Senate Bill No. 344
(By Senator Manchin)
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[Introduced March 10, 1993; referred to the Committee
on Health and Human Resources.]
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A BILL to amend and reenact section two, article three-c, chapter
sixteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to HIV testing.
Be it enacted by the Legislature of West Virginia:
That section two, article three-c, chapter sixteen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 3C. AIDS-RELATED MEDICAL TESTING AND RECORDS
CONFIDENTIALITY ACT.
§16-3C-2. Testing.
(a) HIV-related testing may be requested by a physician,
dentist or the director of the department for any of the
following:
(1) When there is cause to believe that the test could be
positive; or
(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 director of the
department shall provide the patient with information in the form
of a booklet or printed information prepared or approved by the
department or, in the case of persons who are unable to read,
shall either show a video or film prepared or approved by the
department to the patient, or read or cause to be read to the
patient the information prepared or approved by the department
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; and
(2) An explanation of the procedures to be followed; and
(3) An explanation that the test is voluntary and may be
obtained anonymously; and
(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withdrawn at any time prior to drawing the sample for the test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; and
(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 toremain 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 subject
of the test 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 isunable 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 or
becomes mandatory shall not require consent of the subject but
will include counseling.
(2) An HIV-related test shall be performed on any persons
convicted of any of the following crimes or offenses:
(i) Prostitution;
(ii) Sexual abuse, sexual assault, incest or molestation.
(3) The director of the department or his or her designees,
or the county health examiner of the county in which the exposure
occurred, or the county in which the potential carrier resides
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 appropriatetherapy, 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.
(4) When the director of the department 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 may issue an order to:
(i) Require a person to be examined and tested to determine
whether the person has HIV infection;
(ii) Require a person with HIV infection to report to a
qualified physician or health worker for counseling; and
(iii) Direct a person with HIV infection to cease and desist
from specified conduct which endangers the health of others.
(g) If a person violates a cease and desist order issued
pursuant to this section and it is shown that the person is a
danger to others, the director of the department shall enforce
the cease and desist order by imposing such restrictions upon
the person as are necessary to prevent the specific conduct which
endangers the health of others. Any restriction shall be in
writing, setting forth the name of the person to be restricted
and the initial period of time, not to exceed three months,
during which the order shall remain effective, the terms of therestrictions and such other conditions as may be necessary to
protect the public health.
(h) 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 department.
(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 department.
(i) The director of the department 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.
(j) 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.
(k) 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 aftercompliance with the provisions of subsection (b) of this section.
NOTE: The purpose of this bill is to require an HIV test on
a person who exposed another person.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.