Senate Bill No. 489

(By Senator Holliday)

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[Introduced March 22, 1993; referred to the Committee
on the Judiciary.]

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A BILL to amend and reenact sections one, two and three, article three-c, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to revising provisions governing the administration of mandatory HIV-related tests on convicted sex offenders; defining certain terms; adding a provision designating the local or county health department or a designee of the director of the bureau of public health as the agency to administer the HIV-related tests on convicted sex offenders; adding a provision granting the victim of a sex-related offense with counseling regarding HIV disease, HIV-related testing and referral for appropriate health care and support services; requiring the bureau to bear the costs of mandatory HIV-related testing and counseling of convicted sex offenders and counseling and voluntary testing of victims of sex-related offenses; adding a provision requiring the convicted sex offender to pay restitution to
the state for the costs of mandatory HIV-related tests and counseling and voluntary HIV-related testing and counseling of victims of sex-related offenses; adding a provision creating a special revenue fund to be used by the state department of health for the purpose of performing HIV- related testing and counseling; adding a provision authorizing the disclosure of the results of a convicted sex offender's HIV-related test to the victim of the offense at the request of the victim; and adding a provision authorizing the court to order repeat mandatory HIV-related tests on a convicted sex offender upon motion of the state after the first test is administered.

Be it enacted by the Legislature of West Virginia:
That section one, two and three, 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-1. Definitions.

When used in this article:
(a) "Department" "Bureau" means the state department of bureau of public health.
(b) "AIDS" means acquired immunodeficiency syndrome.
(c) "ARC" means AIDS-related complex.
(d) "Funeral director" shall have the same meaning ascribed to such term in section four, article six, chapter thirty of this code.
(e) "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.
(e) (f) "Funeral establishment" shall have the same meaning ascribed to such term in section four, article six, chapter thirty of this code.
(f) (g) "HIV" means the human immunodeficiency virus identified as the causative agent of AIDS.
(g) (h) "HIV-related test" means a test for the HIV antibody or antigen or any future valid test approved by the department, the federal drug administration or the centers for disease control.
(h) (i) "Health facility" means a hospital, nursing home, clinic, blood bank, blood center, sperm bank, laboratory or other health care institution.
(i) (j) "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.
(j) (k) "Infant" means a person under 13 years of age.
(k) (1) "Person" includes any natural person, partnership, association, joint venture, trust, public or private corporation or health facility.
(1) (m) "Release of test results" means a written authorization for disclosure of HIV-related test results which is signed, dated and which specifies to whom disclosure is authorized and the time period during which the release is to be effective.
(n) "Victim" means the person or persons to whom transmission of bodily fluids from the perpetrator of the sex-related crimes of prostitution, sexual abuse, sexual assault, incest or molestation occurred or was likely to have occurred in the course of such crimes.
§16-3C-2. Testing.

(a) HIV-related testing may be requested by a physician, dentist or the director of the department bureau 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 bureau 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 toread, shall either show a video or film prepared or approved by the department bureau to the patient, or read or cause to be read to the patient the information prepared or approved by the department 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; 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 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 whichdoes 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 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-text posttest counseling or referral for counseling shall nonetheless be required. Necessary treatment may not be withheld pending HIVtest 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) The court having jurisdiction of the criminal prosecution shall order that 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) HIV-related tests performed on persons convicted of prostitution, sexual abuse, sexual assault, incest or molestation shall be confidentially administered by a designee of the bureau or the local or county health department having proper jurisdiction. The director 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. A person convicted of such offenses shall immediately upon conviction be required to undergo HIV-related testing and counseling and the court having jurisdiction of the criminal prosecution shall not release such convicted person from custodyand shall revoke any order admitting the defendant to bail until HIV-related testing and counseling have been performed. The results of such tests and any other medical information obtained from the convicted person shall be transmitted to the court and, after the convicted person is sentenced, made part of the court record. 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. 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 test results and other medical information to the division of corrections.
(4) A person charged with prostitution, sexual abuse, sexual assault, incest or molestation shall upon initial court appearance on the charge be informed 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 department. 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 of such crimes shall be administered at his or her request on a confidential basis and shall be administered in accordance withthe center for disease control guidelines of the United States public health service in effect at the time of such request. The victim of such crimes who obtains and 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 director of the bureau or by any local or county health department having proper jurisdiction.
(5) If a person receives counseling or is tested under this subsection and is found to be HIV infected, 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 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.
(3) (6) The director of the department 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 theperson rendering emergency medical aid including good samaritans, as well as for the patient, or individual receiving the emergency medical aid.
(4) (7) When the director of the department bureau 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.

(8) If an HIV-related test required on persons convicted of prostitution, sexual abuse, sexual assault, incest or 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 center for disease control guidelines of the United States public health service in effect at the time of the motionof the state.
(9) The costs of mandated testing and counseling provided under 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. The bureau shall pay the costs of preconviction HIV- related testing and counseling provided the victim when a law- enforcement office certifies in writing that, based upon his investigation and the results of a physical examination by a physician or other qualified health care provider he reasonably believes that a sex-related offense has been committed and that the complainant is the victim of such offense. The court having jurisdiction of the criminal prosecution shall order a person convicted of prostitution, sexual abuse, sexual assault, incest or 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. 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 "AIDS prevention" fund which is hereby created. The moneys so credited to such fund may be used solely by the bureau for the purposes of performing HIV- related testing and counseling under the provisions of this article.
(g) If a person violates a cease and desist order issuedpursuant to this section and it is shown that the person is a danger to others, the director of the department bureau 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 the restrictions 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 bureau.
(i) The director of the department 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.
(j) Nothing in this section is applicable to any insurerregulated 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 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 prostitution, sexual abuse, sexual assault, incest or 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.
(2) (3) Any person who secures a specific release of test results executed by the subject of the test;
(3) (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 provideritself 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;
(4) (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;
(5) (6) The department 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;
(6) (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 the effective 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 tomedical information regarding the donor or recipient;
(7) (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
(8) (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 subsection (a).
(c) Whenever disclosure is made pursuant to this section except when such disclosure is made to persons in accordance with subdivisions (1), (3), (4), (5), (6) and (7), 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 toinform individuals named or identified as sex partners or contacts or persons who have shared needles that they may be at risk 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 department of health 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 department 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 department will be so notified.



NOTE: The purpose of this bill is to revise provisions governing mandatory HIV testing of convicted sex offenders. The bill provides that the Director of the Bureau of Health or the county health department may administer HIV related tests on convicted offenders. The bill provides for testing and counseling regarding HIV for victims of sexual offenses. The bill provides that the bureau of health will pay for the costs of these tests and services, but that convicted sex offenders are required to pay restitution to the state. The bill also allows for disclosure to victims of HIV tests conducted on convicted sex offenders.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.