Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 2000, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 422-S.F.No. 1202
An act relating to health; establishing protocol for
occupational exposure to bloodborne pathogens in
certain settings; providing criminal penalties;
amending Minnesota Statutes 1998, sections 144.4804,
by adding a subdivision; 214.18, subdivision 5, and by
adding a subdivision; 214.19; 214.20; 214.22; 214.23,
subdivisions 1 and 2; 214.25, subdivision 2; and
611A.19, subdivisions 1 and 2; Minnesota Statutes 1999
Supplement, sections 13.99, subdivision 38, and by
adding a subdivision; and 72A.20, subdivision 29;
proposing coding for new law in Minnesota Statutes,
chapters 144; 241; and 246; repealing Minnesota
Statutes 1998, sections 144.761; 144.762; 144.763;
144.764; 144.765; 144.766; 144.767; 144.768; 144.769;
and 144.7691.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
Section 1. Minnesota Statutes 1999 Supplement, section
13.99, subdivision 38, is amended to read:
Subd. 38. [HEALTH TEST RESULTS.] Health test results
obtained under chapter 144 are classified under section 144.768
144.7411.
Sec. 2. Minnesota Statutes 1999 Supplement, section 13.99,
is amended by adding a subdivision to read:
Subd. 65f. [BLOOD TEST RESULTS.] (a) Blood test results
obtained under sections 241.33 to 241.342 are classified under
section 241.339.
(b) Blood test results obtained under sections 246.71 to
246.722 are classified under section 246.719.
Sec. 3. Minnesota Statutes 1999 Supplement, section
72A.20, subdivision 29, is amended to read:
Subd. 29. [HIV TESTS; CRIME VICTIMS AND EMERGENCY MEDICAL
SERVICE PERSONNEL.] No insurer regulated under chapter 61A, 62B,
or 62S, or providing health, medical, hospitalization, long-term
care insurance, or accident and sickness insurance regulated
under chapter 62A, or nonprofit health service plan corporation
regulated under chapter 62C, health maintenance organization
regulated under chapter 62D, or fraternal benefit society
regulated under chapter 64B, may:
(1) obtain or use the performance of or the results of a
test to determine the presence of the human immunodeficiency
virus (HIV) antibody performed on an offender under section
611A.19 or performed on a crime victim who was exposed to or had
contact with an offender's bodily fluids during commission of a
crime that was reported to law enforcement officials, in order
to make an underwriting decision, cancel, fail to renew, or take
any other action with respect to a policy, plan, certificate, or
contract;
(2) obtain or use the performance of or the results of a
test to determine the presence of the human immunodeficiency
virus (HIV) antibody a bloodborne pathogen performed on a
patient pursuant to sections 144.761 to 144.7691, or performed
on emergency medical services personnel pursuant to the protocol
under section 144.762, subdivision 2, an individual according to
sections 144.7401 to 144.7415, 241.33 to 241.342, or 246.71 to
246.722 in order to make an underwriting decision, cancel, fail
to renew, or take any other action with respect to a policy,
plan, certificate, or contract; for purposes of this clause,
"patient" and "emergency medical services personnel" have the
meanings given in section 144.761; or
(3) ask an applicant for coverage or a person already
covered whether the person has: (i) had a test performed for
the reason set forth in clause (1) or (2); or (ii) been the
victim of an assault or any other crime which involves bodily
contact with the offender.
A question that purports to require an answer that would
provide information regarding a test performed for the reason
set forth in clause (1) or (2) may be interpreted as excluding
this test. An answer that does not mention the test is
considered to be a truthful answer for all purposes. An
authorization for the release of medical records for insurance
purposes must specifically exclude any test performed for the
purpose set forth in clause (1) or (2) and must be read as
providing this exclusion regardless of whether the exclusion is
expressly stated. This subdivision does not affect tests
conducted for purposes other than those described in clause (1)
or (2), including any test to determine the presence of the
human immunodeficiency virus (HIV) antibody if such test was
performed at the insurer's direction as part of the insurer's
normal underwriting requirements.
Sec. 4. Minnesota Statutes 1998, section 144.4804, is
amended by adding a subdivision to read:
Subd. 8. [TUBERCULOSIS NOTIFICATION.] If an emergency
medical services person, as defined in section 144.7401,
subdivision 4, is exposed to a person with active tuberculosis
during the performance of duties, the treatment facility's
designated infection control coordinator shall notify the
emergency medical services agency's exposure control officer by
telephone and by written correspondence. The facility's
designated infection control coordinator shall provide the
emergency medical services person with information about
screening and, if indicated, follow-up.
Sec. 5. [144.7401] [DEFINITIONS.]
Subdivision 1. [SCOPE OF DEFINITIONS.] For purposes of
sections 144.7401 to 144.7415, the following terms have the
meanings given them.
Subd. 2. [BLOODBORNE PATHOGENS.] "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).
Subd. 3. [EMERGENCY MEDICAL SERVICES AGENCY.] "Emergency
medical services agency" means an agency, entity, or
organization that employs or uses emergency medical services
persons as employees or volunteers.
Subd. 4. [EMERGENCY MEDICAL SERVICES PERSON.] "Emergency
medical services person" means:
(1) an individual employed or receiving compensation to
provide out-of-hospital emergency medical services such as a
firefighter, paramedic, emergency medical technician, licensed
nurse, rescue squad person, or other individual who serves as an
employee or volunteer of an ambulance service as defined under
chapter 144E or a member of an organized first responder squad
that is formally recognized by a political subdivision in the
state, who provides out-of-hospital emergency medical services
during the performance of the individual's duties;
(2) an individual employed as a licensed peace officer
under section 626.84, subdivision 1;
(3) an individual employed as a crime laboratory worker
while working outside the laboratory and involved in a criminal
investigation;
(4) any individual who renders emergency care or assistance
at the scene of an emergency or while an injured person is being
transported to receive medical care and who is acting as a good
samaritan under section 604A.01; and
(5) any individual who, in the process of executing a
citizen's arrest under section 629.30, may have experienced a
significant exposure to a source individual.
Subd. 5. [SOURCE INDIVIDUAL.] "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 an emergency medical services person. Examples
include, but are not limited to, a victim of an accident,
injury, or illness or a deceased person.
Subd. 6. [SIGNIFICANT EXPOSURE.] "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:
(1) percutaneous injury, contact of mucous membrane or
nonintact skin, or prolonged contact of intact skin; and
(2) contact, in a manner that may transmit a bloodborne
pathogen, with blood, tissue, or potentially infectious body
fluids.
Subd. 7. [FACILITY.] "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 an emergency medical services person for
evaluation for significant exposure or a source individual cared
for by an emergency medical services person.
Sec. 6. [144.7402] [CONDITIONS FOR APPLICABILITY OF
PROCEDURES.]
Subdivision 1. [REQUEST FOR PROCEDURES.] An emergency
medical services person or emergency medical services agency may
request that a facility follow the procedures of sections
144.7401 to 144.7415 when an emergency medical services person
may have experienced a significant exposure to a source
individual.
Subd. 2. [CONDITIONS.] A facility shall follow the
procedures outlined in sections 144.7401 to 144.7415 when all of
the following conditions are met:
(1) the facility determines that significant exposure has
occurred, following the protocol under section 144.7414;
(2) the licensed physician for the emergency medical
services person 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
(3) the emergency medical services person consents to
provide a blood sample for testing for a bloodborne pathogen.
If the emergency medical services person 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 emergency medical services person elects
to have the sample tested within 90 days, the testing shall be
done as soon as feasible.
Subd. 3. [LOCATING SOURCE INDIVIDUAL.] If the source
individual is not received by a facility but the facility is
providing treatment to the emergency medical services person,
the emergency medical services 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 144.7401 to
144.7415. The emergency medical services 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.
Sec. 7. [144.7403] [INFORMATION REQUIRED TO BE GIVEN TO
INDIVIDUALS.]
Subdivision 1. [INFORMATION TO SOURCE INDIVIDUAL.] (a)
Before seeking any consent required by the procedures under
sections 144.7401 to 144.7415, 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 emergency medical services person if requested, and that
test results collected under sections 144.7401 to 144.7415 are
for medical purposes as set forth in section 144.7409 and may
not be used as evidence in any criminal proceedings or civil
proceedings, except for procedures under sections 144.4171 to
144.4186.
(b) The facility shall inform the source individual of the
insurance protections in section 72A.20, subdivision 29.
(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.
(d) The facility shall inform the source individual that
the facility will advise the emergency medical services person
of the confidentiality requirements and penalties before
disclosing any test information.
Subd. 2. [INFORMATION TO EMS PERSON.] (a) Before
disclosing any information about the source individual, the
facility shall inform the emergency medical services person of
the confidentiality requirements of section 144.7411 and that
the person may be subject to penalties for unauthorized release
of information about the source individual under section
144.7412.
(b) The facility shall inform the emergency medical
services person of the insurance protections in section 72A.20,
subdivision 29.
Sec. 8. [144.7404] [DISCLOSURE OF POSITIVE BLOODBORNE
PATHOGEN TEST RESULTS.]
If the conditions of sections 144.7402 and 144.7403 are
met, the facility shall ask the source individual and the
emergency medical services person 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 emergency
medical services person without the source individual's name,
address, or other uniquely identifying information.
Sec. 9. [144.7405] [CONSENT PROCEDURES GENERALLY.]
(a) For purposes of sections 144.7401 to 144.7415, 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.
(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.
(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
144.7403 to the source individual or representative whenever it
is possible to do so.
(d) If a source individual dies before an opportunity to
consent to blood collection or testing under sections 144.7401
to 144.7415, the facility does not need consent of the deceased
person's representative for purposes of sections 144.7401 to
144.7415.
Sec. 10. [144.7406] [TESTING OF AVAILABLE BLOOD.]
Subdivision 1. [PROCEDURES WITH CONSENT.] 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 144.7402
and 144.7403 are met.
Subd. 2. [PROCEDURES WITHOUT CONSENT.] 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 emergency medical services
person or emergency medical services agency requests the test,
provided all of the following criteria are met:
(1) the emergency medical services person or emergency
medical services agency has documented exposure to blood or body
fluids during performance of that person's occupation or while
acting as a good samaritan under section 604A.01 or executing a
citizen's arrest under section 629.30;
(2) the facility has determined that a significant exposure
has occurred and a licensed physician for the emergency medical
services person has documented in the emergency medical services
person's medical record that bloodborne pathogen test results
are needed for beginning, modifying, continuing, or
discontinuing medical treatment for the emergency medical
services person under section 144.7414, subdivision 2;
(3) the emergency medical services person provides a blood
sample for testing for bloodborne pathogens as soon as feasible;
(4) the facility asks the source individual to consent to a
test for bloodborne pathogens and the source individual does not
consent;
(5) the facility has provided the source individual with
all of the information required by section 144.7403; and
(6) the facility has informed the emergency medical
services person of the confidentiality requirements of section
144.7411 and the penalties for unauthorized release of source
information under section 144.7412.
Subd. 3. [FOLLOW-UP.] The facility shall inform the source
individual and the emergency medical services person of their
own test results. The facility shall inform the emergency
medical services person of the source individual's test results
without the source individual's name, address, or other uniquely
identifying information.
Sec. 11. [144.7407] [BLOOD SAMPLE COLLECTION FOR TESTING.]
Subdivision 1. [PROCEDURES WITH CONSENT.] (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.
(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.
(c) The facility shall inform the emergency medical
services person 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.
(d) If the source individual refuses to provide a blood
sample for testing, the facility shall inform the emergency
medical services person of the source individual's refusal.
Subd. 2. [PROCEDURES WITHOUT CONSENT.] (a) An emergency
medical services agency, or, if there is no agency, an emergency
medical services person, 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. The petitioner shall serve the
petition on the source individual at least three days before a
hearing on the petition. The petition shall include one or more
affidavits attesting that:
(1) the facility followed the procedures in sections
144.7401 to 144.7415 and attempted to obtain bloodborne pathogen
test results according to those sections;
(2) it has been determined under section 144.7414,
subdivision 2, that a significant exposure has occurred to the
emergency medical services person; and
(3) a physician with specialty training in infectious
diseases, including HIV, has documented that the emergency
medical services person 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 emergency
medical services person.
(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.
(c) The court may order the source individual to provide a
blood sample for bloodborne pathogen testing if:
(1) there is probable cause to believe the emergency
medical services person has experienced a significant exposure
to the source individual;
(2) the court imposes 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;
(3) a licensed physician for the emergency medical services
person needs the test results for beginning, continuing,
modifying, or discontinuing medical treatment for the emergency
medical services person; and
(4) the court finds a compelling need for the test
results. In assessing compelling 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.
(d) The court shall conduct the proceeding in camera unless
the petitioner or the source individual requests a hearing in
open court and the court determines that a public hearing is
necessary to the public interest and the proper administration
of justice.
(e) The source individual has the right to counsel in any
proceeding brought under this subdivision.
Sec. 12. [144.7408] [NO DISCRIMINATION.]
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 144.7401 to 144.7415.
Sec. 13. [144.7409] [USE OF TEST RESULTS.]
Bloodborne pathogen test results of a source individual
obtained under sections 144.7401 to 144.7415 are for diagnostic
purposes and to determine the need for treatment or medical care
specific to a bloodborne pathogen-related illness of an
emergency medical services person. 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.
Sec. 14. [144.7411] [TEST INFORMATION CONFIDENTIALITY.]
Subdivision 1. [PRIVATE DATA.] Information concerning test
results obtained under sections 144.7401 to 144.7415 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.
Subd. 2. [CONSENT TO RELEASE INFORMATION.] No facility,
individual, or employer shall disclose to an emergency medical
services person 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
emergency medical services person's medical records.
Sec. 15. [144.7412] [PENALTY FOR UNAUTHORIZED RELEASE OF
INFORMATION.]
Unauthorized release by an individual, facility, or agency
of a source individual's name, address, or other uniquely
identifying information under sections 144.7401 to 144.7415 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.
Sec. 16. [144.7413] [RESPONSIBILITY FOR TESTING AND
TREATMENT; COSTS.]
(a) The facility shall ensure that tests under sections
144.7401 to 144.7415 are performed if requested by the emergency
medical services person or emergency medical services agency,
provided the conditions set forth in sections 144.7401 to
144.7415 are met.
(b) The emergency medical services agency that employs the
emergency medical services person who requests testing under
sections 144.7401 to 144.7415 must pay or arrange payment for
the cost of counseling, testing, and treatment of the emergency
medical services person and costs associated with the testing of
the source individual.
(c) A facility shall have a protocol that states whether
the facility will pay for the cost of counseling, testing, or
treatment of a person executing a citizen's arrest under section
629.30 or acting as a good samaritan under section 604A.01.
Sec. 17. [144.7414] [PROTOCOLS FOR EXPOSURE TO BLOODBORNE
PATHOGENS.]
Subdivision 1. [EMS AGENCY REQUIREMENTS.] The emergency
medical services agency shall have procedures for an emergency
medical services person to notify a facility that the person may
have experienced a significant exposure from a source
individual. The emergency medical services agency shall also
have a protocol to locate the source individual if the facility
has not received the source individual and the emergency medical
services agency knows the source individual's identity.
Subd. 2. [FACILITY PROTOCOL REQUIREMENTS.] Every facility
shall adopt and follow a postexposure protocol for emergency
medical services persons 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:
(1) a process for emergency medical services persons to
report an exposure in a timely fashion;
(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, (i) to
determine whether a significant exposure to one or more
bloodborne pathogens has occurred and (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;
(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 144.7401 to
144.7415;
(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 emergency medical services person;
(5) a process for providing appropriate counseling under
clause (4) to the emergency medical services person and the
source individual; and
(6) compliance with applicable state and federal laws
relating to data practices, confidentiality, informed consent,
and the patient bill of rights.
Sec. 18. [144.7415] [PENALTIES AND IMMUNITY.]
Subdivision 1. [PENALTIES.] Any facility or person who
willfully violates the provisions of sections 144.7401 to
144.7415 is guilty of a misdemeanor.
Subd. 2. [IMMUNITY.] 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 an emergency medical services
person or emergency medical services 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
144.7401 to 144.7415.
Sec. 19. Minnesota Statutes 1998, section 214.18, is
amended by adding a subdivision to read:
Subd. 3a. [HCV.] "HCV" means the hepatitis C virus.
Sec. 20. Minnesota Statutes 1998, section 214.18,
subdivision 5, is amended to read:
Subd. 5. [REGULATED PERSON.] "Regulated person" means a
licensed dental hygienist, dentist, physician, nurse who is
currently registered as a registered nurse or licensed practical
nurse, podiatrist, a registered dental assistant, a physician's
assistant, and for purposes of sections 214.19, subdivisions 4
and 5; 214.20, paragraph (a); and 214.24, a chiropractor.
Sec. 21. Minnesota Statutes 1998, section 214.19, is
amended to read:
214.19 [REPORTING OBLIGATIONS.]
Subdivision 1. [PERMISSION TO REPORT.] A person with
actual knowledge that a regulated person has been diagnosed as
infected with HIV or, HBV, or HCV may file a report with the
commissioner.
Subd. 2. [SELF-REPORTING.] A regulated person who is
diagnosed as infected with HIV or, HBV, or HCV shall report that
information to the commissioner promptly, and as soon as
medically necessary for disease control purposes but no more
than 30 days after learning of the diagnosis or 30 days after
becoming licensed or registered by the state.
Subd. 3. [MANDATORY REPORTING.] A person or institution
required to report HIV or, HBV, or HCV status to the
commissioner under Minnesota Rules, parts 4605.7030, subparts 1
to 4 and 6, and 4605.7040, shall, at the same time, notify the
commissioner if the person or institution knows that the
reported person is a regulated person.
Subd. 4. [INFECTION CONTROL REPORTING.] A regulated person
shall, within ten days, report to the appropriate board personal
knowledge of a serious failure or a pattern of failure by
another regulated person to comply with accepted and prevailing
infection control procedures related to the prevention of
HIV and, HBV, and HCV transmission. In lieu of reporting to the
board, the regulated person may make the report to a designated
official of the hospital, nursing home, clinic, or other
institution or agency where the failure to comply with accepted
and prevailing infection control procedures occurred. The
designated official shall report to the appropriate board within
30 days of receiving a report under this subdivision. The
report shall include specific information about the response by
the institution or agency to the report. A regulated person
shall not be discharged or discriminated against for filing a
complaint in good faith under this subdivision.
Subd. 5. [IMMUNITY.] A person is immune from civil
liability or criminal prosecution for submitting a report in
good faith to the commissioner or to a board under this section.
Sec. 22. Minnesota Statutes 1998, section 214.20, is
amended to read:
214.20 [GROUNDS FOR DISCIPLINARY OR RESTRICTIVE ACTION.]
A board may refuse to grant a license or registration or
may impose disciplinary or restrictive action against a
regulated person who:
(1) fails to follow accepted and prevailing infection
control procedures, including a failure to conform to current
recommendations of the Centers for Disease Control for
preventing the transmission of HIV and, HBV, and HCV, or fails
to comply with infection control rules promulgated by the
board. Injury to a patient need not be established;
(2) fails to comply with any requirement of sections 214.17
to 214.24; or
(3) fails to comply with any monitoring or reporting
requirement.
Sec. 23. Minnesota Statutes 1998, section 214.22, is
amended to read:
214.22 [NOTICE; ACTION.]
If the board has reasonable grounds to believe a regulated
person infected with HIV or, HBV, or HCV has done or omitted
doing any act that would be grounds for disciplinary action
under section 214.20, the board may take action after giving
notice three business days before the action, or a lesser time
if deemed necessary by the board. The board may:
(1) temporarily suspend the regulated person's right to
practice under section 214.21;
(2) require the regulated person to appear personally at a
conference with representatives of the board and to provide
information relating to the regulated person's health or
professional practice; and
(3) take any other lesser action deemed necessary by the
board for the protection of the public.
Sec. 24. Minnesota Statutes 1998, section 214.23,
subdivision 1, is amended to read:
Subdivision 1. [COMMISSIONER OF HEALTH.] The board shall
enter into a contract with the commissioner to perform the
functions in subdivisions 2 and 3. The contract shall provide
that:
(1) unless requested to do otherwise by a regulated person,
a board shall refer all regulated persons infected with HIV or,
HBV, or HCV to the commissioner;
(2) the commissioner may choose to refer any regulated
person who is infected with HIV or, HBV, or HCV as well as all
information related thereto to the person's board at any time
for any reason, including but not limited to: the degree of
cooperation and compliance by the regulated person; the
inability to secure information or the medical records of the
regulated person; or when the facts may present other possible
violations of the regulated persons practices act. Upon request
of the regulated person who is infected with HIV or, HBV, or HCV
the commissioner shall refer the regulated person and all
information related thereto to the person's board. Once the
commissioner has referred a regulated person to a board, the
board may not thereafter submit it to the commissioner to
establish a monitoring plan unless the commissioner of health
consents in writing;
(3) a board shall not take action on grounds relating
solely to the HIV or, HBV, or HCV status of a regulated person
until after referral by the commissioner; and
(4) notwithstanding sections 13.39 and 13.41 and chapters
147, 147A, 148, 150A, 153, and 214, a board shall forward to the
commissioner any information on a regulated person who is
infected with HIV or, HBV, or HCV that the department of health
requests.
Sec. 25. Minnesota Statutes 1998, section 214.23,
subdivision 2, is amended to read:
Subd. 2. [MONITORING PLAN.] After receiving a report that
a regulated person is infected with HIV or, HBV, or HCV, the
board or the commissioner acting on behalf of the board shall
evaluate the past and current professional practice of the
regulated person to determine whether there has been a violation
under section 214.20. After evaluation of the regulated
person's past and current professional practice, the board or
the commissioner, acting on behalf of the board, shall establish
a monitoring plan for the regulated person. The monitoring plan
may:
(1) address the scope of a regulated person's professional
practice when the board or the commissioner, acting on behalf of
the board, determines that the practice constitutes an
identifiable risk of transmission of HIV or, HBV, or HCV from
the regulated person to the patient;
(2) include the submission of regular reports at a
frequency determined by the board or the commissioner, acting on
behalf of the board, regarding the regulated person's health
status; and
(3) include any other provisions deemed reasonable by the
board or the commissioner of health, acting on behalf of the
board.
The board or commissioner, acting on behalf of the board, may
enter into agreements with qualified persons to perform
monitoring on its behalf. The regulated person shall comply
with any monitoring plan established under this subdivision.
Sec. 26. Minnesota Statutes 1998, section 214.25,
subdivision 2, is amended to read:
Subd. 2. [COMMISSIONER OF HEALTH DATA.] (a) All data
collected or maintained as part of the commissioner of health's
duties under sections 214.19, 214.23, and 214.24 shall be
classified as investigative data under section 13.39, except
that inactive investigative data shall be classified as private
data under section 13.02, subdivision 12, or nonpublic data
under section 13.02, subdivision 9, in the case of data not on
individuals.
(b) Notwithstanding section 13.05, subdivision 9, data
addressed in this subdivision shall not be disclosed except as
provided in this subdivision or section 13.04; except that the
commissioner may disclose to the boards under section 214.23.
(c) The commissioner may disclose data addressed under this
subdivision as necessary: to identify, establish, implement,
and enforce a monitoring plan; to investigate a regulated
person; to alert persons who may be threatened by illness as
evidenced by epidemiologic data; to control or prevent the
spread of HIV or, HBV, or HCV disease; or to diminish an
imminent threat to the public health.
Sec. 27. [241.33] [DEFINITIONS.]
Subdivision 1. [SCOPE OF DEFINITIONS.] For purposes of
sections 241.33 to 241.342, the following terms have the meaning
given them.
Subd. 2. [BLOODBORNE PATHOGENS.] "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).
Subd. 3. [INMATE.] "Inmate" means an individual who is in
the custody or under the jurisdiction of the commissioner of
corrections or a local correctional authority and is confined in
a state or local correctional facility either before or after
conviction.
Subd. 4. [CORRECTIONAL FACILITY.] "Correctional facility"
means a state or local correctional facility.
Subd. 5. [CORRECTIONS EMPLOYEE.] "Corrections employee"
means an employee of a state or local correctional agency.
Subd. 6. [SIGNIFICANT EXPOSURE.] "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:
(1) percutaneous injury, contact of mucous membrane or
nonintact skin, or prolonged contact of intact skin; and
(2) contact, in a manner that may transmit a bloodborne
pathogen, with blood, tissue, or potentially infectious body
fluids.
Sec. 28. [241.331] [CONDITIONS FOR APPLICABILITY OF
PROCEDURES.]
Subdivision 1. [REQUEST FOR PROCEDURES.] A corrections
employee may request that the procedures of sections 241.33 to
241.342 be followed when the corrections employee may have
experienced a significant exposure to an inmate.
Subd. 2. [CONDITIONS.] The correctional facility shall
follow the procedures in sections 241.33 to 241.342 when all of
the following conditions are met:
(1) a licensed physician determines that a significant
exposure has occurred following the protocol under section
241.341;
(2) the licensed physician for the corrections employee
needs the inmate's bloodborne pathogens 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
(3) the corrections employee consents to providing a blood
sample for testing for a bloodborne pathogen.
Sec. 29. [241.332] [INFORMATION REQUIRED TO BE GIVEN TO
INDIVIDUALS.]
Subdivision 1. [INFORMATION TO INMATE.] (a) Before seeking
any consent required by the procedures under sections 241.33 to
241.342, a correctional facility shall inform the inmate that
the inmate's bloodborne pathogen test results, without the
inmate's name or other uniquely identifying information, shall
be reported to the corrections employee if requested and that
test results collected under sections 241.33 to 241.342 are for
medical purposes as set forth in section 241.338 and may not be
used as evidence in any criminal proceedings or civil
proceedings, except for procedures under sections 144.4171 to
144.4186.
(b) The correctional facility shall inform the inmate of
the insurance protections in section 72A.20, subdivision 29.
(c) The correctional facility shall inform the inmate that
the inmate may refuse to provide a blood sample and that the
inmate's refusal may result in a request for a court order to
require the inmate to provide a blood sample.
(d) The correctional facility shall inform the inmate that
the correctional facility will advise the corrections employee
of the confidentiality requirements and penalties before the
employee's health care provider discloses any test results.
Subd. 2. [INFORMATION TO CORRECTIONS EMPLOYEE.] (a) Before
disclosing any information about the inmate, the correctional
facility shall inform the corrections employee of the
confidentiality requirements of section 241.339 and that the
person may be subject to penalties for unauthorized release of
test results about the inmate under section 241.34.
(b) The correctional facility shall inform the corrections
employee of the insurance protections in section 72A.20,
subdivision 29.
Sec. 30. [241.333] [DISCLOSURE OF POSITIVE BLOODBORNE
PATHOGEN TEST RESULTS.]
If the conditions of sections 241.331 and 241.332 are met,
the correctional facility shall ask the inmate if the inmate has
ever had a positive test for a bloodborne pathogen. The
correctional 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 correctional
facility shall disclose the inmate's bloodborne pathogen test
results to the corrections employee without the inmate's name or
other uniquely identifying information.
Sec. 31. [241.334] [CONSENT PROCEDURES GENERALLY.]
(a) For purposes of sections 241.33 to 241.342, whenever
the correctional facility is required to seek consent, the
correctional facility shall obtain consent from an inmate or an
inmate's representative consistent with other law applicable to
consent.
(b) Consent is not required if the correctional facility
has made reasonable efforts to obtain the representative's
consent and consent cannot be obtained within 24 hours of a
significant exposure.
(c) If testing of available blood occurs without consent
because the inmate is unconscious or unable to provide consent,
and a representative cannot be located, the correctional
facility shall provide the information required in section
241.332 to the inmate or representative whenever it is possible
to do so.
(d) If an inmate dies before an opportunity to consent to
blood collection or testing under sections 241.33 to 241.342,
the correctional facility does not need consent of the inmate's
representative for purposes of sections 241.33 to 241.342.
Sec. 32. [241.335] [TESTING OF AVAILABLE BLOOD.]
Subdivision 1. [PROCEDURES WITH CONSENT.] If a sample of
the inmate's blood is available, the correctional facility shall
ensure that blood is tested for bloodborne pathogens with the
consent of the inmate, provided the conditions in sections
241.331 and 241.332 are met.
Subd. 2. [PROCEDURES WITHOUT CONSENT.] If the inmate has
provided a blood sample, but does not consent to bloodborne
pathogens testing, the correctional facility shall ensure that
the blood is tested for bloodborne pathogens if the corrections
employee requests the test, provided all of the following
criteria are met:
(1) the corrections employee and correctional facility have
documented exposure to blood or body fluids during performance
of the employee's work duties;
(2) a licensed physician has determined that a significant
exposure has occurred under section 241.341 and has documented
that bloodborne pathogen test results are needed for beginning,
modifying, continuing, or discontinuing medical treatment for
the corrections employee as recommended by the most current
guidelines of the United States Public Health Service;
(3) the corrections employee provides a blood sample for
testing for bloodborne pathogens as soon as feasible;
(4) the correctional facility asks the inmate to consent to
a test for bloodborne pathogens and the inmate does not consent;
(5) the correctional facility has provided the inmate and
the corrections employee with all of the information required by
section 241.332; and
(6) the correctional facility has informed the corrections
employee of the confidentiality requirements of section 241.339
and the penalties for unauthorized release of inmate information
under section 241.34.
Subd. 3. [FOLLOW-UP.] The correctional facility shall
inform the inmate whose blood was tested of the results. The
correctional facility shall inform the corrections employee's
health care provider of the inmate's test results without the
inmate's name or other uniquely identifying information.
Sec. 33. [241.336] [BLOOD SAMPLE COLLECTION FOR TESTING.]
Subdivision 1. [PROCEDURES WITH CONSENT.] (a) If a blood
sample is not otherwise available, the correctional facility
shall obtain consent from the inmate before collecting a blood
sample for testing for bloodborne pathogens. The consent
process shall include informing the inmate that the inmate may
refuse to provide a blood sample and that the inmate's refusal
may result in a request for a court order under subdivision 2 to
require the inmate to provide a blood sample.
(b) If the inmate consents to provide a blood sample, the
correctional facility shall collect a blood sample and ensure
that the sample is tested for bloodborne pathogens.
(c) The correctional facility shall inform the corrections
employee's health care provider about the inmate's test results
without the inmate's name or other uniquely identifying
information. The correctional facility shall inform the inmate
of the test results.
(d) If the inmate refuses to provide a blood sample for
testing, the correctional facility shall inform the corrections
employee of the inmate's refusal.
Subd. 2. [PROCEDURES WITHOUT CONSENT.] (a) A correctional
facility or a corrections employee may bring a petition for a
court order to require an inmate to provide a blood sample for
testing for bloodborne pathogens. The petition shall be filed
in the district court in the county where the inmate is
confined. The correctional facility shall serve the petition on
the inmate three days before a hearing on the petition. The
petition shall include one or more affidavits attesting that:
(1) the correctional facility followed the procedures in
sections 241.33 to 241.342 and attempted to obtain bloodborne
pathogen test results according to those sections;
(2) a licensed physician knowledgeable about the most
current recommendations of the United States Public Health
Service has determined that a significant exposure has occurred
to the corrections employee under section 241.341; and
(3) a physician has documented that the corrections
employee 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 corrections employee
under section 241.341.
(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.
(c) The court may order the inmate to provide a blood
sample for bloodborne pathogen testing if:
(1) there is probable cause to believe the corrections
employee has experienced a significant exposure to the inmate;
(2) the court imposes 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;
(3) a licensed physician for the corrections employee needs
the test results for beginning, continuing, modifying, or
discontinuing medical treatment for the corrections employee;
and
(4) the court finds a compelling need for the test
results. In assessing compelling need, the court shall weigh
the need for the court-ordered blood collection and test results
against the interests of the inmate, including, but not limited
to, privacy, health, safety, or economic interests. The court
shall also consider whether involuntary blood collection and
testing would serve the public interests.
(d) The court shall conduct the proceeding in camera unless
the petitioner or the inmate requests a hearing in open court
and the court determines that a public hearing is necessary to
the public interest and the proper administration of justice.
(e) The inmate may arrange for counsel in any proceeding
brought under this subdivision.
Sec. 34. [241.337] [NO DISCRIMINATION.]
A correctional facility shall not withhold care or
treatment on the requirement that the inmate consent to
bloodborne pathogen testing under sections 241.33 to 241.342.
Sec. 35. [241.338] [USE OF TEST RESULTS.]
Bloodborne pathogen test results of an inmate obtained
under sections 241.33 to 241.342 are for diagnostic purposes and
to determine the need for treatment or medical care specific to
a bloodborne pathogen-related illness. 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.
Sec. 36. [241.339] [TEST INFORMATION CONFIDENTIALITY.]
Test results obtained under sections 241.33 to 241.342 are
private data as defined in sections 13.02, subdivision 12, and
13.85, subdivision 2, but shall be released as provided by
sections 241.33 to 241.342.
Sec. 37. [241.34] [PENALTY FOR UNAUTHORIZED RELEASE OF
INFORMATION.]
Unauthorized release of the inmate's name or other uniquely
identifying information under sections 241.33 to 241.342 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 confidential or private information on the inmate.
Sec. 38. [241.341] [PROTOCOL FOR EXPOSURE TO BLOODBORNE
PATHOGENS.]
(a) Correctional facilities shall follow applicable
Occupational Safety and Health Administration guidelines under
Code of Federal Regulations, title 29, part 1910.1030, for
bloodborne pathogens.
(b) Every correctional facility shall adopt and follow a
postexposure protocol for corrections employees 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:
(1) a process for corrections employees to report an
exposure in a timely fashion;
(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, (i) to
determine whether a significant exposure to one or more
bloodborne pathogens has occurred, and (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;
(3) if there has been a significant exposure, a process to
determine whether the inmate has a bloodborne pathogen through
disclosure of test results, or through blood collection and
testing as required by sections 241.33 to 241.342;
(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;
(5) a process for providing appropriate counseling under
clause (4) to the corrections employee and inmate; and
(6) compliance with applicable state and federal laws
relating to data practices, confidentiality, informed consent,
and the patient bill of rights.
Sec. 39. [241.342] [IMMUNITY.]
A correctional 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 of an inmate to a corrections employee and the
testing of a blood sample from the inmate for bloodborne
pathogens if a good faith effort has been made to comply with
sections 241.33 to 241.342.
Sec. 40. [246.71] [DEFINITIONS.]
Subdivision 1. [SCOPE.] For purposes of sections 246.71 to
246.722, the following terms have the meaning given them.
Subd. 2. [BLOODBORNE PATHOGENS.] "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).
Subd. 3. [PATIENT.] "Patient" means any person who is
receiving treatment from or committed to a secure treatment
facility.
Subd. 4. [EMPLOYEE OF A SECURE TREATMENT FACILITY OR
EMPLOYEE.] "Employee of a secure treatment facility" or
"employee" means an employee of the Minnesota security hospital
or the Minnesota sexual psychopathic personality treatment
center.
Subd. 5. [SECURE TREATMENT FACILITY.] "Secure treatment
facility" means the Minnesota security hospital or the Minnesota
sexual psychopathic personality treatment center.
Subd. 6. [SIGNIFICANT EXPOSURE.] "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:
(1) percutaneous injury, contact of mucous membrane or
nonintact skin, or prolonged contact of intact skin; and
(2) contact, in a manner that may transmit a bloodborne
pathogen, with blood, tissue, or potentially infectious body
fluids.
Sec. 41. [246.711] [CONDITIONS FOR APPLICABILITY OF
PROCEDURES.]
Subdivision 1. [REQUEST FOR PROCEDURES.] An employee of a
secure treatment facility may request that the procedures of
sections 246.71 to 246.722 be followed when the employee may
have experienced a significant exposure to a patient.
Subd. 2. [CONDITIONS.] The secure treatment facility shall
follow the procedures in sections 246.71 to 246.722 when all of
the following conditions are met:
(1) a licensed physician determines that a significant
exposure has occurred following the protocol under section
246.721;
(2) the licensed physician for the employee needs the
patient's bloodborne pathogens 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
(3) the employee consents to providing a blood sample for
testing for a bloodborne pathogen.
Sec. 42. [246.712] [INFORMATION REQUIRED TO BE GIVEN TO
INDIVIDUALS.]
Subdivision 1. [INFORMATION TO PATIENT.] (a) Before
seeking any consent required by the procedures under sections
246.71 to 246.722, a secure treatment facility shall inform the
patient that the patient's bloodborne pathogen test results,
without the patient's name or other uniquely identifying
information, shall be reported to the employee if requested and
that test results collected under sections 246.71 to 246.722 are
for medical purposes as set forth in section 246.718 and may not
be used as evidence in any criminal proceedings or civil
proceedings, except for procedures under sections 144.4171 to
144.4186.
(b) The secure treatment facility shall inform the patient
of the insurance protections in section 72A.20, subdivision 29.
(c) The secure treatment facility shall inform the patient
that the patient may refuse to provide a blood sample and that
the patient's refusal may result in a request for a court order
to require the patient to provide a blood sample.
(d) The secure treatment facility shall inform the patient
that the secure treatment facility will advise the employee of a
secure treatment facility of the confidentiality requirements
and penalties before the employee's health care provider
discloses any test results.
Subd. 2. [INFORMATION TO SECURE TREATMENT FACILITY
EMPLOYEE.] (a) Before disclosing any information about the
patient, the secure treatment facility shall inform the employee
of a secure treatment facility of the confidentiality
requirements of section 246.719 and that the person may be
subject to penalties for unauthorized release of test results
about the patient under section 246.72.
(b) The secure treatment facility shall inform the employee
of the insurance protections in section 72A.20, subdivision 29.
Sec. 43. [246.713] [DISCLOSURE OF POSITIVE BLOODBORNE
PATHOGEN TEST RESULTS.]
If the conditions of sections 246.711 and 246.712 are met,
the secure treatment facility shall ask the patient if the
patient has ever had a positive test for a bloodborne pathogen.
The secure treatment 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 secure
treatment facility shall disclose the patient's bloodborne
pathogen test results to the employee without the patient's name
or other uniquely identifying information.
Sec. 44. [246.714] [CONSENT PROCEDURES GENERALLY.]
(a) For purposes of sections 246.71 to 246.722, whenever
the secure treatment facility is required to seek consent, the
secure treatment facility shall obtain consent from a patient or
a patient's representative consistent with other law applicable
to consent.
(b) Consent is not required if the secure treatment
facility has made reasonable efforts to obtain the
representative's consent and consent cannot be obtained within
24 hours of a significant exposure.
(c) If testing of available blood occurs without consent
because the patient is unconscious or unable to provide consent,
and a representative cannot be located, the secure treatment
facility shall provide the information required in section
246.712 to the patient or representative whenever it is possible
to do so.
(d) If a patient dies before an opportunity to consent to
blood collection or testing under sections 246.71 to 246.722,
the secure treatment facility does not need consent of the
patient's representative for purposes of sections 246.71 to
246.722.
Sec. 45. [246.715] [TESTING OF AVAILABLE BLOOD.]
Subdivision 1. [PROCEDURES WITH CONSENT.] If a sample of
the patient's blood is available, the secure treatment facility
shall ensure that blood is tested for bloodborne pathogens with
the consent of the patient, provided the conditions in sections
246.711 and 246.712 are met.
Subd. 2. [PROCEDURES WITHOUT CONSENT.] If the patient has
provided a blood sample, but does not consent to bloodborne
pathogens testing, the secure treatment facility shall ensure
that the blood is tested for bloodborne pathogens if the
employee requests the test, provided all of the following
criteria are met:
(1) the employee and secure treatment facility have
documented exposure to blood or body fluids during performance
of the employee's work duties;
(2) a licensed physician has determined that a significant
exposure has occurred under section 246.711 and has documented
that bloodborne pathogen test results are needed for beginning,
modifying, continuing, or discontinuing medical treatment for
the employee as recommended by the most current guidelines of
the United States Public Health Service;
(3) the employee provides a blood sample for testing for
bloodborne pathogens as soon as feasible;
(4) the secure treatment facility asks the patient to
consent to a test for bloodborne pathogens and the patient does
not consent;
(5) the secure treatment facility has provided the patient
and the employee with all of the information required by section
246.712; and
(6) the secure treatment facility has informed the employee
of the confidentiality requirements of section 246.719 and the
penalties for unauthorized release of patient information under
section 246.72.
Subd. 3. [FOLLOW-UP.] The secure treatment facility shall
inform the patient whose blood was tested of the results. The
secure treatment facility shall inform the employee's health
care provider of the patient's test results without the
patient's name or other uniquely identifying information.
Sec. 46. [246.716] [BLOOD SAMPLE COLLECTION FOR TESTING.]
Subdivision 1. [PROCEDURES WITH CONSENT.] (a) If a blood
sample is not otherwise available, the secure treatment facility
shall obtain consent from the patient before collecting a blood
sample for testing for bloodborne pathogens. The consent
process shall include informing the patient that the patient may
refuse to provide a blood sample and that the patient's refusal
may result in a request for a court order under subdivision 2 to
require the patient to provide a blood sample.
(b) If the patient consents to provide a blood sample, the
secure treatment facility shall collect a blood sample and
ensure that the sample is tested for bloodborne pathogens.
(c) The secure treatment facility shall inform the
employee's health care provider about the patient's test results
without the patient's name or other uniquely identifying
information. The secure treatment facility shall inform the
patient of the test results.
(d) If the patient refuses to provide a blood sample for
testing, the secure treatment facility shall inform the employee
of the patient's refusal.
Subd. 2. [PROCEDURES WITHOUT CONSENT.] (a) A secure
treatment facility or an employee of a secure treatment facility
may bring a petition for a court order to require a patient to
provide a blood sample for testing for bloodborne pathogens.
The petition shall be filed in the district court in the county
where the patient is receiving treatment from the secure
treatment facility. The secure treatment facility shall serve
the petition on the patient three days before a hearing on the
petition. The petition shall include one or more affidavits
attesting that:
(1) the secure treatment facility followed the procedures
in sections 246.71 to 246.722 and attempted to obtain bloodborne
pathogen test results according to those sections;
(2) a licensed physician knowledgeable about the most
current recommendations of the United States Public Health
Service has determined that a significant exposure has occurred
to the employee of a secure treatment facility under section
246.721; and
(3) a physician has documented that the employee 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 employee under section 246.721.
(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.
(c) The court may order the patient to provide a blood
sample for bloodborne pathogen testing if:
(1) there is probable cause to believe the employee of a
secure treatment facility has experienced a significant exposure
to the patient;
(2) the court imposes 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;
(3) a licensed physician for the employee of a secure
treatment facility needs the test results for beginning,
continuing, modifying, or discontinuing medical treatment for
the employee; and
(4) the court finds a compelling need for the test
results. In assessing compelling need, the court shall weigh
the need for the court-ordered blood collection and test results
against the interests of the patient, including, but not limited
to, privacy, health, safety, or economic interests. The court
shall also consider whether involuntary blood collection and
testing would serve the public interests.
(d) The court shall conduct the proceeding in camera unless
the petitioner or the patient requests a hearing in open court
and the court determines that a public hearing is necessary to
the public interest and the proper administration of justice.
(e) The patient may arrange for counsel in any proceeding
brought under this subdivision.
Sec. 47. [246.717] [NO DISCRIMINATION.]
A secure treatment facility shall not withhold care or
treatment on the requirement that the patient consent to
bloodborne pathogen testing under sections 246.71 to 246.722.
Sec. 48. [246.718] [USE OF TEST RESULTS.]
Bloodborne pathogen test results of a patient obtained
under sections 246.71 to 246.722 are for diagnostic purposes and
to determine the need for treatment or medical care specific to
a bloodborne pathogen-related illness. 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.
Sec. 49. [246.719] [TEST INFORMATION CONFIDENTIALITY.]
Test results obtained under sections 246.71 to 246.722 are
private data as defined in sections 13.02, subdivision 12, and
13.85, subdivision 2, but shall be released as provided by
sections 246.71 to 246.722.
Sec. 50. [246.72] [PENALTY FOR UNAUTHORIZED RELEASE OF
INFORMATION.]
Unauthorized release of the patient's name or other
uniquely identifying information under sections 246.71 to
246.722 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 confidential or private information on the
inmate.
Sec. 51. [246.721] [PROTOCOL FOR EXPOSURE TO BLOODBORNE
PATHOGENS.]
(a) A secure treatment facility shall follow applicable
Occupational Safety and Health Administration guidelines under
Code of Federal Regulations, title 29, part 1910.1030, for
bloodborne pathogens.
(b) Every secure treatment facility shall adopt and follow
a postexposure protocol for employees at a secure treatment
facility 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:
(1) a process for employees to report an exposure in a
timely fashion;
(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, (i) to
determine whether a significant exposure to one or more
bloodborne pathogens has occurred, and (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;
(3) if there has been a significant exposure, a process to
determine whether the patient has a bloodborne pathogen through
disclosure of test results, or through blood collection and
testing as required by sections 246.71 to 246.722;
(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;
(5) a process for providing appropriate counseling under
clause (4) to the employee of a secure treatment facility and to
the patient; and
(6) compliance with applicable state and federal laws
relating to data practices, confidentiality, informed consent,
and the patient bill of rights.
Sec. 52. [246.722] [IMMUNITY.]
A secure treatment 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 of a patient to an employee of a
secure treatment facility and the testing of a blood sample from
the patient for bloodborne pathogens if a good faith effort has
been made to comply with sections 246.71 to 246.722.
Sec. 53. Minnesota Statutes 1998, section 611A.19,
subdivision 1, is amended to read:
Subdivision 1. [TESTING ON REQUEST OF VICTIM.] (a) Upon
the request or with the consent of the victim, the prosecutor
shall make a motion in camera and the sentencing court shall
issue an order requiring an adult convicted of or a juvenile
adjudicated delinquent for violating section 609.342 (criminal
sexual conduct in the first degree), 609.343 (criminal sexual
conduct in the second degree), 609.344 (criminal sexual conduct
in the third degree), 609.345 (criminal sexual conduct in the
fourth degree), or any other violent crime, as defined in
section 609.1095, to submit to testing to determine the presence
of human immunodeficiency virus (HIV) antibody if:
(1) the crime involved sexual penetration, however slight,
as defined in section 609.341, subdivision 12; or
(2) evidence exists that the broken skin or mucous membrane
of the victim was exposed to or had contact with the offender's
semen or blood during the commission of the crime in a manner
which has been demonstrated epidemiologically to transmit the
human immunodeficiency virus (HIV).
(b) When the court orders an offender to submit to testing
under paragraph (a), the court shall order that the test be
performed by an appropriate health professional who is trained
to provide the counseling described in section 144.763 144.7414,
and that no reference to the test, the motion requesting the
test, the test order, or the test results may appear in the
criminal record or be maintained in any record of the court or
court services.
Sec. 54. Minnesota Statutes 1998, section 611A.19,
subdivision 2, is amended to read:
Subd. 2. [DISCLOSURE OF TEST RESULTS.] The date and
results of a test performed under subdivision 1 are private data
as defined in section 13.02, subdivision 12, when maintained by
a person subject to chapter 13, or may be released only with the
subject's consent, if maintained by a person not subject to
chapter 13. The results are available, on request, to the
victim or, if the victim is a minor, to the victim's parent or
guardian and positive test results shall be reported to the
commissioner of health. Any test results given to a victim or
victim's parent or guardian shall be provided by a health
professional who is trained to provide the counseling described
in section 144.763 144.7414. Data regarding administration and
results of the test are not accessible to any other person for
any purpose and shall not be maintained in any record of the
court or court services or any other record. After the test
results are given to the victim or the victim's parent or
guardian, data on the test must be removed from any medical data
or health records maintained under section 13.42 or 144.335 and
destroyed.
Sec. 55. [REPEALER.]
Minnesota Statutes 1998, sections 144.761; 144.762;
144.763; 144.764; 144.765; 144.766; 144.767; 144.768; 144.769;
and 144.7691, are repealed.
Presented to the governor April 14, 2000
Signed by the governor April 18, 2000, 10:39 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes