2005 California Health and Safety Code Sections 120975-121020 PROTECT PUBLIC HEALTH

120975.  To protect the privacy of individuals who are the subject
of blood testing for antibodies to the probable causative agent of
acquired immune deficiency syndrome (AIDS) the following shall apply:
   Except as provided in Section 1603.1 or 1603.3, as amended by
Chapter 23 of the Statutes of 1985, no person shall be compelled in
any state, county, city, or other local civil, criminal,
administrative, legislative, or other proceedings to identify or
provide identifying characteristics that would identify any
individual who is the subject of a blood test to detect antibodies to
the probable causative agent of AIDS.
120980.  (a) Any person who negligently discloses results of an HIV
test, as defined in Section 120775, to any third party, in a manner
that identifies or provides identifying characteristics of the person
to whom the test results apply, except pursuant to a written
authorization, as described in subdivision (g), or except as provided
in Section 1603.1 or 1603.3 or any other statute that expressly
provides an exemption to this section, shall be assessed a civil
penalty in an amount not to exceed one thousand dollars ($1,000) plus
court costs, as determined by the court, which penalty and costs
shall be paid to the subject of the test.
   (b) Any person who willfully discloses the results of an HIV test,
as defined in Section 120775, to any third party, in a manner that
identifies or provides identifying characteristics of the person to
whom the test results apply, except pursuant to a written
authorization, as described in subdivision (g), or except as provided
in Section 1603.1 or 1603.3 or any other statute that expressly
provides an exemption to this section, shall be assessed a civil
penalty in an amount not less than one thousand dollars ($1,000) and
not more than five thousand dollars ($5,000) plus court costs, as
determined by the court, which penalty and costs shall be paid to the
subject of the test.
   (c) Any person who willfully or negligently discloses the results
of an HIV test, as defined in Section 120775, to a third party, in a
manner that identifies or provides identifying characteristics of the
person to whom the test results apply, except pursuant to a written
authorization, as described in subdivision (g), or except as provided
in Section 1603.1 or 1603.3 or any other statute that expressly
provides an exemption to this section, that results in economic,
bodily, or psychological harm to the subject of the test, is guilty
of a misdemeanor, punishable by imprisonment in the county jail for a
period not to exceed one year or a fine of not to exceed ten
thousand dollars ($10,000) or both.
   (d) Any person who commits any act described in subdivision (a) or
(b) shall be liable to the subject for all actual damages, including
damages for economic, bodily, or psychological harm that is a
proximate result of the act.
   (e) Each disclosure made in violation of this chapter is a
separate and actionable offense.
   (f) Except as provided in Article 6.9 (commencing with Section
799) of Chapter 1 of Part 2 of Division 1 of the Insurance Code, the
results of an HIV test, as defined in Section 120775, that identifies
or provides identifying characteristics of the person to whom the
test results apply, shall not be used in any instance for the
determination of insurability or suitability for employment.
   (g) "Written authorization," as used in this section, applies only
to the disclosure of test results by a person responsible for the
care and treatment of the person subject to the test.  Written
authorization is required for each separate disclosure of the test
results, and shall include to whom the disclosure would be made.
   (h) Nothing in this section limits or expands the right of an
injured subject to recover damages under any other applicable law.
Nothing in this section shall impose civil liability or criminal
sanction for disclosure of the results of tests performed on cadavers
to public health authorities or tissue banks.
   (i) Nothing in this section imposes liability or criminal sanction
for disclosure of an HIV test, as defined in Section 120775, in
accordance with any reporting requirement for a diagnosed case of
AIDS by the department or the Centers for Disease Control under the
United States Public Health Service.
   (j) The department may require blood banks and plasma centers to
submit monthly reports summarizing statistical data concerning the
results of tests to detect the presence of viral hepatitis and HIV.
This statistical summary shall not include the identity of individual
donors or identifying characteristics that would identify individual
donors.
   (k) "Disclosed," as used in this section, means to disclose,
release, transfer, disseminate, or otherwise communicate all or any
part of any record orally, in writing, or by electronic means to any
person or entity.
   (l) When the results of an HIV test, as defined in Section 120775,
are included in the medical record of the patient who is the subject
of the test, the inclusion is not a disclosure for purposes of this
section.
120985.  (a) Notwithstanding Section 120980, the results of an HIV
test that identifies or provides identifying characteristics of the
person to whom the test results apply may be recorded by the
physician who ordered the test in the test subject's medical record
or otherwise disclosed without written authorization of the subject
of the test, or the subject's representative as set forth in Section
121020, to the test subject's providers of health care, as defined in
subdivision (d) of Section 56.05 of the Civil Code, for purposes of
diagnosis, care, or treatment of the patient, except that for
purposes of this section "providers of health care" does not include
a health care service plan regulated pursuant to Chapter 2.2
(commencing with Section 1340) of Division 2.
   (b) Recording or disclosure of HIV test results pursuant to
subdivision (a) does not authorize further disclosure unless
otherwise permitted by law.
120990.  (a) Except in the case of a person treating a patient, no
person shall test a person's blood for evidence of antibodies to the
probable causative agent of AIDS without the written consent of the
subject of the test or the written consent of the subject, as
provided in Section 121020, and the person giving the test shall have
a written statement signed by the subject or conservator or other
person, as provided in Section 121020 confirming that he or she
obtained the consent from the subject.  In the case of a physician
and surgeon treating a patient, the consent required under this
subdivision shall be informed consent, by the patient, conservator,
or other person provided for in Section 121020.
   This requirement does not apply to a test performed at an
alternative site, as established pursuant to Sections 120885 to
120895, inclusive.  This requirement does not apply when testing is
performed as part of the medical examination performed pursuant to
Section 7152.5.
   (b) Nothing in this section shall preclude a medical examiner or
other physician from ordering or performing a blood test to detect
antibodies to the probable causative agent of AIDS on a cadaver when
an autopsy is performed or body parts are donated pursuant to the
Uniform Anatomical Gift Act, provided for pursuant to Chapter 3.5
(commencing with Section 7150) of Part 1 of Division 7.
   (c) The requirements of subdivision (a) do not apply when blood is
tested as part of a scientific investigation conducted either by
medical researchers operating under institutional review board
approval or by the department in accordance with a protocol for
unlinked testing.  For purposes of this section, unlinked testing
means that blood samples are obtained anonymously or that the
individual's name and other identifying information is removed in a
manner that precludes the test results from ever being linked to a
particular individual in the study.
120995.  Actions taken pursuant to Section 1768.9 of the Welfare and
Institutions Code shall not be subject to subdivisions (a) to (c),
inclusive, of Section 120980.  In addition, the requirements of
subdivision (a) of Section 120990 shall not apply to testing
performed pursuant to Section 1768.9 of the Welfare and Institutions
Code.
121000.  Actions taken pursuant to Title 8 (commencing with Section
7500) of Part 3 of the Penal Code shall not be subject to
subdivisions (a) to (c), inclusive, of Section 120980.  In addition,
the requirements of subdivision (a) of Section 120990 shall not apply
to testing performed pursuant to that title.
121005.  Neither the department nor any blood bank or plasma center,
including a blood bank or plasma center owned or operated by a
public entity, shall be held liable for any damages resulting from
the notification of test results, as set forth in paragraph (3) of
subdivision (a) of, and in subdivision (c) of, Section 1603.3, as
amended by Chapter 23 of the Statutes of 1985.
121010.  Notwithstanding Section 120975 or 120980, the results of a
blood test to detect antibodies to the probable causative agent of
AIDS may be disclosed to any of the following persons without written
authorization of the subject of the test:
   (a) To the subject of the test or the subject's legal
representative, conservator, or to any person authorized to consent
to the test pursuant to subdivision (b) of Section 120990.
   (b) To a test subject's provider of health care, as defined in
subdivision (d) of Section 56.05 of the Civil Code, except that for
purposes of this section, "provider of health care" does not include
a health care service plan regulated pursuant to Chapter 2.2
(commencing with Section 1340) of Division 2.
   (c) To an agent or employee of the test subject's provider of
health care who provides direct patient care and treatment.
   (d) To a provider of health care who procures, processes,
distributes, or uses a human body part donated pursuant to the
Uniform Anatomical Gift Act (Chapter 3.5 (commencing with Section
7150) of Part 1 of Division 7).
   (e) (1) To the designated officer of an emergency response
employee, and from that designated officer to an emergency response
employee regarding possible exposure to HIV or AIDS, but only to the
extent necessary to comply with provisions of the Ryan White
Comprehensive AIDS Resources Emergency Act of 1990 (P.L. 101-381; 42
U.S.C. Sec. 201).
   (2) For purposes of this subdivision, "designated officer" and
"emergency response employee" have the same meaning as these terms
are used in the Ryan White Comprehensive AIDS Resources Emergency Act
of 1990 (P.L. 101-381; 42 U.S.C. Sec. 201).
   (3) The designated officer shall be subject to the confidentiality
requirements specified in Section 120980, and may be personally
liable for unauthorized release of any identifying information about
the HIV results. Further, the designated officer shall inform the
exposed emergency response employee that the employee is also subject
to the confidentiality requirements specified in Section 120980, and
may be personally liable for unauthorized release of any identifying
information about the HIV test results.
121015.  (a) Notwithstanding Section 120980 or any other provision
of law, no physician and surgeon who has the results of a confirmed
positive test to detect infection by the probable causative agent of
acquired immune deficiency syndrome of a patient under his or her
care shall be held criminally or civilly liable for disclosing to a
person reasonably believed to be the spouse, or to a person
reasonably believed to be a sexual partner or a person with whom the
patient has shared the use of hypodermic needles, or to the county
health officer, that the patient has tested positive on a test to
detect infection by the probable causative agent of acquired immune
deficiency syndrome,  except that no physician and surgeon shall
disclose  any identifying information about the individual believed
to be infected.
   (b) No physician and surgeon shall disclose the information
described in subdivision (a) unless he or she has first discussed the
test results with the patient and has offered the patient
appropriate educational and psychological counseling, that shall
include information on the risks of transmitting the human
immunodeficiency virus to other people and methods of avoiding those
risks, and has attempted to obtain the patient's voluntary consent
for notification of his or her contacts.  The physician and surgeon
shall notify the patient of his or her intent to notify the patient's
contacts prior to any notification.  When the information is
disclosed to a person reasonably believed to be a spouse, or to a
person reasonably believed to be a sexual partner, or a person with
whom the patient has shared the use of hypodermic needles, the
physician and surgeon shall refer that person for appropriate care,
counseling, and followup.  This section shall not apply to
disclosures made other than for the purpose of diagnosis, care, and
treatment of persons notified pursuant to this section, or for the
purpose of interrupting the chain of transmission.
   (c) This section is permissive on the part of the attending
physician, and all requirements and other authorization for the
disclosure of test results to detect infection by the probable
causative agent of acquired immune deficiency syndrome are limited to
the provisions contained in this chapter, Chapter 10 (commencing
with Section 121075) and Sections 1603.1 and 1603.3.  No physician
has a duty to notify any person of the fact that a patient is
reasonably believed to be infected by the probable causative agent of
acquired immune deficiency syndrome.
   (d) The county health officer may alert any persons reasonably
believed to be a spouse, sexual partner, or partner of shared needles
of an individual who has  tested positive on a test to detect
infection by the probable causative agent of acquired immune
deficiency syndrome about their exposure, without disclosing any
identifying information about the individual believed to be infected
or the physician making the report, and shall refer any person to
whom a disclosure is made pursuant to this subdivision for
appropriate care and followup.  Upon completion of the county health
officer's efforts to contact any person pursuant to this subdivision,
all records regarding that person maintained by the county health
officer pursuant to this subdivision, including but not limited to
any individual identifying information, shall be expunged by the
county health officer.
   (e) The county health officer shall keep confidential the identity
and the seropositivity status of the individual tested and the
identities of the persons contacted, as long as records of contacts
are maintained.
   (f) Except as provided in Section 1603.1 or 1603.3, no person
shall be compelled in any state, county, city, or local civil,
criminal, administrative, legislative, or other proceedings to
identify or provide identifying characteristics that would identify
any individual reported or person contacted pursuant to this section.
121020.  (a) (1) When the subject of an HIV test is not competent to
give consent for the test to be performed, written consent for the
test may be obtained from the subject's parents, guardians,
conservators, or other person lawfully authorized to make health care
decisions for the subject.  For purposes of this paragraph, a minor
shall be deemed not competent to give consent if he or she is under
12 years of age.
   (2) Notwithstanding paragraph (1), when the subject of the test is
a minor adjudged to be a dependent child of the court pursuant to
Section 360 of the Welfare and Institutions Code, written consent for
the test to be performed may be obtained from the court pursuant to
its authority under Section 362 or 369 of the Welfare and
Institutions Code.
   (b) Written consent shall only be obtained for the subject
pursuant to subdivision (a) when necessary to render appropriate care
or to practice preventative measures.
   (c) The person authorized to consent to the test pursuant to
subdivision (a) shall be permitted  to do any of the following:
   (1) Notwithstanding Sections 120975 and 120980, receive the
results of the test on behalf of the subject without written
authorization.
   (2) Disclose the test results on behalf of the subject in
accordance with Sections 120975 and 120980.
   (3) Provide written authorization for the disclosure of the test
results on behalf of the subject in accordance with Sections 120975
and 120980.