WEST virginia Legislature
2016 regular session
Introduced
Senate Bill 404
By Senators Ferns, Plymale, Stollings and Prezioso
[Introduced January
27, 2016;
Referred to the Committee on Health and Human Resources; and then to the
Committee on Finance.]
A BILL to amend and reenact §16-3C-2 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto two new sections, designated §16-3C-2a and §16‑3C‑2b; and to amend and reenact §16-4-19 of said code, all relating to testing for HIV and sexually transmitted diseases; authorizing billing of persons for HIV and sexually transmitted disease testing or sexually transmitted disease treatment done by state or local public health agencies; informing persons who wish to opt out of HIV-related testing that anonymous testing is available; authorizing magistrate and circuit courts to order testing of persons accused of certain sex crimes; requiring prosecuting attorneys to file motion for testing upon request of victim or victim’s parent or guardian; establishing a timeframe for mandatory testing; providing for follow-up HIV-related testing as medically appropriate; providing that costs associated with testing may be borne by the state when the defendant or juvenile respondent is financially unable to pay; authorizing billing of a defendant’s or juvenile respondent’s health insurance provider; requiring testing of juveniles adjudicated of certain sex crimes; removing counseling requirement; removing exemption for providers regulated by Insurance Commissioner; removing limitation on amount that may be charged for medication used to treat sexually transmitted diseases; and removing archaic language related to testing of sexually transmitted diseases.
Be it enacted by the Legislature of West Virginia:
That §16-3C-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto two new sections, designated §16-3C‑2a and §16-3C-2b; and that §16-4-19 of said code be amended and reenacted, all to read as follows:
ARTICLE 3C. AIDS-RELATED MEDICAL TESTING AND RECORDS CONFIDENTIALITY ACT.
§16-3C-2. Testing
HIV-related testing; methods for obtaining consent; billing patient health
care providers.
(a) HIV-related testing on
a voluntary basis should be recommended by any healthcare provider
in a health facility providers 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 rules
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 or other sexually transmitted disease testing during pregnancy and the woman presents for labor and delivery.
(b) All healthcare providers, the bureau, or a local health department, that routinely bill insurance companies or other third-party providers may bill for HIV-related testing and treatment.
(b) (c) A patient voluntarily consents to the
test as follows: HIV-related testing when:
(1) The patient is informed either orally or in writing that:
(A) HIV-related testing will be performed as part of his
or her routine care; that
(B) HIV-related testing is voluntary; and that the
patient
(C) He or she 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) (d) A patient refuses to consent to the
test if a patient who 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 must be informed
that hat HIV-related testing may be obtained anonymously at a local or county
health department.
(d) (e) Any person seeking an HIV-related test in
a local or county health department or at other HIV test setting
provided by the commissioner who wishes to remain anonymous has the right to do
so, and to must be provided written informed consent through the
use of a coded system with no linking of individual identity to the test
request or results.
(f) County or local health departments that routinely bill insurance companies or other third party payers for service may bill for an HIV-related test if the person requesting the test does not request to remain anonymous. No person may be refused a test at a local health department because of a lack of insurance or due to a request to remain anonymous.
(e) (g) No option to A person may not
decline or opt-out of HIV-related testing is required and the
provisions of subsection subsections (a) and (b) (c)
of this section do not apply for the following: when:
(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
(A) A human body part (including tissue and blood or blood
products) donated for: a
(i) A purpose specified under the uniform anatomical gift
act; or for transplant
(ii) Transplant recipients; or semen
(B) Semen provided for the purpose of artificial insemination
and such an HIV-related 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 A person is unable or unwilling to grant or
withhold consent as the result of a documented bona fide medical emergencies
emergency, 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 HIV-related
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) (c) of this section.
§16-3C-2a. Mandatory testing.
(a) HIV-related testing that is or becomes mandatory by either a magistrate or circuit court order or other legal process does not require consent of the subject.
(b) Upon the request of the victim or the victim’s parent or legal guardian, and notice to the defendant or juvenile respondent, a prosecuting attorney shall apply to a magistrate or circuit court for an order directing a defendant charged or a juvenile subject to a petition involving any of the following offenses:
(1) Prostitution; or
(2) Sexual abuse, sexual assault, or incest to submit to an appropriate human immunodeficiency virus, HIV-related test.
(c) Upon a motion filed pursuant to subsection (b), a court shall require the defendant or juvenile respondent to submit to HIV-related testing not later than forty-eight hours after the issuance of the order: Provided, That HIV-related testing may not be performed later than forty-eight hours after the filing of any indictment regarding an adult defendant or an adjudication order regarding a juvenile respondent, without a court order based upon a finding of good cause.
(d) The results of testing performed pursuant to this section shall be provided to the prosecuting attorney, who shall promptly transmit the results to:
(1) The victim or victim’s parent or legal guardian;
(2) Counsel for the defendant or juvenile respondent; and
(3) The court having jurisdiction over the trial of the matter.
(e) HIV-related tests performed on persons charged with prostitution, sexual abuse or assault, or incest 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 jails or other correctional facilities to administer HIV-related tests on such persons if he or she determines it necessary and expedient.
(f) Nothing in this section prevents a court from ordering, at any time during which the charge or juvenile petition is pending, that a defendant or juvenile submit to one or more appropriate tests to determine if he or she is infected with HIV.
(g) A court may order follow-up tests for HIV as may be medically appropriate.
(h) Costs associated with tests performed pursuant to this section may be charged to a defendant or juvenile respondent, unless a court determines that the defendant or juvenile is pecuniarily unable to pay.
(1) If a defendant or juvenile is unable to pay, the cost of the HIV testing may be borne by the regional jail or other correctional or juvenile facility, the bureau, or the local health department.
(2) If a defendant or juvenile who is ordered to be tested has health insurance, the local health department or other providers performing the test, may bill the defendant’s or juvenile’s health insurance for the cost of the test.
(3) A defendant or juvenile ordered to submit to HIV-related tests by a magistrate or circuit court may not be permitted to remain anonymous and a local health department may administer and bill for the test.
(i) A person convicted or a juvenile adjudicated of the offenses described in subsection (b) of this section shall be required to undergo HIV-related testing and counseling immediately upon conviction or adjudication and the court having jurisdiction of the matter may not release the convicted or adjudicated person from custody and shall revoke any order admitting the defendant or juvenile to bail until HIV-related testing and counseling have been performed and the result is known: Provided, That if the person convicted or adjudicated has already been tested in accordance with the provisions of this section, and the result is positive, that person need not be retested. The HIV-related test result is to be transmitted to the court and, after sentencing or adjudication, is to be made part of the court record. If the convicted or adjudicated person is placed in the custody of the Division of Corrections or Regional Jail and Correctional Facility Authority, or if the adjudicated juvenile is placed in the custody of the Division of Juvenile Services or other out-of-home placement, the court shall transmit a copy of the convicted or adjudicated person's HIV-related test results to the appropriate custodial agency. 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.
(j) The prosecuting attorney shall inform a victim, or parent or guardian of the victim, of an offense described in subsection (b) of this section, 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.
(1) HIV-related testing for a 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.
(2) A victim who obtains an HIV-related test shall be provided with pretest and post-test counseling regarding the nature, reliability and significance of the HIV-related test and the confidential nature of the test.
(k) If a person who receives counseling or is tested under this section, is found to be HIV infected and 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 held financially responsible for medical care and support services.
(l) If the HIV-related test required of a person charged with, or convicted of, prostitution, sexual abuse, sexual assault or incest 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.
(m) The costs of mandated testing and counseling provided under this section, and preconviction 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 individual to be tested or his or her medical insurance provider, if possible.
(n) A court having jurisdiction of a criminal prosecution shall order a person convicted of prostitution, sexual abuse, sexual assault or incest 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 determines the convicted person is indigent.
(o) Any funds recovered by the state as a result of an award of restitution under this section 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.
§16-3C-2b. Commissioner’s authority to order testing.
(a) When the commissioner knows or has reason to believe, because of medical or epidemiological information, that a person, including, but not limited to, an IV drug abuser, or a person who may have a sexually transmitted disease, or a person who has sexually 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:
(1) Require the person to be examined and tested to determine whether the person has HIV infection;
(2) Require the person with HIV infection to report to a qualified physician or health worker for counseling; and
(3) Direct the person with HIV infection to cease and desist from specified conduct that endangers the health of others; and
(4) Bill that person for the necessary laboratory and associated costs for counseling and testing either directly or by billing the person's medical insurance provider.
(b) If a 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 may apply to the circuit court of Kanawha County to enforce the cease-and-desist order by imposing any restrictions upon the person necessary to prevent the specific conduct that endangers the health of others.
(c) The commissioner 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.
ARTICLE 4. SEXUALLY TRANSMITTED DISEASES.
§16-4-19. Voluntary submission to examination and treatment; charges; disposition of money collected.
(a)(1) Any resident of the Any person state
may at any time report to any municipal or county health officer
having jurisdiction of the case department and voluntarily
submit himself or herself to all tests and examination as are examinations
necessary to ascertain whether in fact the person submitting himself for he
or she examination is infected with a venereal sexually
transmitted disease; and said health officer to whom any party has
applied as above for tests and examination shall provide for making all
such the health department shall conduct and administer all necessary
tests and examinations as are necessary to ascertain whether in fact
said party so applying be so infected with a venereal the person has any
sexual transmitted disease.
(2) A person who is tested for sexually transmitted diseases at a local health department pursuant to this subsection shall be responsible for paying the reasonable costs of testing, either directly or through billing the person’s medical provider.
(3) Local health departments may charge in accordance with their existing fee schedules and may charge patients for such testing on a sliding fee scale.
(b)(1) If such tests and examinations show said
party so applying to be so infected, then said party a person tested and
examined pursuant to subsection (a) of this section to have a sexually
transmitted disease, then the person shall elect whether he or she
will take treatment of from a private physician, or whether he or
she will take treatment to be provided by the health officer through a clinic
or otherwise, and from the local health department.
if he (2) If a person elects to take treatment
through the local health officer's arrangement department, he or
she may be required to pay for such treatment at a charge which shall in
no case exceed the sum of $5 for each dose of "neo" or arsphenamine
administered for syphilis, and at a nominal cost for other medicines used; but
if the patient is unable to pay anything, he shall be treated free of charge
under the direction of the local health officer, at a clinic or otherwise either
directly or by the local health department billing the person’s health
insurance provider.
(3) Local health departments may charge in accordance with their existing fee schedules and may charge patients for treatment on a sliding fee scale.
(4) No individual may be refused treatment at a local health department because of a lack of insurance or inability to pay.
(c) All proper charges for such examination and
treatment as that may be necessary hereunder shall be a proper
charge against the municipality or county, as the case may be, whether said
party so taking treatment lived in or out of a municipal corporation. And
whether said person proposing to take treatment as provided hereunder elect to
take from a private physician or elect to take treatment under the direction of
the local health officer, he shall first sign the agreement required to be
signed by persons about to be released from detention or quarantine, and shall
observe all its provisions, and so long as such person so signing shall so
observe these provisions he need not be detained or quarantined pending
treatment, except that no person who is known as a prostitute, or as a person
associating with such, or as a person who resides in any house having the
reputation of being a house of prostitution, or who frequents the same, shall
be allowed at liberty if infected with a venereal disease in an infectious
stage, even though he or she does voluntarily submit for examination and
treatment and does take treatment under the provisions of this section. pursuant
to this section shall be paid by the individual or by that person’s
health insurance provider.
(d) All money collected under this section shall be paid
into a clinic fund, if one is provided, and if not then into the county or city
treasury, as the case may be; to the local health department doing the
testing and the local health officer having jurisdiction shall collect and
account for such funds collected hereunder.
NOTE: The purpose of this bill is to remove the prohibition on billing persons for HIV testing or testing for sexually transmitted diseases conducted by the state Bureau for Public Health or county or local health departments. The bill allows public health agencies to charge patients or their medical insurance providers for the reasonable costs for testing. It also clarifies the procedures for testing persons accused of a sexual offense for HIV or STDs.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.