Senate Bill No. 690
(By Senator Scott)
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[Introduced February 23, 1998; referred to the
Committee on Health and Human Resources.]
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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, all relating
to AIDS/HIV-related medical testing, including the
authorization for treating physicians to determine bona fide
medical emergencies when HIV-related testing for medical
diagnostic purposes is necessary; spousal notification
regarding contact with a source patient tested positive for
HIV; and mandating emergency regulations be proposed
pursuant to the provisions of section fifteen, article
three, chapter twenty-nine-a of this code on or before the
first day of September, one thousand nine hundred ninety- eight, addressing confidentiality, costs associated with
testing, documentation, post-test counseling, post-exposure prophylaxis and other matters.
Be it enacted by the Legislature of West Virginia:
That sections 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, all to read as
follows:
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) "Medical or emergency responders" means paid or
volunteer firefighters, law-enforcement officers, emergency
medical technicians, paramedics, or other emergency service
personnel, providers or entities acting within the usual course
of their duties; good samaritans and other nonmedical and nonemergency personnel providing assistance in emergencies;
funeral directors; health care providers; commissioner of the
bureau of public health; and all employees thereof and volunteers
associated therewith.
(n)(o)"Patient" or "test subject" or "subject of the test"
means the person upon whom an HIV test is performed, or the
person who has legal authority to make health care decisions for
the test subject
means the person receiving the HIV-related
testing.
(o)(p) "Person" includes any natural person, partnership,
association, joint venture, trust, public or private corporation
or health facility.
(p)(q) "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.
(r) "Significant exposure" means:
(1) Exposure to blood or body fluids through needlestick,
instruments, sharps, surgery or traumatic events; or
(2) Exposure of mucous membranes to visible blood or body
fluids, to which universal precautions apply according to the
national centers for disease control, including, without
limitations, the following body fluids: Blood, semen, vaginal
secretions, cerebro-spinal fluid (CFS), synovial fluid, pleural fluid, pericardial fluid, amniotic fluid, and laboratory
specimens that contain HIV (e.g. suspensions of concentrated
virus); or
(3) Exposure of skin to visible blood or body fluids,
especially when the exposed skin is chapped, abraded or afflicted
with dermatitis or the contact is prolonged or involving an
extensive area.
(s) "Source patient" means any person whose body fluids have
been the source of a significant exposure to a medical or
emergency responder.
(q)(t)"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 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 rules
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.
(3)(4) 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 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 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 source patient,
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 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
: except that post-test counseling or referral for counseling
shall nonetheless be required Provided, That necessary treatment may not be withheld pending HIV test results
or: Provided,
however, That all sampling and HIV-testing of samples of blood
and body fluids, without the expressed written consent of the
test subject, 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
: Provided further,
That the department shall
propose emergency rules
pursuant to the provisions of section
fifteen, article three, chapter twenty-nine-a of this code on or
before the first day of September, one thousand nine hundred
ninety-eight, addressing such matters as, but not limited to:
(A) Sampling
and testing of blood and body fluids for HIV-
related infections including: (i) The taking of samples from
source patients; (ii)
testing samples; (iii) confidentiality;
(iv) documentation; (v) post-test counseling; and (vi) notices to
the department by health care providers of: (I) Test results
found to be positive and situations where sampling; and (II)
testing was performed without the written consent of the test
subject; and
(B)
Costs associated with sampling, testing, counseling,
initial prophylactic treatment and compliance with this article:
Provided, That: (i) The ordering of samples of blood or body
fluids for HIV-test or testing of available samples
by: (I) A
treating physician of a medical or emergency responder; or (II) a treating physician of the source patient; and (ii) the
disclosure of the results of HIV testing of the source patient,
in accordance with rules proposed by the department for approval
by the Legislature pursuant to article three, chapter twenty- nine-a of this code, shall be deemed within acceptable
standards
of medical care in the state of West Virginia and shall not
create a legal cause of action on the part of the source patient
against: (i) The treating physician of the medical or emergency
responder; or (ii) the treating physician of the source patient;
or (iii) any health care provider or laboratory assisting such
treating physicians.
(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 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) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
(9) 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) 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.
(11) The costs of mandated testing and counseling provided
under this subsection and pre- and postconviction HIV-related
testing and counseling provided the victim under the direction of
the bureau pursuant to this subsection shall be paid by the
bureau.
(12) 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.
(13) 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 sex
offender 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; (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; or (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 determines
that 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), 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 spouses, 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: Provided, That
the bureau shall make a good faith effort to inform spouses, sex
partners, 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:
Provided, however, That the
bureau has no notification obligations when the bureau determines
that there has been no likely exposure of such persons to HIV
from the infected test subject within the ten-year period immediately prior to the diagnosis of the infection. The name or
identity of the person whose HIV test result was positive is to
remain confidential. Spouses,
contacts, or sex identified
partners or persons who have shared needles 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.
Note: The purpose of this bill is to authorize treating
physicians to determine bona fide medical emergencies for HIV- related testing for medical diagnostic purposes.
Strike-through indicate language that would be stricken from
the present law, and underscoring indicates new language
that would be added.