HOUSE BILL No. 4245 February 14, 2001, Introduced by Reps. Kowall, Bishop, Allen, Shackleton, Hager, Richardville, Vear, Bernero, Ruth Johnson, Stewart, Julian, Bovin and DeVuyst and referred to the Committee on Health Policy. A bill to amend 1978 PA 368, entitled "Public health code," by amending sections 5204 and 5205 (MCL 333.5204 and 333.5205), section 5204 as added by 1997 PA 57 and section 5205 as amended by 2000 PA 37. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 5204. (1) A police officer, afire fighter2 FIREFIGHTER, a local correctional officer or other county employ- 3 ee, a court employee,oran individual making a lawful arrest, 4 OR AN ELEMENTARY OR SECONDARY SCHOOL TEACHER OR OTHER ELEMENTARY 5 OR SECONDARY SCHOOL EMPLOYEE may proceed under this section if he 6 or she has received training in the transmission of bloodborne 7 diseases under the rules governing exposure to bloodborne 8 diseases in the workplace promulgated by the occupational health 9 standards commission or incorporated by reference under the 00157'01 GWH 2 1 Michigan occupational safety and health act, 1974 PA 154, 2 MCL 408.1001 to 408.1094. 3 (2) A police officer, afire fighterFIREFIGHTER, a local 4 correctional officer or other county employee, a court employee, 5oran individual making a lawful arrest, OR AN ELEMENTARY OR 6 SECONDARY SCHOOL TEACHER OR OTHER ELEMENTARY OR SECONDARY SCHOOL 7 EMPLOYEE who has received the training described in subsection 8 (1) and who, while performing his or her official duties or oth- 9 erwise performing the duties of his or her employment, determines 10 that he or she has sustained a percutaneous, mucous membrane, or 11 open wound exposure to the blood or body fluids of an arrestee, 12 correctional facility inmate, parolee,orprobationer, OR PUPIL 13 may request that the arrestee, correctional facility inmate, 14 parolee,orprobationer, OR PUPIL be tested for HIV infection, 15 HBV infection, HCV infection, or A COMBINATION OF OR all 3 infec- 16 tions, pursuant to this section. 17 (3)An officer or employee or an individual making a lawful18arrestAN INDIVIDUAL who IS ENTITLED TO AND desires to make a 19 request described in subsection (2) shall make the request to his 20 or her employer in writing on a form provided by the department 21 as soon as possible, but not later than 72 hours, after the expo- 22 sure occurs. The request form shall be dated and shall contain, 23 at a minimum, the name and address of theofficer, employee, or24individual making a lawful arrest making the requestREQUESTER 25 and a description of his or her exposure to the blood or other 26 body fluids of the arrestee, correctional facility inmate, 27 parolee,orprobationer, OR PUPIL. The request form shall also 00157'01 3 1 contain a statement that the requester is subject to the 2 confidentiality requirements of subsection (7) and section 5131. 3 The request form shall not contain information that would iden- 4 tify the arrestee, correctional facility inmate, parolee,or5 probationer, OR PUPIL by name, except if necessary to identify 6 the individual for purposes of testing under this section. 7 (4) The employer of an individual making a request under 8 subsections (2) and (3) shall accept as fact the requester's 9 description of his or her exposure to blood or other body fluids 10 as described in subsection (2). The requester's employer shall 11 have the test for HIV infection, HBV infection, HCV infection, or 12 A COMBINATION OF OR all 3 infections performed by the local 13 health department or by a health care provider designated by the 14 local health department. If the test subject OR, IF THE TEST 15 SUBJECT IS A MINOR, THE TEST SUBJECT'S PARENT OR LEGAL GUARDIAN 16 consents to the performance of the test or tests named in the 17 request, the requester's employer shall transport the test 18 subject to the local health department or designated health care 19 provider for testing, or a representative of the local health 20 department or designated health care provider shall come to where 21 the test subject is held or housed OR ATTENDING SCHOOL to take a 22 blood or other body fluid sample for testing, as soon as practi- 23 cable after the local health department receives the request for 24 testing from the requester's employer. If the test subject 25 REFUSES TO UNDERGO OR, IF THE TEST SUBJECT IS A MINOR, THE TEST 26 SUBJECT'S PARENT OR LEGAL GUARDIAN refuses to ALLOW THE MINOR TO 27 undergo, 1 or more tests specified in the request, the 00157'01 4 1 requester's employer may proceed with a petition to the family 2 division ofthecircuit court in the manner provided in section 3 5205 or 5207, as appropriate. 4 (5) A local health department or a health care provider des- 5 ignated by the local health department that performs 1 or more 6 tests under this section may charge theofficer or employee or7arresting individual requesting the testINDIVIDUAL MAKING A 8 REQUEST UNDER SUBSECTIONS (2) AND (3) for the reasonable and cus- 9 tomary charges of each test. Theofficer or employee or arrest-10ing individual requesting the testREQUESTER is responsible for 11 the payment of the charges if the charges are not payable by the 12officer's or employee's or arresting individual'sREQUESTER'S 13 employer, pursuant to an agreement between theofficer or14employee or arresting individualREQUESTER and the employer, or 15 by theofficer's or employee's or arresting individual's16 REQUESTER'S health care payment or benefits plan. A local health 17 department or a health care provider designated by the local 18 health department to perform an HIV test under this section is 19 not required to provide HIV counseling pursuant to 20 section 5133(1) toan officer or employee or arresting21individualA REQUESTER who requests that an arrestee, correc- 22 tional facility inmate, parolee,orprobationer, OR PUPIL be 23 tested for HIV under this section, unless the local health 24 department or designated health care provider tests theofficer25or employee or arresting individualREQUESTER for HIV. 26 (6) A local health department or a health care provider 27 designated by the local health department to perform a test under 00157'01 5 1 this section shall, on a form provided by the department, notify 2 therequesting officer or employee or arrestingindividual 3 MAKING A REQUEST UNDER SUBSECTIONS (2) AND (3) of the HIV test, 4 HBV test, or HCV test results, as applicable, whether positive or 5 negative, within 2 days after the test results are obtained by 6 the local health department or designated health care provider. 7 The notification shall be transmitted directly to therequesting8officer or employee or arresting individualREQUESTER or, upon9request of the requesting officer or employee or arresting10individual,tohis or herA primary care physician orto11anotherOTHER health professional designated by theofficer or12employee or arresting individualREQUESTER. The notification 13 required under this subsection shall include an explanation of 14 the confidentiality requirements of subsection (7). The notifi- 15 cation required under this subsection shall also contain a state- 16 ment recommending that therequesting officer, employee, or17arresting individualREQUESTER undergo an HIV test, an HBV test, 18 or an HCV test, or A COMBINATION OF OR all 3 tests. 19 (7) The notice required under subsection (6) shall not con- 20 tain information that would identify the arrestee, correctional 21 facility inmate, parolee,orprobationer, OR PUPIL who tested 22 positive or negative for HIV, HBV, or HCV. The information con- 23 tained in the notice is confidential and is subject to this sec- 24 tion, the rules promulgated under section 5111(2), and 25 section 5131. A person who receives confidential information 26 under this section shall disclose the information to others only 00157'01 6 1 to the extent consistent with the authorized purpose for which 2 the information was obtained. 3 (8) The department may promulgate rules to administer this 4 section. The department shall develop and distribute the forms 5 required under this section. 6 (9) In addition to the penalties prescribed in the rules 7 promulgated under section 5111(2) and in section 5131, a person 8 who discloses information in violation of subsection (7) is 9 guilty of a misdemeanor. 10 (10) A local health department or designated health care 11 provider shall report to the department each test result obtained 12 under this section that indicates that an individual is HIV 13 infected, in compliance with section 5114. 14 (11) A person or governmental entity that makes a good faith 15 effort to comply with subsections (1) to (6) is immune from civil 16 liability or criminal penalty based on compliance with, or the 17 failure to comply with, those subsections. 18 (12) As used in this section and section 5205: 19 (a) "Correctional facility" means a municipal or county 20 jail, work camp, lockup, holding center, halfway house, community 21 corrections center, or any other facility maintained by a munici- 22 pality or county that houses adult prisoners. Correctional 23 facility does not include a facility owned or operated by the 24 department of corrections. 25 (b) "Employee" means a county employee or a court employee. 26 (c) "HBV" means hepatitis B virus. 00157'01 7 1 (d) "HBV infected" or "HBV infection" means the status of an 2 individual who is tested as HBsAg-positive. 3 (e) "HCV" means hepatitis C virus. 4 (f) "HCV infected" or "HCV infection" means the status of an 5 individual who has tested positive for the presence of HCV anti- 6 bodies or has tested positive forHBVHCV using an RNA test. 7 (g) "HIV" means human immunodeficiency virus. 8 (h) "HIV infected" means that term as defined in 9 section 5101. 10 (i) "Individual making a lawful arrest" or "arresting 11 individual" means 1 of the following: 12 (i) A private security police officer authorized to make an 13 arrest without a warrant under section 30 of the private security 14 guard act of 1968, 1968 PA 330, MCL 338.1080, and section 15 OF 15 CHAPTER IV of the code of criminal procedure, 1927 PA 175, 16 MCL 764.15. 17 (ii) A merchant, agent of a merchant, employee of a mer- 18 chant, or independent contractor providing security for a mer- 19 chant authorized to make an arrest in the merchant's store and in 20 the course of his or her employment as prescribed by section 21 16(d) OF CHAPTER IV of the code of criminal procedure, 1927 22 PA 175, MCL 764.16. Individual making a lawful arrest or arrest- 23 ing individual does not include a private person authorized to 24 make an arrest under section 16(a) and (b) OF CHAPTER IV of the 25 code of criminal procedure, 1927 PA 175, MCL 764.16. 00157'01 8 1 (j) "Local correctional officer" means an individual 2 employed by a local governmental unit in a correctional facility 3 as a corrections officer. 4 (k) "Officer" means a law enforcement officer, motor carrier 5 officer, or property security officer employed by the state, a 6 law enforcement officer employed by a local governmental unit, a 7fire fighterFIREFIGHTER employed by or volunteering for a 8 local governmental unit, or a local correctional officer. 9 Sec. 5205. (1) If a department representative or a local 10 health officer knows or has reasonable grounds to believe that an 11 individual has failed or refused to comply with a warning notice 12 issued under section 5203, the department or local health depart- 13 ment may petition the circuit court for the county of Ingham or 14 for the county served by the local health department for an order 15 as described in subsection (6). 16 (2) A petition filed under subsection (1) shall state all of 17 the following: 18 (a) The grounds and underlying facts that demonstrate that 19 the individual is a health threat to others and, unless an emer- 20 gency order is sought under section 5207, has failed or refused 21 to comply with a warning notice issued under section 5203. 22 (b) The petitioner's effort to alleviate the health threat 23 to others before the issuance of the warning notice, unless an 24 emergency order is sought under section 5207. 25 (c) The type of relief sought. 26 (d) A request for a court hearing on the allegations set 27 forth in the petition. 00157'01 9 1 (3) If a test subject refuses to undergo OR, IF THE TEST 2 SUBJECT IS A MINOR, THE TEST SUBJECT'S PARENT OR LEGAL GUARDIAN 3 REFUSES TO ALLOW THE MINOR TO UNDERGO, a test requested by an 4 officer,oremployee,oran arresting individual, OR AN ELE- 5 MENTARY OR SECONDARY SCHOOL TEACHER OR OTHER ELEMENTARY OR SEC- 6 ONDARY SCHOOL EMPLOYEE under section 5204, theofficer's or7employee's or arresting individual'sREQUESTER'S employer may 8 petition the circuit court for the county in which the employer 9 is located or the appropriate district court for an order as 10 described in subsection (7). 11 (4) A petition filed under subsection (3) shall state all of 12 the following: 13 (a) Substantially the same information contained in the 14 request made toan officer's or employee's or arresting15individual'sA REQUESTER'S employer under section 5204(2) and 16 (3), except that the petition shall contain the name of the 17 arrestee, correctional facility inmate, parolee,or18 probationer, OR PUPIL who is the proposed test subject. 19 (b) The reasons for theofficer's or employee's or arrest-20ing individual'sREQUESTER'S determination that the exposure 21 described in the request made under section 5204(2) and (3) could 22 have transmitted HIV, HBV, or HCV, or all or a combination of 23 those viruses, along with the date and place theofficer or24employee or arresting individualREQUESTER received the training 25 in the transmission of bloodborne diseases required under section 26 5204(1). 00157'01 10 1 (c) The fact that the arrestee, correctional facility 2 inmate, parolee,orprobationer, OR PUPIL has refused to 3 undergo OR, IF THE PUPIL IS A MINOR, THE PUPIL'S PARENT OR LEGAL 4 GUARDIAN HAS REFUSED TO ALLOW THE PUPIL TO UNDERGO, the test or 5 tests requested under section 5204(2) and (3). 6 (d) The type of relief sought. 7 (e) A request for a court hearing on the allegations set 8 forth in the petition. 9 (5) Upon receipt of a petition filed under subsection (1), 10 the circuit court shall fix a date for hearing that shall be as 11 soon as possible, but not later than 14 days after the date the 12 petition is filed. Notice of the petition and the time and place 13 of the hearing shall be served personally on the individual and 14 on the petitioner not less than 3 days before the date of the 15 hearing. Notice of the hearing shall include notice of the 16 individual's right to appear at the hearing, the right to present 17 and cross-examine witnesses, and the right to counsel as provided 18 in subsection (12). The individual and the petitioner may waive 19 notice of hearing, and upon filing of the waiver in writing, the 20 circuit court may hear the petition immediately. Upon receipt of 21 a petition filed under subsection (3), the circuit court or the 22 district court shall fix a date for hearing that shall be as soon 23 as possible, but not later than 24 hours after the time and date 24 the petition is filed. Notice of the petition and the time and 25 place of the hearing shall be served personally on both the pro- 26 posed test subject under section 5204 and the petitioner within a 27 time period that is reasonable under the circumstances. Notice 00157'01 11 1 of the hearing shall include notice of the proposed test 2 subject's right to appear at the hearing, the right to present 3 and cross-examine witnesses, and the right to counsel as provided 4 in subsection (12). The proposed test subject and the petitioner 5 may waive notice of the hearing, and upon filing of the waiver in 6 writing, the circuit court or the district court may hear the 7 petition filed under subsection (3) immediately. 8 (6) Upon a finding by the circuit court that the department 9 or local health department has proven the allegations set forth 10 in a petition filed under subsection (1) by clear and convincing 11 evidence, the circuit court may issue 1 or more of the following 12 orders: 13 (a) An order that the individual participate in a designated 14 education program. 15 (b) An order that the individual participate in a designated 16 counseling program. 17 (c) An order that the individual participate in a designated 18 treatment program. 19 (d) An order that the individual undergo medically accepted 20 tests to verify the individual's status as a carrier or for 21 diagnosis. 22 (e) An order that the individual notify or appear before 23 designated health officials for verification of status, testing, 24 or other purposes consistent with monitoring. 25 (f) An order that the individual cease and desist conduct 26 that constitutes a health threat to others. 00157'01 12 1 (g) An order that the individual live part-time or full-time 2 in a supervised setting for the period and under the conditions 3 set by the circuit court. 4 (h) Subject to subsection (8), an order that the individual 5 be committed to an appropriate facility for the period and under 6 the conditions set by the circuit court. A commitment ordered 7 under this subdivision shall not be for more than 6 months, 8 unless the director of the facility, upon motion, shows good 9 cause for continued commitment. 10 (i) Any other order considered just by the circuit court. 11 (7) Upon a finding by the circuit court or the district 12 court that theofficer's or employee's or arresting13individual'sREQUESTER'S employer has proven the allegations set 14 forth in a petition filed under subsection (3), including, but 15 not limited to, therequesting officer's or employee's or16arresting individual'sREQUESTER'S description of his or her 17 exposure to the blood or body fluids of the proposed test 18 subject, the circuit court or the district court may issue an 19 order requiring the proposed test subject to undergo a test for 20 HIV infection, HBV infection, or HCV infection, or all or a com- 21 bination of the 3 infections. 22 (8) The circuit court shall not issue an order authorized 23 under subsection (6)(h) unless the court first considers the rec- 24 ommendation of a commitment review panel appointed by the court 25 under this subsection to review the need for commitment of the 26 individual to a health facility. The commitment review panel 27 shall consist of 3 physicians appointed by the court from a list 00157'01 13 1 of physicians submitted by the department. Not less than 2 of 2 the physicians shall have training and experience in the diagno- 3 sis and treatment of serious communicable diseases and 4 infections. However, upon the motion of the individual who is 5 the subject of the order, the court shall appoint as 1 member of 6 the commitment review panel a physician who is selected by the 7 individual. The commitment review panel shall do all of the 8 following: 9 (a) Review the record of the proceeding. 10 (b) Interview the individual, or document the reasons why 11 the individual was not interviewed. 12 (c) Recommend either commitment or an alternative or alter- 13 natives to commitment, and document the reasons for the 14 recommendation. 15 (9) An individual committed to a facility under subsection 16 (6)(h) may appeal to the circuit court for a commitment review 17 panel recommendation as to whether or not the patient's commit- 18 ment should be terminated. Upon the filing of a claim of appeal 19 under this subsection, the court shall reconvene the commitment 20 review panel appointed under subsection(5)(8) as soon as 21 practicable, but not more than 14 days after the filing of the 22 claim of appeal. Upon reconvening, the commitment review panel 23 shall do all of the following: 24 (a) Review the appeal and any other information considered 25 relevant by the commitment review panel. 26 (b) Interview the individual, or document the reasons why 27 the individual was not interviewed. 00157'01 14 1 (c) Recommend to the court either termination or 2 continuation of the commitment, and document the reasons for the 3 recommendation. 4 (10) Upon receipt of the recommendation of the commitment 5 review panel under subsection (9), the circuit court may termi- 6 nate or continue the commitment. 7 (11) The cost of implementing an order issued under 8 subsection (6) shall be borne by the individual who is the 9 subject of the order, unless the individual is unable to pay all 10 or a part of the cost, as determined by the circuit court. If 11 the court determines that the individual is unable to pay all or 12 a part of the cost of implementing the order, then the state 13 shall pay all of the cost or that part of the cost that the indi- 14 vidual is unable to pay, upon the certification of the 15 department. The cost of implementing an order issued under sub- 16 section (7) shall be borne by the arrestee, correctional facility 17 inmate, parolee,orprobationer, OR PARENT OR LEGAL GUARDIAN OF 18 THE PUPIL who is tested under the order. 19 (12) An individual who is the subject of a petition filed 20 under this section or an affidavit filed under section 5207 has 21 the right to counsel at all stages of the proceedings. If the 22 individual is unable to pay the cost of counsel, the circuit 23 court shall appoint counsel for the individual. 24 (13) An order issued by the circuit court under subsection 25 (6) may be appealed to the court of appeals. The court of 26 appeals shall hear the appeal within 30 days after the date the 27 claim of appeal is filed with the court of appeals. However, an 00157'01 15 1 order issued by the circuit court under subsection (6) shall not 2 be stayed pending appeal, unless ordered by the court of appeals 3 on motion for good cause. An order issued by the circuit court 4 under subsection (7) may be appealed to the court of appeals. 5 The court of appeals shall hear the appeal within 15 days after 6 the date the claim of appeal is filed with the court of appeals. 7 However, an order issued by the circuit court under subsection 8 (7) shall not be stayed pending appeal, unless ordered by the 9 court of appeals on motion for good cause. An order issued by a 10 district court under subsection (7) may be appealed to the cir- 11 cuit court for the county in which the district court is 12 located. The circuit court shall hear the appeal within 15 days 13 after the date the claim of appeal is filed with the circuit 14 court. However, an order issued by a district court under sub- 15 section (7) shall not be stayed pending appeal, unless ordered by 16 the circuit court on motion for good cause. 17 (14) An individual committed to a facility under this sec- 18 tion who leaves the facility before the date designated in the 19 commitment order without the permission of the circuit court or 20 who refuses to undergo a test for HIV infection, HBV infection, 21 HCV infection, or all or a combination of the 3 infections is 22 guilty of contempt. 00157'01 Final page. GWH