Section 410IAC1-4-8.1. Expert review panel

  1. (a) An HIV infected or HBV infected (and HBeAg positive) health care worker whose practices include digital palpation of a needle tip in a body cavity or the simultaneous presence of the health care worker's finger and needle or other sharp instrument in a poorly visualized or highly confined human anatomic site should either seek the advice of an ERP approved by the department or voluntarily cease these practices.

  (b) As used in this rule, "expert review panel" means a group of experts authorized under this rule to provide confidential consultation and advice to HIV and HBV (and HBeAg) infected health care workers as indicated to promote the highest achievable level of safe, professional care. To be deemed authorized, an ERP must be sponsored by an organization which has been approved by the department under subsection (c).

  (c) Before any public or private medical, surgical, dental, nursing, or other health care organization may sponsor an authorized ERP under this section, the potential sponsor must be approved by the department as having provided credible assurances that:

(1) the sponsor is capable of establishing specific ERP protocols and procedures that will accomplish the purposes of an ERP under this section; and

(2) it will comply with general protocols to be established and disseminated on request by the department.

  (d) The ERP will consist of:

(1) an expert review entity consisting of:

(A) the HIV or HBV infected health care worker's treating physician, either directly or through medical and historical treatment records;

(B) an infectious disease specialist knowledgeable in the epidemiology of HIV and HBV infection;

(C) a health care provider of the same profession as the infected health care provider with expertise in the procedures practiced; and

(D) an infection control expert or epidemiologist; or

(2) any other expert review entity expressly authorized by the department.

  (e) An ERP sponsored by an organization approved by the department under subsection (c) will be deemed an authorized ERP.

  (f) An ERP shall advise the health care worker whether and how to modify techniques or to cease performing certain procedures. In rendering this advice, the ERP shall consider the past history of the health care worker's technique, and the extent to which, in the context of other indicated procedures with a measurable and unavoidable significant risk to patients, an indicated invasive procedure in the hands of that health care worker does or does not expose patients to the significant risk of HIV or HBV transmission from the health care worker.

  (g) The role of the ERP is strictly confidential and advisory to the health care worker.

  (h) All proceedings and communications of the ERP shall be confidential. All communications to an ERP shall be privileged communications. Neither the personnel nor any participant in a panel proceeding shall reveal the identity of any health care worker consulting such panel nor any content of communication to the records of or the outcomes of an ERP outside the panel to any person or other entity, other than the health care worker consulting such panel.

  (i) No person who participates in an ERP proceeding shall be permitted or required to disclose any information acquired in connection with, or in the course of, the proceeding, any opinion, recommendation, or evaluation of the panel or of any panel member.

  (j) The only duty of an ERP is to provide good faith consultation and advice to the HIV or HBV infected health care worker seeking such advice. A health care worker is not, by this rule, relieved of any responsibility, either to himself or herself or to others, for all actions taken or not taken in his or her professional capacity after consulting with an ERP. Neither an ERP nor any member of an ERP is approved by this rule to substitute or assume responsibility for the subsequent actions of the health care worker. No civil or other legal action of any nature shall arise against any member or personnel of an ERP for any good faith act or statement made in the confines of the panel or proceeding thereof.

  (k) Neither an ERP nor any member of an ERP shall, by virtue of their consultation and advice, assume any liability of any kind to the health care worker, his or her patients, or any other person. The personnel and members of an ERP shall be immune from any civil action arising from any determination or recommendation made in good faith in the scope of their duties. (Indiana State Department of Health; 410 IAC 1-4-8.1; filed Nov 22, 1993, 5:00 p.m.: 17 IR 759; errata, 17 IR 1009; readopted filed Jul 11, 2001, 2:23 p.m.: 24 IR 4234; readopted filed May 22, 2007, 1:44 p.m.: 20070613-IR-410070141RFA; readopted filed Sep 11, 2013, 3:19 p.m.: 20131009-IR-410130346RFA)