PRINTER'S NO. 2135
No. 1711 Session of 1997
INTRODUCED BY CLYMER, EACHUS, BELARDI, HALUSKA, LAUGHLIN, LEH,
MICHLOVIC, OLASZ, SAYLOR, E. Z. TAYLOR, TRELLO AND
YOUNGBLOOD, JULY 7, 1997
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES, JULY 7, 1997
AN ACT
1 Amending the act of November 29, 1990 (P.L.585, No.148),
2 entitled "An act providing for confidentiality of certain
3 records; providing for the authorized sharing of certain
4 information; providing for written consent prior to an HIV-
5 related test, with certain exceptions; providing for civil
6 immunity for certain licensed physicians; providing for
7 protective procedures and equipment; and creating a civil
8 cause of action," further providing for legislative intent,
9 for consent to testing, for counseling and for
10 confidentiality of records; and repealing provisions relating
11 to certification of significant exposure and testing
12 procedures.
13 The General Assembly of the Commonwealth of Pennsylvania
14 hereby enacts as follows:
15 Section 1. Section 2(c) of the act of November 29, 1990
16 (P.L.585, No.148), known as the Confidentiality of HIV-Related
17 Information Act, is amended to read:
18 Section 2. Legislative intent.
19 * * *
20 (c) Intent.--It is the intent of the General Assembly to
21 [promote confidential testing on an informed and voluntary basis
22 in order to encourage those most in need to obtain testing and
1 appropriate counseling.] provide for the confidentiality of HIV-
2 related information in order to encourage those at risk to
3 obtain testing and treatment. In addition, it is the intent of
4 the General Assembly to allow physician testing for HIV under
5 the same circumstances physicians would test for other
6 communicable diseases in order to encourage early detection,
7 treatment and prevention.
8 * * *
9 Section 2. The definitions of "available blood," "first
10 responder," "significant exposure," "source patient" and
11 "substitute decisionmaker" in section 3 of the act are repealed.
12 Section 3. Sections 5, 6, 7(b) and 8(b) of the act are
13 amended to read:
14 Section 5. Consent to HIV-related test.
15 [(a) Consent.--Except as provided in section 6 with respect
16 to the involuntary testing of a source patient, no HIV-related
17 test shall be performed without first obtaining the informed
18 written consent of the subject. Any consent shall be preceded by
19 an explanation of the test, including its purpose, potential
20 uses, limitations and the meaning of its results.
21 (b) Pretest counseling.--No HIV-related test may be
22 performed without first making available to the subject
23 information regarding measures for the prevention of, exposure
24 to and transmission of HIV.
25 (c) Confirmatory test.--No test result shall be determined
26 as positive, and no positive test result shall be revealed,
27 without confirmatory testing if it is required by generally
28 accepted medical standards.
29 (d) Notice of test result.--The physician who ordered the
30 test, the physician's designee or a successor in the same
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1 relationship to the subject shall make a good faith effort to
2 inform the subject of the result regardless of whether the
3 result is positive or negative.
4 (e) Post-test counseling.--
5 (1) No positive or negative test result shall be
6 revealed to the subject without affording the subject the
7 immediate opportunity for individual, face-to-face counseling
8 about:
9 (i) The significance of the test results.
10 (ii) Measures for the prevention of the transmission
11 of HIV.
12 (iii) The benefits of locating and counseling any
13 individual by whom the subject may have been exposed to
14 HIV and the availability of any services with respect to
15 locating and counseling such individual.
16 (2) No positive test result shall be revealed to the
17 subject without, in addition to meeting the requirements of
18 paragraph (1), also affording the subject the immediate
19 opportunity for individual, face-to-face counseling about:
20 (i) The availability of any appropriate health care
21 services, including mental health care, and appropriate
22 social and support services.
23 (ii) The benefits of locating and counseling any
24 individual who the infected subject may have exposed to
25 HIV and the availability of any services with respect to
26 locating and counseling such individual.
27 (f) Blinded HIV-related testing.--Blinded HIV-related
28 testing for purposes of research performed in a manner by which
29 the identity of the test subject is not known and may not be
30 retrieved by the researcher is prohibited, unless reviewed and
19970H1711B2135 - 3 -
1 approved by the institutional review board established by the
2 department except for testing pursuant to research approved by
3 an institutional review board prior to the effective date of
4 this act. The department shall make a good faith effort to
5 maintain records of the results of blinded HIV tests performed
6 in this Commonwealth and shall, on a yearly basis, forward
7 information concerning the results to the appropriate committees
8 of the General Assembly.
9 (g) Exceptions.--
10 (1) The provisions of subsections (a), (b), (c), (d) and
11 (e) shall not apply to the following:
12 (i) The performance of an HIV-related test on a
13 cadaver by a health care provider which procures,
14 processes, distributes or uses a human body or a human
15 body part, tissue or semen for use in medical research,
16 therapy or transplantation.
17 (ii) The performance of an HIV-related test for the
18 purpose of medical research not prohibited by subsection
19 (f) if the testing is performed in a manner by which the
20 identity of the test subject is not known and may not be
21 retrieved by the researcher.
22 (iii) The performance of an HIV-related test when
23 the test result of a subject is required by an insurer
24 for underwriting purposes. However, the insurer shall
25 satisfy the requirements of subsection (h).
26 (2) The provisions of subsections (a), (b) and (c) shall
27 not apply to the performance of an HIV-related test in a
28 medical emergency when the subject of the test is unable to
29 grant or withhold consent and the test result is medically
30 necessary for diagnostic purposes to provide appropriate
19970H1711B2135 - 4 -
1 emergency care to the subject.
2 (3) The provisions of subsections (d) and (e) shall not
3 apply when a negative HIV-related test result is secured by a
4 subject who has taken the test solely to satisfy a
5 requirement for donating a human body or human body part,
6 tissue or semen for use in medical research, therapy,
7 transfusion or transplantation. However, if the subject
8 requests identification of a negative test result, the test
9 result shall be provided to the subject in accordance with
10 subsection (d).
11 (h) Requirements] (a) Consent requirements applicable to
12 insurers.--
13 (1) No HIV-related test shall be performed without first
14 obtaining the informed written consent of the subject. Any
15 consent shall be preceded, in writing, by:
16 (i) A disclosure of the effects of the test result
17 on the approval of the application, or the risk
18 classification of the subject.
19 (ii) Information explaining AIDS, HIV and the HIV-
20 related test.
21 (iii) A description of the insurer's confidentiality
22 standards.
23 (iv) A statement that, because of the serious nature
24 of HIV-related illnesses, the subject may desire to
25 obtain counseling before undergoing the HIV-related test.
26 (v) Information concerning the availability of
27 alternative HIV-related testing and counseling provided
28 by the department and local health departments, and the
29 telephone number of the department from which the subject
30 may secure additional information on such testing and
19970H1711B2135 - 5 -
1 counseling.
2 (2) The insurer is required to disclose to the subject a
3 negative test result on an HIV-related test only if the
4 subject requests notification.
5 (3) The insurer shall not disclose to the subject of an
6 HIV-related test a positive test result. On the form on which
7 the insurer secures the subject's written consent to the HIV-
8 related test, the subject shall be required to designate to
9 whom a positive test result shall be disclosed. The subject
10 shall have the choice of designating a physician, the
11 department or a local health department, or a local
12 community-based organization from a list of such
13 organizations prepared by the department. The insurer shall
14 notify the designee of a positive test result.
15 [(4) A positive test result shall be disclosed to the
16 subject, by the designee, in accordance with subsections (d)
17 and (e). The department may elect to have its disclosure
18 responsibilities satisfied by a local health department.]
19 (b) Consent requirements applicable to physicians.--A
20 physician involved in the care of a patient who concludes in the
21 physician's reasonable medical judgment that a HIV-related test
22 is appropriate for the case of the patient, the protection of
23 the public or of health care providers may perform or order an
24 HIV-related test and the informed consent of the patient shall
25 be deemed given.
26 [Section 6. Certification of significant exposure and testing
27 procedures.
28 (a) Physician's evaluation of significant exposure.--
29 (1) Whenever an individual health care provider or first
30 responder experiences an exposure to a patient's blood or
19970H1711B2135 - 6 -
1 bodily fluids during the course of rendering health care or
2 occupational services, the individual may request an
3 evaluation of the exposure, by a physician, to determine if
4 it is a significant exposure as defined in this act. No
5 physician shall certify his own significant exposure or that
6 of any of his employees. Such requests shall be made within
7 72 hours of the exposure.
8 (2) Within 72 hours of the request, the physician shall
9 make written certification of the significance of the
10 exposure.
11 (3) If the physician determines that the individual
12 health care provider or first responder has experienced a
13 significant exposure, the physician shall offer the exposed
14 individual the opportunity to undergo testing, following the
15 procedure outlined in section 5.
16 (b) Opportunity for source patient to consent.--
17 (1) In the event that an exposed individual health care
18 provider or first responder is certified to have experienced
19 a significant exposure and has submitted to an HIV-related
20 test, no testing shall be performed on a source patient's
21 available blood unless the certifying physician provides a
22 copy of the written certification of significant exposure to
23 the source patient's physician or institutional health care
24 provider in possession of the available blood and the source
25 patient's physician or institutional health care provider has
26 made a good faith effort to:
27 (i) Notify the source patient or substitute
28 decisionmaker of the significant exposure.
29 (ii) Seek the source patient's voluntary informed
30 consent to the HIV-related testing as specified in
19970H1711B2135 - 7 -
1 section 5(a).
2 (iii) Provide counseling as required under section
3 5(b).
4 (2) The source patient's physician or institutional
5 health care provider that receives a certification of
6 significant exposure shall begin to comply with the request
7 within 24 hours. If the source patient's physician or
8 institutional health care provider is unable to secure the
9 source patient's consent because the source patient or the
10 source patient's substitute decisionmaker refuses to grant
11 informed consent or the source patient cannot be located, the
12 source patient's physician or institutional health care
13 provider shall arrange for an entry to be placed on the
14 source patient's medical record to that effect. If these
15 procedures are followed and the entry is made on the source
16 patient's medical record, then HIV-related tests shall be
17 performed on the source patient's available blood if
18 requested by the exposed individual health care provider or
19 first responder who has submitted to an HIV-related test.
20 (3) The physician ordering the HIV-related test on a
21 source patient's available blood on behalf of the source
22 patient's physician or institutional health care provider
23 shall comply with section 5(c) through (e).
24 (4) The health care provider or first responder shall be
25 notified of the results of the HIV-related test on the source
26 patient's blood if the health care provider or first
27 responder's baseline HIV-related test is negative. Further
28 disclosure of the test results is prohibited unless
29 authorized under section 7.]
30 Section 6. Offer to counsel.
19970H1711B2135 - 8 -
1 Any health care provider who orders an HIV-related test or
2 notifies the patient of the test results shall make an oral
3 offer to counsel the patient on at least the following:
4 (1) Measures for the prevention of the transmission of
5 HIV.
6 (2) The significance of test results.
7 (3) The availability of any appropriate health care
8 services, including mental health care and appropriate social
9 and support services.
10 Section 7. Confidentiality of records.
11 * * *
12 (b) Subsequent disclosure prohibited.--[Notwithstanding the
13 provisions of the Vital Statistics Law of 1953 or section 15 of
14 the Disease Prevention and Control Law of 1955, no] No person to
15 whom confidential HIV-related information has been disclosed
16 under this act may disclose that information to another person,
17 except as authorized by this act[.] or by the Disease Prevention
18 and Control Law of 1955. For the purposes of the Disease
19 Prevention and Control Law of 1955, HIV shall be a communicable
20 and reportable disease and shall be treated by the department as
21 any other communicable disease.
22 * * *
23 Section 8. Court order.
24 * * *
25 (b) Order to test and disclose.--No court may order the
26 performance of an HIV-related test and allow access to the test
27 result unless the court finds, upon application, that all of the
28 following conditions exist:
29 (1) The individual whose test is sought [was afforded
30 informed consent and pretest counseling procedures required
19970H1711B2135 - 9 -
1 by section 5(a) and (b) and the subject] refused to give
2 consent or was not capable of providing consent.
3 (2) The applicant was exposed to a body fluid of the
4 individual whose test is sought and that exposure presents a
5 significant risk of exposure to HIV infection. A
6 determination that the applicant has incurred a significant
7 risk of exposure to HIV infection must be supported by
8 medical and epidemiologic data regarding the transmission of
9 HIV, including, if available, information about the HIV risk
10 status of the source individual and the circumstances in
11 which the alleged exposure took place.
12 (3) The applicant has a compelling need to ascertain the
13 HIV test result of the source individual.
14 * * *
15 Section 4. Section 9(d) of the act is repealed.
16 Section 5. Section 10 of the act is amended to read:
17 Section 10. Civil cause of action.
18 Any person aggrieved by a violation of this act shall have a
19 cause of action against the person who committed such violation
20 and may recover compensatory damages. [In the event of a
21 violation of section 6 by a source patient's physician or an
22 employee thereof, an aggrieved person may recover reasonable
23 attorney fees and costs.]
24 Section 6. This act shall take effect in 60 days.
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