COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 299
(By Senators Wiedebusch, Scott and Schoonover)
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[Originating in the Committee on the Judiciary;
reported March 2, 1995.]
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A BILL to amend and reenact section two, article three-c, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections six and six-a, article one, chapter forty-eight of said code, all relating to requiring that one obtain a HIV- related test before receiving a marriage license.

Be it enacted by the Legislature of West Virginia:
That section two, article three-c, chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections six and six- a, article one, chapter forty-eight of said code be amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 3C. AIDS-RELATED MEDICAL TESTING AND RECORDS CONFIDENTIALITY ACT.
§16-3C-2. Testing.

(a) HIV-related testing may be requested by a physician, dentist or the 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 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(4) An explanation that the consent for the test may be withdrawn at any time prior to drawing the sample for the test and that such withdrawal of consent may be given orally if the consent was given orally or shall be in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 a 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 a 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:
(1) A health care provider or health facility performing a 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 a 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-test counseling or referral for counseling shall nonetheless be required. Necessary treatment may not be withheld pending HIV test results; or
(3) The performance of a 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 a 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 a 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 a 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 a 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 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.
(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) 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.
(h) 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.
(i) 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.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. MARRIAGE.

§48-1-6. Application for license; requirements for issuance of license.

Every license for marriage shall be issued by the clerk of the county commission of the county in which either party usually resides, except that where both parties are nonresidents of the state of West Virginia, the license shall be issued by the clerk of the county commission of the county in which application is made. The license shall be issued not sooner than three days after the filing with the clerk of a written application therefor. The day on which the application is filed shall be counted as the first day, but two full days shall elapse after the day of filing before the license shall be issued. Before any license is issued, each applicant shall file with the clerk a certificate or certificates from any physician duly licensed in the state, stating that each party has been given an examination, including a standard serological test, as may be necessary for the discovery of syphilis, made not more than thirty days prior to the date on which license is issued, and stating that in the opinion of the physician the applicant either is not infected with syphilis or, if so infected, is not in the state of the disease which is or may later become communicable. The examinations and tests required by this section may be given as provided by section nineteen, article four, chapter sixteen of this code.
Before any license is issued, each applicant shall file with the clerk a certificate or certificates from any physician duly licensed in the state, stating that an initial HIV-related screening test has been performed on the applicant. The applicant shall also submit an affidavit stating that he or she has reviewed the HIV-related test results of the other applicant. Notwithstanding any provision to the contrary, the applicant shall bear all costs associated with such test.
The application for a marriage license shall contain a statement of the full names of both parties, their social security account numbers, their respective ages and their places of birth and residence. Effective the first day of September, one thousand nine hundred ninety-three, the application for a marriage license shall also contain the following statement:
"The laws of this state affirm your right to enter into this marriage and at the same time to live within the marriage free from violence and abuse. Neither of you is the property of the other. Physical abuse, sexual abuse, battery and assault of a spouse or other family member, as well as other provisions of the criminal laws of this state, are applicable to spouses and other family members and violations thereof are punishable by law."
It shall be signed by both of the parties to the contemplated marriage, under oath before the clerk of the county commission or before a person authorized to administer oaths under the laws of this state. At the time of the execution of the application, the clerk, or the person administering the oath to the applicants, shall require some evidence of the age of each of the applicants. Evidence of the age of each applicant may be in the form of a certified or photostatic copy of a birth certificate, a voter's registration certificate, an operator's or chauffeur's license, an affidavit of both parents or legal guardian of the applicant or other good and sufficient evidence. Where such an affidavit is relied upon as evidence of the age of an applicant, and one parent is dead, the affidavit of the surviving parent or of the guardian of the applicant shall suffice; if both parents are dead, the affidavit of the guardian of the applicant shall suffice. If the parents of the applicant are living separate and apart, the affidavit of the parent having custody of the applicant shall suffice. The application shall be recorded in the register of marriages provided for in section eleven of this article. The date of the filing of the application shall be noted in the register. The notation, or a certified copy thereof, is legal evidence of the facts therein contained.
To the extent otherwise provided by section six-c of this article, the provisions of this section do not apply. Applications for licenses may be received and licenses may be issued by the clerk of the county commission at anytime his or her office is officially open for the conduct of business.
§48-1-6a. Standard serological test -- Generally.

The standard serological test, for the purpose of section six of this article, shall be a laboratory test for syphilis and for HIV. The HIV-related test shall constitute an initial HIV screening test. The tests shall be approved by the state director of health, and shall be performed by the state department of health or by a laboratory approved for this purpose by the state department of health.