Introduced Version
Senate Bill 428 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 428
(By Senator Stollings)
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[Introduced March 4, 2013; 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 reenact §16-3C-2 of the Code of West Virginia,
1931, as amended; and to amend and reenact §16-4-19 of said
code, all relating to removing the limitations on billing
patients for HIV and sexually transmitted disease testing done
by state or local public health agencies; and clarifying
provisions relating to performing HIV or STD tests on persons
accused of a sexual offense.
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; 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.
(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
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 testing during
pregnancy and the woman presents for labor and delivery.
(b) All patients who seek an HIV test shall be responsible for
paying the costs of the testing, whether they are tested by a
private healthcare provider, the bureau or at a local health
department. Local health departments may charge in accordance with
their existing fee schedules and may charge patients on a sliding
fee scale.
_____(b) (c) A patient voluntarily consents to the test as follows:
(1) The patient is informed either orally or in writing that
HIV-related testing will be performed as part of his or her routine
care, that HIV-related testing is voluntary and that the patient
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
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 that 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 other HIV test setting provided by the commissioner who wishes to remain anonymous has the right to do so,
and to be provided written informed consent through use of a coded
system with no linking of individual identity to the test request
or results. Such persons may arrange to pay the costs of the HIV-
related testing.
_____(e) (f) No option to opt-out of HIV-related testing is
required and the provisions of subsection (a) and (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 of
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 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) (g) Mandated testing:
(1) The performance of any HIV-related testing that is or
becomes mandatory by a magistrate or circuit court order or other
legal process described herein does not require consent of the
subject but will may include counseling.
(2) The arresting authorities or a magistrate or circuit court
having jurisdiction of the criminal prosecution judge, upon the
request of the prosecutor in the case or upon the request of the
victim, shall order that an HIV-related test be performed cause the
accused to submit to one or more appropriate tests to determine if
the accused is infected with human immunodeficiency virus (HIV)
within forty-eight hours after the date on which the complaint,
information or indictment is filed or within forty-eight hours
after the date on which the complaint, information, or indictment
is served on the accused, whichever date is later, on for any
persons charged with any person accused 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
accused 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 or other correctional facilities to
administer HIV-related tests on such persons if he or she
determines it necessary and expedient. Nothing in this section may be construed to prevent the court from ordering at any time during
which the complaint, information or indictment is pending, that the
accused submit to one or more appropriate tests to determine if the
accused is suffering from a sexually transmitted disease (STD) or
from the human immunodeficiency virus (HIV). The cost of testing
and treatment may be charged to and paid by the accused.
(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; and
_____(iv) Bill that person for the necessary laboratory and
associated costs for testing either directly or by billing the
person's medical insurance provider.
(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
held 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 accused of or
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 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 individual to be tested or his or her medical insurance provider, if possible.
(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) of this section.
ARTICLE 4. SEXUALLY TRANSMITTED DISEASES.
§16-4-19. Voluntary submission to examination and treatment;
charges; disposition of money collected.
(a) Any resident of the state may at any time report to any
municipal or county health officer having jurisdiction of the case,
and voluntarily submit himself or herself to all tests and
examination as are necessary to ascertain whether in fact the
person submitting himself for examination is infected with a
venereal sexually transmitted disease. and said The health officer
to whom any party has applied as above for tests and examination
shall provide for making all such 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 sexually transmitted disease.
(b) If such tests and examinations show said party so applying
to be so infected the person to have a sexually transmitted
disease, then said party 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 from the local health
officer through a clinic or otherwise department, and if he or she
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 five
dollars 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.
____(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 paid by the individual or by that
persons health insurance provider. 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 does voluntarily submit for examination and
treatment and does take treatment under the provisions of this
section.
(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
the present law, and underscoring indicates new language that would
be added.