COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 488
(By Senators Stollings, Foster, Hall, Wills, Snyder, Kessler
(Acting President), Jenkins, Plymale and Miller)
____________
[Originating in the Committee on Health and Human Resources;
reported February 17, 2011.]
____________
A BILL to repeal §16-3C-7 of the Code of West Virginia, 1931, as
amended; and to amend and reenact §16-3C-1, §16-3C-2 and §16-
3C-3 of said code, all relating to repealing the authority of
the Department of Corrections to conduct AIDS-related study;
providing for AIDS-related testing and confidentiality of
records; providing definitions; who may request testing;
confidentiality of records; and providing when disclosure is
permitted.
Be it enacted by the Legislature of West Virginia:
That §16-3C-7 of the Code of West Virginia, 1931, as amended,
be repealed; and that §16-3C-1, §16-3C-2 and §16-3C-3 of said code
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) (b) "Bureau" means the Bureau of for Public health Health.
(d) (c) "Commissioner" means the commissioner of the Bureau of
for Public Health.
(d) "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 sections two and four, article one, chapter forty-nine of this
code.
(e) "Department" means the State Department of Health and
Human Resources.
(f) "Funeral director" shall have has the same meaning
ascribed to such term in section four three, 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) (g) "Funeral establishment" shall have has the same
meaning ascribed to such that term in section four three, article
six, chapter thirty of this code.
(i) (h) "HIV" means the human immunodeficiency virus
identified as the causative agent of AIDS.
(j) (i) "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
Centers for Disease Control and Prevention.
(k) (j) "Health facility" means a hospital, nursing home,
physician's office,
clinic, blood bank, blood center, sperm bank,
laboratory or other health care institution.
(l) (k) "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.
(l) "Health Information Exchange" means the electronic
movement of health-related information in accord with law and
nationally recognized standards.
(m) "High risk behavior" means behavior by a person including,
but not limited to: (i) Unprotected sex with a person who is
living with HIV; (ii) unprotected sex in exchange for money or
drugs; (iii) multiple partners or anonymous unprotected sex or
needle sharing partners; (iv) diagnosis of a sexually transmitted
disease; or (v) unprotected sex or sharing injecting equipment in
a high HIV prevalence setting or with a person who is living with
HIV.
(m) (n) "Infant" means a person under six years of age.
(n) (o) "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 for Public
Health; and all employees thereof and volunteers associated
therewith.
(o) (p) "Patient" or "test subject" or "subject of the test"
means the person upon whom a HIV test is performed, or the person
who has legal authority to make health care decisions for the test
subject
.
(q) "Permitted purpose" is a disclosure permitted by the
Health Insurance Portability and Accountability Act of 1996 as
amended, or a disclosure consented to or authorized by a patient or
test subject.
(p) (r) "Person" includes any natural person, partnership,
association, joint venture, trust, public or private corporation or
health facility.
(q) (s) "Release of test results" means a written
authorization for permitted or authorized 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) (t) "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 Centers for Disease Control
and Prevention, and laboratory specimens that contain HIV (e.g.
suspensions of concentrated virus); or
(3) Exposure of skin to visible blood or body fluids, when the
exposed skin is chapped, abraded or afflicted with dermatitis or
the contact is prolonged or involving an extensive area.
(s) (u) "Source patient" means any person whose body fluids have been the source of a significant exposure to a medical or
emergency responder.
(v) "Targeted testing" means performing an HIV-related test
for sub-populations at higher risk, typically defined on the basis
of behavior, clinical or demographic characteristics.
(t) (w) "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 on a voluntary basis should be
recommended
may be requested by a
any healthcare provider 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 consent
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;
(4)When any person voluntarily consents to the test there is
no record of any HIV-related testing during pregnancy and the woman
presents for labor and delivery.
(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 A
patient voluntarily consents to the test as follows:
(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 The patient is
informed either orally or in writing that HIV-related testing will
be performed as part of their routine care, that HIV-related
testing is voluntary and that the patient may decline HIV-related
testing (opt-out)
;
(2) An explanation of the procedures to be followed
The
patient is informed that the patient's general consent for medical
care includes consent for HIV-related testing;
(3) An explanation that the test is voluntary and may be
obtained anonymously If a patient 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, that HIV-related testing may be obtained anonymously
at a local or county health department;
(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.
(c) For any person seeking an HIV-related test in 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 provide written informed consent through use of a coded
system with no linking of individual identity to the test request
or results.
(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) (d) No consent for
option to opt-out of HIV-related
testing is required and the provisions of subsection
(a) and
(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 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
regulations 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 expressed written consent of the test subject
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 regulations 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 September 1, 1998, 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 regulations 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) (e) Mandated testing:
(1) The performance of any HIV-related testing that is or
becomes mandatory
by court order or other legal process described
herein
shall does 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 charged with 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
charged with 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 determines 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 or she 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 the offenses
described in this
section shall be required to undergo HIV-related testing and
counseling immediately upon conviction and the court having
jurisdiction of the criminal prosecution shall may not release such
the 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) (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 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 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 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 providing counseling or testing
under this subsection shall may 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 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) 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 the 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 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) (f) 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) (g) 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) (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.
(j) (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 deemed
considered 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
that information: Provided, That such the funeral director, agent
or employee shall maintain the confidentiality of such this
information;
(5) Licensed medical personnel health care providers or
appropriate health care facility 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 the test results and may redisclose the
results only for a permitted purpose or as permitted by law. 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 may not constitute a breach of confidentiality requirements
imposed by this article;
(6) The bureau Bureau or the centers for disease control
Centers for Disease Control and Prevention 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) Claims management personnel employed by or associated with
an insurer, health care service contractor, health maintenance
organization, self-funded health plan, state-administered health
care claims payer or any other payer of health care claims, where
the disclosure is to be used solely for the prompt and accurate
evaluation and payment of medical or related claims. Information
released under this subsection is confidential and may not be
released or available to persons who are not involved in handling
or determining medical claims payment;
(10) Persons, health care providers or health facilities
engaging in or providing for the exchange of protected health
information among the same in order to provide health care services
to the patient, including, but not limited to, disclosure through
a health information exchange, disclosure and exchange within
health care facilities, and disclosure for a permitted purpose,
including disclosure to a legally authorized public health
authority; and
(9) (11) A person allowed access to said the record by a court
order which is issued in compliance with the following provisions:
(i) No court of this state may issue such the 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) (c) 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 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 Bureau shall have has no notification obligations when the
bureau Bureau determines that there has been no likely exposure of
such these 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 partners or persons who have shared needles may be tested
anonymously at the State Bureau of for 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 may not arise against the bureau Bureau, a physician or other health
care provider from any such notification.
(e) (d) 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 may not arise
from any failure to make such notification. However, if contact is
not made, the bureau Bureau will be so notified.
Note: The purpose of this bill is to revise the West Virginia
HIV testing statute to conform with the most recent recommendations
from the Centers for Disease Control and Prevention.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.