2009 California Penal Code - Section 7510-7519 :: Chapter 2. Procedures For Requiring Hiv Testing

PENAL CODE
SECTION 7510-7519

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, a
person charged with any crime, whether or not the person is in
custody, 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 Public Health. The form shall be
directed to the chief medical officer, as defined in subdivision (c),
who serves the applicable law enforcement employee. Utilizing this
form the law enforcement employee may request a test for HIV or
hepatitis B or C 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 or hepatitis B or C 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, Section 7502, 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 Division
of Juvenile Justice, 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 a court 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, or a person charged with a crime, whether or not
the person is in custody, 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, a
prosecutor or staff person, a public defender attorney or staff
person, the county health officer of the county in which the
probation officer, prosecutor or staff person, a public defender
attorney or staff person, 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 or
hepatitis B or C testing, decide whether or not to require HIV or
hepatitis B or C 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 or hepatitis B or C 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 or hepatitis B or
C test only if he or she finds that, considering all of the facts
and circumstances, there is a significant risk that HIV or hepatitis
B or C 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 or hepatitis B or C
infection, based on the latest written guidelines and standards
established by the federal Centers for Disease Control and Prevention
and the State Department of Health Services.
   (2) Whether the person exhibits medical conditions or clinical
findings consistent with HIV or hepatitis B or C infection.
   (3) Whether the health of the institution staff or inmates may
have been endangered as to HIV or hepatitis B or C infection
resulting from the reported incident.
   (c) Prior to reaching a decision, the chief medical officer may if
needed 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
testing for HIV or hepatitis B or C 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 Division of Juvenile Justice 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 Division of
Juvenile Justice facility or a county- or city-operated juvenile
facility who is a minor may file a request for testing 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 Division of
Juvenile Justice 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 Division of Juvenile Facilities 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 or hepatitis B or C 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, AIDS, or hepatitis B or C, as
recognized by the federal Centers for Disease Control and Prevention
or the State Department of Health Services.
   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 or hepatitis B or C
test report filed pursuant to Section 7510 or an HIV or hepatitis B
or C 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 HIV counseling by staff that have been
certified as HIV test counselors or to receive hepatitis B or C test
results and counseling from a licensed medical professional.

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.
   (b) 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
or hepatitis B or C 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.

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 and
Rehabilitation, the Division of Juvenile Justice, 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 or hepatitis B and C, selected by
the Department of Corrections and Rehabilitation, the Division of
Juvenile Justice, 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 or hepatitis B and
C. 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 and Rehabilitation, 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) wherein HIV testing has been requested or the
State Department of Health Services when a test for hepatitis B or C
has been requested. 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 or, in the case of a hepatitis B or C test, 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 and Rehabilitation, the county, the city, or the
county and city shall appoint a physician and surgeon who has
knowledge of the diagnosis, treatment, and transmission of HIV and
hepatitis B and C to serve on the appeals panel to replace the
physician and surgeon required under paragraph (3) of subdivision
(c). The Department of Corrections and Rehabilitation, 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 and Rehabilitation, the Division of
Juvenile Justice, 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 or hepatitis B or C
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 or hepatitis B or C
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 minor, 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 for HIV testing and
with the State Department of Health Services for hepatitis B and C
testing. The guidelines shall be based on the latest written
guidelines of HIV or hepatitis B and C transmission and infection
established by the federal Centers for Disease Control and Prevention
and the State Department of Health Services.
   (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.


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