ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 488
(Senators Stollings, Foster, Hall, Wills, Snyder, Kessler
(Acting
President), Jenkins, Plymale and Miller, original sponsors)
____________
[Passed March 12, 2011; in effect ninety days from passage.]
____________
AN ACT 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 HIV testing generally;
repealing the authority of the Department of Corrections to
conduct AIDS-related study; providing for AIDS-related testing
and confidentiality of records; providing definitions;
providing who may request testing; providing when testing may
be mandated; providing for confidentiality of records;
providing enforcement mechanism for orders of the Commissioner
of the Bureau of Public Health; eliminating requirements for
counseling in certain circumstances; eliminating requirement
for information regarding HIV and AIDS be provided to persons
applying for marriage licenses; 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That §16-3C-7 of the Code of West Virginia, 1931, as amended, be repealed; and that §16-3C-1, §16-3C-2 and §16-3C-3 of said code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) "Bureau" means the Bureau for Public Health.
(c) "Commissioner" means the commissioner of the Bureau 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" has the same meaning ascribed to such
term in section three, article six, chapter thirty of this code.
(g) "Funeral establishment" has the same meaning ascribed to
that term in section three, article six, chapter thirty of this
code.
(h) "HIV" means the human immunodeficiency virus identified as
the causative agent of AIDS.
(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 and
Prevention.
(j) "Health facility" means a hospital, nursing home,
physician's office,
clinic, blood bank, blood center, sperm bank,
laboratory or other health care institution.
(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) unprotected sex with multiple partners; (iv) anonymous
unprotected sex; (v) or needle sharing; (vi) diagnosis of a
sexually transmitted disease; or (vii) unprotected sex or sharing
injecting equipment in a high HIV prevalence setting or with a
person who is living with HIV.
(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 for Public Health; and all employees thereof and volunteers associated
therewith.
(o) "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
.
(p) "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.
(q) "Person" includes any natural person, partnership,
association, joint venture, trust, public or private corporation or
health facility.
(r) "Release of test results" means a permitted or authorized
disclosure of HIV-related test results.
(s) "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 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.
(t) "Source patient" means any person whose body fluids have
been the source of a significant exposure to a medical or emergency
responder.
(u) "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.
(v) "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
by
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 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;
(4)When there is no record of any HIV-related testing during
pregnancy and the woman presents for labor and delivery.
(b) A patient voluntarily consents to the test as follows:
(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) A patient refuses to consent to the test 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, and that HIV-related
testing may be obtained anonymously at a local or county health
department.
(d) 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 be provided written informed consent through use of a coded
system with no linking of individual identity to the test request
or results.
(e) No
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 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) Mandated testing:
(1) The performance of any HIV-related testing that is or
becomes mandatory
by court order or other legal process described
herein
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
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 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
persons if he or she determines it necessary and expedient.
(4) 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) 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) 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) A person convicted of
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 may not release the
convicted person from custody and shall revoke any order admitting
the defendant to bail until HIV-related testing and counseling have
been performed and the result is known. 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.
(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 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 under this subsection may not be
financially responsible for medical care and support services.
(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 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 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 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) 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 a minor 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 that
information: Provided, That the funeral director, agent or employee
shall maintain the confidentiality of this information;
(5) Licensed health care providers or appropriate health
facility personnel providing care to the subject of the test::
Provided, That such personnel shall maintain the confidentiality of
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 not constitute a
breach of confidentiality requirements imposed by this article;
(6) The Bureau or the Centers for Disease Control and
Prevention of the United States Public Health Service in accordance
with reporting requirements for HIV and 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;
(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
(11) A person allowed access to the record by a court order
that is issued in compliance with the following provisions:
(i) No court of this state may issue 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) 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 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 for public
Health's designated test sites, or at their own expense by a health
care provider or an approved laboratory of their choice
confidentially should the test be positive. A cause of action may
not arise against the Bureau, a physician or other health care
provider from any such notification.
(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 may not arise from any
failure to make such notification. However, if contact is not
made, the Bureau will be so notified.