H. B. 2810
(By Delegate Schoonover)
[Introduced March 31, 1993; referred to the
Committee on the Judiciary.]
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, relating to
revising provisions governing the administration of
mandatory HIV-related tests on convicted sex offenders;
defining certain terms; adding a provision designating the
local or county health department or a designee of the
director of the bureau of public health as the agency to
administer the HIV-related tests on convicted sex offenders;
adding a provision granting the victim of a sex-related
offense with counseling regarding HIV disease, HIV-related
testing and referral for appropriate health care and support
services; requiring the bureau to bear the costs of
mandatory HIV-related testing and counseling of convicted
sex offenders and counseling and voluntary testing of
victims of sex-related offenses; adding a provision
requiring the convicted sex offender to pay restitution to
the state for the costs of mandatory HIV-related tests and
counseling and voluntary HIV-related testing and counseling
of victims of sex-related offenses; adding a provision
creating a special revenue fund to be used by the state
department of health for the purpose of performing HIV-
related testing and counseling; adding a provision
authorizing the disclosure of the results of a convicted sex
offender's HIV-related test to the victim of the offense at
the request of the victim; and adding a provision
authorizing the court to order repeat mandatory HIV-related
tests on a convicted sex offender upon motion of the state
after the first test is administered.
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 to read as
follows:
ARTICLE 3C. AIDS-RELATED MEDICAL TESTING AND RECORDS
CONFIDENTIALITY ACT.
§16-3C-1. Definitions.
When used in this article:
(a)
"Department" "Bureau" means the
state department of
bureau of public health.
(b) "AIDS" means acquired immunodeficiency syndrome.
(c) "ARC" means AIDS-related complex.
(d) "Funeral director" shall have the same meaning ascribedto such term in section four, article six, chapter thirty of this
code.
(e) "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.
(e) (f) "Funeral establishment" shall have the same meaning
ascribed to such term in section four, article six, chapter
thirty of this code.
(f) (g) "HIV" means the human immunodeficiency virus
identified as the causative agent of AIDS.
(g) (h) "HIV-related test" means a test for the HIV antibody
or antigen or any future valid test approved by the department,
the federal drug administration or the centers for disease
control.
(h) (i) "Health facility" means a hospital, nursing home,
clinic, blood bank, blood center, sperm bank, laboratory or other
health care institution.
(i) (j) "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.
(k) "Infant" means a person under thirteen years of age.
(j) (l) "Person" includes any natural person, partnership,association, joint venture, trust, public or private corporation
or health facility.
(k) (m) "Release of test results" means a written
authorization for disclosure of HIV-related test results which is
signed, dated and which specifies to whom disclosure is
authorized and the time period during which the release is to be
effective.
(n) "Victim" means the person or persons to whom
transmission of bodily fluids from the perpetrator of the
sex-related crimes of prostitution, sexual abuse, sexual assault,
incest or molestation occurred or was likely to have occurred in
the course of such crimes.
§16-
3C-
2. Testing.
(a) HIV-related testing may be requested by a physician,
dentist or the director of the
department bureau for any of the
following:
(1) When there is cause to believe that the test could be
positive; or
(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 director of the
department bureau shall provide the patient with information in
the form of a booklet or printed information prepared or approved
by the department or, in the case of persons who are unable to
read, shall either show a video or film prepared or approved bythe
department bureau to the patient, or read or cause to be read
to the patient the information prepared or approved by the
department 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;
and
(2) An explanation of the procedures to be followed;
and
(3) An explanation that the test is voluntary and may be
obtained anonymously;
and
(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;
and
(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 healthdepartment which shall provide for performance of an HIV-related
test and counseling.
(d) At the time of learning of any test result, the subject
of the test 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-text 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 shall be
performed on any persons convicted of any of the following crimes
or offenses:
(i) Prostitution;
(ii) Sexual abuse, sexual assault, incest or molestation.
(3) HIV-related tests performed on persons convicted of
prostitution, sexual abuse, sexual assault, incest or molestation
shall be confidentially administered by a designee of the bureau
or the local or county health department having proper
jurisdiction. The director 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. A person convicted of such offenses shall immediately
upon conviction be required to undergo HIV-related testing and
counseling 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 untilHIV-related testing and counseling have been performed. The
results of such tests and any other medical information obtained
from the convicted person shall be transmitted to the court and,
after the convicted person is sentenced, made part of the court
record. 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.
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 test results and other medical information to the
division of corrections.
(4) A person charged with prostitution, sexual abuse, sexual
assault, incest or molestation shall upon initial court
appearance on the charge be informed 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 department. 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 of
such crimes shall be administered at his or her request on a
confidential basis and shall be administered in accordance with
the center for disease control guidelines of the United Statespublic health service in effect at the time of such request. The
victim of such crimes 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 director of the bureau or by any
local or county health department having proper jurisdiction.
(5) 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.
(3) (6) The director of the
department 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.
(4) (7) When the director of the
department bureau 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.
(8) If an HIV-related test required on persons convicted of
prostitution, sexual abuse, sexual assault, incest or 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 center for disease control guidelines of the United
States public health service in effect at the time of the motion
of the state.
(9) The costs of mandated testing and counseling providedunder 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. The bureau shall pay the costs of preconviction HIV-
related testing and counseling provided the victim when a law-
enforcement office certifies in writing that, based upon his
investigation and the results of a physical examination by a
physician or other qualified health care provider he reasonably
believes that a sex-related offense has been committed and that
the complainant is the victim of such offense. The court having
jurisdiction of the criminal prosecution shall order a person
convicted of prostitution, sexual abuse, sexual assault, incest
or 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. 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 "AIDS prevention" fund
which is hereby created. The moneys so credited to such fund may
be used solely by the bureau for the purposes of performing HIV-
related testing and counseling under the provisions of this
article.
(g) If a person violates a cease and desist order issued
pursuant to this section and it is shown that the person is a
danger to others, the director of the
department bureau shallenforce the cease and desist order by imposing such restrictions
upon the person as are necessary to prevent the specific conduct
which endangers the health of others. Any restriction shall be
in writing, setting forth the name of the person to be restricted
and the initial period of time, not to exceed three months,
during which the order shall remain effective, the terms of the
restrictions and such other conditions as may be necessary to
protect the public health.
(h) 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 department.
(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
department bureau.
(i) The director of the
department 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.
(j) 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 standardsregarding consent for use by insurers which test for the presence
of the HIV antibody.
(k) 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 prostitution, sexual abuse,
sexual assault, incest or 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;
(2) (3) Any person who secures a specific release of test
results executed by the subject of the test;
(3) (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 specimensof 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;
(4) (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;
(5) (6) The department 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;
(6) (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; or (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; (D) human body parts for transplant with respect to
medical information regarding the donor or recipient;
(7) (8) Health facility staff committees or accreditation oroversight review organizations which are conducting program
monitoring, program evaluation or service reviews so long as any
identity remains anonymous; and
(8) (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 subsection (a).
(c) Whenever disclosure is made pursuant to this section
except when such disclosure is made to persons in accordance with
subdivisions (1), (3), (4), (5), (6) and (7), 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 sex partners or
contacts or persons who have shared needles that they may be atrisk of having acquired the HIV infection as a result of possible
exchange of body fluids, is permitted. The name or identity of
the person whose HIV test result was positive is to remain
confidential. Contacts or identified partners may be tested
anonymously at the state department of health 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 department 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 department will be so notified.
NOTE: The purpose of this bill is to revise provisions
governing mandatory HIV testing of convicted sex offenders. The
bill provides that the Director of the Bureau of Health or the
county health department may administer HIV related tests on
convicted offenders. The bill provides for testing and
counseling regarding HIV for victims of sexual offenses. The
bill provides that the Bureau of Health will pay for the costs of
these tests and services, but that convicted sex offenders are
required to pay restitution to the state. The bill also allows
for disclosure to victims of HIV tests conducted on convicted sex
offenders.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.