Senate Bill No. 42
(By Senator Kimble)
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[Introduced January 18, 1995; referred to the Committee
on Health and Human Resources; and then to the Committee
on the Judiciary.]
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A BILL to amend and reeenact section two, article three-c,
chapter sixteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to requiring
HIV testing upon a victim's request of persons arrested for
sexual offenses or other offenses when there is a reasonable
likelihood of transmission of disease.
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 to read as follows:
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withdrawn at any time prior to drawing the sample for the test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 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:
(1) A health care provider or health facility performing an
HIV-related test on the donor or recipient when the health care
provider or health facility procures, processes, distributes or
uses a human body part (including tissue and blood or blood
products) donated for a purpose specified under the uniform
anatomical gift act, or for transplant recipients, or semen
provided for the purpose of artificial insemination and such test
is necessary to assure medical acceptability of a recipient or
such gift or semen for the purposes intended;
(2) The performance of an HIV-related test in documented
bona fide medical emergencies when the subject of the test is
unable to grant or withhold consent, and the test results are
necessary for medical diagnostic purposes to provide appropriate
emergency care or treatment, except that post-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 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 person or persons arrested and charged with one of the
following offenses and where a credible person who claims to have
been the victim of such person or persons so arrested and charged
requests such testing, or where a person or persons has been
convicted of any of the such following crimes or offenses:
(i) Prostitution; or
(ii) Sexual abuse, sexual assault, incest or sexual
molestation; or
(iii) Any other offense for which it appears factual
circumstances surrounding the commission of such offense exist
that support a reasonable likelihood of the transmission of the
HIV virus.
(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 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) 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.
NOTE: The purpose of this bill is to allow for mandatory
HIV testing of persons arrested and charged with sexual offenses,
or for other offenses where there is a reasonable likelihood that
HIV has been transmitted, upon the request of any credible person
who claims to have been victimized by such person so arrested and
charged. Current law affords mandatory testing for persons
"convicted" of prostitution or sexual-related crimes.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.