HIV testing, disclosure of HIV test results, and providing penalties

Current law provides a number of additional exceptions to confidentiality of HIV test results. For example, under certain circumstances HIV test results may be disclosed without the test subject's consent to a health care provider, a jailer or corrections employee, a foster parent, and a victim of sexual assault, among others.

Current law specifies that if consent is required for HIV testing, it must be provided in writing on a form that includes an explanation regarding permitted disclosure of HIV test results. Authorization for disclosure of test results must also be provided in writing.

Current law also provides that a health care provider, blood bank, or blood or plasma center that performs an HIV test, must report positive HIV test results to the state epidemiologist. Current law allows a health care provider who has a record of an individual's positive HIV test results to report to the state epidemiologist the name of any person who had significant exposure to the test subject.

Current law provides a criminal penalty for intentionally violating prohibitions against disclosing HIV test results without the test subject's consent. Current law also allows civil damages for violating the prohibitions against disclosure and for violating consent requirements for HIV testing.

This bill changes the consent provisions for HIV testing. Under the bill, the following conditions must be satisfied before a health care provider, blood bank, blood center, or plasma center (test administrator) may perform an HIV test on a person: 1) the test administrator must notify the person that the person may decline to have the test performed and that the test will be performed unless the person declines; 2) the test administrator must offer the person certain information about HIV, HIV test results, reporting of test results, treatment options for HIV, and AIDS service organizations and the services they provide; 3) the test administrator must provide the person an opportunity to ask questions and to decline the test; 4) and the test administrator must verify that the person understands that a test will be performed and that the person's decision regarding testing is not coerced or involuntary. In addition, the bill provides that a health care provider may not deny treatment or services to a person who declines to have an HIV test performed, and requires a health care provider that administers HIV tests to notify potential HIV test subjects of this prohibition against denying treatment or services. The bill further provides that a health care provider may not require a person to authorize disclosure of HIV test results as a condition of administering an HIV test to the person. The bill eliminates the requirement that consent for an HIV test must be in writing. The bill requires the Department of Health Services to provide test administrators materials that include the information and notices that test administrators must provide or offer to potential test subjects.

Other changes in the bill include the following:

1. The bill specifies elements that must be included in an authorization to disclose HIV test results, including the name and signature of the person who authorizes the disclosure, specification of what information may be disclosed, the name of the person to whom the information may be disclosed, and the period in which disclosure is permitted.

2. The bill eliminates the condition that an individual who is tested for HIV in a case of significant exposure consent to being informed of his or her or test results before he or she may be notified of the test results.

3. The bill provides that a good samaritan who renders aid to an accident victim and has a significant exposure to body fluid of the victim may cause the victim to be tested for HIV without the victim's consent.

4. The bill specifies that if a minor is at least 14 years of age, the minor, and not his or her parent, has authority to consent to or decline an HIV test and authorize disclosure of his or her HIV test results.

5. The bill provides that a physician assistant has the same authority as a physician and certain nurses to certify that a significant exposure has occurred for purposes of requiring HIV testing without consent, to disclose to the state epidemiologist the name of a person who may have had a significant exposure to a person who has tested positive for HIV, to administer certain court-ordered HIV tests, and to receive certain HIV test results.

6. The bill provides that when a health care provider, blood bank, or blood or plasma center reports a positive HIV test result to the state epidemiologist, the report must include the mode of HIV transmission.

7. The bill increases the criminal fine and civil damages amounts for violating prohibitions against disclosing HIV test results without consent and increases the civil damages amounts for violating consent requirements for HIV testing.

8. The bill requires the Department of Heath Services to designate AIDS service organizations, which are defined in the bill as nonprofit corporations or public agencies that provide, or arrange for the provision of, comprehensive services to prevent HIV infection and comprehensive health and social services for persons who have an HIV infection.

9. The bill eliminates a state law requirement for HIV testing of sperm and ova that are donated as anatomical gifts. Federal law requires HIV testing of all donated sperm and ova.

10. The bill makes numerous changes that modernize and simplify references to HIV tests and reorganizes provisions relating to HIV testing and disclosure of HIV test results.