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Law Educator, Esq.
Law Educator, Esq., Attorney
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Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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As a Oregon healthcare org. are there sample policies

Customer Question

As a Oregon healthcare org. are there sample policies regarding the unconsented source individual to testing due to blood exposure. (I hope this makes sense)
JA: Has anything been filed or reported?
Customer: No we are in the process of writing a policy should a refusal happen
JA: Anything else you want the lawyer to know before I connect you?
Customer: I just want to know where I might find some sample policies regarding the issue of unconsented HIV testing should a needlestick occur.
Submitted: 3 months ago.
Category: Legal
Expert:  Law Educator, Esq. replied 3 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Here is a sample policy: http://oregonpatientsafety.org/docs/tools/6.06_Blood_and_Body_Fluid_Exposure_Policy.docx
Oregon has a law that prevents uncontested testing unless a court order is obtained.
Here are the Oregon Administrative codes that address the process your policy must follow:
(###) ###-####
Procedures for Requesting a Source Person Consent to an HIV Test Following an Occupational Exposure
(1) For purposes of this rule the following definitions apply:
Page 23 of 30
(a) “Exposure” means contact with a source person’s body fluids.
(b) “Licensed health care provider” has the meaning given that term in ORS 433.060.
(c) “Local public health administrator (LPHA)” means the public health administrator of the county or district health department for the jurisdiction in which the reported substantial exposure occurred.
(d) “Next of kin” means an individual within the first applicable class of the following listed classes:
(A) The spouse of the decedent;
(B) A son or daughter of the decedent 18 years of age or older;
(C) Either parent of the decedent;
(D) A brother or sister of the decedent 18 years of age or older;
(E) A guardian of the decedent at the time of death;
(F) A person in the next degree of kindred to the decedent;
(G) The personal representative of the estate of the decedent; or
(H) The person nominated as the personal representative of the decedent in the decedent’s last will.
(e) “Occupational exposure” means a substantial exposure of a worker in the course of the worker’s occupation.
(f) “Qualified person” means an individual, such as a licensed health care provider, who has the necessary training and knowledge about infectious disease to make a determination about whether an exposure was substantial.
(g) "Source person" means a person whose body fluids may be the source of a substantial exposure.
(h) "Substantial exposure" means an exposure to blood or certain body fluids that have a potential for transmitting the human immunodeficiency virus based upon current scientific information and may include but is not limited to contact with blood or blood components, semen, or vaginal/cervical secretions through percutaneous inoculation or contact with an open wound, non-intact skin, or mucous membrane of the exposed person.
(i) "Worker" means a person who is licensed or certified to provide health care under ORS chapters 677, 678, 679, 680, 684 or 685, or ORS 682.216, an employee of a health care facility, of a licensed health care provider or of a clinical laboratory, as defined in ORS 438.010, a firefighter, a law enforcement officer, as defined in ORS 414.805, a corrections officer or a parole and probation officer.
(2) The Division has determined that a worker who experiences an occupational exposure may benefit from requesting the mandatory testing of a source person because such testing may assist a worker in obtaining necessary prophylaxis or treatment for HIV.
(3) Pursuant to ORS 433.065, a worker who experiences an exposure may request that a determination be made as to whether the exposure was a substantial exposure.
(a) A worker may make a request for a determination to:
(A) If the source person is being treated at a licensed health care facility:
(i) The facility’s infection control officer or other designated qualified person; or
(ii) The source person’s treating health care provider;
(B) The worker’s health care provider; or
(C) The LPHA.
(b) A request for a determination must include but is not limited to:
(A) The worker’s name and contact information;
(B) Whether the worker has been tested for HIV and if so, when;
(C) The details of the exposure;
(D) The name, contact information, and current location of the source, if known;
(E) Information about the source person’s HIV status, if known; and
(F) A citation to ORS 433.065 and these rules as authority for the request for a determination.
(4) The health care provider, infection control practitioner, designated qualified person or local public health administrator to whom the request is made must determine whether an exposure was a substantial exposure and an occupational exposure and provide that determination in writing to the worker within 24 hours of receiving the request. The individual making the determination may rely on the most recent guidance on this topic issued by the federal Centers for Disease Control and Prevention. The individual to whom the request is made may contact the worker to request additional information and may require the release of records related to the exposure from the worker, a licensed health care facility or a licensed health care provider in order to make his or her determination.
(5) If the health care provider, infection control officer, designated qualified person or LPHA to whom the request was made determines the worker experienced a substantial exposure and an occupational exposure the worker may request that the source person be tested for HIV.
(a) If the worker knows that the source person is under the care of a licensed health care facility or a licensed health care provider the worker may request that the health care facility or licensed health care provider ask the source person to consent to an HIV test. A health care facility or licensed health care provider who receives a request from a worker as described in section (5) of this rule is required to ask the source person to consent to an HIV test within 24 hours of receiving the request and to report to the worker immediately whether the source person has consented to an HIV test.
(b) If the worker does not know whether the source person is under the care of a licensed health care facility or a licensed health care provider the worker may contact the LPHA and ask for assistance in locating the source person. If the source person is located with assistance from the LPHA, the LPHA must request that the source person consent to an HIV test.
(c) In accordance with ORS 433.075(5) if the source person consents to the HIV test, the results of an HIV test shall be reported to the worker by the health care provider or licensed health care facility that ordered the test but the results may not identify the source person and the worker is prohibited from redisclosing any information about the test if the source person is known to the worker.
(d) A worker, or the exposed person’s employer in the case of an occupational exposure, is responsible for the costs of the source person’s HIV test in accordance with ORS 433.075.
(6) If the worker disagrees with a determination that an alleged occupational exposure was not substantial exposure, the worker may request a second determination from the LPHA. If the LPHA determines that the exposure was substantial, the worker may request that the source person be tested for HIV according to the procedures detailed in subsections (5)(a) through (d).
(7) If the source person refuses to consent, the health care provider or licensed health care facility that requested that the source person be tested must document, in writing, the source person’s refusal to consent to an HIV test and provide that documentation to the worker. The LPHA must also be notified by the health care provider, licensed health care facility, or the worker of the documentation of the refusal along with the determination that the exposure was substantial.
(8) If a source person refuses to consent to an HIV test or fails to obtain a test within 24 hours of his or her consent to the HIV test the worker may petition the circuit court in the county in which the occupational exposure occurred in accordance with ORS 433.080 and OAR(###) ###-####to request mandatory testing of the source person. Before a worker may petition the court for mandatory testing the worker must agree to an HIV test and submit a specimen to a laboratory certified to perform testing on human specimens under the Clinical Laboratory Improvement Amendments of 1988 (P.L. 100-578,42 U.S.C. 201 and 263(a))(CLIA) and must notify the LPHA of the failure to obtain a test along with along with the determination that the exposure was substantial.
(9) If a source person is deceased or is unable to consent to an HIV test, consent shall be sought from the source person’s next of kin.
(10) If a worker has an employer, the worker’s employer shall be required to provide the worker with information about HIV infection, methods of preventing HIV infection, HIV tests and treatment and assistance in following the procedures outlined above. A worker who is self-employed may obtain this information and assistance from the LPHA.
OAR(###) ###-####
Petition for Mandatory Testing of Source Persons
(1) If a worker has complied with the process established in OAR(###) ###-####and a source person has refused to consent to an HIV test or has failed to obtain a test within the time period established in that rule, the worker may petition the circuit court for the county in which the exposure occurred and seek a court order for mandatory testing in accordance with ORS 433.080.
(2) The form for the petition shall be as prescribed by the Division and shall be obtained from the LPHA.
(3) The petition shall name the source person as the respondent and shall include a short and plain statement of facts alleging:
(a) The petitioner is a worker subjected to an occupational exposure and the respondent is the source person;
(b) The petitioner meets the definition of worker in ORS 433.060;
(c) All procedures for obtaining the respondent’s consent to an HIV test as described in OAR(###) ###-####have been exhausted by the petitioner and the respondent has refused to consent to the test, or within the time period prescribed in OAR(###) ###-####has failed to submit to the test;
(d) The petitioner has no knowledge that he or she has a history of a positive HIV test and has since the occupational exposure submitted a specimen for an HIV test to a laboratory certified to perform testing on human specimens under the Clinical Laboratory Improvement Amendments of 1988 (P.L. 100-578,42 U.S.C. 201 and 263(a))(CLIA).; and
(e) The injury that petitioner is suffering or will suffer if the source person is not ordered to submit to an HIV test.
(4) The petition shall be accompanied by the certificate of the LPHA declaring that, based upon information in the possession of the administrator, the facts stated in the allegations under subsections (3)(a), (b) and (c) of this rule are true.
(5) A LPHA must provide the petitioner a certificate as described in section (4) of this rule and must appear at any court hearing on the petition in accordance with ORS 433.080(7).
(6) The court is required to hold a hearing on the petition in accordance with ORS 433.080.

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