SB2339

SECTION 1. Chapter 325, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§325- Administration of HIV test; patient's informed right to decline test; prenatal care for pregnant women. (a) Prior to performing an HIV test in this State, a licensed physician or other health care provider in this State authorized to order or perform a human immunodeficiency virus (HIV) test shall advise the patient that the patient has the right to decline the HIV test.

(b) With regard to the prenatal care of a pregnant woman, prior to obtaining a blood specimen, the physician or other person engaged in the prenatal care of that pregnant woman shall ensure that:

(1) The woman is informed of the intent to perform a test for HIV infection;

(2) The routine nature of the HIV test;

(3) The purpose of the HIV testing;

(4) The risks and benefits of the HIV test;

(5) The risk of perinatal transmission of HIV;

(6) That approved treatments are known to decrease the risk of perinatal transmission of HIV; and

(7) That the woman has a right to decline the HIV test.

(c) If, during the final review of prenatal care medical tests, the medical records of the pregnant woman do not document a test for HIV, the physician or other person engaged in the prenatal care of the woman shall obtain a blood specimen from the woman for the undocumented HIV test. Prior to obtaining this blood specimen, the physician or other person engaged in the prenatal care of the woman shall ensure that:

(1) The woman is informed of the intent to perform the undocumented test for HIV infection;

(2) The routine nature of the HIV test;

(3) The purpose of the HIV testing;

(4) The risks and benefits of the HIV test;

(5) The risk of perinatal transmission of HIV;

(6) That approved treatments are known to decrease the risk of perinatal transmission of HIV; and

(7) That the woman has a right to decline the HIV test.

The blood shall be tested by a method that will ensure the earliest possible results, and the results shall be reported to the physician or other person engaged in the prenatal care of the woman or attending the woman at the time of delivery and the woman tested.

(d) After the results of the tests done pursuant to this section have been received, the physician or other person engaged in the prenatal care of the pregnant woman or attending the woman at the time of labor, delivery, or postpartum care at the time the results are received shall ensure that the woman receives information and counseling, as appropriate, to explain the results and the implications for the health of mothers and infants, including any follow-up testing and care that is indicated. If the woman tests positive for HIV antibodies, the woman shall also receive, whenever possible, a referral to a provider, provider group, or institution specializing in prenatal and postpartum care for HIV-positive women and their infants. Health care providers are also strongly encouraged to seek consultation with HIV specialists who provide care for pregnant and postpartum HIV-positive women and their infants.

(e) For purposes of this section, unless the context clearly requires otherwise, "prenatal care provider" means a licensed health care professional in this State providing prenatal care within the person's lawful scope of practice and shall not include a licensed health care professional who provides care other than prenatal care to a pregnant patient.

(f) The prenatal care provider primarily responsible for providing prenatal care to a pregnant patient shall offer in-person, oral, or written HIV information and counseling to every pregnant patient.

(g) Nothing in this section shall be construed to require mandatory testing. Any documentation or disclosure of HIV-related information shall be made in accordance with section 325‑16(c) regarding confidentiality."

SECTION 2. Section 325-16, Hawaii Revised Statutes, is amended by amending subsections (a) and (b) to read as follows:

"(a) [No] A health care provider, blood bank, plasma center, or any other public or private agency, institution, or individual may subject a person's body fluids or tissue to a test for the presence of human immunodeficiency virus (HIV) infection [~~unless the subject of the test first provides informed written consent to the testing.~~] in accordance with section 325‑A, except as provided in subsection (b). Any person in this State whose body fluids or tissue are subject to a test for the presence of HIV infection shall be afforded the opportunity to receive HIV counseling by the party ordering or requesting that the test be performed and shall be afforded the opportunity to obtain the test results. The counseling provided shall be consistent with guidelines established by the department. The opportunity to receive counseling shall be afforded both prior to obtaining a sample for HIV testing and upon disclosure of the test results, regardless of the serostatus of the individual tested, except that testing conducted pursuant to subsection (b)(1) and (2) shall be exempted from the counseling requirements of this subsection.

(b) Consent to testing is not required for any of the following:

(1) A health care provider or organ donor center that procures, processes, distributes, or uses human body parts donated for scientific purposes, without obtaining consent, may test for the presence of HIV in order to assure medical acceptability of the gift for the purpose intended;

(2) The department, laboratories and research facilities, health care providers, blood banks, plasma centers, and educational institutions may subject any body fluids or tissue to be used in research to a test for HIV infection if the test is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher;

(3) Anonymous testing may be carried out at HIV test sites established by the department; provided that informed oral consent is obtained;

(4) Testing of body fluids or tissue may be ordered by a third party, so long as that third party, including but not limited to an insurance company, employer, or school, obtains [~~the informed written consent of the person to be tested authorizing the~~] a written authorization of the person to be tested to release [of] the test results to the third party[,] and transmits a signed copy of the written [~~informed consent~~] authorization to the health provider prior to any release of the requested test results to the third party;

(5) Informed consent is not required where the patient is unable to give consent and it is determined by the patient's treating physician that the patient's HIV status is necessary to make a diagnosis or determine an appropriate course of treatment for the patient. The patient shall be informed in a timely manner that a test for the presence of HIV has been performed pursuant to this paragraph, and the patient shall be provided the opportunity to obtain the test results and appropriate counseling;

(6) A treating physician may order an HIV test without the patient's informed consent if the physician has determined that the patient is incapable of giving consent prior to the rendering of treatment and when there is reason to believe that the safety of a health care worker may be affected due to exposure to the blood or bodily fluids of a patient suspected of possible HIV infection. The availability and quality of health care services shall not be compromised based on the findings and testing performed pursuant to this paragraph. The costs of any testing performed shall be borne by the health care provider and may not be claimed against the patient or the patient's health care insurer. The patient and the health care worker shall be informed in a timely manner that a test for the presence of HIV has been performed pursuant to the provisions of this paragraph, and the patient and the health care worker shall be provided the opportunity to obtain the test results and appropriate counseling;

(7) A person who has been charged, or a juvenile who has been charged, pursuant to section 707‑730, 707‑731, 707‑732(1)(a), 707‑733.6, or 707‑741 shall be tested to determine the person's HIV status upon court order issued pursuant to section 325‑16.5. The test shall be performed according to the protocols set forth in section 325‑17; and

(8) A person who has been convicted, or a juvenile who has been adjudicated, pursuant to section 707‑730, 707‑731, 707-732(1)(a), 707‑733.6, or 707‑741 shall be tested to determine the person's HIV status upon court order issued pursuant to section 325‑16.5. The test shall be performed according to the protocols set forth in section 325‑17."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2339
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII