Report Title:

Human Immunodeficiency Virus Testing; Health care Providers

 

Description:

Proposes to expand routine human immunodeficiency virus testing by health care providers to improve early diagnosis of human immunodeficiency virus by removing the requirement for health care providers to obtain written informed consent and to provide pre-test counseling prior to testing for human immunodeficiency virus.  (SD1)

 

THE SENATE

S.B. NO.

932

TWENTY-FIFTH LEGISLATURE, 2009

S.D. 1

STATE OF HAWAII

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO INFECTIOUS DISEASE TESTING.

 

 

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

 

     SECTION 1.  An estimated twenty-five per cent of individuals infected with human immunodeficiency virus (HIV) do not know their human immunodeficiency virus status because they have not been tested for human immunodeficiency virus.  In 2006, the Centers for Disease Control and Prevention (CDC) recommended human immunodeficiency virus screening as a routine part of medical care.  Research and experience indicate that the requirements for health care providers to obtain written informed consent and to provide pre-test human immunodeficiency virus counseling are significant barriers to human immunodeficiency virus testing.  The purpose of this Act is to remove these identified barriers, while providing for the individual's opportunity to decline testing. 

     SECTION 2.  Section 325-16, Hawaii Revised Statutes, is amended to read as follows:

     "§325-16 Informed consent for testing or disclosure.  (a)  As used in this section, the term "health care provider" means a physician or surgeon licensed under chapter 453, a podiatrist licensed under chapter 463E, a health care facility as defined in section 323D-2, and their employees.  The term "health care provider" shall not mean any nursing institution or nursing service conducted by and for those who rely upon treatment by spiritual means through prayer alone, or employees of such an institution or service.

     (b)  A health care provider may subject a person's body fluids or tissue to a test for the presence of human immunodeficiency virus infection only after affording the patient the opportunity to decline the test.  Specific written informed consent for human immunodeficiency virus testing ordered by a health care provider is not required.  For human immunodeficiency virus tests ordered by a health care provider, pre-test human immunodeficiency virus counseling is not required.  When a human immunodeficiency virus test ordered by a health care provider has a reactive, indeterminate, or confirmed positive result, the health care provider shall provide the test results to the patient and offer human immunodeficiency virus post-test counseling.

[(a)] (c)  No [health care provider,] blood bank, plasma center, or any other public or private agency, institution[,] (except a health care provider pursuant to subsection (b)), 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 pursuant to the standards in section 671-3 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] and is afforded the opportunity to receive [HIV] human immunodeficiency virus pre-test counseling by the party ordering or requesting that the test be performed, and shall be [afforded the opportunity to obtain] provided 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] human immunodeficiency virus 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)] (d)(1) and (2) shall be exempted from the counseling requirements of this subsection.

[(b)] (d)  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] human immunodeficiency virus 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] human immunodeficiency virus 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 carried out at [HIV] human immunodeficiency virus test sites established by the department; provided that informed oral consent is obtained;

     (4)  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 care provider prior to any release of the requested test results to the third party[;].  The health care provider shall provide all positive and indeterminate human immunodeficiency virus test results and offer post-test counseling to those individuals with positive and indeterminate human immunodeficiency virus test results;

     (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] human immunodeficiency virus 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] human immunodeficiency virus has been performed pursuant to this paragraph, and the [patient shall be provided the opportunity to obtain the test results and appropriate counseling;] health care provider shall provide all positive and indeterminate human immunodeficiency virus test results and offer appropriate post-test counseling to those individuals with positive and indeterminate human immunodeficiency virus test results;

     (6)  A treating physician may order an [HIV] human immunodeficiency virus 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] human immunodeficiency virus 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] human immunodeficiency virus 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;].  The health care provider shall provide all positive and indeterminate human immunodeficiency virus test results and offer appropriate post-test counseling to the individual being tested and afford the health care worker the opportunity to obtain the test results and appropriate post-test 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] human immunodeficiency virus 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] human immunodeficiency virus 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.

[(c)  Confidentiality.] (e)  The confidentiality of all records held pursuant to this section is governed by section 325-101.

[(d)  Civil penalty.] (f)  Any person or institution who wilfully violates any provision of this section shall be fined not less than $1,000 nor more than $10,000 for each violation plus reasonable court costs and attorney's fees as determined by the court, which penalty and costs shall be paid to the person whose records were released.  This subsection shall not be construed as limiting the right of any person or persons to recover actual damages.

     [(e)] (g)  The department [shall] may adopt rules, pursuant to chapter 91, to establish procedures and standards to implement this section."

     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.