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The Oregon Administrative Rules contain OARs filed through June 15, 2014
 
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OREGON HEALTH AUTHORITY,
PUBLIC HEALTH DIVISION

 

DIVISION 22

HUMAN IMMUNODEFICIENCY VIRUS

HIV Testing and Confidentiality

333-022-0200

Definitions

For purposes of OAR 333-022-0205 through 333-022-0210, unless otherwise specified the following definitions shall apply:

(1) "Division" means the Public Health Division within the Oregon Health Authority.

(2) “Health care provider” has the meaning given that term in ORS 433.045.

(3) "HIV test" has the meaning given that term in ORS 433.045.

(4) "HIV-positive test" means a positive result on the most definitive HIV test procedure used to test a particular individual. In the absence of any recommended confirming tests, this means the positive result of the initial test done.

(5) “Insurance producer” has the meaning given that term in ORS 746.600.

(6) “Insurance-support organization” has the meaning given that term in ORS 746.600.

(7) “Insurer” has the meaning given that term in ORS 731.106.

(8) "Licensed health care facility" means a health care facility as defined in ORS 442.015 and a mental health facility, alcohol treatment facility or drug treatment facility licensed or operated under ORS chapters 426 or 430.

(9) "Local public health administrator" has the meaning given that term in ORS 433.060.

(10) “Local public health authority” has the meaning given that term in ORS 431.260.

(11) “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.

(12) "Personal representative" means a person who has authority to act on behalf of an individual in making decisions related to health care.

(13) "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.

Stat. Auth.: ORS 433.045 - 433.080
Stats. Implemented: ORS 433.006 & 433.065
Hist.: PH 6-2013, f. & cert. ef 2-4-13

333-022-0205

HIV Testing, Notification, Right to Decline

(1) Pursuant to ORS 433.045, a health care provider or the provider’s designee shall, before subjecting an individual to an HIV test:

(a) Notify the individual being tested; and

(b) Allow the individual being tested the opportunity to decline the test.

(2) A health care provider or the provider’s designee may provide an individual notice and the opportunity to decline testing verbally or in writing, including providing the notice and the opportunity to decline in a general medical consent form.

(3) Whenever an insurer, insurance producer or insurance-support organization asks an applicant for insurance to take an HIV test in connection with an application for insurance, the insurer, insurance producer or insurance-support organization must reveal the use of the test to the applicant and obtain the written consent of the applicant. The consent form must disclose the purpose of the test and to whom the results may be disclosed.

(4) Anyone other than those listed in sections (1) through (3) of this rule who wishes to subject an individual to an HIV test must reveal the use of the test to the individual and obtain written consent of the individual for the HIV test.

(5) If an individual is deceased, next of kin may consent to an HIV test pursuant to ORS 433.075.

(6) If an individual is incapable of consenting to an HIV test, the individual’s personal representative may consent on the individual’s behalf.

Stat. Auth.: ORS 433.045 – 433.080
Stats. Implemented: ORS 433.045, 433.055(3), 433.065 & 433.075
Hist.: PH 6-2013, f. & cert. ef 2-4-13

333-022-0210

Confidentiality

(1) General. Pursuant to ORS 433.045, a person may not disclose or be compelled to disclose the identity of any individual upon whom an HIV test is performed or the results of such a test in a manner that permits identification of the subject of the test, except as required or permitted by federal law, the law of this state, or these rules, or as authorized by the individual who is tested. The prohibitions on disclosure do not apply to an individual acting in a private capacity and not in an employment, occupational or professional capacity.

(2) Disclosure to or for a tested individual. The results of an HIV test may be disclosed to:

(a) The tested individual;

(b) The health care provider or licensed health care facility or person ordering the test; and

(c) Any individual to whom the tested individual has authorized disclosure.

(3) Medical records. When a health care provider or licensed health care facility obtains HIV test results of an individual, the test results may be entered into the routine medical record of that individual maintained by that health care provider or licensed health care facility. The information in the record may be disclosed in a manner consistent with ORS 192.553 to 192.581 and the Health Information Portability and Accountability Act (HIPAA) regulations, 45 CFR 160 to 164.

(4) Public health purposes.

(a) Anyone may report the identity and HIV-related test result of an individual to the local public health authority or Division for public health purposes.

(b) The Division or local public health authority may inform an individual who has had a substantial exposure to HIV of that exposure if the Division or local public health authority determines that there is clear and convincing evidence that disclosure is necessary to avoid an immediate danger to the individual or to the public.

(c) The Division or local public health authority may disclose the identity of an individual with an HIV-positive test to a health care provider for the purpose of referring or facilitating treatment for HIV infection.

(d) The Division or local public health authority may only disclose the minimum amount of information necessary to carry out the purposes of the disclosure.

(5) Anatomical donations. The identity of a HIV tested individual and that individual’s HIV test results may be released to a health care provider or licensed health care facility to the minimum extent necessary to make medical decisions concerning organ or tissue transplants.

(6) Nothing in this rule is intended to limit the extent to which a licensed health care facility or health care provider can use or disclose HIV related health information in accordance with other state and federal laws.

Stat. Auth.: ORS 433.008, 433.045
Stats. Implemented: ORS 433.045 – 433.080
Hist.: PH 6-2013, f. & cert. ef 2-4-13

Occupational and Health Care Setting Exposures

333-022-0300

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:

(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 a 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 333-022-0305 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.

Stat. Auth.: ORS 433.065
Stats. Implemented: ORS 433.065
Hist.: PH 6-2013, f. & cert. ef 2-4-13

333-022-0305

Petition for Mandatory Testing of Source Persons

(1) If a worker has complied with the process established in OAR 333-022-0300 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 333-022-0300 have been exhausted by the petitioner and the respondent has refused to consent to the test, or within the time period prescribed in OAR 333-022-0300 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.

Stat. Auth.: ORS 433.080
Stats. Implemented: ORS 433.080
Hist.: PH 6-2013, f. & cert. ef 2-4-13

333-022-0310

Substantial Exposure While Being Administered Health Care

(1) For purposes of this rule the following definitions apply:

(a) “Exposure” means contact with a worker’s body fluids.

(b) “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.

(c) “Health care” has the meaning given that term in ORS 192.556.

(d) “Licensed health care provider” has the meaning given that term in ORS 433.060.

(e) “Patient” means an individual who has experienced an exposure or substantial exposure while being administered health care.

(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) "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.

(h) "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) If a patient has experienced an exposure by a worker the worker shall report that exposure immediately to one of the following:

(a) The worker’s supervisor or employer, if applicable;

(b) The licensed health care facility’s infection control officer or other designated qualified person if the exposure occurred in a licensed health care facility as that term is defined in ORS 442.015; or

(c) The LPHA if the worker does not have a supervisor or employer and the exposure did not occur in a licensed health care facility.

(3) If a witness to the incident has reason to believe the incident was not reported, the witness shall notify one of the individuals or entities listed in section (2) of this rule and provide details of the incident.

(4) The individual to whom a report was made under section (2) or (3) of this rule shall immediately make a determination whether the exposure was substantial and shall provide that determination to the worker in writing. 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. If the individual to whom the report was made is not qualified to make such a determination the individual must consult with a designated qualified person and that qualified person must then make the determination. The individual making a determination may require the release of records related to the exposure from the worker, a health care facility or a licensed health care provider in order to make his or her determination.

(5) If a determination is made that the exposure was substantial, the worker who was the source of the substantial exposure to a patient shall notify the patient in writing within 24 hours of the determination. The worker may request that his or employer, the health care facility if the exposure occurred in a health care facility, or the LPHA provide assistance in making the notification. The notice must include but is not limited to:

(a) Details of the exposure;

(b) Why it was determined to be substantial;

(c) Whether the worker is willing to consent to an HIV test;

(d) The worker’s HIV status if the worker consents to that information being included in the notice;

(e) Information about how the patient may request the worker be tested for HIV and to whom the patient should make such a request; and

(f) A statement that the patient will be responsible for the costs of the worker’s HIV test in accordance with ORS 433.075.

(6) If the patient disagrees with a determination that an alleged occupational exposure was not a substantial exposure, the patient may request a second determination from the LPHA. If the LPHA determines that the exposure was substantial, the patient may request that the source person be tested for HIV according to the procedures detailed in subsections (5)(a) through (f).

(7) A patient who has received notification in accordance with section (5) of this rule may make a written request for the worker to be tested for HIV to the individual or entity listed in the notice.

(8) The individual or entity to whom a request has been made under section (6) of this rule must:

(a) Immediately ask the worker to consent to an HIV test; and

(b) Inform the patient immediately whether the worker consented to the testing.

(9) If the worker consents to an HIV test the worker must submit to a test within 24 hours of being asked to consent.

(10) In accordance with ORS 433.075(5) if the worker consents to the HIV test the results of a HIV test shall be reported to the patient by the individual who ordered the test but the results may not identify the worker and the patient is prohibited from redisclosing any information about the results of the test if the worker is known to the patient.

(11) Pursuant to ORS 433.065, a patient who has experienced a substantial exposure by a worker shall be offered information about HIV infection, methods of preventing HIV infection, and HIV tests. This information must be provided by the patient's licensed health care provider. Upon request by the patient's health care provider, the LPHA must provide assistance in providing this information to the patient.

Stat. Auth.: ORS 433.065
Stats. Implemented: ORS 433.065
Hist.: PH 6-2013, f. & cert. ef 2-4-13

333-022-0315

Employer Program for Prevention, Education and Testing

(1) Pursuant to ORS 433.075(4), where an employer provides a program of prevention, education and testing for HIV exposures for its employees, the program will be considered to be approved by the Division if employees receive counseling regarding HIV infection control, uniform body fluids precautions, sexual/needle-sharing abstinence and safer sex practices including advice about precautionary measures to be taken with partners at risk of exposure to HIV while test results are pending.

(2) The Division may make the educational materials needed for such a program available to an employer who requests such materials in writing.

(3) An employer that provides HIV testing to employees must use 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).

(4) If an employer does not have a testing program in place, the employer shall notify the exposed worker of a health care provider who will perform testing, or an exposed worker may seek medical treatment from a health care provider of his or her choice.

Stat. Auth.: ORS 433.075
Stats. Implemented: ORS 433.075
Hist.: PH 6-2013, f. & cert. ef 2-4-13

Infected Health Care Providers

333-022-0400

Definitions

For the purpose of OAR 333-022-0400 through 333-022-0460, the following definitions apply. Other definitions pertaining to these rules are listed in OAR 333-022-0200:

(1) "Health Care Provider" as defined in OAR 333-017-0000(25) means a person who has direct or supervisory responsibility for the delivery of health care or medical services. This shall include, but not be limited to: Licensed physicians, nurse practitioners, physician assistants, nurses, dentists, medical examiners, and administrators, superintendents and managers of clinics, health care facilities as defined in ORS 442.015(13) and licensed laboratories.

(2) "Reviewable Health Care Provider" means a health care provider who routinely performs or participates in the performance of surgical, obstetric, or dental procedures that:

(a) Pose a significant risk of a bleeding injury to the arm or hand of the health care provider; and

(b) Are of a nature that reasonably could result in the patient having an exposure to the health care provider's blood in a manner capable of effectively transmitting HIV or hepatitis B virus (HBV), for example, due to the inability of the health care provider to withdraw the injured limb. Examples of procedures that do not carry this significant risk include, but are not limited to: oral, rectal, or vaginal examinations; phlebotomy; administering intramuscular, intradermal, or subcutaneous injections; needle biopsies, needle aspirations, and lumbar punctures; cutdown and angiographic procedures; excision of epidermal or dermal lesions; suturing of superficial lacerations; endoscopy; placing and maintaining peripheral and central intravascular lines, nasogastric tubes, rectal tubes, and urinary catheters; or acupuncture.

(3) "HBsAg" means the surface antigen of the hepatitis B virus.

(4) "HBeAg" means the "e" antigen of the hepatitis B virus.

(5) "OR-OSHA" means the Oregon Occupational Safety and Health Division of the Oregon Department of Consumer and Business Services.

Stat. Auth.: ORS 431.110(1), 433.001 & 433.004
Stats. Implemented: ORS 431.110(1), 433.001 & 433.004
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; HD 29-1994, f. & cert. ef. 12-2-94; Renumbered from 333-012-0280, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0405

Preamble

(1) The purpose of OAR 333-022-0400 through 333-022-0460 is to prevent the transmission of hepatitis B virus and human immunodeficiency virus to patients from infected health care providers. The Division declares that strict adherence to proper infection control procedures by all health care providers is the primary way to prevent such transmission. The Division recognizes that when proper infection control procedures are used, the risk of transmission of HIV or hepatitis B virus from reviewable health care providers to their patients is negligible.

(2) In the event that an HIV-infected health care provider demonstrates symptoms of cognitive, emotional, behavioral or neurologic impairment, he or she should be treated like any other distressed and/or impaired health care provider, following the standards of the appropriate professional licensing board.

Stat. Auth.: ORS 431.110(1) & 433.004
Stats. Implemented: ORS 431.110(1) & 433.004
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; Renumbered from 333-012-0290, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0410

Infection Control

(1) All health care providers and health care facilities shall strictly adhere to the infection control requirements of OAR 333- 017-0005(1) and applicable sections of the OSHA rules, "Occupational Exposure to Bloodborne Pathogens" (OAR 437-002 - 1910.1030). This includes the proper use of hand washing, protective barriers, and care in the use and sterilization or disposal of needles and other sharp instruments as described in the U.S. Public Health Service's Centers for Disease Control and Prevention recommendations found in "Recommendations for Prevention of HIV Transmission in Health Care Settings", Morbidity and Mortality Weekly Report 1987; 36 (supplement number 2S); 1-18S and "Update: Universal Precautions for Prevention of Transmission of Human Immunodeficiency Virus, Hepatitis B Virus, and Other Bloodborne Pathogens in Health Care Settings", Morbidity and Mortality Weekly Report 1988; 37:377-82, 387-88.

(2) Any health care provider who observes that another health care provider or health care facility is not practicing current infection control standards shall seek correction of that problem through procedures appropriate to the setting. Such procedures may include, for example, discussing the needed corrective actions directly with the health care provider, reporting the breaches of infection control practice to the health care facility's infection control committee, or other actions/reporting as recommended by the infection control committee or required by other regulations.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 431.110(1) & 433.004(1)(d)
Stats. Implemented: ORS 431.110(1) & 433.004(1)(d)
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; Renumbered from 333-012-0300, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0415

Infection Control Training

(1) All health care providers and health care facilities shall adhere to the infection control training requirements of the OSHA rules, "Occupational Exposure to Bloodborne Pathogens" (OAR 437-002 – 1910.1030). These include employers ensuring that all employees with potential occupational exposures to bloodborne pathogens participate in a training program at the time of initial assignment to the tasks where occupational exposure may take place and at least annually thereafter.

(2) Any institution in Oregon providing professional training leading to a degree or certificate as a health care provider shall provide formal training in infection control procedures as a prerequisite for graduation.

Stat. Auth.: ORS 431.110(1) & 433.004(1)
Stats. Implemented: ORS 431.110(1) & 433.004(1)
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; Renumbered from 333-012-0310, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0420

HIV and Hepatitis B Testing of Health Care Providers

(1) HIV testing and hepatitis B testing of health care providers is not required by the Division.

(2) All reviewable health care providers are encouraged to voluntarily undergo testing for HIV infection. Any reviewable health care provider is encouraged to either:

(a) Demonstrate serologic evidence of immunity to the hepatitis B virus from vaccination; or

(b) To know his or her HBsAg status and, if that status is positive, is encouraged to know his or her HBeAg status.

(3) The provisions of section (2) of this rule shall not be deemed to authorize any health care provider, health care facility, clinical laboratory, blood or sperm bank, insurer, insurance agent, insurance-support organization as defined in ORS 746.600, government agency, employer, research organization or agent of any of them to require HIV testing of any health care provider as a condition of practice. Nor shall such provisions be deemed to create a legal standard of care for reviewable health care providers.

Stat. Auth.: ORS 431.110(1) & 433.004(1)(d)
Stats. Implemented: ORS 431.110(1) & 433.004(1)(d)
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; Renumbered from 333-012-0320, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0425

Hepatitis B Immunization

Every reviewable health care provider, whether or not directly subject to regulation by OR-OSHA, is encouraged to determine whether he or she has serologic evidence of immunity to hepatitis B or to obtain complete hepatitis B immunization.

Stat. Auth.: ORS 431.110(1) & 433.004(1)(d)
Stats. Implemented: ORS 431.110(1) & 433.004(1)
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; Renumbered from 333-012-0330, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0430

Process for Initiating Review of the Professional Practice of a Reviewable Health Care Provider with a HIV-Positive Test or a Positive Test for HBsAg and HBeAg

(1) Any reviewable health care provider who learns that he or she has a HIV-positive test or a positive test for both HBsAg and HBeAg is encouraged to refrain from participating in the performance of procedures outlined in OAR 333-022-0400(2) until he or she ensures that his or her HIV and/or HBsAg/HBeAg infection status is reported to either:

(a) The Division for the purpose of undergoing a review of his or her professional practice as described in OAR 333-022-0435; or

(b) His or her own institution of employment for the purpose of undergoing a review of his or her professional practice, if such a process exists.

(2) Reports to the Division should be made directly to the State Epidemiologist, the Deputy State Epidemiologist, or the State Health Officer.

(3) Health care providers who are uncertain as to whether or not they are reviewable may seek anonymous guidance from the Division.

Stat. Auth.: ORS 431.110 & 433.004
Stats. Implemented: ORS 431.110 & 433.004
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; HD 29-1994, f. & cert. 12-2-94; Renumbered from 333-012-0340, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0435

Division Response to the Report of a Reviewable Health Care Provider with a HIV-Positive Test or Positive Tests for HBsAg and HBeAg

The following procedures shall be undertaken by the Division at the request of a reviewable health care provider with a positive test for HIV or positive tests for HBsAg and HBeAg:

(1) The Division shall interview the reviewable health care provider and his or her personal licensed physician or primary health care provider within two weeks of receipt of the report to determine:

(a) The date of the initial positive test result;

(b) An estimated date of initial infection, if available from clinical and exposure history information;

(c) The reviewable health care provider's current medical status with special emphasis on presence or absence of exudative lesions or weeping dermatitis, pulmonary tuberculosis, and cognitive, emotional, behavioral or neurologic impairment; and

(d) Whether the reviewable health care provider complies with standard infection control procedures and whether he or she has a history of incidents in which there was a substantial likelihood that a patient received a substantial exposure to the reviewable health care provider's blood;

(e) Pursuant to ORS 433.008 and 433.045, confidentiality of the reviewable health care provider's HIV or HBsAg/HBeAg status shall be maintained during this investigation.

(2) The Division shall convene an expert panel within two weeks of completion of the investigation to make recommendations regarding the reviewable health care provider's continued practice.

(3) The identity of the reviewable health care provider will not be revealed to the expert panel, unless the reviewable health care provider consents to this disclosure.

Stat. Auth.: ORS 431.110(1) & 433.004(1)
Stats. Implemented: ORS 431.110(1) & 433.004(1)
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; HD 29-1994, f. & cert. 12-2-94; Renumbered from 333-012-0350, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0440

Composition of the Expert Panel and Its Responsibilities

(1) The expert panel shall include: An infectious disease specialist, with expertise in the epidemiology of HIV and hepatitis B infections, who is not involved in the care of the reviewable health care provider; a health professional with expertise in the procedures performed by the reviewable health care provider; a representative of the Division; and others at the discretion of the Division. With the consent of the reviewable health care provider, the reviewable health care provider's personal licensed physician or primary health care provider shall also be offered a position on the panel. The reviewable health care provider shall have the right to review the composition of the panel.

(2) The expert panel shall consider all information obtained by the Division's investigation and may request further information of the Division or the reviewable health care provider as needed.

(3) The expert panel shall make recommendations to the Division regarding the reviewable health care provider's further practice. The panel will focus on the reviewable health care provider's ability to comply with infection control procedures and his or her ability to provide competent care. Restrictions in future practice will be recommended only if there are medical impairments, infection control breaches, or scientific evidence to indicate that, in the Division's judgment, the reviewable health care provider's current practice activities pose a significant risk of transmission to the patient. Job modifications, limitations, or other restrictions are warranted only if there is clear evidence that the reviewable health care provider's current practice activities pose a significant risk of transmitting infection to patients. If restrictions are recommended, the panel will recommend the least restrictive alternative. If warranted, the panel may recommend one or more of the following:

(a) Additional infection control procedures;

(b) Restrictions on specific procedures;

(c) Monitoring of the reviewable health care provider's practice for compliance with the recommendations of the expert panel;

(d) Medical monitoring (both content and frequency) of the reviewable health care provider; and

(e) Frequency with which the panel should reconvene to reconsider its recommendations in light of the changing medical condition of the reviewable health care provider.

(4) The expert panel shall furnish the reviewable health care provider with a draft of its recommendations and an opportunity for comment. Before finalizing its recommendations to the Division, the expert panel shall take into account any comments received from the reviewable health care provider or the provider's representative.

Stat. Auth.: ORS 431.110(1) & 433.004(1)
Stats. Implemented: ORS 431.110(1) & 433.004(1)
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; HD 29-1994, f. & cert. 12-2-94; Renumbered from 333-012-0360, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0445

Division Recommendations to Reviewable Health Care Provider

The Division shall consider the specific recommendations of the expert panel and comments, if any, of the reviewable health care provider or the provider's representative, and shall prepare written recommendations to the reviewable health care provider. These written recommendations shall be presented to the reviewable health care provider within one week after completion of the panel's recommendations.

Stat. Auth.: ORS 431.110 & 433.004
Stats. Implemented: ORS 431.110 & 433.004
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; Renumbered from 333-012-0370, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0450

Notification of the Appropriate Licensing Board

If the Division has reason to believe that the reviewable health care provider poses a significant risk of transmission of HIV or hepatitis B virus to the patient, whether or not an HIV-infected or HBsAg/HBeAg-positive reviewable health care provider has been reported to the Division and has consented to voluntary review as outlined above, the Division may notify the appropriate licensing board, and shall inform the reviewable health care provider, in writing, of this notification.

Stat. Auth.: ORS 431.110 & 433.004
Stats. Implemented: ORS 431.110 & 433.004
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; Renumbered from 333-012-0380, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0455

Notification and Counseling of Some or All Past or Present Patients of the Reviewable Health Care Provider

Notification of patients as to their possible exposure to HIV or hepatitis B shall not occur except in any of the following circumstances:

(1) HIV or hepatitis B transmission from reviewable health care provider to at least one of his or her patients has occurred;

(2) The patient to be notified has had a substantial exposure to the reviewable health care provider's blood or body fluids; or

(3) The reviewable health care provider has had significant violations of infection control practices that were standard at the time of the patient contact and which resulted in a significant risk of a substantial exposure to the patient being notified;

(4) The identity of the HIV-infected health care provider shall not be explicitly disclosed during the notification process.

Stat. Auth.: ORS 431.110(1) & 433.004(1)(d)
Stats. Implemented: ORS 431.110(1) & 433.004(1)(d)
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; Renumbered from 333-012-0390, PH 6-2013, f. & cert. ef. 2-14-13

333-022-0460

Confidentiality

The report of a reviewable health care provider, the Division's investigation, the deliberations and recommendations of the expert panel, and the Division's recommendations pursuant to these rules shall be held in the strictest confidence under ORS 433.008 and 433.045, except as outlined in OAR 333-022-0450 and 333-022-0455.

Stat. Auth.: ORS 431.110(1) & 433.004(1)
Stats. Implemented: ORS 431.110(1) & 433.004(1)
Hist.: HD 18-1993, f. 10-26-93, cert. ef. 10-28-93; Renumbered from 333-012-0400, PH 6-2013, f. & cert. ef. 2-14-13

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