DAR File No. 30283

Health, Epidemiology and Laboratory Services; HIV/AIDS, Tuberculosis Control/Refugee Health

R388-802

HIV Positive Student or School Employee Rule

NOTICE OF PROPOSED RULE

DAR File No.: 30283
Filed: 08/02/2007, 03:49
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The repeal of Rule R388-802 eliminates a redundancy between federal and state regulation. The Occupational Safety and Health Administration (OSHA) has since issued regulations whose purpose is to reduce or eliminate the possibility of an employee contracting any of a series of diseases that are spread through blood contact contained in 29 CFR Part 1910. OSHA's regulations are more comprehensive and include blood-borne pathogens other than HIV such as Hepatitis B and C. The regulations are very specific regarding elements of the exposure control plan, precautions for employees, training documentation, and handling an exposure. All school employees should be following OSHA blood-borne pathogen standards when dealing with body fluids.

Summary of the rule or change:

The repeal of Rule R388-802 would eliminate redundancy. The requirements are covered in 29 CFR Part 1910. This rule is repealed in its entirety.

State statutory or constitutional authorization for this rule:

Section 26-1-30

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget. The procedures required under this rule have been followed and will continue to be followed. There will be no savings due to the fact that there will be no change in the procedures currently followed. There will be no additional costs because these procedures are currently in place.

local governments:

There are no anticipated costs or savings to local governments. The procedures required under this rule have been followed and will continue to be followed. There will be no savings due to the fact that there will be no change in the procedures currently followed. There will be no additional costs because these procedures are currently in place.

small businesses and persons other than businesses:

There are no anticipated costs or savings to other persons. The procedures required under this rule have been followed and will continue to be followed. There will be no savings due to the fact that there will be no change in the procedures currently followed. There will be no additional costs because these procedures are currently in place.

Compliance costs for affected persons:

There will be no costs or savings related to the repeal of this rule since the requirements of this rule will continue to exist in 20 CFR Part 1910.

Comments by the department head on the fiscal impact the rule may have on businesses:

There is no fiscal impact on businesses by repealing this rule. David Sundwall, MD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Epidemiology and Laboratory Services; HIV/AIDS, Tuberculosis Control/Refugee Health
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY UT 84116-3231

Direct questions regarding this rule to:

Jennifer Brown at the above address, by phone at 801-538-6131, by FAX at 801-538-9913, or by Internet E-mail at jenniferbrown@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/01/2007

This rule may become effective on:

10/08/2007

Authorized by:

David N. Sundwall, Executive Director

R388. Health, Epidemiology and Laboratory Services; HIV/AIDS, Tuberculosis Control/Refugee Health.

[R388-802. HIV Positive Student or School Employee Rule.

R388-802-1. Authority and Purpose.

1. The HIV Positive Student or School Employee Rule is established under authority of Section 26-1-30.

2. The purpose of R388-802 is to establish standards relating to HIV infection in the schools in order to (a) reduce the risk to susceptible individuals and (b) protect infected individuals against both unreasonable health risks and unnecessary restrictions in activities and associations.

 

R388-802-2. Definitions.

1. "Director" means the executive director of the Utah Department of Health.

2. "Employee" means anyone employed by a school or serving as a volunteer with the permission of a school.

3. "HIV" means human immunodeficiency virus.

4. "HIV Infection" is defined as an indication of the presence of human immunodeficiency virus (HIV) as detected by any of the following:

4.1. Presence of antibodies to HIV, verified by appropriate confirmatory tests.

4.2. Presence of HIV antigen.

4.3. Isolation of HIV.

4.4. Demonstration of HIV proviral DNA.

5. "Review committee" or "committee" means a group consisting of a school administrator, a representative from the local health department, the subject's physician, the subject or, in the case of a minor, the subject's parents or guardian. The committee is appointed and chaired by the school administrator.

6. "School" means a licensed or unlicensed public or private nursery school, preschool, elementary or secondary school, day-care center, child-care facility, family-care facility, or head-start program.

7. "School administrator" means the person designated by the superintendent to implement this rule.

8. "School board" means the board of education of an affected public school district or the governing body of an affected facility or program which is not part of a public school district.

9. "Student" means anyone enrolled in a school.

10. "Subject" means a person who is the focus of deliberations by a review committee.

11. "Superintendent" means the superintendent of an affected school district or the chief administrative officer of an affected school which is not part of a public school district.

 

R388-802-3. Confidentiality.

1. The identities or other case details of HIV-infected subjects shall not be disclosed to any person other than the members of the review committee and the pertinent superintendent.

2. Penalties for violation of confidentiality are prescribed under Section 26-6-29.

 

R388-802-4. Anti-discrimination.

1. In the school setting, no person shall be discriminated against, or denied activities or associations, based solely upon a diagnosis of HIV infection except as permitted under this rule.

 

R388-802-5. Requirements for Determining if a Student or Employee Infected with HIV Should Remain in the Regular Classroom or Job Assignment.

1. Upon notification that a student or employee has been diagnosed with HIV infection, the school administrator shall convene a review committee.

2. A student or employee infected with HIV shall continue in his regular classroom or job assignment until a review committee can meet and formulate recommendations.

3. The committee shall review all pertinent information including current findings and recommendations of the United States Public Health Service, the American Academy of Pediatrics, and the Utah Department of Health; apply that information to the subject and the nature of activities and associations in which the subject is involved with the school; and establish written findings of fact and recommendations based upon reasonable medical judgments and other information concerning the following:

3.1. The nature of the risk of transmission of HIV relevant to the activities of the subject in the school setting;

3.2. The probability of the risk, particularly the reasonable likelihood that HIV could be transmitted to other persons by the subject in the school setting;

3.3. The nature and the probability of any health related risks to the subject;

3.4. If restrictions are determined to be necessary, what accommodations could be made by the school to avoid excessive limitations on activities and associations of the subject.

4. The review committee shall forward its findings and recommendations to the superintendent.

5. The school administrator will implement the recommendations without delay.

6. The school administrator shall immediately advise the subject or, in the case of a minor, the subject's parents or guardian, in writing, of the decision of the review committee and that continued participation in the school setting may result in exposure to other communicable diseases.

7. The school administrator shall review the committee's decision on a regular basis and may reconvene the committee if, in his opinion, the facts of the case have changed.

 

R388-802-6. Liability.

Responsibility for continued participation in the classroom or job assignment, despite potential personal risk, shall be left to the discretion of the subject or, in case of a minor, the subject's parents or guardian.

 

R388-802-7. Appeal Process.

1. The superintendent or any member of the review committee may appeal the recommendation of the committee by submitting a written appeal within ten school days for students or ten working days for employees, after receiving notice of the committee's recommendations. If the appellant's concerns relate to medical issues, the appeal shall be submitted to the director, and the director, or designee, may order restrictions on the school-related activities or associations of the subject or may stay implementation of the committee's recommendations. If the concerns relate to the school's ability to provide an accommodation, the appeal shall be directed to the school board.

2. The appellant shall submit copies of any appeal to the director, the superintendent, and all other members of the review committee.

3. The director or the school board shall review the findings and recommendations of the committee and any additional information that the director or board finds to be pertinent to the question raised in the appeal, and shall render a final decision in writing within ten school days for students or ten working days for employees.

4. Copies of the decision shall be sent to the appellant, members of the review committee, and the superintendent.

5. The superintendent shall implement the decision without delay.

6. Judicial review of any decision rendered under this section by the director or the school board may be secured by persons adversely affected thereby by filing an action for review in the appropriate court of law.

 

R388-802-8. Special Procedures.

1. A superintendent may suspend a subject from school or school employment for a period not to exceed ten school days for students or ten working days for employees, prior to receiving the recommendation of a review committee if the superintendent determines that there are emergency conditions which present a reasonable likelihood that suspension is medically necessary to protect the subject or other persons.

2. If the subject is unable to obtain the services of a physician to serve on the review committee, the local health officer may appoint a licensed physician to provide consultation.

 

R388-802-9. Procedures for Handling Blood or Body Fluids.

1. Each school shall adopt routine procedures for handling blood or body fluids, including sanitary napkins, regardless of whether students or employees with HIV infections are known to be present. The procedures should be consistent with recommendations of the United States Public Health Service, the American Academy of Pediatrics, and the Utah Department of Health.

 

R388-802-10. Penalties.

1. Enforcement provisions and penalties for the violation or for the enforcement of public health rules, including R388-802, are prescribed under Section 26-23-6.

 

KEY: communicable diseases, AIDS, HIV

Date of Enactment or Last Substantive Amendment: 1989

Notice of Continuation: July 19, 2007

Authorizing, and Implemented or Interpreted Law: 26-1-30]