV), hepatitis C virus
(HCV), and human immunodeficiency virus (HIV).
new text end

new text begin Subd. 3. new text end

new text begin Law enforcement agency. new text end

new text begin "Law enforcement agency" has the meaning
given in section 626.84, subdivision 1.
new text end

new text begin Subd. 4. new text end

new text begin Peace officer. new text end

new text begin "Peace officer" is an individual employed as a licensed
peace officer under section 626.84, subdivision 1.
new text end

new text begin Subd. 5. new text end

new text begin Source individual. new text end

new text begin "Source individual" means an individual, living
or dead, whose blood, tissue, or potentially infectious body fluids may be a source of
bloodborne pathogen exposure to a peace officer.
new text end

new text begin Subd. 6. new text end

new text begin Significant exposure. new text end

new text begin "Significant exposure" means contact likely to
transmit a bloodborne pathogen, in a manner supported by the most current guidelines and
recommendations of the United States Public Health Service at the time an evaluation
takes place, that includes:
new text end

new text begin (1) percutaneous injury, contact of mucous membrane or nonintact skin, or
prolonged contact of intact skin; and
new text end

new text begin (2) contact, in a manner that may transmit a bloodborne pathogen, with blood,
tissue, or potentially infectious body fluids.
new text end

new text begin Subd. 7. new text end

new text begin Facility. new text end

new text begin "Facility" means a hospital licensed under sections 144.50 to
144.56 or a freestanding emergency medical care facility licensed under Laws 1988,
chapter 467, that receives a peace officer for evaluation for significant exposure or a
source individual whose bodily fluids contacted a peace officer.
new text end

Sec. 2.

new text begin [626.9602] CONDITIONS FOR APPLICABILITY OF PROCEDURES.
new text end

new text begin Subdivision 1. new text end

new text begin Request for procedures. new text end

new text begin A peace officer or law enforcement agency
may request that a facility follow the procedures of sections 626.9601 to 626.9615 when a
peace officer may have experienced a significant exposure to a source individual.
new text end

new text begin Subd. 2. new text end

new text begin Conditions. new text end

new text begin A facility shall follow the procedures outlined in sections
626.9601 to 626.9615 when all of the following conditions are met:
new text end

new text begin (1) the facility determines that significant exposure has occurred, following the
protocol under section 626.9614;
new text end

new text begin (2) the licensed physician for the peace officer needs the source individual's
bloodborne pathogen test results to begin, continue, modify, or discontinue treatment, in
accordance with the most current guidelines of the United States Public Health Service,
because of possible exposure to a bloodborne pathogen; and
new text end

new text begin (3) the peace officer consents to provide a blood sample for testing for a bloodborne
pathogen. If the peace officer consents to blood collection, but does not consent at that
time to bloodborne pathogen testing, the facility shall preserve the sample for at least 90
days. If the peace officer elects to have the sample tested within 90 days, the testing
shall be done as soon as feasible.
new text end

new text begin Subd. 3. new text end

new text begin Locating source individual. new text end

new text begin If the source individual is not received by a
facility but the facility is providing treatment to the peace officer, the law enforcement
agency shall make reasonable efforts to locate the source individual and inform the facility
of the source individual's identity and location. The facility shall make a reasonable effort
to contact the source individual in order to follow the procedures in sections 626.9601 to
626.9615. The law enforcement agency and facilities may exchange private data about
the source individual as necessary to fulfill their responsibilities under this subdivision,
notwithstanding any provision of law to the contrary.
new text end

Sec. 3.

new text begin [626.9603] INFORMATION REQUIRED TO BE GIVEN TO
INDIVIDUALS.
new text end

new text begin Subdivision 1. new text end

new text begin Information to source individual. new text end

new text begin (a) Before seeking any consent
required by the procedures under sections 626.9601 to 626.9615, a facility shall inform
the source individual that the source individual's bloodborne pathogen test results, without
the individual's name, address, or other uniquely identifying information, shall be reported
to the peace officer if requested, and that test results collected under sections 626.9601 to
626.9615 are for medical purposes as set forth in section 626.9609 and may not be used as
evidence in any criminal proceedings or civil proceedings, except for procedures under
sections 144.4171 to 144.4186.
new text end

new text begin (b) The facility shall inform the source individual of the insurance protections in
section 72A.20, subdivision 29.
new text end

new text begin (c) The facility shall inform the source individual that the individual may refuse to
provide a blood sample and that the source individual's refusal may result in a request for
a court order to require the source individual to provide a blood sample.
new text end

new text begin (d) The facility shall inform the source individual that the facility will advise the
peace officer of the confidentiality requirements and penalties before disclosing any test
information.
new text end

new text begin Subd. 2. new text end

new text begin Information to peace officer. new text end

new text begin (a) Before disclosing any information about
the source individual, the facility shall inform the peace officer of the confidentiality
requirements of section 626.9611 and that the peace officer may be subject to penalties for
unauthorized release of information about the source individual under section 626.9612.
new text end

new text begin (b) The facility shall inform the peace officer of the insurance protections in section
72A.20, subdivision 29.
new text end

Sec. 4.

new text begin [626.9604] DISCLOSURE OF POSITIVE BLOODBORNE PATHOGEN
TEST RESULTS.
new text end

new text begin If the conditions of sections 626.9602 and 626.9603 are met, the facility shall ask the
source individual and the peace officer if they have ever had a positive test for a bloodborne
pathogen. The facility must attempt to get existing test results under this section before
taking any steps to obtain a blood sample or to test for bloodborne pathogens. The facility
shall disclose the source individual's bloodborne pathogen test results to the peace officer
without the source individual's name, address, or other uniquely identifying information.
new text end

Sec. 5.

new text begin [626.9605] CONSENT PROCEDURES; GENERALLY.
new text end

new text begin (a) For purposes of sections 626.9601 to 626.9615, whenever the facility is required
to seek consent, the facility shall follow its usual procedure for obtaining consent from an
individual or an individual's representative consistent with other law applicable to consent.
new text end

new text begin (b) Consent from a source individual's representative for bloodborne pathogen
testing of an existing blood sample obtained from the source individual is not required if
the facility has made reasonable efforts to obtain the representative's consent and consent
cannot be obtained within 24 hours of a significant exposure.
new text end

new text begin (c) If testing of the source individual's blood occurs without consent because the
source individual is unable to provide consent or has left the facility and cannot be located,
and the source individual's representative cannot be located, the facility shall provide
the information required in section 626.9603 to the source individual or representative
whenever it is possible to do so.
new text end

new text begin (d) If a source individual dies before an opportunity to consent to blood collection
or testing under sections 626.9601 to 626.9615, the facility does not need consent of the
deceased person's representative for purposes of sections 626.9601 to 626.9615.
new text end

Sec. 6.

new text begin [626.9606] TESTING OF AVAILABLE BLOOD.
new text end

new text begin Subdivision 1. new text end

new text begin Procedures with consent. new text end

new text begin If the source individual is or was under
the care or custody of the facility and a sample of the source individual's blood is available
with the consent of the source individual, the facility shall test that blood for bloodborne
pathogens with the consent of the source individual, provided the conditions in sections
626.9602 and 626.9603 are met.
new text end

new text begin Subd. 2. new text end

new text begin Procedures without consent. new text end

new text begin If the source individual has provided a blood
sample with consent but does not consent to bloodborne pathogen testing, the facility shall
test for bloodborne pathogens if the peace officer or law enforcement agency requests the
test, provided all of the following criteria are met:
new text end

new text begin (1) the peace officer or law enforcement agency has documented exposure to blood
or body fluids during performance of the peace officer??a??a??s duties;
new text end

new text begin (2) the facility has determined that a significant exposure has occurred and a licensed
physician for the peace officer has documented in the peace officer's medical record that
bloodborne pathogen test results are needed for beginning, modifying, continuing, or
discontinuing medical treatment for the peace officer under section 626.9614, subdivision
2;
new text end

new text begin (3) the peace officer provides a blood sample for testing for bloodborne pathogens
as soon as feasible;
new text end

new text begin (4) the facility asks the source individual to consent to a test for bloodborne
pathogens and the source individual does not consent;
new text end

new text begin (5) the facility has provided the source individual with all of the information required
by section 626.9603; and
new text end

new text begin (6) the facility has informed the peace officer of the confidentiality requirements
of section 626.9611 and the penalties for unauthorized release of source information
under section 626.9612.
new text end

new text begin Subd. 3. new text end

new text begin Follow-up. new text end

new text begin The facility shall inform the source individual and the peace
officer of their own test results. The facility shall inform the peace officer of the source
individual's test results without the source individual's name, address, or other uniquely
identifying information.
new text end

Sec. 7.

new text begin [626.9607] BLOOD SAMPLE COLLECTION FOR TESTING.
new text end

new text begin Subdivision 1. new text end

new text begin Procedures with consent. new text end

new text begin (a) If a blood sample is not otherwise
available, the facility shall obtain consent from the source individual before collecting
a blood sample for testing for bloodborne pathogens. The consent process shall include
informing the source individual that the individual may refuse to provide a blood sample
and that the source individual's refusal may result in a request for a court order under
subdivision 2 to require the source individual to provide a blood sample.
new text end

new text begin (b) If the source individual consents to provide a blood sample, the facility shall
collect a blood sample and test the sample for bloodborne pathogens.
new text end

new text begin (c) The facility shall inform the peace officer about the source individual's test
results without the individual's name, address, or other uniquely identifying information.
The facility shall inform the source individual of the test results.
new text end

new text begin (d) If the source individual refuses to provide a blood sample for testing, the facility
shall inform the peace officer of the source individual's refusal.
new text end

new text begin Subd. 2. new text end

new text begin Procedures without consent. new text end

new text begin (a) A law enforcement agency or a peace
officer may bring a petition for a court order to require a source individual to provide a
blood sample for testing for bloodborne pathogens. The petition shall be filed in the
district court in the county where the source individual resides or is hospitalized or where
the peace officer is being treated. The petitioner is not required to serve the petition on the
source individual prior to the hearing. The petition shall include one or more affidavits
attesting that:
new text end

new text begin (1) the facility followed the procedures in sections 626.9601 to 626.9615 and
attempted to obtain bloodborne pathogen test results according to those sections;
new text end

new text begin (2) it has been determined under section 626.9614, subdivision 2, that a significant
exposure has occurred to the peace officer; and
new text end

new text begin (3) a physician with specialty training in infectious diseases, including HIV, has
documented that the peace officer has provided a blood sample and consented to testing
for bloodborne pathogens and bloodborne pathogen test results are needed for beginning,
continuing, modifying, or discontinuing medical treatment for the peace officer.
new text end

new text begin (b) Facilities shall cooperate with petitioners in providing any necessary affidavits to
the extent that facility staff can attest under oath to the facts in the affidavits.
new text end

new text begin (c) The court must issue an order requiring the source individual to provide a
blood sample for bloodborne pathogen testing within 48 hours of receiving the order if
the court finds that:
new text end

new text begin (1) there is probable cause to believe the peace officer has experienced a significant
exposure to the source individual;
new text end

new text begin (2) a licensed physician for the peace officer needs the test results for beginning,
continuing, modifying, or discontinuing medical treatment for the peace officer; and
new text end

new text begin (3) there is a reasonable need for the test results. In assessing reasonable need,
the court shall weigh the need for the court-ordered blood collection and test results
against the interests of the source individual, including, but not limited to, privacy, health,
safety, or economic interests. The court shall also consider whether the involuntary blood
collection and testing would serve the public interest.
new text end

new text begin (d) As part of an order issued under this subdivision, the court must impose
appropriate safeguards against unauthorized disclosure that must specify the persons who
have access to the test results and the purposes for which the test results may be used.
new text end

new text begin (e) The court shall schedule the hearing within 24 hours of receiving the petition and
may conduct the proceeding in camera unless the court determines that a public hearing
is necessary for the proper administration of justice. The source individual need not be
present or have received notice of the hearing for the court to proceed. The evidence or
testimony in support or opposition to a petition may be made or taken by telephone,
facsimile transmission, video equipment, or other electronic communication. The court
shall issue its ruling within 24 hours of the conclusion of the hearing.
new text end

new text begin (f) If the source individual did not make an appearance at the hearing, the petitioner
must personally serve the source individual with a copy of the ex parte order along with a
copy of the petition and supporting affidavits. A notice of the right to contest the order and
the deadline for filing the appeal must accompany service of the order and petition.
new text end

new text begin (g) If the source individual did not make an appearance at the hearing, the source
individual may petition the court for a hearing to contest the court order. The source
individual??a??a??s appeal must be filed within 48 hours of the person receiving the ex parte
order. The person may not be compelled to submit to a blood test during the pendency
of an appeal. The court must hold a hearing within 24 hours from the date the appeal is
filed. The court may vacate its ex parte order if the source individual proves by clear and
convincing evidence that the person??a??a??s bodily fluids did not contact the peace officer. The
court must issue a ruling within 24 hours of the conclusion of the hearing.
new text end

new text begin (h) A source individual who fails or refuses to comply with the terms and conditions
of an order issued under this section shall be in contempt of court and subject to
confinement under section 588.12 until the person has complied with the order.
new text end

Sec. 8.

new text begin [626.9608] NO DISCRIMINATION.
new text end

new text begin A facility shall not base decisions about admission to a facility or the provision of
care or treatment on any requirement that the source individual consent to bloodborne
pathogen testing under sections 626.9601 to 626.9615.
new text end

Sec. 9.

new text begin [626.9609] USE OF TEST RESULTS.
new text end

new text begin Bloodborne pathogen test results of a source individual obtained under sections
626.9601 to 626.9615 are for diagnostic purposes and to determine the need for treatment
or medical care specific to a bloodborne pathogen-related illness of a peace officer. The
test results may not be used as evidence in any criminal proceedings or civil proceedings,
except for procedures under sections 144.4171 to 144.4186.
new text end

Sec. 10.

new text begin [626.9611] TEST INFORMATION CONFIDENTIALITY.
new text end

new text begin Subdivision 1. new text end

new text begin Private data. new text end

new text begin Information concerning test results obtained under
sections 626.9601 to 626.9615 is information protected from disclosure without consent
under section 144.335 with respect to private facilities and private data as defined in
section 13.02, subdivision 12, with respect to public facilities.
new text end

new text begin Subd. 2. new text end

new text begin Consent to release information. new text end

new text begin No facility, individual, or employer shall
disclose to a peace officer the name, address, or other uniquely identifying information
about a source individual without a written release signed by the source individual or the
source individual's legally authorized representative. The facility shall not record the
name, address, or other uniquely identifying information about the source individual's test
results in the peace officer??a??a??s medical records.
new text end

Sec. 11.

new text begin [626.9612] PENALTY FOR UNAUTHORIZED RELEASE OF
INFORMATION.
new text end

new text begin Unauthorized release by an individual, facility, or agency of a source individual's
name, address, or other uniquely identifying information under sections 626.9601 to
626.9615 is subject to the remedies and penalties under sections 13.08 and 13.09. This
section does not preclude private causes of action against an individual, state agency,
statewide system, political subdivision, or person responsible for releasing private data
or information protected from disclosure.
new text end

Sec. 12.

new text begin [626.9613] RESPONSIBILITY FOR TESTING AND TREATMENT;
COSTS.
new text end

new text begin (a) The facility shall ensure that tests under sections 626.9601 to 626.9615 are
performed if requested by the peace officer or law enforcement agency, provided the
conditions set forth in sections 626.9601 to 626.9615 are met.
new text end

new text begin (b) The law enforcement agency that employs the peace officer who requests
testing under sections 626.9601 to 626.9615 must pay or arrange payment for the cost
of counseling, testing, and treatment of the peace officer and costs associated with the
testing of the source individual.
new text end

Sec. 13.

new text begin [626.9614] PROTOCOLS FOR EXPOSURE TO BLOODBORNE
PATHOGENS.
new text end

new text begin Subdivision 1. new text end

new text begin Law enforcement agency requirements. new text end

new text begin The law enforcement
agency shall have procedures for a peace officer to notify a facility that the person may
have experienced a significant exposure from a source individual. The law enforcement
agency shall also have a protocol to locate the source individual if the facility has
not received the source individual and the law enforcement agency knows the source
individual's identity.
new text end

new text begin Subd. 2. new text end

new text begin Facility protocol requirements. new text end

new text begin Every facility shall adopt and follow a
postexposure protocol for peace officers who have experienced a significant exposure. The
postexposure protocol must adhere to the most current recommendations of the United
States Public Health Service and include, at a minimum, the following:
new text end

new text begin (1) a process for peace officers to report an exposure in a timely fashion;
new text end

new text begin (2) a process for an infectious disease specialist, or a licensed physician who is
knowledgeable about the most current recommendations of the United States Public
Health Service in consultation with an infectious disease specialist;
new text end

new text begin (i) to determine whether a significant exposure to one or more bloodborne pathogens
has occurred; and
new text end

new text begin (ii) to provide, under the direction of a licensed physician, a recommendation
or recommendations for follow-up treatment appropriate to the particular bloodborne
pathogen or pathogens for which a significant exposure has been determined;
new text end

new text begin (3) if there has been a significant exposure, a process to determine whether the
source individual has a bloodborne pathogen through disclosure of test results, or through
blood collection and testing as required by sections 626.9601 to 626.9615;
new text end

new text begin (4) a process for providing appropriate counseling prior to and following testing for
a bloodborne pathogen regarding the likelihood of bloodborne pathogen transmission
and follow-up recommendations according to the most current recommendations of the
United States Public Health Service, recommendations for testing, and treatment to the
peace officer;
new text end

new text begin (5) a process for providing appropriate counseling under clause (4) to the peace
officer and the source individual; and
new text end

new text begin (6) compliance with applicable state and federal laws relating to data practices,
confidentiality, informed consent, and the patient bill of rights.
new text end

Sec. 14.

new text begin [626.9615] PENALTIES AND IMMUNITY.
new text end

new text begin Subdivision 1. new text end

new text begin Penalties. new text end

new text begin Any facility or person who willfully violates the
provisions of sections 626.9601 to 626.9615 is guilty of a misdemeanor.
new text end

new text begin Subd. 2. new text end

new text begin Immunity. new text end

new text begin A facility, licensed physician, and designated health care
personnel are immune from liability in any civil, administrative, or criminal action relating
to the disclosure of test results to a peace officer or law enforcement agency and the testing
of a blood sample from the source individual for bloodborne pathogens if a good faith
effort has been made to comply with sections 626.9601 to 626.9615.
new text end

Sec. 15. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 14 are effective July 1, 2006.
new text end