HCS CSSB 309(STA): "An Act relating to testing the blood of prisoners and those in custody for bloodborne pathogens."

00 HOUSE CS FOR CS FOR SENATE BILL NO. 309(STA) 01 "An Act relating to testing the blood of prisoners and those in custody for bloodborne 02 pathogens." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 18.15 is amended by adding new sections to read: 05 Article 6B. Blood Testing of Prisoners for Bloodborne Pathogens. 06 Sec. 18.15.400. Bloodborne pathogen testing of prisoners and correctional 07 officers; required disclosures to and consent of prisoners and correctional 08 officers. (a) When requested by a correctional officer who may have received a 09 significant exposure from a prisoner, the department shall follow the testing 10 procedures of AS 18.15.400 - 18.15.450 if 11 (1) a physician licensed under AS 08 determines that a significant 12 exposure to the correctional officer has occurred; 13 (2) the physician for the correctional officer needs the prisoner's 14 bloodborne pathogens test results to begin, continue, modify, or discontinue treatment

01 in accordance with the most current guidelines of the United States Public Health 02 Service, because of possible exposure to a bloodborne pathogen; and 03 (3) the correctional officer consents to providing a blood sample for 04 testing for a bloodborne pathogen. 05 (b) Before employing the testing procedures of AS 18.15.400 - 18.15.450 or 06 disclosing any information about the prisoner or correctional officer, the department 07 shall inform the 08 (1) prisoner that 09 (A) the prisoner's bloodborne pathogens test results, without 10 the prisoner's name or other uniquely identifying information, shall be reported 11 to the correctional officer if requested and that test results collected are for 12 medical purposes and may not be used as evidence in any criminal proceedings 13 or civil proceedings; 14 (B) the prisoner may refuse to provide a blood sample and that 15 the prisoner's refusal may result in a request for a court order to require the 16 prisoner to provide a blood sample; and 17 (C) the department will advise the correctional officer of the 18 confidentiality requirements and penalties before the officer's health care 19 provider discloses any test results; 20 (2) correctional officer of the confidentiality requirements of 21 AS 18.15.440 and that the correctional officer may be subject to penalties for 22 unauthorized release of test results about the prisoner. 23 (c) If the disclosures have been made, the department shall ask the prisoner if 24 the prisoner has ever had a positive test for a bloodborne pathogen. The department 25 must first attempt to get existing test results under this subsection before taking any 26 steps to obtain a blood sample or to test for bloodborne pathogens. The department 27 shall disclose the prisoner's existing bloodborne pathogens test results to the 28 correctional officer without the prisoner's name or other uniquely identifying 29 information. 30 Sec. 18.15.410. Consent for testing; court order for testing; exception. (a) 31 When a correctional officer has made a request under AS 18.15.400, except as

01 provided in (b) or (c) of this section or in AS 18.15.420, before collecting and testing 02 the blood of a prisoner, the department must first obtain the consent of the prisoner or 03 the prisoner's representative if the prisoner is unable to provide the consent. 04 (b) Consent of a prisoner's representative is not required if the department has 05 made reasonable efforts to locate the prisoner's representative and the representative 06 cannot be found within 24 hours after a significant exposure. If testing of available 07 blood occurs without consent because the prisoner is unconscious or unable to provide 08 consent, and a representative cannot be located, the department shall provide the 09 information required in AS 18.15.400 to the prisoner or representative whenever it is 10 possible to do so. 11 (c) If a prisoner dies before an opportunity to consent to blood collection or 12 testing, consent is not required, and the prisoner's blood may be collected and tested. 13 (d) If the prisoner or the prisoner's representative, if appropriate, consents and 14 a sample of the prisoner's blood 15 (1) is available, the department shall have the blood tested for 16 bloodborne pathogens; 17 (2) is not available, the department shall collect a sample and have the 18 blood sample tested for bloodborne pathogens. 19 (e) The department may not withhold care or treatment on the requirement that 20 the prisoner consent to testing for bloodborne pathogen. 21 Sec. 18.15.420. Testing without consent. (a) When a correctional officer 22 has made a request under AS 18.15.400 the department shall file a petition in the 23 superior court for a court order requiring the prisoner to provide a blood sample for 24 testing for bloodborne pathogens. The department shall serve the petition on the 25 prisoner at least 48 hours before a hearing on the petition. The petition must include 26 the following information supported by affidavit: 27 (1) a statement that the department followed the procedures in 28 AS 18.15.400 - 18.15.450 and attempted to obtain bloodborne pathogens test results 29 according to those sections; 30 (2) a statement that 31 (A) the correctional officer and department have documented

01 the officer's exposure to blood or body fluids during performance of the 02 officer's work duties; 03 (B) the department has asked the prisoner to consent under 04 AS 18.15.410, and the prisoner does not consent; 05 (C) the department has provided the correctional officer and the 06 prisoner with the disclosures required under AS 18.15.400; and 07 (D) the department has informed the correctional officer of the 08 confidentiality requirements of AS 18.15.440 and the penalties for 09 unauthorized release of prisoner information. 10 (3) a statement that a physician licensed under AS 08 and 11 knowledgeable about the most current recommendations of the United States Public 12 Health Service has determined that a significant exposure has occurred to the 13 correctional officer; and 14 (4) a statement that a physician has documented that the correctional 15 officer has provided a blood sample and consented to testing for bloodborne 16 pathogens, and bloodborne pathogens test results are needed for beginning, 17 continuing, modifying, or discontinuing medical treatment for the correctional officer. 18 (b) A court shall order a prisoner to provide a blood sample for bloodborne 19 pathogen testing if the court finds that 20 (1) there is probable cause to believe that a significant exposure to the 21 correctional officer from the prisoner has occurred; 22 (2) a licensed physician for the correctional officer needs the test 23 results for beginning, continuing, modifying, or discontinuing medical treatment for 24 the correctional officer; or 25 (3) a compelling need for the testing and test results exists; in making 26 this finding, the court shall consider the need for the test against the privacy or other 27 interests of the prisoner. 28 (c) The court may impose appropriate safeguards against unauthorized 29 disclosure by specifically identifying the persons to have access to the test results and 30 the uses of the test results when ordering a test under (b) of this section. 31 (d) After testing is completed under this section, the department shall inform

01 the prisoner whose blood was tested of the results. The department shall inform the 02 correctional officer's physician of the prisoner's test results without the prisoner's name 03 or other uniquely identifying information. 04 Sec. 18.15.440. Confidentiality; penalties for unauthorized disclosure; 05 immunity. (a) Bloodborne pathogens test results of a prisoner are confidential and 06 may not be disclosed except as provided in AS 18.15.400 - 18.15.450 and as needed 07 for the treatment or medical care of a prisoner specific to a bloodborne pathogen- 08 related illness. 09 (b) A prisoner may bring a civil action against a person who releases the 10 prisoner's name or other uniquely identifying information with the test results or 11 otherwise releases the test results, except as provided in AS 18.15.400 - 18.15.450. 12 (c) The department, a physician, and designated health care personnel are 13 immune from liability in any civil, administrative, or criminal action relating to the 14 disclosure of test results of a prisoner to a correctional officer and the testing of a 15 blood sample from a prisoner for bloodborne pathogens if a good faith effort has been 16 made to comply with AS 18.15.400 - 18.15.450. 17 Sec. 18.15.450. Definitions for AS 18.15.400 - 18.15.450. In AS 18.15.400 - 18 18.15.450, 19 (1) "bloodborne pathogens" means pathogenic microorganisms that are 20 present in human blood and can cause disease in humans; these pathogens include 21 hepatitis B virus (HBV), hepatitis C virus (HCV), and human immunodeficiency virus 22 (HIV); 23 (2) "correctional officer" means an employee of the Department of 24 Corrections or of an agent or contractor of the department working in a correctional 25 facility; 26 (3) "department" means the Department of Corrections; 27 (4) "prisoner" has the meaning given in AS 33.30.901; 28 (5) "significant exposure" means contact likely to transmit a 29 bloodborne pathogen, in a manner supported by the most current guidelines and 30 recommendations of the United States Public Health Service at the time an evaluation 31 takes place, that includes

01 (A) percutaneous injury, contact of mucous membrane or 02 nonintact skin, or prolonged contact of intact skin; and 03 (B) contact, in a manner that may transmit a bloodborne 04 pathogen, with blood, tissue, or potentially infectious body fluids.