Effective 28 Aug 1992

191.700. Testing of all health care professionals not justified — voluntary and confidential evaluation of infected professional, procedure — expert review panel qualifications, powers and duties, practice restrictions, when — health care facilities informed only of restrictions — violations, complaints made to appropriate boards. — 1. The current assessment by the Centers for Disease Control of the risk that infected health care professionals will transmit HIV or HBV to patients during invasive procedures does not justify mandatory testing to detect infection with those viruses. Health care professionals who perform invasive procedures are advised, however, to know their HIV antibody status and their hepatitis B antigen status.

2. (1) The department of health and senior services shall establish and oversee a voluntary evaluation process for health care professionals infected with HIV or HBV who perform invasive procedures. This evaluation process may be accessed directly by an infected health care professional, or by the director of a health care facility with the consent of the infected health care professional and after consultation with his private physician.

(2) The confidential and individualized evaluation shall be conducted by an expert review panel appointed by the department of health and senior services. Each panel shall include at least such individuals as:

(a) The health care professional's private physician;

(b) An infectious disease specialist with expertise in the epidemiology of HIV and HBV transmission who is not involved in the care of the health care professional;

(c) A health care professional with expertise in the procedures performed by the infected health care professional; and

(d) A state or local public health official.

(3) The department of health and senior services, in cooperation with appropriate state regulatory authorities or bodies responsible for licensing the respective health care professionals and with professional societies, shall develop uniform evaluation criteria which shall be used in determining whether, and under what circumstances, any restrictions or limitations should be placed on an individual health care professional's medical practice. These criteria shall, consistent with guidelines from the Centers for Disease Control, include at least the following inquiries:

(a) Whether the health care professional performs procedures in which injury could result in that individual's blood contamination of a patient's body cavity, subcutaneous tissues, or mucous membranes;

(b) The nature of the invasive procedures performed by the health care professional and the techniques used, skill and experience, and compliance with infection control practices demonstrated by that individual; and

(c) Whether the presence of physical or mental impairments may interfere with the health care professional's ability to perform such invasive procedures safely.

(4) (a) The individualized evaluation and the recommendations of the panel shall be based on the premise that HIV or HBV infection alone does not justify limiting the health care professional's duties.

(b) The panel may determine which procedures the health care professional may or may not perform, or perform with modifications. If the panel is uncertain about whether a procedure may pose some risk of HIV or HBV transmission, it may recommend that such procedures be performed only after the patients have been informed of the health care professional's infection status.

(5) (a) Information obtained during the evaluation process shall be confidential and shall not be disclosed except to health care facilities where the health care professional provides patient care. The department of health and senior services may only notify or disclose to such facilities the practice restrictions and limitations imposed on the health care professional. Such restrictions and limitations shall be disclosed only to those employed by such health care facilities who have a reasonable need to know the information.

(b) Practice restrictions or limitations recommended by the department of health and senior services shall be monitored by the health care facilities in which the infected health care professional is employed. If practice restrictions or limitations are placed on community based health care professionals, periodic monitoring to ensure compliance shall be performed by the department of health and senior services.

(c) Health care professionals whose practices are restricted or limited because of their HIV or HBV infection status shall, whenever possible, be provided opportunities to continue appropriate patient care activities.

(d) Health care facilities regulated under sections 197.010 to 197.120 may maintain or establish peer review panels that operate under the regulations developed by the department of health and senior services and the recommendations of the Centers for Disease Control of the United States Public Health Service.

(e) Any violation of practice restrictions or limitations by a health care professional shall constitute either an act violative of professional trust and confidence, or failure or refusal to properly guard against contagious infections or communicable diseases or the spread thereof, or both, as these terms are used in sections 330.160, 332.321, 334.100, and 335.066. Complaints of possible violations of practice restrictions or limitations may be made to the appropriate state board, as provided under chapter 330, chapter 332, chapter 334, or chapter 335.

3. The department of health and senior services shall, from time to time, review established standards for preventing the transmission of HIV or HBV from health care professionals to patients and, consistent with current medical knowledge and revised or updated guidelines from the Centers for Disease Control, modify existing standards and require additional minimum standards, as appropriate.

4. Notwithstanding the provisions of sections 191.650 to 191.698, the department of health and senior services may exercise the general authority and power under section 192.020 to intervene in instances where there is reason to believe that a health care professional is practicing in a manner that creates a grave and unjustifiable risk of injury to others.

­­--------

(L. 1992 S.B. 511 & 556 § 191.694 subsecs. 6 to 9)