Revision: Jan. 24, 2017, 10:22 a.m.
SB 59 - AS INTRODUCED
2017 SESSION
17-0767
08/04
SENATE BILL 59
AN ACT relative to blood testing orders.
SPONSORS: Sen. D'Allesandro, Dist 20; Sen. Bradley, Dist 3; Sen. Carson, Dist 14; Rep. Goley, Hills. 8; Rep. White, Graf. 13; Rep. Proulx, Hills. 44; Rep. Soucy, Merr. 16; Rep. O'Brien, Hills. 36
COMMITTEE: Health and Human Services
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This bill creates a process for certain individuals to request a blood testing order when they have been exposed to a source individual's bodily fluids.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
17-0767
08/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seventeen
AN ACT relative to blood testing orders.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; First Responder Exposure Blood Testing. Amend RSA 153-A by inserting after section 34 the following new subdivision:
First Responder Exposure Blood Testing
153-A:35 Definitions. In this subdivision:
I. "Applicant" means a person who applies for a testing order or on whose behalf an application for a testing order is made.
II. "Court" means the superior court.
III. "Commissioner" means the commissioner of the department of safety.
IV. "Physician" means a medical practitioner licensed by the state of New Hampshire pursuant to RSA 329.
V. "Qualified analyst" means a person analyzing test samples who has qualifications required by rules adopted under RSA 153-A:47.
VI. "Source individual" means an individual whom an applicant identifies as the individual with whose bodily substance the applicant came into contact as provided in RSA 153-A:37, I.
VII. "Test results" means results of an analysis conducted by a qualified analyst under RSA 153-A:40 for the purposes referred to in this subdivision.
VIII. "Testing order" means an order under RSA 153-A:38, I.
153-A:36 Notice of Intention.
I. A person who intends to apply under RSA 153-A:37, I for a testing order after contact with a source individual shall provide notice of that intention to the source individual in accordance with rules adopted under RSA 153-A:47.
II. No person shall apply under RSA 153-A:37, I for a testing order until at least 3 days after the date the person provided notice under paragraph I.
153-A:37 Application for Testing Order.
I. Subject to RSA 153-A:36, a person may apply to the court for a testing order if such person has come into contact with a bodily substance of a source individual in any of the following circumstances:
(a) While providing emergency health services;
(b) While performing his or her duties as a firefighter, nurse or doctor, an emergency medical assistant, police officer, emergency medical technician, probation officer, peace officer, or emergency medical care provider; or
(c) While being involved in activities defined in rules adopted under RSA 153-A:47.
II. If a person who came into contact with the bodily substance of another person in a circumstance referred to in paragraph I is unable to apply for a testing order under paragraph I, a representative of the person may apply on behalf of the person.
III. An application for a testing order shall:
(a) Include a physician's report,
(b) Be made within 30 days of the date of the contact referred to in paragraph I,
(c) Be made in accordance with the regulations; and
(d) Be served on the source individual at least 4 days before the court hears the application.
IV. The court shall hear an application for a testing order as soon as practicable and may, on application or on the court's own motion, order that the public is excluded from all or part of a hearing.
V. If giving notice is impossible or impracticable, the court may hear an application made under paragraph I without notice to the source individual if the applicant satisfies the court with evidence that complying with paragraph II or subparagraph III (d) within a reasonable time is impossible or impracticable.
153-A:38 Testing Order.
I. On an application made under RSA 153-A:37, I, the court may issue an order requiring testing if the court, having considered the physician's report and any other evidence the court considers relevant, is satisfied of the following:
(a) The applicant has complied with RSA 153-A:36 and RSA 153-A:37;
(b) The applicant has come into contact with a bodily substance of the source individual in one of the circumstances set out in RSA 153-A:37, I;
(c) There are reasonable grounds to believe that the applicant may have been exposed, as a result of the contact, to a pathogen that causes a prescribed communicable disease;
(d) An analysis of the applicant's bodily fluids would not determine, in a timely manner, whether the applicant has been infected;
(e) Taking a sample of a bodily fluid from the source individual would not endanger the source individual's life or health;
(f) The information to be obtained under the testing order cannot reasonably be obtained in any other manner; and
(g) The testing order is necessary to decrease or eliminate the risk to the health of the applicant as a result of the contact.
II. A testing order:
(a) Shall require the source individual, within the time specified in the order, to attend the health facility identified in the order so that a sample of any bodily fluid specified in the order may be taken from the source individual for the purpose of determining whether the source individual is infected with a pathogen that causes a communicable disease listed in rules adopted under RSA 153-A:47.
(b) Shall require the health facility identified in the order to ensure that a sample of a bodily fluid, specified in the order, from the source individual is taken.
(c) Shall require the applicant to serve the testing order and any other information required by rules, within the time specified in the order, on the source individual and the health facility identified in the order.
III. If the source individual named in a testing order is a minor or an incapacitated adult, the testing order shall require the guardian of the minor or the person responsible for the incapacitated adult under rules adopted by the commissioner under RSA 153-A:47 to take all reasonable steps to ensure that the source individual complies with the testing order.
IV. A decision of the court under paragraph I may be appealed to the supreme court.
153-A:39 Obligations of Person Who Takes Sample. A person at a health facility who, pursuant to a testing order, takes from the source individual a sample of a bodily fluid specified in the testing order:
(a) Shall deliver the sample, a copy of the testing order, and any other required information to a qualified analyst for the purpose of having the sample analyzed; and
(b) Shall not use the sample for any purpose other than the purpose stated in the order.
153-A:40 Qualified Analyst. A qualified analyst who receives a sample delivered in accordance with RSA 153-A:39 shall:
(a) Conduct an analysis of the sample;
(b) Ensure that the sample is not used for any purpose other than the analysis required by the testing order;
(c) Ensure that the sample is not released to any person unless:
(1) Such person is acting on behalf of the analyst for the purposes of carrying out the analysis required by the testing order; and
(2) The qualified analyst is satisfied that no other person has access to the sample while it is in the custody of such person;
(d) Promptly provide a written report of the results of the analysis, a copy of the testing order, and any other required information to the applicant's physician, and the source individual's physician; and
(e) Ensure that the results of the analysis are not disclosed except in accordance with subdivision.
153-A:41 Test Results. As soon as reasonably possible after receiving test results from a qualified analyst:
I. The applicant's physician shall notify the applicant of the test results; and
II. The source individual's physician shall notify the source individual of the test results.
153-A:42 Confidentiality.
I. No person shall use or disclose any information concerning an applicant or a source individual if that information becomes known to the person in the course of carrying out his or her responsibilities under this subdivision or as a result of obtaining a testing order.
II. Paragraph I shall not apply to disclosure in the following circumstances:
(a) In the course of carrying out a duty imposed or exercising a power conferred under this subdivision.
(b) As required by law.
(c) With the consent of the person who is the subject of the information.
(d) In the course of a consultation between qualified health professionals.
(e) In the case of information about a minor to a guardian of that minor.
(f) As provided in rules adopted under RSA 153-A:47.
III. No person who is subpoenaed or otherwise compelled to give evidence in a legal proceeding, other than a proceeding for the purposes of RSA 153-A:38, I or an appeal under RSA 153-A:38, IV, shall disclose information described in paragraph I, unless the court first examines the information, with the public excluded, and determines that the information may be disclosed. The court shall consider:
(a) The probative value of the information;
(b) The relevance of the information to the proceeding, and
(c) The effect of the disclosure on the privacy of the person who is the subject of the information.
153-A:43 Costs. Subject to rules adopted by the commissioner under RSA 153-A:47, an applicant's workers' compensation insurance carrier shall be responsible for paying the costs relating to a testing order.
153-A:44 Immunity. No legal proceeding for damages may be commenced or maintained against a person who in good faith engages in any act or omission:
I. In the exercise or intended exercise of any power under this subdivision;
II. In the performance or intended performance of any duty under this subdivision; or
III. In the taking, under a testing order, of a sample from a source individual.
153-A:45 Notice and Service.
I. All documents or notifications required to be given to or served on a person shall be given or served in accordance with the rules adopted by the commissioner under RSA 153-A:47.
II. If a person is required under this subdivision to provide a notice to or serve a document on another person, notice or service may be made on an authorized representative of the recipient.
153-A:46 Penalties.
I. Any source individual who contravenes a testing order shall be guilty of a misdemeanor.
II. Any person who violates the provisions of RSA 153-A:42, shall be guilty of a misdemeanor.
III. If an offense under this subdivision continues for more than one day, separate fines, each not exceeding the maximum fine for that offense, may be imposed for each day the offense continues.
IV. A prosecution for an offense under this subdivision shall be commenced within 2 years after the date on which the act or omission that is alleged to constitute the offense occurred.
153-A:47 Rules.
I. The commissioner shall be responsible for the statewide supervision of first responder exposure blood testing.
II. The commissioner shall adopt rules under RSA 541-A, relative to:
(a) Defining diseases or conditions as communicable diseases for the purposes of this subdivision.
(b) Identifying qualifications for qualified analyst.
(c) Providing the notice required under RSA 153-A:36, including developing forms for that purpose.
(d) Identifying circumstances and activities eligible for a blood testing order under RSA 153-A:37, I.
(e) Developing applications for testing orders, including forms for that purpose.
(f) Physician's reports pursuant to RSA 153-A:37, III(a).
(g) The taking and analysis of samples of bodily substances obtained under the authority of a testing order.
(h) Identifying eligible health facilities.
(i) Information required to complete a testing order.
(j) The reporting procedures for test results if the source individual's physician is not known.
(k) The handling, retention, and destruction of samples of bodily substances and related records.
(l) Circumstances when confidential information under this subdivision may be disclosed.
(m) Circumstances in which the government may be responsible for paying the costs referred to in RSA 153-A:43.
(n) Notice and service, including identifying authorized persons who may be notified or served instead of original recipient of the notice or service.
2 Effective Date. This act shall take effect January 1, 2018.