2005 California Penal Code Sections 7510-7519 CHAPTER 2. PROCEDURES FOR REQUIRING HIV TESTING

7510.  (a) A law enforcement employee who believes that he or she
came into contact with bodily fluids of either an inmate of a
correctional institution, a person not in a correctional institution
who has been arrested or taken into custody whether or not the person
has been charged with a crime, including a person detained for or
charged with an offense for which he or she may be made a ward of the
court under Section 602 of the Welfare and Institutions Code, or a
person on probation or parole due to conviction of a crime, shall
report the incident through the completion of a form provided by the
State Department of Health Services.  The form shall be directed to
the chief medical officer, as defined in subdivision (c), who serves
the applicable law enforcement agency.  Utilizing this form the law
enforcement employee may request an HIV test of the person who is the
subject of the report.  The forms may be combined with regular
incident reports or other forms used by the correctional institution
or law enforcement agency, however the processing of a form by the
chief medical officer containing a request for HIV testing of the
subject person shall not be delayed by the processing of other
reports or forms.
   (b) The report required by subdivision (a) shall be submitted by
the end of the law enforcement employee's shift during which the
incident occurred, or if not practicable, as soon as possible, but no
longer than two days after the incident, except that the chief
medical officer may waive this filing period requirement if he or she
finds that good cause exists.  The report shall include names of
witnesses to the incident, names of persons involved in the incident,
and if feasible, any written statements from these parties.  The law
enforcement employee shall assist in the investigation of the
incident, as requested by the chief medical officer.
   (c) For purposes of this section and Section 7511, "chief medical
officer" means:
   (1) In the case of a report filed by a staff member of a state
prison, the chief medical officer of that facility.
   (2) In the case of a parole officer filing a report, the chief
medical officer of the nearest state prison.
   (3) In the case of a report filed by an employee of the Department
of the Youth Authority, the chief medical officer of the facility.
   (4) In the case of a report filed against a subject who is an
inmate of a city or county jail or a county- or city-operated
juvenile facility, or who has been arrested or taken into custody
whether or not the person has been charged with a crime, but who is
not in a correctional facility, including a person detained for or
charged with an offense for which he or she may be made a ward of the
court under Section 602 of the Welfare and Institutions Code, the
county health officer of the county in which the individual is jailed
or charged with the crime.
   (5) In the case of a report filed by a probation officer, the
county health officer of the county in which the probation officer is
employed.
   (6) In any instance where the chief medical officer, as determined
pursuant to this subdivision, is not a physician  and surgeon, the
chief medical officer shall designate a physician  and surgeon to
perform his or her duties under this title.
7511.  (a) The chief medical officer shall, regardless of whether a
report filed pursuant to Section 7510 contains a request for HIV
testing, decide whether or not to require HIV testing of the inmate
or other person who is the subject of the report filed pursuant to
Section 7510, within 24 hours of receipt of the report.  If the chief
medical officer decides to require HIV testing, he or she shall
specify in his or her decision the circumstances, if any, under which
followup testing will also be required.
   (b) The chief medical officer shall order an HIV test only if he
or she finds that, considering all of the facts and circumstances,
there is a significant risk that HIV was transmitted.  In making this
decision, the chief medical officer shall take the following factors
into consideration:
   (1) Whether an exchange of bodily fluids occurred which could have
resulted in a significant risk of AIDS infection, based on the
latest written guidelines and standards established by the federal
Centers for Disease Control and the State Department of Health
Services.
   (2) Whether the person exhibits medical conditions or clinical
findings consistent with HIV infection.
   (3) Whether the health of the institution staff or inmates may
have been endangered as to HIV infection resulting from the reported
incident.
   (c) Prior to reaching a decision, the chief medical officer shall
receive written or oral testimony from the law enforcement employee
filing the report, from the subject of the report, and from witnesses
to the incident, as he or she deems necessary for a complete
investigation.  The decision shall be in writing and shall state the
reasons for the decision.  A copy shall be provided by the chief
medical officer to the law enforcement employee who filed the report
and to the subject of the report, and where the subject is a minor,
to the parents or guardian of the minor, unless the parent or
guardian of the minor cannot be located.
7512.  (a) An inmate of a correctional institution may request HIV
testing of another inmate of that institution if he or she has reason
to believe that he or she has come into contact with the bodily
fluids of that inmate, in situations, which may include, but are not
limited to, rape or sexual contact with a potentially infected
inmate, tattoo or drug needle sharing, an incident involving injury
in which bodily fluids are exchanged, or confinement with a cellmate
under circumstances involving possible mingling of bodily fluids.  A
request may be filed under this section only within two calendar days
of the date when the incident causing the request occurred,  except
that the chief medical officer may waive this filing period
requirement when he or she finds that good cause exists.
   (b) An inmate in a California Youth Authority facility or any
county- or city-operated juvenile facility who is 15 years of age or
older, may file a request for a test of another inmate in that
facility, in the same manner as an inmate in a state prison, and is
subject to the same procedures and rights.  An inmate in a California
Youth Authority facility or a county- or city-operated juvenile
facility who is a minor may file such a request through a staff
member of the facility in which he or she is confined.  A staff
member may file this request on behalf of a minor on his or her own
volition if he or she believes that a situation meeting the criteria
specified in subdivision (a) has occurred warranting the request.
The filing of a request by staff on behalf of an inmate of a
California Youth Authority facility or a local juvenile facility
shall be within two calendar days of its discovery by staff, except
that the chief medical officer may waive this filing period
requirement if he or she finds that good cause exists.
   When a request is filed on behalf of a minor, the facility shall
notify the parent or guardian of the minor of the request and seek
permission from the parent or guardian for the test request to
proceed.  If the parent or guardian refuses to grant permission for
the test,  the Director of the Youth Authority may request the
juvenile court in the county in which the facility is located, to
rule on whether the test request procedure set forth in this title
shall continue.  The juvenile court shall make a ruling within five
days of the case being brought before the court.
   If the parent or guardian cannot be located, the superintendent of
the facility shall approve or disapprove the request for a test.
   (c) Upon receipt of a request for testing as provided in this
section, a law enforcement employee shall submit the request to the
chief medical officer, the identity of which shall be determined as
if the request had been made by an employee of the facility.  The
chief medical officer shall follow the procedures set forth in
Section 7511 with respect to investigating the request and reaching a
decision as to mandatory testing of the inmate who is the subject of
the request.  The inmate submitting the request shall provide names
or testimony of witnesses within the limits of his or her ability to
do so.  The chief medical officer shall make his or her decision
based on the criteria set forth in Section 7511.  A copy of the chief
medical officer's decision shall be provided to the person
submitting the request for HIV testing, to the subject of the
request, and to the superintendent of the correctional institution.
In the case of a minor, a copy of the decision shall be provided to
the parents or guardian of the minor,  unless the parent or guardian
of the minor cannot be located.
7512.5.  In the absence of the filing of a report pursuant to
Section 7510 or a request pursuant to Section 7512, the chief medical
officer, may order a test of an inmate if he or she concludes there
are clinical symptoms of HIV infection or AIDS , as recognized by the
Centers for Disease Control and Prevention.
   A copy of the decision shall be provided to the inmate, and where
the inmate is a minor, to the parents or guardian of the minor,
unless the parent or guardian of the minor cannot be located.  Any
decision made pursuant to this section shall not be appealable to a
three-member panel provided for under Section 7515.
7513.  An inmate who is the subject of an HIV test report filed
pursuant to Section 7510 or an HIV test report filed pursuant to
Section 7512 shall receive, in conjunction with the decision of the
chief medical officer to order a test, a copy of this title, a
written  description of the right to appeal the chief medical officer'
s decision which includes the applicable timelines, and notification
of his or her right to receive pretest and posttest counseling by
staff that have been certified as HIV test counselors.
7514.  (a) It shall be the chief medical officer's responsibility to
see that personal counseling is provided to a law enforcement
employee filing a report pursuant to Section 7510, an inmate filing a
request pursuant to Section 7512, and any potential test subject, at
the time the initial report or request for tests is made, at the
time when tests are ordered, and at the time when test results are
provided to the employee, inmate, or test subject.
   The chief medical officer may provide additional counseling to any
of these individuals, upon his or her request, or whenever the chief
medical officer deems advisable, and may arrange for the counseling
to be provided in other jurisdictions.  The chief medical officer
shall encourage the subject of the report or request, the law
enforcement employee who filed the report, the person who filed the
request pursuant to Section 7512, or in the case of a minor, the
minor on whose behalf the request was filed, to undergo voluntary HIV
testing if the chief medical officer deems it medically advisable.
All testing required by this title or any voluntary testing resulting
from the provisions of this title, shall be at the expense of the
appropriate correctional institution.
   (b) Notwithstanding the repeal of this section in accordance with
Section 7555, the duties imposed by this subdivision shall continue
in effect until they have been complied with.
7515.  (a) A decision of the chief medical officer made pursuant to
Section 7511, 7512, or 7516 may be appealed, within three calendar
days of receipt of the decision, to a three-person panel, either by
the person required to be tested, his or her parent or guardian when
the subject is a minor, the law enforcement employee filing a report
pursuant to either Section 7510 or 7516, or the person requesting
testing pursuant to Section 7512, whichever is applicable, or the
chief medical officer, upon his or her own motion.  If no request for
appeal is filed under this subdivision, the chief medical officer's
decision shall be final.
   (b) Depending upon which entity has jurisdiction over the person
requesting or appealing a test, the Department of Corrections, the
Department of the Youth Authority, the county, the city, or the
county and city shall convene the appeal panel and shall ensure that
the appeal is heard within seven calendar days.
   (c) A panel required pursuant to subdivision (a) or (b) shall
consist of three members, as follows:
   (1) The chief medical officer making the original decision.
   (2) A physician and surgeon who has knowledge in the diagnosis,
treatment, and transmission of HIV, selected by the Department of
Corrections, the Department of the Youth Authority, the county, the
city, or the county and city.  The physician and surgeon appointed
pursuant to this paragraph shall preside at the hearing and serve as
chairperson.
   (3) A physician and surgeon not on the staff of, or under contract
with, a state, county, city, or county and city correctional
institution or with an employer of a law enforcement employee as
defined in subdivision (b) of Section 7502, and who has knowledge of
the diagnosis, treatment, and transmission of HIV.  The physician and
surgeon appointed pursuant to this paragraph shall be selected by
the State Department of Health Services from a list of persons to be
compiled by that department.  The State Department of Health Services
shall adopt standards for selecting persons for the list required by
this paragraph, as well as for their reimbursement, and shall, to
the extent possible, utilize its normal process for selecting
consultants in compiling this list.
   The Legislature finds and declares that the presence of a
physician and surgeon on the panel who is selected by the State
Department of Health Services enhances the objectivity of the panel,
and it is the intent of the Legislature that the State Department of
Health Services make every attempt to comply with this subdivision.
   (d) The Department of Corrections, the county, the city, or the
county and city shall notify the Office of AIDS in the State
Department of Health Services when a panel must be convened under
subdivision (a).  Within two calendar days of the notification, a
physician and surgeon appointed under paragraph (3) of subdivision
(c) shall reach agreement with the Department of Corrections, the
county, the city, or the county and city on a date for the hearing
that complies with subdivision (b).
   (e) If the Office of AIDS in the State Department of Health
Services fails to comply with subdivision (d) or the physician and
surgeon appointed under paragraph (3) of subdivision (c) fails to
attend the scheduled hearing, the Department of Corrections, the
county, the city, or the county and city shall appoint a physician or
surgeon who has knowledge of the diagnosis, treatment, and
transmission of HIV to serve on the appeals panel to replace the
physician and surgeon required under paragraph (3) of subdivision
(c).  The Department of Corrections, the county, the city, or the
county and city shall have standards for selecting persons under this
subdivision and for their reimbursement.
   The Department of Corrections, the Department of the Youth
Authority, the county, the city, or the county and city shall,
whenever feasible, create, and utilize ongoing panels to hear appeals
under this section.  The membership of the panel shall meet the
requirements of paragraphs (1), (2), and (3) of subdivision (c).
   No panel shall be created pursuant to this paragraph by a county,
city, or county and city correctional institution except with the
prior approval of the local health officer.
   (f) A hearing conducted pursuant to this section shall be closed,
except that each of the following persons shall have the right to
attend the hearing, speak on the issues presented at the hearing, and
call witnesses to testify at the hearing:
   (1) The chief medical officer, who may also bring staff essential
to the hearing, as well as the other two members of the panel.
   (2) The subject of the chief medical officer's decision, except
that a subject who is a minor may attend only with the consent of his
or her parent or guardian and, if the subject is a minor, his or her
parent or guardian.
   (3) The law enforcement employee filing the report pursuant to
Section 7510, or the person requesting HIV testing pursuant to
Section 7512, whichever is applicable and, if the person is a minor,
his or her parent or guardian.
   (g) The subject of the test, or the person requesting the test
pursuant to Section 7512, or who filed the report pursuant to Section
7510, whichever is applicable, may appoint a representative to
attend the hearing in order to assist him or her.
   (h) When a hearing is sought pursuant to this section, or filed by
a law enforcement employee pursuant to a request made under Section
7510, the decision shall be rendered within two days of the hearing.
A unanimous vote of the panel shall be necessary in order to require
that the subject of the hearing undergo HIV testing.
   The criteria specified in Section 7511 for use by the chief
medical officer shall also be utilized by the panel in making its
decision.
   The decision shall be in writing, stating reasons for the
decision, and shall be signed by the members.  A copy shall be
provided by the chief medical officer to the person requesting the
test, or filing the report, whichever is applicable, to the subject
of the test, and, when the subject is in a correctional institution,
to the superintendent of the institution, except that, when the
subject of the test or the person upon whose behalf the request for
the test was made is a minor, copies shall also be provided to the
parent or guardian of the person, unless the parent or guardian
cannot be located.
7516.  (a) When a custodial officer or staff person of a
correctional institution, observes or is informed of activity in a
correctional institution that is classified as causing, or known to
cause, the transmission of the AIDS virus, as  described in
subdivision (b), he or she may file a written report with the
facility's chief medical officer which, in the case of city or county
jails, shall be the county health officer.
   (b) Reportable activities within a correctional institution for
which a report may be filed pursuant to subdivision (a) include, but
are not limited to, all of the following  activities, if they could
result in the transmission of AIDS, according to the standards
provided for in this chapter:
   (1) Sexual activity resulting in exchange of bodily fluids.
   (2) IV drug use.
   (3) Incidents involving injury to inmates or staff in which bodily
fluids are exchanged.
   (4) Tampering with medical and food supplies or medical or food
equipment.
   (5) Tattooing among inmates.
   (c) The medical officer may investigate the report, conduct
interviews, and determine whether the situation reported caused the
probable exchange of body fluids in a manner that could result in the
transmission of HIV, utilizing the criteria set forth in Section
7511, and pose a danger to the health and safety of the institution's
staff and inmate population.
   If the chief medical officer concludes this may have occurred, he
or she shall require HIV testing of any inmate which he or she deems
necessary pursuant to the investigation.  Whenever an inmate is
required to undergo an HIV test pursuant to this subdivision, he or
she may appeal that decision as provided for in Section 7515.
   (d) Testing under this section may only be required by a unanimous
vote of all three members of the panel.  The rights guaranteed
inmates under Section 7515 shall apply.
   When a hearing is convened pursuant to this section, the hearing
shall be closed, except that both the person filing the original
report and the chief medical officer as well as other panel members
may also call witnesses to testify at the hearing.
   When a hearing is sought pursuant to this section, the decision
shall be rendered within 20 days of the date the hearing is sought by
the medical officer.
   (e) This section shall apply to situations involving individual
inmates or group situations but shall not be utilized to require
testing of all inmates in a correctional institution.
   (f) The findings of the panel shall be set forth in writing,
including reasons for the panel's decision,  and shall be signed by
the members of the panel.  A copy of the decision shall be provided
to the  superintendent of the correctional institution, the subjects
of the report and to any inmates or officers whom the panel concludes
may have been exposed to HIV infection as established by provisions
of this title.
7516.5.  Any decision by a panel pursuant to Section 7515 or 7516
may be appealed to the superior court, either by a law enforcement
employee filing a report pursuant to Section 7510, a person
requesting an HIV test pursuant to Section  7512, a medical officer
convening a panel pursuant to Section 7516, or any person required to
be tested pursuant to a panel's decision.  A person required to be
tested pursuant to Section 7512.5 may also appeal the decision to the
superior court.
   The court shall schedule a hearing as expeditiously as possible to
review the decision of the panel or a decision made pursuant to
Section 7512.5.  The court shall uphold the decision being appealed
if that decision is based upon substantial evidence.
7516.8.  It shall be the responsibility of the chief medical officer
to see that copies of the hearing decision are distributed in
accordance with requirements of this chapter.
7517.  Except as otherwise permitted by this title or any provision
of law, any records, including decisions of a chief medical officer
or an appeals panel, compiled pursuant to this chapter shall be
confidential.
7518.  (a) The Department of Corrections and Rehabilitation and
local health officers shall adopt guidelines for the making of
decisions pursuant to this chapter in consultation with the Office of
AIDS in the State Department of Health Services. The guidelines
shall be based on the latest written guidelines of HIV transmission
and infection established by the federal Centers for Disease Control
and Prevention.
   (b) Oversight responsibility for implementation of the applicable
provisions of this title, including the oversight of reports
involving parole officers and the staff of state adult and youth
correctional facilities shall be vested with the Chief of Medical
Services in the Department of Corrections and Rehabilitation.
   Oversight responsibility at the county, the city, or the county
and city level shall rest with the local health officer.
7519.  (a) When an individual, including a minor charged with an
offense for which he or she may be made a ward of the court under
Section 602 of the Welfare and Institutions Code, has either been
charged with a crime, but is not being held in a correctional
institution due to his or her release, either through the granting of
bail, a release on the individual's own recognizance, or for any
other reason, or been convicted of a crime, but not held in a
correctional institution due to the imposition of probation, a fine,
or any other alternative sentence, and the individual is required to
undergo initial or followup testing pursuant to this title, the
failure of the individual to submit to the test may be grounds for
revocation of the individual's release or probation or other
sentence, whichever is applicable.
   (b) Any refusal by a parolee or probationer to submit to testing
required pursuant to this title may be ruled as a violation of the
person's parole or probation.