Report Title:

HIV Testing; Appropriation

Description:

Amends the informed written consent and pre-test counseling requirements to provide for voluntary HIV testing as a routine part of clinical care.  Makes an appropriation.

THE SENATE	S.B. NO.	2851
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII

A BILL FOR AN ACT

relating to health.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The National Centers for Disease Control and Prevention (CDC) issued new recommendations revising the current HIV testing procedures in health care settings.  According to the CDC, human immunodeficiency virus (HIV) infection and acquired immunodeficiency syndrome (AIDS) remain leading causes of illness and death in the United States.  Advances in medical technology and treatment have enabled survival rates to improve dramatically.  However, progress in effecting earlier diagnosis has been insufficient.  Early detection and diagnosis is essential to reducing the spread of HIV and AIDS.

     The CDC advocates routine voluntary HIV screening as a normal part of medical practice, similar to screening for other treatable conditions.  Screening is a basic public health tool used to identify unrecognized health conditions so treatment can be offered before symptoms develop and, for communicable diseases, so interventions can be implemented to reduce the likelihood of continued transmission.

     The purpose of this Act is to effectuate the CDC's recommendations to increase HIV screening of patients in health-care settings and to foster earlier detection of HIV infection by amending the informed written consent and pre-test counseling requirements to provide for voluntary HIV testing as a routine part of the clinical care of individuals who have been notified that the testing will be performed and have been given the option to decline the testing.

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

     "(a)  No [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.  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), and (3) shall be exempted from the counseling requirements of this subsection.

     (b)  [Consent] Informed written consent to testing is not required for any of the following:

(1) All health care providers in the public and private sectors, including those working in hospital emergency departments, urgent care clinics, inpatient services, substance abuse treatment clinics, public health clinics, community clinics, correctional health-care facilities, and primary care settings, may test for the presence of HIV; provided that the individual being tested is notified of the testing, voluntarily and without coercion agreed to the testing, has the option to decline the testing, and the testing is a routine part of clinical care in the health care setting.

    [(1)] (2)  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)] (3)  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)] (4)  Anonymous testing carried out at HIV test sites established by the department; provided that informed oral consent is obtained;

    [(4)] (5)  Testing of body fluids or tissue 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 release of the test results to the third party, and transmits a signed copy of the written informed consent to the health provider prior to any release of the requested test results to the third party;

    [(5)] (6)  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)] (7)  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)] (8)  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)] (9)  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.  There is appropriated out of the general revenues of the State of Hawaii the sum of $           or so much thereof as may be necessary for fiscal year 2008-2009 for the screening and early detection of HIV infection.

     The sum appropriated shall be expended by the department of health for the purposes of this Act.

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect upon its approval; provided that section 3 shall take effect on July 1, 2008.

INTRODUCED BY:

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