1.1                          A bill for an act 
  1.2             relating to corrections; providing procedures for 
  1.3             testing the blood of inmates for bloodborne pathogens; 
  1.4             providing procedural safeguards; imposing penalties; 
  1.5             proposing coding for new law in Minnesota Statutes, 
  1.6             chapter 243. 
  1.7   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.8      Section 1.  [243.94] [DEFINITIONS.] 
  1.9      Subdivision 1.  [SCOPE OF DEFINITIONS.] For purposes of 
  1.10  sections 243.94 to 243.9492, the following terms have the 
  1.11  meaning given them. 
  1.12     Subd. 2.  [BLOODBORNE PATHOGENS.] "Bloodborne pathogens" 
  1.13  means pathogenic microorganisms that are present in human blood 
  1.14  and can cause disease in humans.  The pathogens include, but are 
  1.15  not limited to, hepatitis B virus (HBV), hepatitis C virus 
  1.16  (HCV), and human immunodeficiency virus (HIV). 
  1.17     Subd. 3.  [INMATE.] "Inmate" means: 
  1.18     (1) any person who is convicted of a felony, is committed 
  1.19  to the custody of the commissioner of corrections and is 
  1.20  confined in a state correctional facility or released from a 
  1.21  state correctional facility pursuant to section 244.065 or 
  1.22  244.07; or 
  1.23     (2) any person who is convicted of a crime and is in the 
  1.24  custody of a local correctional facility, which has the meaning 
  1.25  given in section 241.021, subdivision 1. 
  1.26     Subd. 4.  [CORRECTIONAL FACILITY.] "Correctional facility" 
  2.1   means a state or local correctional facility. 
  2.2      Subd. 5.  [CORRECTIONS EMPLOYEE.] "Corrections employee" 
  2.3   means an employee of a state or local correctional agency who 
  2.4   experiences a significant exposure to an inmate during the 
  2.5   performance of the employee's duties. 
  2.6      Subd. 6.  [SIGNIFICANT EXPOSURE.] "Significant exposure" 
  2.7   means contact, in a manner supported by recommendation of the 
  2.8   United States Public Health Service most current at the time 
  2.9   these evaluations take place, which includes: 
  2.10     (1) percutaneous injury, contact of mucous membrane or 
  2.11  nonintact skin, or prolonged contact of intact skin; and 
  2.12     (2) contact, in a manner which may transmit a bloodborne 
  2.13  pathogen, with blood, tissue, or other body fluids. 
  2.14     Sec. 2.  [243.941] [CONDITIONS FOR APPLICABILITY OF 
  2.15  PROCEDURES.] 
  2.16     Subdivision 1.  [REQUEST FOR PROCEDURES.] A corrections 
  2.17  employee may request that the procedures of sections 243.94 to 
  2.18  243.9492 be followed when the corrections employee may have 
  2.19  experienced a significant exposure to an inmate. 
  2.20     Subd. 2.  [CONDITIONS.] The correctional facility shall 
  2.21  follow the procedures outlined in sections 243.94 to 243.9492 
  2.22  when all of the following conditions are met: 
  2.23     (1) a licensed physician determines that a significant 
  2.24  exposure has occurred following the process under section 
  2.25  243.944. 
  2.26     (2) the licensed physician for the corrections employee 
  2.27  needs the inmate's bloodborne pathogens test results to begin, 
  2.28  continue, modify, or discontinue treatment in accordance with 
  2.29  the most current guidelines of the United States Public Health 
  2.30  Service, because of possible exposure to a bloodborne pathogen; 
  2.31  and 
  2.32     (3) the corrections employee consents to providing a blood 
  2.33  sample for testing for a bloodborne pathogen. 
  2.34     Sec. 3.  [243.942] [INFORMATION REQUIRED TO BE GIVEN TO 
  2.35  INDIVIDUALS.] 
  2.36     Subdivision 1.  [INFORMATION TO INMATE.] Before seeking any 
  3.1   consent required by these procedures, the correctional facility 
  3.2   shall inform the inmate that the inmate's bloodborne pathogen 
  3.3   test results, without name or other uniquely identifying 
  3.4   information, will be reported to the corrections employee if 
  3.5   requested, and that test results collected through this process 
  3.6   are for medical purposes as set forth in section 243.947 and 
  3.7   cannot be used as evidence in any criminal proceedings.  The 
  3.8   correctional facility shall inform the inmate that the 
  3.9   correctional facility will advise the corrections employee of 
  3.10  the confidentiality requirements and penalties before the 
  3.11  employee's health care provider discloses any test results. 
  3.12     Subd. 2.  [INFORMATION TO CORRECTIONS EMPLOYEE.] Before 
  3.13  disclosing any information about the inmate, the correctional 
  3.14  facility shall inform the corrections employee of the 
  3.15  confidentiality requirements of section 243.948 and that the 
  3.16  person may be subject to penalties for unauthorized release of 
  3.17  test results about the inmate under section 243.949. 
  3.18     Sec. 4.  [243.943] [DISCLOSURE OF POSITIVE BLOODBORNE 
  3.19  PATHOGEN TEST RESULTS.] 
  3.20     If the condition of sections 243.941 and 243.942 are met, 
  3.21  the correctional facility shall ask the inmate if they have ever 
  3.22  had a positive test for a bloodborne pathogen.  The correctional 
  3.23  facility must attempt to get existing test results under this 
  3.24  section before taking any steps to obtain a blood sample or to 
  3.25  test for bloodborne pathogens.  The correctional facility shall 
  3.26  disclose the inmate's bloodborne pathogen test results to the 
  3.27  corrections employee without name or other uniquely identifying 
  3.28  information. 
  3.29     Sec. 5.  [243.944] [CONSENT PROCEDURES GENERALLY.] 
  3.30     For purposes of sections 243.94 to 243.9492, whenever the 
  3.31  correctional facility is required to seek consent, the 
  3.32  correctional facility shall obtain consent from an inmate or an 
  3.33  inmate's representative consistent with other law applicable to 
  3.34  consent.  Consent is not required if the correctional facility 
  3.35  has made reasonable efforts to obtain the representative's 
  3.36  consent and consent cannot be obtained within 24 hours of a 
  4.1   significant exposure.  If testing of available blood occurs 
  4.2   without consent because the inmate is unconscious or unable to 
  4.3   provide consent, and a representative cannot be located, the 
  4.4   correctional facility shall provide the information required in 
  4.5   section 243.942 to the inmate or representative whenever it is 
  4.6   possible to do so.  If an inmate dies before an opportunity to 
  4.7   consent to blood collection or testing under sections 243.94 to 
  4.8   243.9492, the correctional facility does not need consent of the 
  4.9   inmate's representative for purposes of these sections. 
  4.10     Sec. 6.  [243.944] [TESTING OF AVAILABLE BLOOD.] 
  4.11     Subdivision 1.  [PROCEDURES WITH CONSENT.] If a sample of 
  4.12  the inmate's blood is available, the correctional facility shall 
  4.13  ensure that blood is tested for bloodborne pathogens with the 
  4.14  consent of the inmate, provided the conditions in sections 
  4.15  243.941 and 243.942 are met. 
  4.16     Subd. 2.  [PROCEDURES WITHOUT CONSENT.] If the inmate has 
  4.17  provided a blood sample, but does not consent to bloodborne 
  4.18  pathogens testing, the correctional facility shall ensure that 
  4.19  the blood is tested for bloodborne pathogens if the corrections 
  4.20  employee requests, provided all of the following criteria are 
  4.21  met: 
  4.22     (1) the corrections employee and correctional facility have 
  4.23  documented exposure to blood or body fluids during performance 
  4.24  of the employee's work duties; 
  4.25     (2) a licensed physician has determined that a significant 
  4.26  exposure has occurred under section 243.941, subdivision 2, and 
  4.27  has documented that bloodborne pathogen test results are needed 
  4.28  for beginning, modifying, continuing, or discontinuing medical 
  4.29  treatment for the corrections employee as recommended by the 
  4.30  most current guidelines of the United States Public Health 
  4.31  Service; 
  4.32     (3) the corrections employee provides a blood sample for 
  4.33  testing for bloodborne pathogens as soon as feasible; 
  4.34     (4) the correctional facility has asked the inmate to 
  4.35  consent to a test for bloodborne pathogens and the inmate has 
  4.36  not consented; 
  5.1      (5) the correctional facility has provided the inmate and 
  5.2   the corrections employee with all of the information required by 
  5.3   section 243.942; and 
  5.4      (6) the correctional facility has informed the corrections 
  5.5   employee of the confidentiality requirements of section 243.948 
  5.6   and the penalties for unauthorized release of inmate information 
  5.7   under section 243.949. 
  5.8      Subd. 3.  [FOLLOW-UP.] The correctional facility shall 
  5.9   inform the inmate whose blood was tested of the results.  The 
  5.10  correctional facility shall inform the corrections employee's 
  5.11  health care provider of the inmate's test results without name 
  5.12  or other uniquely identifying information. 
  5.13     Sec. 7.  [243.945] [BLOOD SAMPLE COLLECTION FOR TESTING.] 
  5.14     Subdivision 1.  [PROCEDURES WITH CONSENT.] If a blood 
  5.15  sample is not otherwise available, the correctional facility 
  5.16  shall obtain consent from the inmate before collecting a blood 
  5.17  sample for testing for bloodborne pathogens.  The consent 
  5.18  process shall include informing the inmate that the inmate can 
  5.19  refuse to provide a blood sample, and that the inmate's refusal 
  5.20  may result in a request for a court order under subdivision 2 to 
  5.21  require the inmate to provide a blood sample.  If the inmate 
  5.22  consents to provide a blood sample, the correctional facility 
  5.23  shall collect a blood sample and ensure that sample is tested 
  5.24  for bloodborne pathogens.  The correctional facility shall 
  5.25  inform the corrections employee's health care provider about the 
  5.26  inmate's test results without name or other uniquely identifying 
  5.27  information.  The correctional facility shall inform the inmate 
  5.28  of the test results.  If the inmate refuses to provide a blood 
  5.29  sample for testing, the correctional facility shall inform the 
  5.30  corrections employee about the inmate's refusal.  
  5.31     Subd. 2.  [PROCEDURES WITHOUT CONSENT.] (a) A correctional 
  5.32  facility, or a corrections employee, may bring a petition for a 
  5.33  court order to require an inmate to provide a blood sample for 
  5.34  testing for bloodborne pathogens.  The petition shall be filed 
  5.35  in the district court in the county where the inmate is confined.
  5.36  The correctional facility shall serve the petition on the inmate 
  6.1   before a hearing on the petition.  The petition shall include an 
  6.2   affidavit or affidavits attesting that: 
  6.3      (1) the correctional facility followed the procedures in 
  6.4   sections 243.94 to 243.9492 and attempted to obtain bloodborne 
  6.5   pathogen test results through those sections; 
  6.6      (2) a licensed physician knowledgeable about the most 
  6.7   current recommendations of the United States Public Health 
  6.8   Service has determined that a significant exposure has occurred 
  6.9   to the corrections employee consistent with section 243.941, 
  6.10  subdivision 2; and 
  6.11     (3) a physician has documented that bloodborne pathogen 
  6.12  test results are needed for beginning, continuing, modifying, or 
  6.13  discontinuing medical treatment for the corrections employee. 
  6.14     Facilities shall cooperate with petitioners in providing 
  6.15  any necessary affidavits to the extent that facility staff can 
  6.16  attest under oath to the facts in the affidavits. 
  6.17     (b) The court may order the inmate to provide a blood 
  6.18  sample for bloodborne pathogen testing if: 
  6.19     (1) there is probable cause to believe the corrections 
  6.20  employee has experienced a significant exposure to the inmate; 
  6.21     (2) the court imposes appropriate safeguards against 
  6.22  unauthorized disclosure which must specify the persons who have 
  6.23  access to the test results and the purposes for which the test 
  6.24  results may be used; 
  6.25     (3) a licensed physician for the corrections employee needs 
  6.26  the test results for beginning, continuing, modifying, or 
  6.27  discontinuing medical treatment for the corrections employee; 
  6.28  and 
  6.29     (4) the court finds a compelling need for the test results. 
  6.30  In assessing compelling need, the court shall weigh the need for 
  6.31  the compelled blood collection and the test results against the 
  6.32  privacy interests of the inmate.  The court shall also consider 
  6.33  whether involuntary blood collection and testing would serve the 
  6.34  public interest. 
  6.35     (c) The court shall conduct the proceeding in camera unless 
  6.36  the petitioner or the inmate requests a hearing in open court 
  7.1   and unless the court determines that a public hearing is 
  7.2   necessary to the public interest and the proper administration 
  7.3   of justice. 
  7.4      (d) The inmate may arrange for counsel in any proceeding 
  7.5   brought under this subdivision. 
  7.6      Sec. 8.  [243.946] [NO DISCRIMINATION.] 
  7.7      The correctional facility shall not withhold care or 
  7.8   treatment because the inmate refuses to consent to bloodborne 
  7.9   pathogen testing under these procedures. 
  7.10     Sec. 9.  [243.947] [USE OF TEST RESULTS.] 
  7.11     Bloodborne pathogen test results of the inmate obtained 
  7.12  under sections 243.94 to 243.9492 are for diagnostic purposes, 
  7.13  and to determine the need for treatment or medical care specific 
  7.14  to a bloodborne pathogen-related illness.  The test results 
  7.15  cannot be used as evidence in any criminal proceedings. 
  7.16     Sec. 10.  [243.9475] [BLOOD TESTING FOR OTHER EXPOSED 
  7.17  PERSONS.] 
  7.18     Any person, other than another inmate, who has experienced 
  7.19  significant exposure to an inmate may request the correctional 
  7.20  facility to implement blood testing procedures outlined in 
  7.21  sections 243.94 to 243.9492.  If the correctional facility 
  7.22  determines that the conditions outlined in section 243.941, 
  7.23  subdivision 2, have been met, the facility shall follow the 
  7.24  procedures outlined in sections 243.94 to 243.9492.  
  7.25  Informational disclosure, consent requirements, test information 
  7.26  confidentiality, and any other provision in sections 243.94 to 
  7.27  243.9492 shall apply to blood testing for any person, other than 
  7.28  another inmate, who has experienced significant exposure to an 
  7.29  inmate and requested testing under this section. 
  7.30     Sec. 11.  [243.948] [TEST INFORMATION CONFIDENTIALITY.] 
  7.31     Test results obtained under sections 243.94 to 243.9492 are 
  7.32  private data as defined in sections 13.02, subdivision 12, and 
  7.33  13.85, subdivision 2, but shall be released as provided by 
  7.34  sections 243.94 to 243.9492. 
  7.35     Sec. 12.  [243.949] [PENALTY FOR UNAUTHORIZED RELEASE OF 
  7.36  INFORMATION.] 
  8.1      Unauthorized release of the inmate's name or other uniquely 
  8.2   identifying information under sections 243.94 to 243.9492 is 
  8.3   subject to the remedies and penalties under sections 13.08 and 
  8.4   13.09.  This section does not preclude private causes of action 
  8.5   against an individual, state agency, statewide system, political 
  8.6   subdivision, or person responsible for releasing private data, 
  8.7   or confidential or private information on the inmate. 
  8.8      Sec. 13.  [243.9491] [PROTOCOL FOR EXPOSURE TO BLOODBORNE 
  8.9   PATHOGENS.] 
  8.10     Correctional facilities shall follow applicable guidelines 
  8.11  for bloodborne pathogens, as provided by Code of Federal 
  8.12  Regulations, title 29, part 1910, section 1030.  Postexposure 
  8.13  protocols for corrections employees who have experienced a 
  8.14  significant exposure must adhere to the most current 
  8.15  recommendations by the United States Public Health Service. 
  8.16     Sec. 14.  [243.9492] [IMMUNITY.] 
  8.17     A correctional facility, licensed physician, and designated 
  8.18  health care personnel are immune from liability in any civil, 
  8.19  administrative, or criminal action relating to the disclosure of 
  8.20  test results of an inmate to a corrections employee and the 
  8.21  testing of a blood sample from the inmate for bloodborne 
  8.22  pathogens if a good faith effort has been made to comply with 
  8.23  sections 243.94 to 243.9492.