An Act concerning certain infectious diseases; authorizing a court to order tests for such diseases in certain circumstances; disclosure of certain information; amending K.S.A. 65-6001 and K.S.A. 1995 Supp. 38-1692 and 65-6004 and repealing the existing sections; also repealing K.S.A. 22-2913.

Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 65-6001 is hereby amended to read as follows: 65- 6001. As used in K.S.A. 65-6001 to 65-6007, inclusive, and sections 3, 4 and 5 and amendments thereto, unless the context clearly requires oth- erwise:

(a) ``AIDS'' means the disease acquired immune deficiency syn- drome.

(b) ``HIV'' means the human immunodeficiency virus.

(c) ``Positive reaction to an AIDS test'' means a positive screening test, approved by the secretary, indicating infection by HIV, with a pos- itive specific test as specified by the secretary comprising confirmed an- alytical results which are evidence of HIV infection.

(d) ``Secretary'' means the secretary of health and environment.

(e) ``Physician'' means any person licensed to practice medicine and surgery.

(f) ``Laboratory director'' means the person responsible for the pro- fessional, administrative, organizational and educational duties of a lab- oratory.

(g) ``HIV infection'' means the presence of HIV in the body.

(h) ``Racial/ethnic group'' shall be designated as either white, black, Hispanic, Asian/Pacific islander or American Indian/Alaskan Native.

(i) ``Law enforcement officer'' means police officer or law enforce- ment officer as such terms are defined under K.S.A. 74-5602 and amend- ments thereto.

(i) ``Corrections officer'' means an employee of the department of cor- rections as defined in subsections (f) and (g) of K.S.A. 75-5202 and amend- ments thereto.

(j) ``Emergency services employee'' means an attendant or first re- sponder as defined under K.S.A. 65-6112 and amendments thereto, or a firefighter.

(k) ``Law enforcement employee'' means:

(1) Any police officer or law enforcement officer as defined under K.S.A. 74-5602 and amendments thereto;

(2) any person in the service of a city police department or county sheriff's office who performs law enforcement duties without pay and is considered a reserve officer;

(3) any person employed by a city or county who is in charge of a jail or section of jail, including jail guards and those who conduct searches of persons taken into custody; or

(4) any person employed by a city, county or the state of Kansas who works as a scientist or technician in a forensic laboratory.

(l) ``Employing agency or entity'' means the agency or entity employ- ing a corrections officer, emergency services employee, law enforcement employee or jailer.

(m) ``Infectious disease'' means AIDS.

(n) ``Infectious disease tests'' means tests approved by the secretary for detection of infectious diseases.

Sec. 2. K.S.A. 1995 Supp. 65-6004 is hereby amended to read as follows: 65-6004. (a) Notwithstanding any other law to the contrary, a physician performing medical or surgical procedures on a patient who the physician knows has AIDS an infectious disease or has had a positive reaction to an AIDS infectious disease test may disclose such information to other health care providers, emergency personnel or law enforcement officers services employees, corrections officers or law enforcement em- ployees who have been or will be placed in contact with bodily body fluids of such patient. The information shall be confidential and shall not be disclosed by such health care providers, emergency personnel or law en- forcement officers services employees, corrections officers or law enforce- ment employees except as may be necessary in providing treatment for such patient.

(b) Notwithstanding any other law to the contrary, a physician who has reason to believe that the spouse or partner of a person who has had a positive reaction to an AIDS test or who has AIDS may have been exposed to HIV and is unaware of such exposure may inform the spouse or partner of the risk of exposure. The information shall be confidential and shall not be disclosed by such spouse or partner to other persons except to the spouse or partner who has had a positive reaction to an AIDS test or who has AIDS.

(c) Nothing in this section shall be construed to create a duty to warn any person of possible exposure to HIV.

(d) Any physician who discloses or fails to disclose information in accordance with the provisions of this section in good faith and without malice shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed in an action resulting from such dis- closure. Any such physician shall have the same immunity with respect to participation in any judicial proceeding resulting from such disclosure.

New Sec. 3. (a) If a corrections officer, emergency services employee or law enforcement employee comes in contact with or is otherwise ex- posed to transmission of body fluids from one or more other persons while performing duties within the scope of such employee's duties as an em- ployee, the head of the employing agency or entity may make application to a court of competent jurisdiction for an order requiring such other person or persons to submit to infectious disease tests.

(b) Such application shall include an allegation that the person or persons sought to be tested have been requested to voluntarily submit to infectious disease tests and have refused the tests. When any such appli- cation is received, the court shall hold a hearing forthwith and shall issue its order thereon immediately if the court finds that: (1) There is probable cause to believe that the employee involved has come in contact with or otherwise been exposed to transmission of the body fluids of the person or persons sought to be tested; and (2) the person or persons sought to be tested have been requested to submit to the tests and have refused, unless the court makes a further finding that exigent circumstances exist which would, in the court's judgment, excuse the applicant from making such a request.

(c) If an infectious disease test ordered pursuant to this section results in a negative reaction, the court shall order the person tested to submit to another infectious disease test six months from the date the first test was administered.

(d) The results of any infectious disease test ordered pursuant to this section shall be disclosed to the court which ordered the test, the em- ployee and the person tested. If an infectious disease test ordered pur- suant to this section results in a positive reaction, the results shall be reported to the employee.

New Sec. 4. (a) At the time of an appearance before a magistrate under K.S.A. 22-2901 and amendments thereto, the magistrate shall in- form any person arrested and charged with a crime in which it appears from the nature of the charge that the transmission of body fluids from one person to another may have been involved of the availability of in- fectious disease tests and shall cause the alleged victim of such a crime, if any, to be notified that infectious disease tests and counseling are avail- able. If the victim of the crime or the county or district attorney requests the court to order infectious disease tests of the alleged offender or if the person arrested and charged with a crime stated to the law enforcement officer making such arrest that the person arrested and charged with the crime has an infectious disease or is infected with an infectious disease, or used words of like effect, the court shall order the arrested person to submit to infectious disease tests. The results of any test obtained under this section shall be inadmissible in any criminal or civil proceeding.

(b) Upon conviction of a person for any crime which the court de- termines from the facts of the case involved or was likely to have involved the transmission of body fluids from one person to another, the court: (1) May order the convicted person to submit to infectious disease tests; or (2) shall order the convicted person to submit to infectious disease tests if the victim of the crime or the parent or legal guardian of the victim, if the victim is a minor, requests the court to issue such order. If infectious disease tests are ordered under this subsection, the victim of the crime, if any, who is not a minor, shall designate a health care provider or coun- selor to receive such information on behalf of the victim. If the victim is a minor, the parent or legal guardian of the victim shall designate the health care provider or counselor to receive such information.

(c) The results of any infectious disease test ordered under subsection (a) shall be disclosed to the law enforcement officer making such arrest, the person arrested and such other persons as the court determines have a legitimate need to know the test result in order to provide for their protection. The results of any infectious disease test ordered under sub- section (b) shall be disclosed to the court which ordered the test, the convicted person and to the person designated under subsection (b) by the victim or victims of the crime or by the parent or legal guardian of a victim if the victim is a minor. If an infectious disease test ordered under this section results in a positive reaction, the results shall be reported to the secretary of health and environment and to the secretary of correc- tions.

New Sec. 5. (a) When a court orders a person to submit to infectious disease tests under this act, the withdrawal of the blood may be performed only by: (1) A person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person; (2) a licensed professional nurse or a licensed practical nurse; or (3) a qualified medical technician. No person authorized by this subsection to withdraw blood, no person assisting in the performance of the infectious disease tests nor any medical care facility where blood is withdrawn or tested that has been ordered by the court to withdraw or test blood shall be liable in any civil or criminal action when the act is performed in a reasonable manner according to generally accepted medical practices.

(b) The results of tests or reports, or information therein, obtained under this act shall be confidential and shall not be divulged to any person not authorized by this act to receive the same. Any violation of this sub- section is a class C nonperson misdemeanor.

Sec. 6. K.S.A. 1995 Supp. 38-1692 is hereby amended to read as follows: 38-1692. (a) As used in this section:

(1) ``Adjudicated person'' means a person adjudged to be a juvenile offender or a juvenile felon or a person not adjudicated because of mental disease or defect.

(2) ``Laboratory confirmation of HIV infection'' means positive test results from a confirmation test approved by the secretary of health and environment.

(3) ``Sexual act'' means contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva or the mouth and the anus. For purposes of this definition contact involving the penis occurs upon penetration, however slight.

(4) ``Test for HIV infection'' means a test approved by the secretary of health and environment to detect the etiologic agent for the disease acquired immune deficiency syndrome.

(5) ``Body fluids'' means blood, semen or vaginal secretions or any body fluid visibly contaminated with blood.

(b) At the time of the first appearance before the court of a person charged with an offense involving a sexual act committed while the person was a juvenile, or in which it appears from the nature of the charge that the transmission of body fluids from one person to another may have been involved, the judge shall inform the person or the parent or legal guardian of the person of the availability of testing for HIV infection and counseling and shall cause each alleged victim of the offense, if any, to be notified that testing for HIV infection and counseling is available.

(c) If the victim of the offense requests the court to order infectious disease tests of the alleged offender or if the person charged with the offense stated to law enforcement officers that the person charged with the offense has an infectious disease or is infected with an infectious dis- ease, or used words of like effect, the court shall order the person charged with the offense to submit to infectious disease tests as defined in K.S.A. 65-6001 and amendments thereto.

(d) For any offense by an adjudicated person which the court deter- mines, from the facts of the case, involved or was likely to have involved the transmission of body fluids from one person to another or involved a sexual act, the court: (1) May order the adjudicated person to submit to a test for HIV infection; or (2) shall order the adjudicated person to submit to a test for HIV infection if a victim of the offense, or the parent or legal guardian of the victim if the victim is a minor, requests the court to make such order. If a test for HIV infection is ordered under this subsection, a victim who is an adult shall designate a health care provider or counselor to receive the information on behalf of the victim. If a victim is a minor, the parent or legal guardian of the victim shall designate the health care provider or counselor to receive the information. If the test results in a negative reaction, the court shall order the adjudicated person to submit to another test for HIV infection six months after the first test was administered.

(d) (e) The results of any test for HIV infection ordered under this section shall be disclosed to the court which ordered the test, to the adjudicated person, or the parent or legal guardian of the adjudicated person, and to each person designated under subsection (c) (d) by a victim or by the parent or legal guardian of a victim. If a test for HIV infection ordered under this section results in a laboratory confirmation of HIV infection, the results shall be reported to the secretary of health and environment and to: (1) The secretary of social and rehabilitation services, in the case of a juvenile offender or a person not adjudicated because of mental disease or defect, for inclusion in such offender's or person's med- ical file; or (2) the secretary of corrections, in the case of a juvenile felon, for inclusion in such juvenile felon's medical file. The secretary of health and environment shall provide to each victim of the crime or sexual act, at the option of such victim, counseling regarding the human immuno- deficiency virus, testing for HIV infection in accordance with K.S.A. 65- 6001 et seq. and amendments thereto and referral for appropriate health care and services.

(e) (f) The costs of any counseling and testing provided under sub- section (d) (e) by the secretary of health and environment shall be paid from amounts appropriated to the department of health and environment for that purpose. The court shall order the adjudicated person to pay restitution to the department of health and environment for the costs of any counseling provided under this section and the costs of any test or- dered or otherwise performed under this section.

(f) (g) When a court orders an adjudicated person to submit to a test for HIV infection under this section, the withdrawal of the blood may be performed only by: (1) A person licensed to practice medicine and surgery or a person acting under the supervision of any such licensed person; (2) a licensed professional nurse or a licensed practical nurse; or (3) a qual- ified medical technician. No person authorized by this subsection to with- draw blood, no person assisting in the performance of the test for HIV infection nor any medical care facility where blood is withdrawn or tested that has been ordered by the court to withdraw or test blood shall be liable in any civil or criminal action when the test is performed in a rea- sonable manner according to generally accepted medical practices.

(g) (h) The results of tests or reports, or information therein, obtained under this section shall be confidential and shall not be divulged to any person not authorized by this section to receive the results or information. Any violation of this section is a Class C misdemeanor.

Sec. 7. K.S.A. 22-2913 and 65-6001 and K.S.A. 1995 Supp. 38-1692 and 65-6004 are hereby repealed.

Sec. 8. This act shall take effect and be in force from and after its publication in the statute book.

Approved May 11, 1996.