Text: H.R.2788 — 102nd Congress (1991-1992)All Information (Except Text)

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HR 2788 SC
102d CONGRESS
1st Session
 H. R. 2788
To amend title XXVI of the Public Health Service Act to provide for the
establishment of protections against certain communicable diseases for both
health care providers and the patients of such providers, and to provide
for certain forms of assistance for such providers and patients.
IN THE HOUSE OF REPRESENTATIVES
June 26, 1991
Mr. DANNEMEYER (for himself, Mr. BLILEY, Mr. HOLLOWAY, Mr. BARTON of Texas,
Mr. DORNAN of California, Mr. INHOFE, Mr. LAGOMARSINO, and Mr. BURTON of
Indiana) introduced the following bill; which was referred to the Committee
on Energy and Commerce
January 3, 1992
Additional sponsors: Mr. ROHRABACHER, Mr. LEWIS of Florida, Mr. DOOLITTLE,
Mr. TAYLOR of North Carolina, Mr. MYERS of Indiana, Mr. RIGGS, Mr. HANCOCK,
Mr. HYDE, Mr. FAWELL, Mr. DELAY, Mr. ARMEY, Mr. HERGER, Mrs. BENTLEY,
Mr. CUNNINGHAM, Mr. PACKARD, Mr. DUNCAN, Mr. HUNTER, Mr. DICKINSON, Mr. FIELDS,
and Mr. Crane
A BILL
To amend title XXVI of the Public Health Service Act to provide for the
establishment of protections against certain communicable diseases for both
health care providers and the patients of such providers, and to provide
for certain forms of assistance for such providers and patients.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled,
SECTION 1. SHORT TITLE.
  This Act may be cited as the `Kimberly Bergalis Patient and Health Provider
  Protection Act of 1991'.
TITLE I--AMENDMENTS TO PUBLIC HEALTH SERVICE ACT REGARDING CERTAIN COMMUNICABLE
DISEASES AMONG HEALTH CARE PROVIDERS AND PATIENTS
SEC. 101. ESTABLISHMENT IN TITLE XXVI IN PROGRAM FOR EARLY INTERVENTION
SERVICES.
  Subpart I of part C of title XXVI of the Public Health Service Act (42
  U.S.C. 300ff-41 et seq.), as added by section 301(a) of Public Law 101-381
  (104 Stat. 597), is amended by inserting after section 2648 the following
  new sections:
`SEC. 2648A. PROTECTION OF PATIENTS FROM HEALTH CARE PROVIDERS WITH CERTAIN
COMMUNICABLE DISEASES.
  `(a) LIST OF RELEVANT DISEASES AND MEDICAL PROCEDURES- For purposes of
  the requirement established in subsection (b) regarding the receipt by a
  State of a grant under section 2641, the Secretary--
  `(1) shall establish a list identifying each communicable disease that
  poses a risk to the public health (which list shall include HIV disease
  and hepatitis B, subject to subsection (d)(3));
  `(2) in the case of each disease included on the list, shall specify (as a
  component of the list) the medical and dental procedures that a health care
  provider with such a disease should be prohibited from performing on the
  basis that performing the procedure on an individual would pose a risk of the
  transmission of the disease from the health care provider to the individual;
  `(3) in the case of any medical or dental procedure specified for purposes
  of paragraph (2), shall specify (as a component of the list) the particular
  health professions and allied health professions whose practitioners
  perform the procedure;
  `(4) in the case of a health care provider who performs any medical or
  dental procedure specified for purposes of paragraph (2), shall specify
  (as a component of the list) the frequency of testing for each of such
  diseases that the provider should undergo for purposes of protecting the
  public health (including the frequency of such testing that, with respect
  to the disease involved, is appropriate for a provider who previously has
  been determined through testing to have the disease); and
  `(5) shall periodically review the list, and as appropriate, make revisions
  in the list.
  `(b) REQUIREMENTS REGARDING PROTECTION FROM RELEVANT DISEASES- Subject
  to subsection (f), for fiscal year 1992 and subsequent fiscal years, the
  Secretary may not make a grant under section 2641 to a State for a fiscal
  year unless--
  `(1) in the case of any health care provider who performs any medical or
  dental procedure included on the list under subsection (a) (as in effect
  for the fiscal year)--
  `(A) the State requires that each such provider undergo testing for each
  disease with respect to which the procedure is so included; and
  `(B) the State requires each such provider to undergo the testing
  as frequently as necessary to be in compliance with the applicable
  recommendation included on the list pursuant to paragraph (4) of such
  subsection;
  `(2) in the case of any health care provider determined through testing
  pursuant to paragraph (1) to have any such disease--
  `(A) the State prohibits the provider from performing the medical or dental
  procedure involved for the duration of the disease, except in circumstances
  in which the provider--
  `(i) informs the patient involved that the provider has the disease;
  `(ii) informs the patient of the risk posed by the disease in the context
  of the procedure; and
  `(iii) obtains the written consent of the patient for the provider to
  perform the procedure notwithstanding such risk;
  `(B) the State requires that, with respect to the patients of the provider,
  the activities described in paragraph (1) of subsection (c) be carried
  out; and
  `(C) the State requires that, with respect to the provider, the activities
  described in paragraph (2) of subsection (c) be carried out; and
  `(3) the State provides for the enforcement of the provisions described
  in paragraphs (1) and (2).
  `(c) ASSISTANCE FOR AFFECTED PATIENTS AND PROVIDERS-
  `(1) PATIENTS- In the case of an infected health care provider, the
  activities referred to in subparagraph (B) of subsection (b)(2) are that--
  `(A) if the provider has a qualified employer as defined in paragraph (3),
  the employer, directly or through an arrangement with another entity--
  `(i) inform each of the patients of the provider that the patients may
  have been exposed to the disease involved; and
  `(ii) offer to provide to the patients counseling regarding the disease
  and testing for the disease; and
  `(B) if the provider is self-employed, the provider arrange for an entity to
  carry out the activities described in clauses (i) and (ii) of subparagraph
  (A) regarding patients of the provider.
  `(2) PROVIDERS- In the case of an infected health care provider, the
  activities referred to in subparagraph (C) of subsection (b)(2) are that
  the State involved, directly or through imposing requirements on qualified
  employers or through other mechanisms, provide for--
  `(A) the availability to the provider of counseling regarding the effects
  on the provider of the prohibition imposed on the provider pursuant to
  subparagraph (A) of such subsection; and
  `(B) the availability to the provider, to the extent practicable,
  of assistance in making such adjustments in the professional life of
  the provider in response to the prohibition as are necessary to provide
  health care in a capacity that is consistent with the protection of the
  public health.
  `(3) QUALIFIED EMPLOYER- For purposes of this section, the term `qualified
  employer', with respect to a health care provider, means an individual, a
  company or other organization, a State or political subdivision of a State,
  or other entity, that employs the provider for the purpose of providing
  health care for an average of 20 hours or more per week during the 60-day
  period preceding the date on which the provider is determined through
  testing pursuant to subsection (b)(1) to have a communicable disease
  included on the applicable list under subsection (a). Such an entity is
  a qualified employer without regard to whether the provider is a partner
  in the entity and without regard to whether the provider otherwise owns
  a portion of the entity.
  `(4) RULE OF CONSTRUCTION REGARDING ASSISTANCE TO PROVIDERS- In the case
  of an infected health care provider who incurs financial obligations in
  carrying out the activities described in such paragraph regarding the
  patients of the provider, paragraph (2)(B) may not be construed to require
  that a State, as a condition of receiving a grant under section 2641--
  `(A) provide financial assistance to the provider for the purpose of
  carrying out such activities; or
  `(B) require another entity to provide financial assistance to the provider
  for such purpose.
  `(d) ISSUANCE AND EFFECTIVE DATE OF LIST AND REVISIONS-
  `(1) INITIAL LIST- The list required in subsection (a) shall be issued
  through rulemaking in accordance with the procedures established under
  section 553 of title 5, United States Code, regarding substantive rules. The
  final rule for purposes of such procedures shall be published in the Federal
  Register not later than 90 days after the date of the enactment of the
  Kimberly Bergalis Patient and Health Provider Protection Act of 1991. The
  list shall be effective for fiscal year 1992 and subsequent fiscal years,
  with such revisions in the list as may become effective under paragraph (2).
  `(2) REVISIONS- Any revisions made by the Secretary in the list required
  under subsection (a) shall be issued through rulemaking described in
  paragraph (1) and shall take effect upon October 1 of the second fiscal
  year beginning after the date on which the final rule for the revision is
  published in the Federal Register.
  `(3) HIV DISEASE AND HEPATITIS- HIV disease and hepatitis B shall each be
  considered to be a communicable disease that poses a risk to the public
  health for purposes of the list required under subsection (a), as in effect
  for each of the fiscal years 1992 through 1994. In the case of fiscal year
  1995 and subsequent fiscal years, any of such diseases may be removed from
  the list if the Secretary determines that the disease involved no longer
  poses such a risk.
  `(e) DEFINITIONS- For purposes of this section:
  `(1) The term `applicable list', with respect to the list required under
  subsection (a), means the list in effect for the fiscal year involved.
  `(2) The term `health care provider' includes any individual who is a
  physician or a dentist, or who is an allied health professional as defined
  in section 701(13).
  `(3) The term `infected health care provider' means any health care
  provider determined through testing pursuant to subsection (b)(1) to have
  a communicable disease included on the applicable list under subsection (a).
  `(4) The term `qualified employer' has the meaning given such term in
  subsection (c)(3).
  `(5) The term `self-employed', with respect to a provider of health care,
  means a provider who does not have a qualified employer.
  `(f) TIME LIMITATIONS REGARDING REQUIRED LAWS-
  `(1) COMPLIANCE REQUIRING NO ADDITIONAL STATUTES-
  `(A) With respect to compliance with subsection (b) as a condition of
  receiving a grant under section 2641, the Secretary may provide such a
  grant if--
  `(i) in the case of a grant for fiscal year 1992 to a State described
  in subparagraph (B), the State has in effect or provides assurances
  satisfactory to the Secretary that by not later than October 1, 1992,
  the State will have in effect any requirements, authorities, prohibitions,
  and other provisions required in subsection (b); and
  `(ii) in the case of grants to such a State for fiscal year 1993 and
  subsequent fiscal years, the State has in effect such provisions.
  `(B) A State referred to in subparagraph (A)(i) is any State under whose
  law regulations in accordance with subsection (b) may lawfully be issued
  without the enactment by the State of any statute in addition to the
  statutes in effect on the date of the enactment of the Kimberly Bergalis
  Patient and Health Provider Protection Act of 1991.
  `(2) COMPLIANCE REQUIRING ADDITIONAL STATUTES- With respect to compliance
  with subsection (b) as a condition of receiving a grant under section 2641,
  the Secretary may provide such a grant if--
  `(A) in the case of grants for fiscal years 1992 and 1993 to a State that
  is not a State described in paragraph (1)(B), the State has in effect or
  provides assurances satisfactory to the Secretary that by not later than
  October 1, 1993, the State will have in effect any requirements, authorities,
  prohibitions, and other provisions required in subsection (b); and
  `(B) in the case of grants to such a State for fiscal year 1994 and
  subsequent fiscal years, the State has in effect such provisions.
  `(3) STATE CERTIFICATIONS REGARDING CURRENT COMPLIANCE- With respect to
  compliance with subsection (b) as a condition of receiving a grant under
  section 2641, the Secretary may not, in the case of the requirement,
  authority, prohibition, or other provision involved, require a State to
  enact any statute, or to issue any regulation, if the chief executive
  officer of the State certifies to the Secretary that the law of the State
  is in substantial compliance with subsection (b).
`SEC. 2648B. PROTECTION OF HEALTH CARE PROVIDERS FROM PATIENTS WITH CERTAIN
COMMUNICABLE DISEASES.
  `(a) LIST OF RELEVANT DISEASES AND MEDICAL PROCEDURES- For purposes of
  the requirement established in subsection (b) regarding the receipt by a
  State of a grant under section 2641, the Secretary--
  `(1) in the case of each disease included on the list required in section
  2648A(a), shall specify (as a component of the list) the medical and dental
  procedures whose performance by a health care provider on a patient with
  such a disease poses a risk of the transmission of the disease from the
  patient to the provider;
  `(2) in the case of any medical or dental procedure specified for purposes
  of paragraph (1), shall specify (as a component of the list) the particular
  health professions and allied health professions whose practitioners
  perform the procedure; and
  `(3) shall periodically review the list regarding the components required
  in paragraphs (1) and (2), and as appropriate, make revisions regarding
  the components.
  `(b) AUTHORIZED NONCONSENSUAL TESTING OF PATIENTS UNDER CERTAIN CONDITIONS-
  `(1) IN GENERAL- Subject to subsection (f), for fiscal year 1992 and
  subsequent fiscal years, the Secretary may not make a grant under section
  2641 to a State for a fiscal year unless the State provides that, subject
  to the condition described in subsection (c), a health care provider who
  is a practitioner of a profession specified for purposes of subsection
  (a)(2) may, in the discretion of the provider and without the consent of
  the patient involved, test the patient for any of the diseases included
  on the list under section 2648A(a) if--
  `(A) in the case of a patient who is not a minor, the provider has obtained
  the consent of the patient to perform on the patient a medical or dental
  procedure specified for purposes of subsection (a)(1); or
  `(B) in the case of a patient who is a minor, the provider has obtained
  the consent of a legal guardian of the patient to perform such a procedure
  on the patient.
  `(2) RULE OF CONSTRUCTION REGARDING CONFIDENTIALITY- With respect to
  compliance with paragraph (1) as a condition of receiving a grant under
  section 2641, such paragraph may not be construed to prohibit a State from
  having in effect any law regarding the confidentiality of information that--
  `(A) concerns a communicable disease in a patient; and
  `(B) is obtained by a health care provider through testing the patient in
  the circumstances described in such paragraph.
  `(c) AUTHORIZED CONDITIONS-
  `(1) IN GENERAL- In the case of a health care provider who has obtained
  consent to perform on a patient a medical or dental procedure specified
  for purposes of subsection (a)(1), the condition referred to in subsection
  (b)(1) regarding testing of the patient is that--
  `(A) the provider have a reasonable basis for believing that the patient
  has a disease included on the list under section 2648A(a), as indicated
  by guidelines issued by the Secretary; and
  `(B) the provider test the patient only for the diseases with respect to
  which there is such a reasonable basis.
  `(2) ISSUANCE OF GUIDELINES BY SECRETARY- Not later than 90 days after the
  date of the enactment of the Kimberly Bergalis Patient and Health Provider
  Protection Act of 1991, the Secretary shall issue guidelines for purposes
  of paragraph (1)(A).
  `(d) ISSUANCE AND EFFECTIVE DATE OF LIST COMPONENTS- With respect to the list
  required in section 2648A(a), the components of the list that are required
  in subsection (a) of this section shall be subject to section 2648A(d).
  `(e) DEFINITION- For purpose of this section, the `minor' means an individual
  who has not attained the age of majority, as determined under the law of
  the State in which, for purposes of subsection (b)(1), the health care
  provider involved performs the procedure involved.
  `(f) TIME LIMITATIONS REGARDING REQUIRED LAWS- With respect to compliance
  with subsection (b) as a condition of receiving a grant under section 2641,
  section 2648A(f) shall apply to subsection (b) to the same extent and in
  the same manner as such section applies to section 2648A(b).'.
SEC. 102. ESTABLISHMENT IN TITLE XXVI IN PROGRAM FOR CARE GRANTS.
  Part B of title XXVI of the Public Health Service Act (42 U.S.C. 300ff-21
  et seq.), as added by section 201 of Public Law 101-381 (104 Stat. 586),
  is amended in section 2617 by adding at the end the following new subsection:
  `(e) PROTECTIONS REGARDING CERTAIN COMMUNICABLE DISEASES AMONG HEALTH CARE
  PROVIDERS AND PATIENTS- The Secretary may not make a grant under this part
  unless the State involved agrees that sections 2648A and 2648B apply to
  the State to the same extent and in the same manner as such sections apply
  to any State receiving a grant under section 2641.'.
TITLE II--GENERAL PROVISIONS
SEC. 201. EFFECTIVE DATE.
  The amendments made by this Act shall take effect October 1, 1991, or upon
  the date of the enactment of this Act, whichever occurs later.

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