§ 1141. Communicable disease testing

(a) A health care provider may order a test for bloodborne pathogens if a health care worker, public safety personnel, or emergency personnel has been exposed to the blood or bodily fluids of the source patient in a manner sufficient to transmit a bloodborne pathogen-related illness to the affected worker while engaged in rendering health services to the source patient, and provided that:

(1) the source patient:

(A) has provided informed consent, as defined in subdivision 9701(17) of this title; or

(B) is deceased;

(2) the worker has provided a blood sample and consented to testing for bloodborne pathogens and a physician has documented that bloodborne pathogen test results are needed for beginning, continuing, modifying, or discontinuing medical treatment for the worker;

(3) a physician with specialty training in infectious diseases has confirmed that the worker has been exposed to the blood or bodily fluids of the source patient in a manner sufficient to transmit a bloodborne pathogen-related illness;

(4) a health care provider has informed the worker of the confidentiality requirements in subsection (c) of this section and the penalties for unauthorized disclosure of source patient information under subsection (e) of this section; and

(5) a health care provider has informed the source patient of the purpose and confidentiality provisions in subsections (b) and (c) of this section, respectively, if applicable.

(b) Bloodborne pathogen test results of a source patient obtained under subsection (a) of this section are for diagnostic purposes and to determine the need for treatment or medical care specific to a bloodborne pathogen-related illness of a worker. Test results may not be used as evidence in any criminal or civil proceedings.

(c) The result of a test ordered pursuant to subsection (a) of this section is protected health information subject to the “Standards for Privacy of Individually Identifiable Health Information” established under the Health Insurance Portability and Accountability Act of 1996 and contained in 45 C.F.R., Parts 160 and 164, and any subsequent amendments. Test results shall be confidential except that the worker who sustained the exposure, the health care provider who ordered the test, and the source patient, upon his or her request, shall be informed of the test results. Test results reported to the worker and documented in his or her medical record shall not include any personally identifying information relative to the source patient. Test results shall be transmitted to the Commissioner of Health pursuant to subsection (i) of this section.

(d) Prior to laboratory testing of a source patient’s blood sample for bloodborne pathogens, personal identifiers shall be removed from the sample.

(e) Unauthorized disclosures of test results obtained under this section shall be subject to the penalties provided under the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. subsections 1320d-5 and 1320d-6, and may be considered unprofessional conduct under applicable licensing, certification, and registration laws.

(f) The results of rapid testing technologies shall be considered preliminary and may be released in accordance with the manufacturer’s instructions as approved by the federal Food and Drug Administration. Corroborating or confirmatory testing must be conducted as follow-up to a positive preliminary test.

(g) The health care provider who requested the test shall provide the source patient and the worker an opportunity to receive follow-up testing and shall provide information on options for counseling, as appropriate.

(h) Records pertaining to testing performed pursuant to this section shall not be recorded in the source patient’s medical record unless authorized by the source patient and shall not be maintained in the location where the test is ordered or performed for more than 60 days.

(i) A laboratory having personal knowledge of a test result under this section shall transmit within 24 hours a report thereof to the Department of Health pursuant to subsection 1001(k) of this title.

(j) The employer of any worker exposed to blood or bodily fluids while rendering health services to a source patient during the performance of normal job duties shall maintain an incident report with information regarding the exposure that is relevant to a workers’ compensation claim. The employer shall not be provided or have access to information personally identifying the source patient.

(k) The costs of all diagnostic tests authorized by these provisions shall be borne by the employer of the worker.

(l) Notwithstanding any other law to the contrary, a health care provider who orders a test in accordance with this section shall not be subject to civil or criminal liability for ordering the test. Nothing in this subsection shall be construed to establish immunity for the failure to exercise due care in the performance or analysis of the test.

(m) A health care provider’s duties under this section are not continuing but limited to testing and services performed under this section. (Added 2007, No. 194 (Adj. Sess.), § 1.)