Senate Bill No. 428
(By Senator Stollings)
[Originating in the Committee on the Judiciary;
reported March 26, 2013.]
A BILL to amend and reenact §16-3C-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §16-4-19 of said code, all relating generally to testing for HIV and sexually transmitted diseases; removing limitations on billing patients for HIV and sexually transmitted disease testing or sexually transmitted disease treatment done by state or local public health agencies; and clarifying the procedures relating to performing HIV or sexually transmitted disease tests on persons charged with sexual offenses.
Be it enacted by the Legislature of West Virginia:
That §16-3C-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §16-4-19 of said code be amended and reenacted, all to read as follows:
ARTICLE 3C. AIDS-RELATED MEDICAL TESTING AND RECORDS CONFIDENTIALITY ACT.
(a) HIV-related testing on a voluntary basis should be recommended by any healthcare provider providers in a health facility as part of a routine screening for treatable conditions and as part of routine prenatal and perinatal care. A physician, dentist, nurse practitioner, nurse midwife, physician assistant or the commissioner may also request targeted testing for any of the following:
(1) When there is cause to believe that the test could be positive. Persons who engage in high-risk behavior should be encouraged to be screened for HIV at least annually;
(2) When there is cause to believe that the test could provide information important in the care of the patient; or
(3) When there is cause to believe that the results of HIV testing of samples of blood or body fluids from a source patient could provide information important in the care of medical or emergency responders or other persons identified in regulations proposed by the department for approval by the Legislature in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided, That the source patient whose blood or body fluids is being tested pursuant to this section must have come into contact with a medical or emergency responder or other person in such a way that a significant exposure has occurred; or
(4)When there is no record of any HIV-related or other sexually transmitted disease testing during pregnancy and the woman presents for labor and delivery.
(b) All patients who seek an HIV test shall be responsible for paying the costs of the testing, whether they are tested by a private healthcare provider, the bureau or at a local health department. A local health department may charge in accordance with its existing fee schedules and may charge patients on a sliding fee scale.
(b) (c) A patient voluntarily consents to the test as follows when:
(1) The patient is informed either orally or in writing that HIV-related testing will be performed as part of his or her routine care, that HIV-related testing is voluntary and that the patient may decline HIV-related testing (opt out); or
(2) The patient is informed that the patient’s general consent for medical care includes consent for HIV-related testing.
(c) (d) A patient refuses to consent to the test if a patient who opts out of HIV-related testing, the patient is informed when the health care provider in the provider’s professional opinion believes HIV-related testing is recommended, and shall be informed that HIV-related testing may be obtained anonymously at a local or county health department.
(d) (e) Any person seeking an HIV-related test in at a local or county health department, or other HIV test setting provided by the commissioner, who wishes to remain anonymous has the right to do so, and to be provided written informed consent through use of a coded system with no linking of individual identity to the test request or results. Such persons may be required to pay the costs of the HIV-related testing.
(e) (f) No option to opt out of HIV-related testing is required exists and the provisions of subsection (a) and (b) (c) of this section do not apply for the following:
(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 of 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, as determined by a treating physician taking into account the nature and extent of the exposure to another person, when the subject of the test is unable or unwilling to grant or withhold consent, and the test results are necessary for medical diagnostic purposes to provide appropriate emergency care or treatment to a medical or emergency responder, or any other person who has come into contact with a source patient in such a way that a significant exposure necessitates HIV testing or to a source patient who is unable to consent in accordance with rules proposed by the department for approval by the Legislature in accordance with article three, chapter twenty-nine-a of this code: Provided, That necessary treatment may not be withheld pending HIV test results: Provided, however, That all sampling and HIV testing of samples of blood and body fluids, without the opportunity for the source patient or patient’s representative to opt out of the testing, shall be through the use of a pseudonym and in accordance with rules proposed by the department for approval by the Legislature in accordance with article three, chapter twenty-nine-a of this code; 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) (g) Mandated testing:
(1) The performance of any HIV-related testing that is or becomes mandatory by a magistrate or circuit court order or other legal process described herein does not require consent of the subject but will may include counseling.
(2) The court having jurisdiction of the criminal prosecution shall order that an prosecuting attorney shall, upon the request of the victim or the victims’s parent or legal guardian, and with notice to the defendant or juvenile respondent, apply to the court for an order directing that an appropriate human immunodeficiency virus, HIV-related test be performed on any persons a defendant charged with any of the following crimes or a juvenile subject to a petition involving any of these offenses:
(i) (A) Prostitution; or
(ii) (B) Sexual abuse, sexual assault, or incest or sexual molestation.
(3) The court shall require the defendant or juvenile respondent to submit to the testing not later than forty-eight hours after the issuance of the order, unless good cause for delay is shown upon a request for a hearing: Provided, That no such delay shall cause the HIV-related testing to be administered later than forty-eight hours after the filing of any indictment regarding an adult defendant or the adjudication order regarding a juvenile respondent. As soon as practical, test results shall be provided to the prosecuting attorney, who shall promptly provide the results to the victim or victim’s parent or legal guardian, and to counsel for the defendant or juvenile respondent. The test results shall also be transmitted to the court having jurisdiction over the trial of the matter, to be maintained pursuant to the provisions of this article.
(3) (4) HIV-related tests performed on persons charged with prostitution, sexual abuse, sexual assault or 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 jails or other correctional facilities to administer HIV-related tests on such persons if he or she determines it necessary and expedient. Nothing in this section shall be construed to prevent the court from ordering at any time, during which the charge or juvenile petition is pending, that the defendant or juvenile submit to one or more appropriate tests to determine if he or she is infected with HIV. The court may also order follow-up tests for HIV as may be medically appropriate. The results of any such test shall be provided as soon as practical in accordance with subdivision (3) of this subsection. The cost of testing may be charged to the defendant or juvenile respondent, unless determined unable to pay by the court having jurisdiction over the matter. If the defendant or juvenile is unable to pay, the cost of the HIV testing may be borne by the regional jail or other correctional or juvenile facility, the bureau or by the local health department.
(5) In the event the victim, parent or legal guardian fails to request HIV-related testing of the defendant or juvenile respondent within the time period set forth in this subsection, the victim, parent or legal guardian may request that HIV-related testing be performed on the defendant or juvenile respondent at any subsequent time after the date of the defendant’s conviction or the juvenile’s disposition: Provided, That the prosecuting attorney shall make application to the court as provided in subdivision (2) of this subsection.
(4) (6) When the Commissioner of the Bureau of Public Health knows or has reason to believe, because of medical or epidemiological information, that a person, including, but not limited to, a person such as an IV drug abuser, or a person who may have a sexually transmitted disease, or a person who has sexually molested, abused or assaulted another, has HIV infection and is or may be a danger to the public health, he or she may issue an order to:
(i) (A) Require a person to be examined and tested to determine whether the person has HIV infection;
(ii) (B) Require a person with HIV infection to report to a qualified physician or health worker for counseling; and
(iii) (C) Direct a person with HIV infection to cease and desist from specified conduct which endangers the health of others; and
(D) Bill that person for the necessary laboratory and associated costs for counseling and testing either directly or by billing the person's medical insurance provider.
(5) (7) If any person violates a cease-and-desist order issued pursuant to this section and, by virtue of that violation, the person presents a danger to the health of others, the commissioner shall apply to the circuit court of Kanawha County to enforce the cease-and-desist order by imposing any restrictions upon the person that are necessary to prevent the specific conduct that endangers the health of others.
(6) (8) A person convicted or a juvenile adjudicated of the offenses described in this section shall be required to undergo HIV-related testing and counseling immediately upon conviction or adjudication and the court having jurisdiction of the criminal prosecution matter may not release the convicted or adjudicated person from custody and shall revoke any order admitting the defendant or juvenile to bail until HIV-related testing and counseling have been performed and the result is known: Provided, That if the person convicted or adjudicated has been tested in accordance with the provisions of this subsection, and the result was positive, that person need not be retested. The HIV-related test result obtained from the convicted or adjudicated person is to be transmitted to the court and, after the convicted or adjudicated person is sentenced or disposition ordered for the adjudicated juvenile, made part of the court record. If the convicted or adjudicated person is placed in the custody of the Division of Corrections or Regional Jail and Correctional Facility Authority, or if the adjudicated juvenile is placed in the custody of the Division of Juvenile Services or other out-of-home placement, the court shall transmit a copy of the convicted or adjudicated person's HIV-related test results to the Division of Corrections appropriate custodial agency. 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.
(7) (9) 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 and Prevention 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 pretest 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.
(8) (10) If a person receives counseling or is tested under this subsection and is found to be HIV infected and the person is not incarcerated, the person shall be referred 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 under this subsection may shall not be held financially responsible for medical care and support services.
(9) (11) 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.
(10) (12) If an HIV-related test required on persons charged with or convicted of prostitution, sexual abuse, sexual assault or 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 and Prevention guidelines of the United States Public Health Service in effect at the time of the motion of the state.
(11) (13) The costs of mandated testing and counseling provided under this subsection and pre preconviction 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 the individual to be tested or his or her medical insurance provider, if possible.
(12) (14) The court having jurisdiction of the criminal prosecution shall order a person convicted of prostitution, sexual abuse, sexual assault or 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 the convicted person to be indigent.
(13) (15) 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 the 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) 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.
(h) 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 considered to be a valid and informed consent if it is given after compliance with
the provisions of subsection (b) (c) of this section.
ARTICLE 4. SEXUALLY TRANSMITTED DISEASES.
§16-4-19. Voluntary submission to examination and treatment; charges; disposition of money collected.
(a) Any resident of the state person may at any time report go to any municipal or county health officer having jurisdiction of the case department and voluntarily submit himself or herself to all tests and examination as are necessary to ascertain whether in fact the person submitting himself or herself for examination is infected with a venereal sexually transmitted disease. and said The health officer to whom any party has applied as above for tests and examination department shall provide for making all such conduct and administer all necessary tests and examinations as are necessary to ascertain whether in fact said party so applying be so infected with a venereal the person has any sexual transmitted disease. Any person who is tested for sexually transmitted diseases at a local health department shall be responsible for paying the reasonable costs of testing, either directly or through billing the person’s medical provider. Local health departments may charge in accordance with their existing fee schedules and may charge patients for such testing on a sliding fee scale.
(b) If such tests and examinations show said party so applying to be so infected the person to have a sexually transmitted disease, then said party the person shall elect whether he or she will take treatment of from a private physician, or whether he or she will take treatment to be provided by from the local health officer through a clinic or otherwise department, and if he or she elects to take treatment through the local health officer's arrangement department, he or she may be required to pay for such treatment at a charge which shall in no case exceed the sum of $5 for each dose of "neo" or arsphenamine administered for syphilis, and at a nominal cost for other medicines used; but if the patient is unable to pay anything, he or she shall be treated free of charge under the direction of the local health officer, at a clinic or otherwise either directly or by the local health department billing the person’s health insurance provider. Local health departments may charge in accordance with their existing fee schedules and may charge patients for treatment on a sliding fee scale.
(c) All proper charges for such examination and treatment as that may be necessary hereunder shall be a proper charge against the municipality or county, paid by the individual or by that person’s health insurance provider. as the case may be, whether said party so taking treatment lived in or out of a municipal corporation. And whether said person proposing to take treatment as provided hereunder elect to take from a private physician or elect to take treatment under the direction of the local health officer, he or she shall first sign the agreement required to be signed by persons about to be released from detention or quarantine, and shall observe all its provisions, and so long as such person so signing shall so observe these provisions he or she need not be detained or quarantined pending treatment, except that no person who is known as a prostitute, or as a person associating with such, or as a person who resides in any house having the reputation of being a house of prostitution, or who frequents the same, shall be allowed at liberty if infected with a venereal disease in an infectious stage, even though he or she does voluntarily submit for examination and treatment and does take treatment under the provisions of this section.
(d) All money collected under this section shall be paid into a clinic fund, if one is provided, and if not then into the county or city treasury, as the case may be; to the local health department doing the testing and the local health officer having jurisdiction department shall collect and account for such the funds collected hereunder.