ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 423
(By Senators Jones, Plymale, Holliday and Anderson)
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[Originating in the Committee on the Judiciary;
reported April 2, 1993.]
____________
A BILL to amend article two, chapter fifteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new section, designated section
twenty-four-a; and to amend chapter sixteen of said code by
adding thereto a new article, designated article three-c,
all relating to blood sampling for DNA law enforcement;
AIDS-related medical testing and records confidentiality;
and testing.
Be it enacted by the Legislature of West Virginia:
That article two, chapter fifteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
twenty-four-a; and that chapter sixteen of said code be amended
by adding thereto a new article, designated article three-c, all
to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. DEPARTMENT OF PUBLIC SAFETY.
§15-2-24a. Establishment of centralized database of DNA
identification records in division of public safety.
(a) A centralized database of DNA (deoxyribonucleic acid)
identification records for convicted felons, shall be established
in the division of public safety under the direction, control and
supervision of the division of public safety criminal
identification bureau forensic laboratory. The established
system shall be compatible with the procedures set forth in a
national DNA identification index to ensure data exchange on a
national level.
(b) The purpose of the centralized DNA database is to assist
federal, state and local criminal justice and law-enforcement
agencies within and outside the state in the identification,
detection or exclusion of individuals who are subjects of the
investigation or prosecution of sex-related crimes, violent
crimes or other crimes and the identification and location of
missing and unidentified persons.
(c) In any trial conducted in this state after the first day
of July, one thousand nine hundred ninety-three, when the
defendant is convicted and when evidence of the DNA of the
defendant is introduced, the prosecuting attorney shall forward
the results of the test to the division of public safety for
entry in the database.
(d) Records produced from the samples shall be used only for
law-enforcement purposes.
(e) A person whose DNA profile has been included in the data
bank pursuant to this section may request expungement on thegrounds that the felony conviction on which the authority for
including the DNA profile was based has been reversed and the
case dismissed. The division of public safety shall expunge all
identifiable information in the data bank pertaining to the
person and destroy all samples from the person upon receipt of:
(1) A written request for expungement pursuant to this
section; and
(2) A certified copy of the court order reversing and
dismissing the conviction or providing for expungement.
(f) The superintendent of the division of public safety
shall promulgate administrative rules necessary to carry out the
provisions of the DNA database identification system to include
procedures for the database system usage and integrity.
(g) Any person who disseminates, receives or otherwise uses
or attempts to use information in the database, knowing that such
dissemination, receipt or use is for a purpose other than
authorized by law, is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not less than fifty dollars
nor more than five hundred dollars, or imprisoned in the county
jail not more than one year, or both fined and imprisoned.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 3C. AIDS-RELATED MEDICAL TESTING AND RECORDS
CONFIDENTIALITY ACT.
§16-3C-1. Definitions.
When used in this article:
(a) "AIDS" means acquired immunodeficiency syndrome.
(b) "ARC" means AIDS-related complex.
(c) "Bureau" means the bureau of public health.
(d) "Commissioner" means the commissioner of the bureau of
public health.
(e) "Department" means the state department of health and
human resources.
(f) "Funeral director" shall have the same meaning ascribed
to such term in section four, article six, chapter thirty of this
code.
(g) "Convicted" includes pleas of guilty and pleas of nolo
contendere accepted by the court having jurisdiction of the
criminal prosecution, a finding of guilty following a jury trial
or a trial to a court, and an adjudicated juvenile offender as
defined in section three, article five-b, chapter forty-nine of
this code.
(h) "Funeral establishment" shall have the same meaning
ascribed to such term in section four, article six, chapter
thirty of this code.
(i) "HIV" means the human immunodeficiency virus identified
as the causative agent of AIDS.
(j) "HIV-related test" means a test for the HIV antibody or
antigen or any future valid test approved by the bureau, the
federal drug administration or the centers for disease control.
(k) "Health facility" means a hospital, nursing home,
clinic, blood bank, blood center, sperm bank, laboratory or other
health care institution.
(l) "Health care provider" means any physician, dentist,
nurse, paramedic, psychologist or other person providing medical,
dental, nursing, psychological or other health care services of
any kind.
(m) "Infant" means a person under six years of age.
(n) "Patient" means the person receiving the HIV-related
testing.
(o) "Person" includes any natural person, partnership,
association, joint venture, trust, public or private corporation
or health facility.
(p) "Release of test results" means a written authorization
for disclosure of HIV-related test results that is signed, dated
and specifies to whom disclosure is authorized and the time
period the release is to be effective.
(q) "Victim" means the person or persons to whom
transmission of bodily fluids from the perpetrator of the crimes
of sexual abuse, sexual assault, incest or sexual molestation
occurred or was likely to have occurred in the commission of such
crimes.
§16-
3C-
2. Testing.
(a) HIV-related testing may be requested by a physician,
dentist or the commissioner for any of the following:
(1) When there is cause to believe that the test could be
positive;
(2) When there is cause to believe that the test could
provide information important in the care of the patient; or
(3) When any person voluntarily consents to the test.
(b) The requesting physician, dentist or the commissioner
shall provide the patient with written information in the form of
a booklet or pamphlet prepared or approved by the bureau or, in
the case of persons who are unable to read, shall either show a
video or film prepared or approved by the bureau to the patient,or read or cause to be read to the patient the information
prepared or approved by the bureau which contains the following
information:
(1) An explanation of the test, including its purpose,
potential uses, limitations, the meaning of its results and any
special relevance to pregnancy and prenatal care;
(2) An explanation of the procedures to be followed;
(3) An explanation that the test is voluntary and may be
obtained anonymously;
(4) An explanation that the consent for the test may be
withdrawn at any time prior to drawing the sample for the test
and that such withdrawal of consent may be given orally if the
consent was given orally, or shall be in writing if the consent
was given in writing;
(5) An explanation of the nature and current knowledge of
asymptomatic HIV infection, ARC and AIDS and the relationship
between the test result and those diseases; and
(6) Information about behaviors known to pose risks for
transmission of HIV infection.
(c) A person seeking an HIV-related test who wishes to
remain anonymous has the right to do so, and to provide written,
informed consent through use of a coded system with no linking or
individual identity to the test requests or results. A health
care provider who does not provide HIV-related tests on an
anonymous basis shall refer such a person to a test site which
does provide anonymous testing, or to any local or county health
department which shall provide for performance of an HIV-related
test and counseling.
(d) At the time of learning of any test result, the patient
shall be provided with counseling or referral for counseling for
coping with the emotional consequences of learning any test
result. This may be done by brochure or personally, or both.
(e) No consent for testing is required and the provisions of
subsection (b) of this section do not apply for:
(1) A health care provider or health facility performing an
HIV-related test on the donor or recipient when the health care
provider or health facility procures, processes, distributes or
uses a human body part (including tissue and blood or blood
products) donated for a purpose specified under the uniform
anatomical gift act, or for transplant recipients, or semen
provided for the purpose of artificial insemination and such test
is necessary to assure medical acceptability of a recipient or
such gift or semen for the purposes intended;
(2) The performance of an HIV-related test in documented
bona fide medical emergencies when the subject of the test is
unable to grant or withhold consent, and the test results are
necessary for medical diagnostic purposes to provide appropriate
emergency care or treatment, except that
post-test counseling or
referral for counseling shall nonetheless be required. Necessary
treatment may not be withheld pending HIV test results; or
(3) The performance of an HIV-related test for the purpose
of research if the testing is performed in a manner by which the
identity of the test subject is not known and may not be
retrieved by the researcher.
(f) Mandated testing:
(1) The performance of any HIV-related testing that is orbecomes mandatory shall not require consent of the subject but
will include counseling.
(2)
The court having jurisdiction of the criminal
prosecution shall order that an HIV-related test be performed on
any persons convicted of any of the following crimes or offenses:
(i) Prostitution; or
(ii) Sexual abuse, sexual assault, incest or sexual
molestation.
(3) HIV-related tests performed on persons convicted of
prostitution, sexual abuse, sexual assault, incest or sexual
molestation shall be confidentially administered by a designee of
the bureau or the local or county health department having proper
jurisdiction. The commissioner may designate health care
providers in regional jail facilities to administer HIV-related
tests on such convicted persons if he or she deems it necessary
and expedient.
(4) A person convicted of such offenses shall be required to
undergo HIV-related testing and counseling immediately upon
conviction and the court having jurisdiction of the criminal
prosecution shall not release such convicted person from custody
and shall revoke any order admitting the defendant to bail until
HIV-related testing and counseling have been performed. The HIV-
related test result obtained from the convicted person is to be
transmitted to the court and, after the convicted person is
sentenced, made part of the court record. If the convicted
person is placed in the custody of the division of corrections,
the court shall transmit a copy of the convicted person's HIV-
related test results to the division of corrections. The HIV-related test results shall be closed and confidential and
disclosed by the court and the bureau only in accordance with the
provisions of section three of this article.
(5) A person charged with prostitution, sexual abuse, sexual
assault, incest or sexual molestation shall be informed upon
initial court appearance by the judge or magistrate responsible
for setting the person's condition of release pending trial of
the availability of voluntary HIV-related testing and counseling
conducted by the bureau.
(6) The prosecuting attorney shall inform the victim, or
parent or guardian of the victim, at the earliest stage of the
proceedings of the availability of voluntary HIV-related testing
and counseling conducted by the bureau and that his or her best
health interest would be served by submitting to HIV-related
testing and counseling. HIV-related testing for the victim shall
be administered at his or her request on a confidential basis and
shall be administered in accordance with the centers for disease
control guidelines of the United States public health service in
effect at the time of such request. The victim who obtains an
HIV-related test shall be provided with pre and post-test
counseling regarding the nature, reliability and significance of
the HIV-related test and the confidential nature of the test.
HIV-related testing and counseling conducted pursuant to this
subsection shall be performed by the designee of the commissioner
of the bureau or by any local or county health department having
proper jurisdiction.
(7) If a person receives counseling or is tested under this
subsection and is found to be HIV infected, the person shall bereferred by the health care provider performing the counseling or
testing for appropriate medical care and support services. The
local or county health departments or any other agency providing
counseling or testing under this subsection shall not be
financially responsible for medical care and support services
received by a person as a result of a referral made under this
subsection.
(8) The commissioner of the bureau or his or her designees
may require an HIV test for the protection of a person who was
possibly exposed to HIV infected blood or other body fluids as a
result of receiving or rendering emergency medical aid or who
possibly received such exposure as a funeral director. Results
of such a test of the person causing exposure may be used by the
requesting physician for the purpose of determining appropriate
therapy, counseling and psychological support for the person
rendering emergency medical aid including good samaritans, as
well as for the patient, or individual receiving the emergency
medical aid.
(9) If an HIV-related test required on persons convicted of
prostitution, sexual abuse, sexual assault, incest or sexual
molestation results in a negative reaction, upon motion of the
state, the court having jurisdiction over the criminal
prosecution may require the subject of the test to submit to
further HIV-related tests performed under the direction of the
bureau in accordance with the centers for disease control
guidelines of the United States public health service in effect
at the time of the motion of the state.
(10) The costs of mandated testing and counseling providedunder this subsection and pre and post-conviction HIV-related
testing and counseling provided the victim under the direction of
the bureau pursuant to this subsection shall be paid by the
bureau.
(11) The court having jurisdiction of the criminal
prosecution shall order a person convicted of prostitution,
sexual abuse, sexual assault, incest or sexual molestation to pay
restitution to the state for the costs of any HIV-related testing
and counseling provided the convicted person and the victim,
unless the court has determined such convicted person to be
indigent.
(12) Any funds recovered by the state as a result of an
award of restitution under this subsection shall be paid into the
state treasury to the credit of a special revenue fund to be
known as the "HIV testing" fund which is hereby created. The
moneys so credited to such fund may be used solely by the bureau
for the purposes of facilitating the performance of HIV-related
testing and counseling under the provisions of this article.
(g) Premarital screening:
(1) Every person who is empowered to issue a marriage
license shall, at the time of issuance thereof, distribute to the
applicants for the license, information concerning acquired
immunodeficiency syndrome (AIDS) and inform them of the
availability of HIV-related testing and counseling. The
informational brochures shall be furnished by the bureau.
(2) A notation that each applicant has received the AIDS
informational brochure shall be placed on file with the marriage
license on forms provided by the bureau.
(h) The commissioner of the bureau may obtain and test
specimens for AIDS or HIV infection for research or
epidemiological purposes without consent of the person from whom
the specimen is obtained if all personal identifying information
is removed from the specimen prior to testing.
(i) Nothing in this section is applicable to any insurer
regulated under chapter thirty-three of this code:
Provided, That
the commissioner of insurance shall develop standards regarding
consent for use by insurers which test for the presence of the
HIV antibody.
(j) Whenever consent of the subject to the performance of
HIV-related testing is required under this article, any such
consent obtained, whether orally or in writing, shall be deemed
to be a valid and informed consent if it is given after
compliance with the provisions of subsection (b) of this section.
§16-3C-3. Confidentiality of records; permitted disclosure; no
duty to notify.
(a) No person may disclose or be compelled to disclose the
identity of any person upon whom an HIV-related test is
performed, or the results of such a test in a manner which
permits identification of the subject of the test, except to the
following persons:
(1) The subject of the test;
(2) The victim of the crimes of sexual abuse, sexual
assault, incest or sexual molestation at the request of the
victim or the victim's legal guardian, or of the parent or legal
guardian of the victim if the victim is an infant where
disclosure of the HIV-related test results of the convicted sexoffender are requested;
(3) Any person who secures a specific release of test
results executed by the subject of the test;
(4) A funeral director or an authorized agent or employee of
a health facility or health care provider if the funeral
establishment, health facility or health care provider itself is
authorized to obtain the test results, the agent or employee
provides patient care or handles or processes specimens of body
fluids or tissues and the agent or employee has a need to know
such information:
Provided, That such funeral director, agent or
employee shall maintain the confidentiality of such information;
(5) Licensed medical personnel or appropriate health care
personnel providing care to the subject of the test, when
knowledge of the test results is necessary or useful to provide
appropriate care or treatment, in an appropriate manner:
Provided, That such personnel shall maintain the confidentiality
of such test results. The entry on a patient's chart of an HIV-
related illness by the attending or other treating physician or
other health care provider shall not constitute a breach of
confidentiality requirements imposed by this article;
(6) The bureau or the centers for disease control of the
United States public health service in accordance with reporting
requirements for a diagnosed case of AIDS, or a related
condition;
(7) A health facility or health care provider which
procures, processes, distributes or uses: (A) A human body part
from a deceased person with respect to medical information
regarding that person; or (B) semen provided prior to theeffective date of this article for the purpose of artificial
insemination; (C) blood or blood products for transfusion or
injection; (D) human body parts for transplant with respect to
medical information regarding the donor or recipient;
(8) Health facility staff committees or accreditation or
oversight review organizations which are conducting program
monitoring, program evaluation or service reviews so long as any
identity remains anonymous; and
(9) A person allowed access to said record by a court order
which is issued in compliance with the following provisions:
(i) No court of this state may issue such order unless the
court finds that the person seeking the test results has
demonstrated a compelling need for the test results which cannot
be accommodated by other means. In assessing compelling need,
the court shall weigh the need for disclosure against the privacy
interest of the test subject and the public interest;
(ii) Pleadings pertaining to disclosure of test results
shall substitute a pseudonym for the true name of the test
subject of the test. The disclosure to the parties of the test
subject's true name shall be communicated confidentially, in
documents not filed with the court;
(iii) Before granting any such order, the court shall, if
possible, provide the individual whose test result is in question
with notice and a reasonable opportunity to participate in the
proceedings if he or she is not already a party;
(iv) Court proceedings as to disclosure of test results
shall be conducted in camera unless the subject of the test
agrees to a hearing in open court or unless the court determinesthat the public hearing is necessary to the public interest and
the proper administration of justice; and
(v) Upon the issuance of an order to disclose test results,
the court shall impose appropriate safeguards against
unauthorized disclosure, which shall specify the person who may
have access to the information, the purposes for which the
information may be used and appropriate prohibitions on future
disclosure.
(b) No person to whom the results of an HIV-related test
have been disclosed pursuant to subsection (a) of this section
may disclose the test results to another person except as
authorized by said subsection.
(c) Whenever disclosure is made pursuant to this section,
except when such disclosure is made to persons in accordance with
subdivisions (1) and (6) of subsection (a) of this section, it
shall be accompanied by a statement in writing which includes the
following or substantially similar language: "This information
has been disclosed to you from records whose confidentiality is
protected by state law. State law prohibits you from making any
further disclosure of the information without the specific
written consent of the person to whom it pertains, or as
otherwise permitted by law. A general authorization for the
release of medical or other information is NOT sufficient for
this purpose."
(d) Notwithstanding the provisions set forth in subsections
(a) through (c) of this section, the use of HIV test results to
inform individuals named or identified as sex partners or
contacts or persons who have shared needles that they may be atrisk of having acquired the HIV infection as a result of possible
exchange of body fluids, is permitted. The name or identity of
the person whose HIV test result was positive is to remain
confidential. Contacts or identified partners may be tested
anonymously at the state bureau of public health's designated
test sites, or at their own expense by a health care provider or
an approved laboratory of their choice. A cause of action will
not arise against the bureau, a physician or other health care
provider from any such notification.
(e) There is no duty on the part of the physician or health
care provider to notify the spouse or other sexual partner of, or
persons who have shared needles with, an infected individual of
their HIV infection and a cause of action will not arise from any
failure to make such notification. However, if contact is not
made, the bureau will be so notified.
§16-3C-8. Administrative implementation.
(a) The commissioner of the bureau shall immediately
implement and enforce the provisions of this article, and shall
adopt rules to the extent necessary for further implementation of
the article. The rules proposed by the bureau pursuant to this
article may include procedures for taking appropriate action with
regard to health care facilities or health care providers which
violate this article or the rules promulgated hereunder. The
provisions of the state administrative procedures act apply to
all administrative rules and procedures of the bureau pursuant to
this article, except that in case of conflict between the state
administrative procedures act and this article, the provisions of
this article shall control.
(b) The bureau shall promulgate rules to assure adequate
quality control for all laboratories conducting HIV tests and to
provide for a reporting and monitoring system for reporting to
the bureau all positive HIV tests results.