HIV Testing and Recording Act Exposed

The HIV Testing and Recording Act does not include adoption or approval information, but was included in ALEC's 1995 Sourcebook of American State Legislation. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

ALEC Bill Text

Summary

The purpose of this bill is to make testing for the HIV virus safe and confidential. Specifically, only physicians, hospitals, laboratories authorized by the state Department of Health, and other persons authorized by the state Department of Health may conduct HIV testing. Also, all test results must remain confidential.

This act will encourage more people to get tested, which will in turn help prevent the spread of the HIV virus and allow individuals infected with the virus to receive speedy and proper medical care.

Model Legislation

{Title, enacting clause, etc.}

Section 1.

This Act may be cited as the HIV Testing and Reporting Act.

Section 2.

For the purposes of this Act the following definitions apply:

(A) “Disclose” means to report, release, transfer, transmit, disseminate, or otherwise communicate information identifying an individual which constitutes all or any part of any communication, note, record, or recorded data in whatsoever form maintained, either orally, in writing, or by electronic means to any person or entity.

(B) “Human Immunodeficiency Virus” or “HIV” means the causative agent of acquired immune deficiency syndrome (AIDS).

(C) “HIV testing” means performing a medically recognized test or tests for determining the presence of HIV or its antibodies.

(D) “Person” means private individuals and private and public bodies politic and corporate, partnership, joint ventures, trusts, unincorporated associations, and any officer, director, or employee of the foregoing.

(E) “Test protocol” means a series of HIV tests that includes a confirmatory test approved by the state Department of Health for the purpose of confirming a positive result or resolving an indeterminate result. Such test protocol shall consist of an enzyme-linked immunosorbent assay (ELISA) to determine the presence of antibodies to HIV, or such other test as may be approved by the Department of Health; in the event of a positive or indeterminate result, the Western Blot Assay (WBA) or an equivalent or more reliable confirmatory test shall also be administered.

(F) “Informed refusal form” is a statement by which an individual may deny consent to a test for HIV. It shall include:

(1) The medically accepted degree of reliability of the testing protocol;

(2) The opportunity for medical treatment of the infection if diagnosed early;

(3) The methods by which infection can be transmitted;

(4) The presumption that a person infected with HIV is infectious for life;

(5) The responsibility of an infected person not to knowingly infect others;

Section 3.

No person shall conduct HIV testing except physicians, hospitals, laboratories authorized by the state Department of Health, and other persons authorized by the state Department of Health.

Section 4.

(A) Except as otherwise provided by law, no person may order an HIV test without obtaining the informed consent of the test subject or the subject’s legal guardian, except in cases of medical emergencies where consent cannot be obtained for any medical procedure. Information provided to obtain consent shall include:

(1) the medically accepted degree of reliability of the testing protocol;

(2) the opportunity for medical treatment of the infection if diagnosed early;

(3) the methods by which infection can be transmitted;

(4) The presumption that a person infected with HIV is infectious for life;

(5) The responsibility of an infected person not to knowingly infect others;

(B) Informed consent is not required for a physician to perform an HIV test when in the judgment of the physician such testing is medically indicated for appropriate diagnosis and treatment of the test subject, provided that the test subject has otherwise provided consent to such physician for medical treatment. Informed consent is also not required when an individual:

(1) Is treated by a sexually transmitted disease clinic;

(2) Becomes a client of a drug abuse clinic;

(3) Is an inmate in a state or local penal institution;

(4) Is a patient in a state mental institution or hospital;

(5) Donates blood, organs, tissue, or semen;

(6) Is an applicant for a marriage license if state law or regulation requires an HIV test of all such applicants;

(7) Is newly born; or

(8) Is deceased. -

(C) However, if an individual described in Subsection (B)(l), (B)(2), or (B)(3) signs an informed refusal form as defined in this Act, the person shall not be tested for HIV.

(D) Any physician or health care provider receiving a confirmed positive result from an HIV test shall confidentially report to the state Department of Health the name and address of every individual whose test protocol result is positive.

Section 5.

(A) All information and records containing any information held or maintained by any person, agency, department or political subdivision of the state concerning an individual’s HIV infection status or the results of any individual’s HIV testing shall be confidential and shall not be disclosed except to:

(1) public employees who need to know in order to perform their public duties;

(2) persons other than public employees who are entrusted with the regular care of the test subject who is under the care and custody of a state agency, including but not limited to operators of day care facilities, group homes, residential care facilities, and adoptive or foster parents;

(3) others as authorized by Subsection (B) of this Section.

(B) Unless the person acted in bad faith or with conscious disregard, no person shall be liable for violating any duty, right, or confidentiality established by law for disclosing the results of an individual’s HIV testing:

(1) to the test subject or his legally authorized representative;

(2) to the State Department of Health;

(3) to the health care personnel working with the infected individual who have a reasonable right to know the results for the purpose of providing patient care;

(4) pursuant to the written authorization of the test subject;

(5) to the spouse of the test subject;

(6) to sexual and needle-sharing partners;

(7) to the parent, legal guardian, or custodian of the test subject, if he or she is an unemancipated minor.

(8) to the deceased insured’s insurer processing a claim, upon the authorization of the insured’s beneficiary or next of kin.

(C) No person to whom results have been disclosed pursuant to Subsection (B) of this Section shall further disclose such results.

(D) When the results of HIV testing, disclosed pursuant to Subsection (B) of this Section, are included in the medical record of the patient who is subject to the test, the inclusion is not a disclosure under this Act provided such medical record is afforded the same confidentiality protection afforded other medical records.

Section 6.

(A) The state Department of Health may seek in its own name in a court of competent jurisdiction an order directing an individual to undergo HIV testing without the right of refusal after reasonable efforts have been made to obtain informed consent. The court shall grant such order whenever there are reasonable grounds to believe that an individual may be infected with HIV and there is clear and convincing evidence of a serious and present health threat posed to others by the individual infected.

(B) The proceedings and record of any action brought under Subsection (A) of this Section shall be closed to the public.

Section 7. {Severability clause.}

Section 8. {Repealer clause.}

Section 9. {Effective date.}