CHAPTER 102 HOUSE BILL No. 2127 An  Act concerning public health, relating to testing for infectious diseases; information
available to corrections employees; amending K.S.A. 38-1692 and K.S.A. 2000 Supp.
65-6009, 65-6015, 65-6016 and 65-6017 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 2000 Supp. 65-6015 is hereby amended to read as
follows: 65-6015. As used in sections K.S.A. 2000 Supp. 65-6015 through
65-6017, and amendments thereto:

      (a) ``Body fluid'' means blood, amniotic fluid, pericardial fluid, pleural
fluid, synovial fluid, cerebrospinal fluid, semen or vaginal secretions, or
any body fluid visibly contaminated with blood.

      (b) ``Corrections employee'' means an employee of the department
of corrections or an employee of a contractor who is under contract to
provide services in a correctional institution.

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

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

      (e) ``Offender'' means a person in the legal custody of the secretary
of corrections.

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

      (g) ``Positive reaction to a hepatitis B test'' means the confirmed pres-
ence of hepatitis B surface antigen.

      (h) ``Positive reaction to an HIV test'' means a positive screening test,
approved by the secretary of health and environment, indicating infection
by HIV, with a positive specific test as specified by the secretary com-
prising confirmed analytical results which are evidence of HIV infection.

      (i) ``Tests for HIV infection and hepatitis B'' means tests approved
by the secretary of health and environment for detection of HIV infection
and hepatitis B.

      (e) ``Infectious disease'' means any disease communicable from one
person to another through contact with bodily fluids.

      Sec.  2. K.S.A. 2000 Supp. 65-6016 is hereby amended to read as
follows: 65-6016. (a) Notwithstanding any other law to the contrary, a
physician performing medical or surgical procedures on a patient who the
physician knows has HIV or hepatitis B an infectious disease or has had
a positive reaction to an HIV or hepatitis B test infectious disease test
may disclose such information to corrections employees who have been
or will be placed in contact with body fluid of such patient. The infor-
mation shall be confidential and shall not be disclosed by corrections
employees except as may be necessary in providing treatment for such
patient. Any other disclosure of such information by a corrections em-
ployee is a class C misdemeanor.

      (b) Nothing in this section shall be construed to create a duty to warn
any person of possible exposure to HIV infection or hepatitis B an infec-
tious disease.

      (c) Any physician who discloses 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 disclosure. Any such
physician shall have the same immunity with respect to participation in
any judicial proceeding resulting from such disclosure.

      Sec.  3. K.S.A. 2000 Supp. 65-6017 is hereby amended to read as
follows: 65-6017. (a) If a corrections employee has been placed in contact
with body fluid from one or more offenders while performing duties
within the scope of such employee's duties as a corrections employee, the
secretary of corrections or the secretary's designee upon consultation with
a medical care provider may make application to the district court of the
county where the offender or offenders are in custody for an order re-
quiring such offender or offenders to submit to tests for HIV infection
and hepatitis B infectious diseases. Such application shall include an al-
legation that the offender or offenders sought to be tested have been
requested to voluntarily submit to tests for HIV infection and hepatitis B
a specific infectious disease or diseases and have refused the tests and
that the corrections employee has agreed to voluntary voluntarily testing
for HIV infection and hepatitis B the same infectious disease, including
appropriate follow-up testing. When any such application is received, the
court shall hold a hearing forthwith and shall issue its order thereon im-
mediately if the court finds that: (1) There is probable cause to believe
that the employee involved has been placed in contact with body fluid of
the offender or offenders sought to be tested; and (2) the offender or
offenders 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 that would, in the court's judgment, excuse the ap-
plicant from making such a request. Expenses of the testing shall be
assessed as a cost of the proceeding.

      (b) If a test for HIV infection or hepatitis B an infectious disease
ordered pursuant to this section results in a negative reaction, the court,
upon proper application, shall order the offender tested to submit to
another test six months after the date the first test was administered.

      (c) If a test is ordered pursuant to this section, the corrections em-
ployee shall designate a health care provider or counselor to receive the
test results on behalf of the corrections employee. The results of the test
shall be disclosed to the court that ordered the test, the person tested
and the health care provider or counselor designated by the corrections
employee. The results shall also be disclosed to the secretary of correc-
tions for inclusion in the offender's medical records. Test results of the
corrections employee shall not be disclosed except as specifically author-
ized in writing by the employee.

      (d) When a court orders an offender to submit to tests under this
section which require withdrawal of blood, the withdrawal of the blood
may be performed only by: (1) A physician or a person acting under the
supervision of a physician; (2) a licensed professional nurse or a licensed
practical nurse; or (3) a qualified medical technician. No person author-
ized by this subsection to withdraw blood, no person assisting in the per-
formance of the tests nor any medical care facility where blood is with-
drawn 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 per-
formed in a reasonable manner according to generally accepted medical
practices.

      (e) 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 law to receive such results, reports or infor-
mation. Any violation of this subsection is a class C misdemeanor.

      Sec.  4. K.S.A. 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 person not adjudicated because of mental disease or defect.

      (2) ``Laboratory confirmation of HIV or hepatitis B 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 or hepatitis B infection'' means a test approved by
the secretary of health and environment to detect the etiologic agent for
the disease acquired immune deficiency syndrome or hepatitis B.

      (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 or hepatitis
B infection and counseling and shall cause each alleged victim of the
offense, if any, to be notified that testing for HIV or hepatitis B 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
disease, 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 or hepatitis B infection; or (2) shall order the adjudicated
person to submit to a test for HIV or hepatitis B 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 or
hepatitis B 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 re-
action, the court shall order the adjudicated person to submit to another
test for HIV or hepatitis B infection six months after the first test was
administered.

      (e) The results of any test for HIV or hepatitis B 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 adjudi-
cated person, and to each person designated under subsection (d) by a
victim or by the parent or legal guardian of a victim. If a test for HIV or
hepatitis B infection ordered under this section results in a laboratory
confirmation of HIV or hepatitis B infection, the results shall be reported
to the secretary of health and environment and to: (1) The commissioner
of juvenile justice, 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 medical file; or (2) the secretary of corrections, in
the case of a person under 16 years of age who has been convicted as an
adult, for inclusion in such person'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 and hepatitis B, testing for HIV or hepatitis B infection
in accordance with K.S.A. 65-6001 et seq. and amendments thereto and
referral for appropriate health care and services.

      (f) The costs of any counseling and testing provided under subsection
(e) by the secretary of health and environment shall be paid from amounts
appropriated to the department of health and environment for that pur-
pose. 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 ordered or otherwise
performed under this section.

      (g) When a court orders an adjudicated person to submit to a test for
HIV or hepatitis B infection under this section, the withdrawal of the
blood may be performed only by: (1) A person licensed to practice med-
icine 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 test for HIV or hepatitis B 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 reasonable manner according to generally
accepted medical practices.

      (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.  5. K.S.A. 2000 Supp. 65-6009 is hereby amended to read as
follows: 65-6009. (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.

      (d) As used in this section, infectious disease includes HIV and hep-
atitis B.

      (e) The costs of any counseling and testing provided under this section
shall be paid from amounts appropriated to the department of health and
environment for that purpose. The court shall order the adjudicated per-
son 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 ordered or otherwise performed under this section.

 Sec.  6. K.S.A. 38-1692 and K.S.A. 2000 Supp. 65-6009, 65-6015, 65-
6016 and 65-6017 are hereby repealed.
 Sec.  7. This act shall take effect and be in force from and after its
publication in the statute book.

Approved April 16, 2001.