H. B. 4503
(By Delegates Hutchins, Compton, Fleischauer, Rowe,
Hubbard, Thomas and Miller)
(Originating in the House Committee on
Health and Human Resources)
[February 19, 1998]
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
Aids/HIV-related medical testing, including the authorization
for treating physicians to determine bona fide medical
emergencies when HIV-related testing for medical diagnostic
purposes is necessary; spousal notification regarding contact
with a source patient tested positive for HIV; and mandating
emergency regulations be proposed pursuant to the provisions
of section fifteen, article three, chapter twenty-nine-a of
this code on or before the first day of September, one
thousand nine hundred ninety-eight, addressing
confidentiality, costs associated with testing, documentation,
post-test counseling, post-exposure prophylaxis and other
matters.
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, all to read as
follows:
§16-3C-1. Definitions.
When used in this article:
(a) "AIDS" means acquired immunodeficiency syndrome.
(b) "ARC" means AIDS-related complex.
(c) "Bureau" means the bureau of public health.
(d) "Commissioner" means the commissioner of the bureau of
public health.
(e) "Department" means the state department o f health and
human resources.
(f) "Funeral director" shall have the same meaning ascribed to
such term in section four, 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) "Funeral establishment" shall have the same meaning
ascribed to such term in section four, article six, chapter thirty
of this code.
(i) "HIV" means the human immunodeficiency virus identified as
the causative agent of AIDS.
(j) "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.
(k) "Health facility" means a hospital, nursing home, clinic,
blood bank, blood center, sperm bank, laboratory or other health
care institution.
(l) "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.
(m) "Infant" means a person under six years of age.
(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 non-medical and non-emergency
personnel providing assistance in emergencies; funeral directors;
health care providers; commissioner of the bureau of public health;
and all employees thereof and volunteers associated therewith.
(no)"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
means the person receiving the HIV-related testing.
(op) "Person" includes any natural person, partnership,
association, joint venture, trust, public or private corporation or
health facility.
(pq) "Release of test results" means a written authorization
for 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) "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, including without
limitations, the following body fluids: blood, semen, vaginal
secretions, cerebro-spinal fluid (CFS), synovial fluid, plueral
fluid, pericardial fluid, amniotic fluid, and laboratory specimens
that contain HIV (e.g. suspensions of concentrated virus); or
(3) Exposure of skin to visible blood or body fluids,
especially when the exposed skin is chapped, abraded or afflicted
with dermatitis or the contact is prolonged or involving an
extensive area.
(s) "source patient" means any person whose body fluids have
been the source of a significant exposure to a medical or emergency responder.
(qt)"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 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 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
came into contact with a medical or emergency responder or other
person
in such a way that a significant exposure
has occurred.
(34)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 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 source patient, medical or emergency
responder, or any other person
who has came into contact with a
source patient in such a way that a significant exposure
necessitates HIV-testing in accordance with regulations proposed
by the department for approval by the legislature in accordance
with article three, chapter twenty-nine-a of this code
: except that
post-test counseling or referral for counseling shall nonetheless
be required, Provided, That Nnecessary treatment may not be
withheld pending HIV test results
; or: Provided, however, That all
sampling and HIV-testing of samples of blood and body fluids,
without the expressed written consent of the test subject, shall be
through the use of a pseudonym and in accordance with regulations
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 the first day of
September, one thousand nine hundred ninety eight 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) 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 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 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.
.§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
information: Provided, That such funeral director, agent or
employee shall maintain the confidentiality of such information;
(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;
(6) The 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;
(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) 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
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) 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 shall
have no notification obligations when the bureau determines that
there has been no likely exposure of such 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,
Ccontacts,or sex identified partners or
persons who have shared needles may be tested anonymously at the
state bureau of 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 not arise against the 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 bureau will be so notified.
Note: The purpose of this bill is to authorize treating
physicians to determine bona fide medical emergencies for HIV- related testing for medical diagnostic purposes.
Strike-through indicate language that would be stricken from
the present law, and underscoring indicates new language
that would be added.