HOUSE AMENDED
PRIOR PRINTER'S NOS. 1435, 1533 PRINTER'S NO. 1803
No. 1163 Session of 1989
INTRODUCED BY PETERSON, WILLIAMS, AFFLERBACH, GREENWOOD, O'PAKE,
SHUMAKER, REIBMAN, PUNT, BRIGHTBILL, STEWART, STOUT, DAWIDA,
SALVATORE, FUMO, CORMAN, REGOLI, JONES, MADIGAN, WILT,
GREENLEAF, HELFRICK, ROCKS, BAKER, FATTAH, PECORA, MELLOW,
HOPPER, LOEPER AND ANDREZESKI, JULY 7, 1989
AS REPORTED FROM COMMITTEE ON HEALTH AND WELFARE, HOUSE OF
REPRESENTATIVES, AS AMENDED, DECEMBER 11, 1989
AN ACT
1 Providing for confidentiality of certain records; providing for <--
2 the authorized sharing of certain information; providing for
3 written consent prior to an HIV-related test; providing for
4 civil immunity for certain licensed physicians; establishing
5 a criminal penalty, creating a civil cause of action; and
6 making a repeal.
7 PROVIDING FOR CONFIDENTIALITY OF CERTAIN RECORDS; PROVIDING FOR <--
8 THE AUTHORIZED SHARING OF CERTAIN INFORMATION; PROVIDING FOR
9 WRITTEN CONSENT PRIOR TO AN HIV-RELATED TEST; PROVIDING FOR
10 CIVIL IMMUNITY FOR CERTAIN LICENSED PHYSICIANS; AND CREATING
11 A CIVIL CAUSE OF ACTION.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Short title. <--
15 This act shall be known and may be cited as the
16 Confidentiality of HIV-Related Information Act.
17 Section 2. Legislative intent.
18 (a) Findings.--The General Assembly finds that the incidence
19 of acquired immune deficiency syndrome (AIDS) is increasing in
20 this Commonwealth at a significant rate. Controlling the
1 incidence of this disease is aided by providing testing and
2 counseling activities for those persons who are at risk of
3 exposure to or who are carrying the human immunodeficiency virus
4 (HIV), which is the causative agent of AIDS. Testing and
5 counseling are promoted by establishing confidentiality
6 requirements which protect individuals from inappropriate
7 disclosure and subsequent misuse of confidential HIV-related
8 information. The General Assembly also finds that, since certain
9 specific behaviors place a person at risk of contracting the
10 virus, testing and counseling of persons who are at risk of
11 exposure to the virus makes an efficient use of available
12 funding.
13 (b) Intent.--It is the intent of the General Assembly to
14 promote confidential testing on an informed and voluntary basis
15 in order to encourage those most in need to obtain testing and
16 appropriate counseling.
17 Section 3. Definitions.
18 The following words and phrases when used in this act shall
19 have the meanings given to them in this section unless the
20 context clearly indicates otherwise:
21 "AIDS." Acquired immune deficiency syndrome, as defined by
22 the CDC.
23 "CDC." The Centers for Disease Control of the United States
24 Public Health Service.
25 "Confidential HIV-related information." Any information
26 which is in the possession of a person who provides one or more
27 health or social services or who obtains the information
28 pursuant to a release of confidential HIV-related information
29 and which concerns whether an individual has been the subject of
30 an HIV-related test, or has HIV, HIV-related illness or AIDS; or
19890S1163B1803 - 2 -
1 any information which identifies or reasonably could identify an
2 individual as having one or more of these conditions, including
3 information pertaining to the individual's contacts.
4 "Contact." A sex-sharing or needle-sharing partner of the
5 subject.
6 "HIV." The human immunodeficiency virus.
7 "HIV-related test." Any laboratory test or series of tests
8 for any virus, antibody, antigen or etiologic agent whatsoever
9 thought to cause or to indicate the presence of AIDS.
10 "Individual health care provider." A physician, nurse,
11 emergency medical services worker, chiropractor, psychologist,
12 nurse-midwife, physician assistant, dentist or other person
13 providing medical, nursing, drug or alcohol rehabilitation
14 services or other health care services of any kind.
15 "Institutional health care provider." A hospital, nursing
16 home, hospice, personal care boarding home, clinic, blood bank,
17 plasmapheresis or other blood product center, organ or tissue
18 bank, sperm bank, clinical laboratory, residential or outpatient
19 drug and alcohol rehabilitation service, or any health care
20 institution required to be licensed in this Commonwealth.
21 "Subject." An individual or a guardian of the person of that
22 individual.
23 Section 4. Consent to HIV-related test.
24 (a) Consent.--No HIV-related test shall be performed without
25 first obtaining the informed written consent of the subject. Any
26 consent shall be preceded by an explanation of the test,
27 including its purpose, potential uses, limitations and the
28 meaning of its results.
29 (b) Pretest counseling.--No HIV-related test may be
30 performed without first making available to the subject
19890S1163B1803 - 3 -
1 information regarding measures for the prevention of, exposure
2 to and transmission of HIV.
3 (c) Confirmatory testing.--No test result shall be
4 determined as positive, and no positive test result shall be
5 revealed, without confirmatory testing if it is required by
6 generally accepted medical standards.
7 (d) Posttest counseling.--No positive test result shall be
8 revealed to the subject without affording the subject the
9 immediate opportunity for individual, face-to-face counseling
10 about:
11 (1) The significance of the test results.
12 (2) Measures for the prevention of the transmission of
13 HIV.
14 (3) The availability of any appropriate health care
15 services, including mental health care, and appropriate
16 social and support services.
17 (4) The benefits of locating and counseling any
18 individual by whom the infected individual may have been
19 exposed to HIV and any individual whom the infected
20 individual may have exposed to HIV.
21 (5) The availability of any services with respect to
22 locating and counseling any individual described in paragraph
23 (4).
24 (e) Exceptions to consent requirement.--
25 (1) The provisions of subsections (a) and (b) shall not
26 apply to the performance of an HIV-related test by an
27 individual or institutional health care provider which
28 procures, processes, distributes or uses a human body or a
29 human body part, tissue or semen for use in medical research,
30 therapy or transplantation.
19890S1163B1803 - 4 -
1 (2) The provisions of this section shall not apply to
2 the performance of an HIV-related test for the purpose of
3 medical research if the testing is performed in a manner by
4 which the identity of the test subject is not known and may
5 not be retrieved by the researcher.
6 (3) The provisions of this section shall not apply to
7 the performance of an HIV-related test in a medical emergency
8 when the subject of the test is unable to grant or withhold
9 consent and the test result is medically necessary for
10 diagnostic purposes to provide appropriate emergency care to
11 the subject, except that posttest counseling shall be
12 required.
13 Section 5. Confidentiality of records.
14 (a) Limitations on disclosure.--No person who obtains
15 confidential HIV-related information in the course of providing
16 any health or social service or pursuant to a release of
17 confidential HIV-related information under subsection (c) may
18 disclose or be compelled to disclose the information, except to
19 the following persons:
20 (1) The subject.
21 (2) Any person specifically designated in a written
22 consent as provided for in subsection (c).
23 (3) An individual or institutional health care provider
24 or their authorized agent or employee, provided that the
25 person is:
26 (i) involved in the medical care or treatment of the
27 subject; or
28 (ii) a peer review organization or committee as
29 defined in the act of July 20, 1974 (P.L.564, No.193),
30 known as the Peer Review Protection Act.
19890S1163B1803 - 5 -
1 (4) Individual health care providers involved in the
2 care of the individual with an AIDS-related condition or a
3 positive test, when knowledge of the condition or test result
4 is necessary to provide emergency care or treatment
5 appropriate to the individual.
6 (5) The Department of Health and the CDC, in accordance
7 with reporting requirements.
8 (6) A person allowed access to the information by a
9 court order issued pursuant to section 6.
10 (b) Subsequent disclosure prohibited.--Notwithstanding the
11 provisions of section 15 of the act of April 23, 1956 (1955
12 P.L.1510, No.500), known as the Disease Prevention and Control
13 Law of 1955, no person to whom confidential HIV-related
14 information has been disclosed under this act may disclose that
15 information to another person, except as authorized by this act.
16 (c) Required elements of written consent to disclosure.--A
17 written consent to disclosure of confidential HIV-related
18 information shall include:
19 (1) The specific name or general designation of the
20 person permitted to make the disclosure.
21 (2) The name or title of the individual, or the name of
22 the organization to which the disclosure is to be made.
23 (3) The name of the subject.
24 (4) The purpose of the disclosure.
25 (5) How much and what kind of information is to be
26 disclosed.
27 (6) The signature of the subject.
28 (7) The date on which the consent is signed.
29 (8) A statement that the consent is subject to
30 revocation at any time except to the extent that the person
19890S1163B1803 - 6 -
1 who is to make the disclosure has already acted in reliance
2 on it.
3 (9) The date, event or condition upon which the consent
4 will expire, if not earlier revoked.
5 (d) Expired, deficient or false consent.--A disclosure may
6 not be made on the basis of a consent which:
7 (1) has expired;
8 (2) on its face substantially fails to conform to any of
9 the requirements set forth in subsection (c);
10 (3) is known to have been revoked; or
11 (4) is known by the person holding the information to be
12 materially false.
13 (e) Notice to accompany disclosure.--Each disclosure made
14 with the subject's written consent must be accompanied by the
15 following written statement:
16 This information has been disclosed to you from records
17 protected by Pennsylvania law. Pennsylvania law prohibits
18 you from making any further disclosure of this
19 information unless further disclosure is expressly
20 permitted by the written consent of the person to whom it
21 pertains or is authorized by the Confidentiality of HIV-
22 Related Information Act. A general authorization for the
23 release of medical or other information is not sufficient
24 for this purpose.
25 (f) Duty to establish written procedures.--An institutional
26 health care provider that has access to or maintains
27 individually identifying confidential HIV-related information
28 shall establish written procedures for confidentiality and
29 disclosure of the records which are in accordance with the
30 provisions of this act.
19890S1163B1803 - 7 -
1 Section 6. Court order.
2 (a) Findings.--No court may issue an order to allow access
3 to confidential HIV-related information unless the court finds,
4 upon application, that one of the following conditions exists:
5 (1) The person seeking the information has demonstrated
6 a compelling need for that information which cannot be
7 accommodated by other means.
8 (2) The person seeking to disclose the information has a
9 compelling need to do so.
10 (b) Compelling need.--In assessing compelling need, the
11 court shall weigh the need for disclosure against the privacy
12 interest of the individual and the public interests which may be
13 harmed by disclosure.
14 (c) Pleadings.--Pleadings pertaining to disclosure of the
15 information shall substitute a pseudonym for the true name of
16 the subject of the record. Disclosure to the parties of the
17 subject's true name shall be communicated confidentially in
18 documents not filed with the court.
19 (d) Notice.--Before granting an order for disclosure, the
20 court shall provide the subject of the disclosure with notice
21 and a reasonable opportunity to participate in the proceeding if
22 the subject is not already a party.
23 (e) In camera proceedings.--Court proceedings as to the
24 disclosure of the information shall be conducted in camera,
25 unless the subject agrees to a hearing in open court or unless
26 the court determines that a public hearing is necessary to the
27 public interest and the proper administration of justice.
28 (f) Safeguards against disclosure.--Upon the issuance of an
29 order to disclose the information, the court shall impose
30 appropriate safeguards against unauthorized disclosure which
19890S1163B1803 - 8 -
1 shall specify the following:
2 (1) The particular information which is essential to
3 accommodate the need of the party seeking disclosure.
4 (2) The persons who may have access to the information.
5 (3) The purposes for which the information will be used.
6 (4) The appropriate prohibitions on future disclosure as
7 provided for in section 5.
8 Section 7. Civil immunity for certain physicians.
9 (a) Permissible disclosure.--Notwithstanding the provisions
10 of section 5, a physician may disclose confidential HIV-related
11 information if all of the following conditions are met:
12 (1) The disclosure is made to a known contact of the
13 subject.
14 (2) The physician reasonably believes disclosure is
15 medically appropriate, and there is a significant risk of
16 future infection to the contact.
17 (3) The physician has counseled the subject regarding
18 the need to notify the contact, and the physician reasonably
19 believes the subject will not inform the contact or abstain
20 from sexual or needle-sharing behavior which poses a
21 significant risk of infection to the contact.
22 (4) The physician has informed the subject of his intent
23 to make such disclosure.
24 (b) Subject not to be identified.--When making such
25 disclosure to a contact, the physician shall not disclose the
26 identity of the subject or any other contact. Disclosure shall
27 be made in person except where circumstances reasonably prevent
28 doing so.
29 (c) Duties relating to contacts.--A physician shall have no
30 duty to identify, locate or notify any contact, and no cause of
19890S1163B1803 - 9 -
1 action shall arise for nondisclosure, or for disclosure in
2 conformity with this section.
3 Section 8. Civil cause of action.
4 Any person aggrieved by a violation of this act shall have a
5 cause of action against the person who committed such violation
6 and may recover compensatory damages.
7 Section 9. Separate violations.
8 Each disclosure of confidential HIV-related information in
9 violation of this act or each HIV-related test conducted in
10 contravention of this act is separate for purposes of civil
11 liability.
12 Section 10. Repeals.
13 The act of April 23, 1956 (1955 P.L.1510, No.500), known as
14 the Disease Prevention and Control Law of 1955, is repealed
15 insofar as it is inconsistent with this act.
16 Section 11. Effective date.
17 This act shall take effect in 90 days.
18 SECTION 1. SHORT TITLE. <--
19 THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE
20 CONFIDENTIALITY OF HIV-RELATED INFORMATION ACT.
21 SECTION 2. LEGISLATIVE INTENT.
22 (A) FINDINGS.--THE GENERAL ASSEMBLY FINDS THAT THE INCIDENCE
23 OF ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS) IS INCREASING IN
24 THIS COMMONWEALTH AT A SIGNIFICANT RATE. CONTROLLING THE
25 INCIDENCE OF THIS DISEASE IS AIDED BY PROVIDING TESTING AND
26 COUNSELING ACTIVITIES FOR THOSE PERSONS WHO ARE AT RISK OF
27 EXPOSURE TO OR WHO ARE CARRYING THE HUMAN IMMUNODEFICIENCY VIRUS
28 (HIV), WHICH IS THE CAUSATIVE AGENT OF AIDS. TESTING AND
29 COUNSELING ARE PROMOTED BY ESTABLISHING CONFIDENTIALITY
30 REQUIREMENTS WHICH PROTECT INDIVIDUALS FROM INAPPROPRIATE
19890S1163B1803 - 10 -
1 DISCLOSURE AND SUBSEQUENT MISUSE OF CONFIDENTIAL HIV-RELATED
2 INFORMATION. THE GENERAL ASSEMBLY ALSO FINDS THAT, SINCE CERTAIN
3 SPECIFIC BEHAVIORS PLACE A PERSON AT RISK OF CONTRACTING THE
4 VIRUS, TESTING AND COUNSELING OF PERSONS WHO ARE AT RISK OF
5 EXPOSURE TO THE VIRUS MAKES AN EFFICIENT USE OF AVAILABLE
6 FUNDING.
7 (B) INTENT.--IT IS THE INTENT OF THE GENERAL ASSEMBLY TO
8 PROMOTE CONFIDENTIAL TESTING ON AN INFORMED AND VOLUNTARY BASIS
9 IN ORDER TO ENCOURAGE THOSE MOST IN NEED TO OBTAIN TESTING AND
10 APPROPRIATE COUNSELING.
11 SECTION 3. DEFINITIONS.
12 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS ACT SHALL
13 HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
14 CONTEXT CLEARLY INDICATES OTHERWISE:
15 "AIDS." ACQUIRED IMMUNE DEFICIENCY SYNDROME, AS DEFINED BY
16 THE CDC.
17 "CDC." THE CENTERS FOR DISEASE CONTROL OF THE UNITED STATES
18 PUBLIC HEALTH SERVICE.
19 "CONFIDENTIAL HIV-RELATED INFORMATION." ANY INFORMATION
20 WHICH IS IN THE POSSESSION OF A PERSON WHO PROVIDES ONE OR MORE
21 HEALTH OR SOCIAL SERVICES OR WHO OBTAINS THE INFORMATION
22 PURSUANT TO A RELEASE OF CONFIDENTIAL HIV-RELATED INFORMATION
23 AND WHICH CONCERNS WHETHER AN INDIVIDUAL HAS BEEN THE SUBJECT OF
24 AN HIV-RELATED TEST, OR HAS HIV, HIV-RELATED ILLNESS OR AIDS; OR
25 ANY INFORMATION WHICH IDENTIFIES OR REASONABLY COULD IDENTIFY AN
26 INDIVIDUAL AS HAVING ONE OR MORE OF THESE CONDITIONS, INCLUDING
27 INFORMATION PERTAINING TO THE INDIVIDUAL'S CONTACTS.
28 "CONTACT." A SEX-SHARING OR NEEDLE-SHARING PARTNER OF THE
29 SUBJECT.
30 "DEPARTMENT." THE DEPARTMENT OF HEALTH OF THE COMMONWEALTH.
19890S1163B1803 - 11 -
1 "HEALTH CARE PROVIDER." AN INDIVIDUAL OR INSTITUTIONAL
2 HEALTH CARE PROVIDER.
3 "HIV." THE HUMAN IMMUNODEFICIENCY VIRUS.
4 "HIV-RELATED TEST." ANY LABORATORY TEST OR SERIES OF TESTS
5 FOR ANY VIRUS, ANTIBODY, ANTIGEN OR ETIOLOGIC AGENT WHATSOEVER
6 THOUGHT TO CAUSE OR TO INDICATE THE PRESENCE OF HIV INFECTION.
7 "INDIVIDUAL HEALTH CARE PROVIDER." A PHYSICIAN, NURSE,
8 EMERGENCY MEDICAL SERVICE WORKER, CHIROPRACTOR, PSYCHOLOGIST,
9 NURSE-MIDWIFE, PHYSICIAN ASSISTANT, DENTIST OR OTHER PERSON,
10 INCLUDING A PROFESSIONAL CORPORATION OR PARTNERSHIP, PROVIDING
11 MEDICAL, NURSING, DRUG OR ALCOHOL REHABILITATION SERVICES OR
12 OTHER HEALTH CARE SERVICES OF ANY KIND.
13 "INSTITUTIONAL HEALTH CARE PROVIDER." A HOSPITAL, NURSING
14 HOME, HOSPICE, PERSONAL CARE BOARDING HOME, CLINIC, BLOOD BANK,
15 PLASMAPHERESIS OR OTHER BLOOD PRODUCT CENTER, ORGAN OR TISSUE
16 BANK, SPERM BANK, CLINICAL LABORATORY, RESIDENTIAL OR OUTPATIENT
17 DRUG AND ALCOHOL REHABILITATION SERVICE, OR ANY HEALTH CARE
18 INSTITUTION REQUIRED TO BE LICENSED IN THIS COMMONWEALTH.
19 "INSURER." ANY INSURANCE COMPANY, ASSOCIATION OR EXCHANGE
20 AUTHORIZED TO DO BUSINESS IN THIS COMMONWEALTH UNDER THE ACT OF
21 MAY 17, 1921 (P.L.682, NO.284), KNOWN AS THE INSURANCE COMPANY
22 LAW OF 1921, ANY ENTITY SUBJECT TO 40 PA.C.S. CH. 61 (RELATING
23 TO HOSPITAL PLAN CORPORATIONS) OR CH. 63 (RELATING TO
24 PROFESSIONAL HEALTH SERVICES PLAN CORPORATIONS), THE ACT OF
25 DECEMBER 29, 1972 (P.L.1701, NO.364), KNOWN AS THE HEALTH
26 MAINTENANCE ORGANIZATION ACT, OR THE ACT OF JULY 29, 1977
27 (P.L.105, NO.38), KNOWN AS THE FRATERNAL BENEFIT SOCIETY CODE.
28 "SUBJECT." AN INDIVIDUAL OR A GUARDIAN OF THE PERSON OF THAT
29 INDIVIDUAL.
30 SECTION 4. CONSENT TO HIV-RELATED TEST.
19890S1163B1803 - 12 -
1 (A) CONSENT.--NO HIV-RELATED TEST SHALL BE PERFORMED WITHOUT
2 FIRST OBTAINING THE INFORMED WRITTEN CONSENT OF THE SUBJECT. ANY
3 CONSENT SHALL BE PRECEDED BY AN EXPLANATION OF THE TEST,
4 INCLUDING ITS PURPOSE, POTENTIAL USES, LIMITATIONS AND THE
5 MEANING OF ITS RESULTS.
6 (B) PRETEST COUNSELING.--NO HIV-RELATED TEST MAY BE
7 PERFORMED WITHOUT FIRST MAKING AVAILABLE TO THE SUBJECT
8 INFORMATION REGARDING MEASURES FOR THE PREVENTION OF, EXPOSURE
9 TO AND TRANSMISSION OF HIV.
10 (C) CONFIRMATORY TEST.--NO TEST RESULT SHALL BE DETERMINED
11 AS POSITIVE, AND NO POSITIVE TEST RESULT SHALL BE REVEALED,
12 WITHOUT CONFIRMATORY TESTING IF IT IS REQUIRED BY GENERALLY
13 ACCEPTED MEDICAL STANDARDS.
14 (D) NOTICE OF TEST RESULT.--THE PERSON WHO SECURED THE
15 SUBJECT'S CONSENT TO THE TEST, THE PERSON'S DESIGNEE, OR A
16 SUCCESSOR IN THE SAME RELATIONSHIP TO THE SUBJECT, SHALL MAKE A
17 GOOD FAITH EFFORT TO INFORM THE SUBJECT OF THE RESULT REGARDLESS
18 OF WHETHER THE RESULT IS POSITIVE OR NEGATIVE.
19 (E) POST-TEST COUNSELING.--
20 (1) NO POSITIVE OR NEGATIVE TEST RESULT SHALL BE
21 REVEALED TO THE SUBJECT WITHOUT AFFORDING THE SUBJECT THE
22 IMMEDIATE OPPORTUNITY FOR INDIVIDUAL FACE-TO-FACE COUNSELING
23 ABOUT:
24 (I) THE SIGNIFICANCE OF THE TEST RESULTS.
25 (II) MEASURES FOR THE PREVENTION OF THE TRANSMISSION
26 OF HIV.
27 (III) THE BENEFITS OF LOCATING AND COUNSELING ANY
28 INDIVIDUAL BY WHOM THE SUBJECT MAY HAVE BEEN EXPOSED TO
29 HIV AND THE AVAILABILITY OF ANY SERVICES WITH RESPECT TO
30 LOCATING AND COUNSELING SUCH INDIVIDUAL.
19890S1163B1803 - 13 -
1 (2) NO POSITIVE TEST RESULT SHALL BE REVEALED TO THE
2 SUBJECT WITHOUT, IN ADDITION TO MEETING THE REQUIREMENTS OF
3 PARAGRAPH (1), ALSO AFFORDING THE SUBJECT THE IMMEDIATE
4 OPPORTUNITY FOR INDIVIDUAL, FACE-TO-FACE COUNSELING ABOUT:
5 (I) THE AVAILABILITY OF ANY APPROPRIATE HEALTH CARE
6 SERVICES, INCLUDING MENTAL HEALTH CARE, AND APPROPRIATE
7 SOCIAL AND SUPPORT SERVICES.
8 (II) THE BENEFITS OF LOCATING AND COUNSELING ANY
9 INDIVIDUAL WHO THE INFECTED SUBJECT MAY HAVE EXPOSED TO
10 HIV AND THE AVAILABILITY OF ANY SERVICES WITH RESPECT TO
11 LOCATING AND COUNSELING SUCH INDIVIDUAL.
12 (F) EXCEPTIONS.--
13 (1) THE PROVISIONS OF SUBSECTIONS (A), (B), (C), (D) AND
14 (E) SHALL NOT APPLY TO THE FOLLOWING:
15 (I) THE PERFORMANCE OF AN HIV-RELATED TEST ON A
16 CADAVER BY A HEALTH CARE PROVIDER WHICH PROCURES,
17 PROCESSES, DISTRIBUTES OR USES A HUMAN BODY OR A HUMAN
18 BODY PART, TISSUE OR SEMEN FOR USE IN MEDICAL RESEARCH,
19 THERAPY OR TRANSPLANTATION.
20 (II) THE PERFORMANCE OF AN HIV-RELATED TEST FOR THE
21 PURPOSE OF MEDICAL RESEARCH IF THE TESTING IS PERFORMED
22 IN A MANNER BY WHICH THE IDENTITY OF THE TEST SUBJECT IS
23 NOT KNOWN AND MAY NOT BE RETRIEVED BY THE RESEARCHER.
24 (III) THE PERFORMANCE OF AN HIV-RELATED TEST WHEN
25 THE TEST RESULT OF A SUBJECT IS REQUIRED BY AN INSURER
26 FOR UNDERWRITING PURPOSES. HOWEVER, THE INSURER SHALL
27 SATISFY THE REQUIREMENTS OF SUBSECTION (G).
28 (2) THE PROVISIONS OF SUBSECTIONS (A), (B) AND (C) SHALL
29 NOT APPLY TO THE PERFORMANCE OF AN HIV-RELATED TEST IN A
30 MEDICAL EMERGENCY WHEN THE SUBJECT OF THE TEST IS UNABLE TO
19890S1163B1803 - 14 -
1 GRANT OR WITHHOLD CONSENT AND THE TEST RESULT IS MEDICALLY
2 NECESSARY FOR DIAGNOSTIC PURPOSES TO PROVIDE APPROPRIATE
3 EMERGENCY CARE TO THE SUBJECT.
4 (3) THE PROVISIONS OF SUBSECTIONS (D) AND (E) SHALL NOT
5 APPLY WHEN A NEGATIVE HIV-RELATED TEST RESULT IS SECURED BY A
6 SUBJECT WHO HAS TAKEN THE TEST SOLELY TO SATISFY A
7 REQUIREMENT FOR DONATING A HUMAN BODY OR HUMAN BODY PART,
8 TISSUE OR SEMEN FOR USE IN MEDICAL RESEARCH, THERAPY,
9 TRANSFUSION OR TRANSPLANTATION. HOWEVER, IF THE SUBJECT
10 REQUESTS IDENTIFICATION OF A NEGATIVE TEST RESULT, THE TEST
11 RESULT SHALL BE PROVIDED TO THE SUBJECT IN ACCORDANCE WITH
12 SUBSECTION (D).
13 (G) REQUIREMENTS APPLICABLE TO INSURERS.--
14 (1) NO HIV-RELATED TEST SHALL BE PERFORMED WITHOUT FIRST
15 OBTAINING THE INFORMED WRITTEN CONSENT OF THE SUBJECT. ANY
16 CONSENT SHALL BE PRECEDED, IN WRITING, BY:
17 (I) A DISCLOSURE OF THE EFFECTS OF THE TEST RESULT
18 ON THE APPROVAL OF THE APPLICATION, OR THE RISK
19 CLASSIFICATION OF THE SUBJECT.
20 (II) INFORMATION EXPLAINING AIDS, HIV AND THE HIV-
21 RELATED TEST.
22 (III) A DESCRIPTION OF THE INSURER'S CONFIDENTIALITY
23 STANDARDS.
24 (IV) A STATEMENT THAT, BECAUSE OF THE SERIOUS NATURE
25 OF HIV-RELATED ILLNESSES, THE SUBJECT MAY DESIRE TO
26 OBTAIN COUNSELING BEFORE UNDERGOING THE HIV-RELATED TEST.
27 (V) INFORMATION CONCERNING THE AVAILABILITY OF
28 ALTERNATIVE HIV-RELATED TESTING AND COUNSELING PROVIDED
29 BY THE DEPARTMENT AND LOCAL HEALTH DEPARTMENTS, AND THE
30 TELEPHONE NUMBER OF THE DEPARTMENT FROM WHICH THE SUBJECT
19890S1163B1803 - 15 -
1 MAY SECURE ADDITIONAL INFORMATION ON SUCH TESTING AND
2 COUNSELING.
3 (2) THE INSURER IS REQUIRED TO DISCLOSE TO THE SUBJECT A
4 NEGATIVE TEST RESULT ON AN HIV-RELATED TEST ONLY IF THE
5 SUBJECT REQUESTS NOTIFICATION.
6 (3) THE INSURER SHALL NOT DISCLOSE TO THE SUBJECT OF AN
7 HIV-RELATED TEST A POSITIVE TEST RESULT. ON THE FORM ON WHICH
8 THE INSURER SECURES THE SUBJECT'S WRITTEN CONSENT TO THE HIV-
9 RELATED TEST, THE SUBJECT SHALL BE REQUIRED TO DESIGNATE TO
10 WHOM A POSITIVE TEST RESULT SHALL BE DISCLOSED. THE SUBJECT
11 SHALL HAVE THE CHOICE OF DESIGNATING A PHYSICIAN, THE
12 DEPARTMENT OR A LOCAL HEALTH DEPARTMENT, OR A LOCAL
13 COMMUNITY-BASED ORGANIZATION FROM A LIST OF SUCH
14 ORGANIZATIONS PREPARED BY THE DEPARTMENT. THE INSURER SHALL
15 NOTIFY THE DESIGNEE OF A POSITIVE TEST RESULT.
16 (4) A POSITIVE TEST RESULT SHALL BE DISCLOSED TO THE
17 SUBJECT, BY THE DESIGNEE, IN ACCORDANCE WITH SUBSECTIONS (D)
18 AND (E). THE DEPARTMENT MAY ELECT TO HAVE ITS DISCLOSURE
19 RESPONSIBILITIES SATISFIED BY A LOCAL HEALTH DEPARTMENT.
20 SECTION 5. CONFIDENTIALITY OF RECORDS.
21 (A) LIMITATIONS ON DISCLOSURE.--NO PERSON OR EMPLOYEE, OR
22 AGENT OF SUCH PERSON, WHO OBTAINS CONFIDENTIAL HIV-RELATED
23 INFORMATION IN THE COURSE OF PROVIDING ANY HEALTH OR SOCIAL
24 SERVICE OR PURSUANT TO A RELEASE OF CONFIDENTIAL HIV-RELATED
25 INFORMATION UNDER SUBSECTION (C) MAY DISCLOSE OR BE COMPELLED TO
26 DISCLOSE THE INFORMATION, EXCEPT TO THE FOLLOWING PERSONS:
27 (1) THE SUBJECT.
28 (2) THE PHYSICIAN WHO ORDERED THE TEST, OR THE
29 PHYSICIAN'S DESIGNEE.
30 (3) ANY PERSON SPECIFICALLY DESIGNATED IN A WRITTEN
19890S1163B1803 - 16 -
1 CONSENT AS PROVIDED FOR IN SUBSECTION (C).
2 (4) AN AGENT, EMPLOYEE OR MEDICAL STAFF MEMBER OF A
3 HEALTH CARE PROVIDER, WHEN THE HEALTH CARE PROVIDER HAS
4 RECEIVED CONFIDENTIAL HIV-RELATED INFORMATION DURING THE
5 COURSE OF THE SUBJECT'S DIAGNOSIS OR TREATMENT BY THE HEALTH
6 CARE PROVIDER, PROVIDED THAT THE AGENT, EMPLOYEE OR MEDICAL
7 STAFF MEMBER IS INVOLVED IN THE MEDICAL CARE OR TREATMENT OF
8 THE SUBJECT. NOTHING IN THIS PARAGRAPH SHALL BE CONSTRUED TO
9 REQUIRE THE SEGREGATION OF CONFIDENTIAL HIV-RELATED
10 INFORMATION FROM A SUBJECT'S MEDICAL RECORD.
11 (5) A PEER REVIEW ORGANIZATION OR COMMITTEE AS DEFINED
12 IN THE ACT OF JULY 20, 1974 (P.L.564, NO.193), KNOWN AS THE
13 PEER REVIEW PROTECTION ACT, A NATIONALLY RECOGNIZED
14 ACCREDITING AGENCY, OR AS OTHERWISE PROVIDED BY LAW, ANY
15 FEDERAL OR STATE GOVERNMENT AGENCY WITH OVERSIGHT
16 RESPONSIBILITIES OVER HEALTH CARE PROVIDERS.
17 (6) INDIVIDUAL HEALTH CARE PROVIDERS INVOLVED IN THE
18 CARE OF THE SUBJECT WITH AN HIV-RELATED CONDITION OR A
19 POSITIVE TEST, WHEN KNOWLEDGE OF THE CONDITION OR TEST RESULT
20 IS NECESSARY TO PROVIDE EMERGENCY CARE OR TREATMENT
21 APPROPRIATE TO THE INDIVIDUAL; OR HEALTH CARE PROVIDERS
22 CONSULTED TO DETERMINE DIAGNOSIS AND TREATMENT OF THE
23 INDIVIDUAL.
24 (7) AN INSURER, TO THE EXTENT NECESSARY TO REIMBURSE
25 HEALTH CARE PROVIDERS OR TO MAKE ANY PAYMENT OF A CLAIM
26 SUBMITTED PURSUANT TO AN INSURED'S POLICY.
27 (8) THE DEPARTMENT AND PERSONS AUTHORIZED TO GATHER,
28 TRANSMIT OR RECEIVE VITAL STATISTICS UNDER THE ACT OF JUNE
29 29, 1953 (P.L.304, NO.66), KNOWN AS THE VITAL STATISTICS LAW
30 OF 1953.
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1 (9) THE DEPARTMENT AND LOCAL BOARDS AND DEPARTMENTS OF
2 HEALTH, AS AUTHORIZED BY THE ACT OF APRIL 23, 1956 (1955
3 P.L.1510, NO.500), KNOWN AS THE DISEASE PREVENTION AND
4 CONTROL LAW OF 1955.
5 (10) A PERSON ALLOWED ACCESS TO THE INFORMATION BY A
6 COURT ORDER ISSUED PURSUANT TO SECTION 6.
7 (B) SUBSEQUENT DISCLOSURE PROHIBITED.--NOTWITHSTANDING THE
8 PROVISIONS OF THE ACT OF JUNE 29, 1953 (P.L.304, NO.66), KNOWN
9 AS THE VITAL STATISTICS LAW OF 1953, OR SECTION 15 OF THE ACT OF
10 APRIL 23, 1956 (1955 P.L.1510, NO.500), KNOWN AS THE DISEASE
11 PREVENTION AND CONTROL LAW OF 1955, NO PERSON TO WHOM
12 CONFIDENTIAL HIV-RELATED INFORMATION HAS BEEN DISCLOSED UNDER
13 THIS ACT MAY DISCLOSE THAT INFORMATION TO ANOTHER PERSON, EXCEPT
14 AS AUTHORIZED BY THIS ACT.
15 (C) REQUIRED ELEMENTS OF WRITTEN CONSENT TO DISCLOSURE.--A
16 WRITTEN CONSENT TO DISCLOSURE OF CONFIDENTIAL HIV-RELATED
17 INFORMATION SHALL INCLUDE:
18 (1) THE SPECIFIC NAME OR GENERAL DESIGNATION OF THE
19 PERSON PERMITTED TO MAKE THE DISCLOSURE.
20 (2) THE NAME OR TITLE OF THE INDIVIDUAL, OR THE NAME OF
21 THE ORGANIZATION TO WHICH THE DISCLOSURE IS TO BE MADE.
22 (3) THE NAME OF THE SUBJECT.
23 (4) THE PURPOSE OF THE DISCLOSURE.
24 (5) HOW MUCH AND WHAT KIND OF INFORMATION IS TO BE
25 DISCLOSED.
26 (6) THE SIGNATURE OF THE SUBJECT.
27 (7) THE DATE ON WHICH THE CONSENT IS SIGNED.
28 (8) A STATEMENT THAT THE CONSENT IS SUBJECT TO
29 REVOCATION AT ANY TIME EXCEPT TO THE EXTENT THAT THE PERSON
30 WHO IS TO MAKE THE DISCLOSURE HAS ALREADY ACTED IN RELIANCE
19890S1163B1803 - 18 -
1 ON IT.
2 (9) THE DATE, EVENT OR CONDITION UPON WHICH THE CONSENT
3 WILL EXPIRE, IF NOT EARLIER REVOKED.
4 (D) EXPIRED, DEFICIENT OR FALSE CONSENT.--A DISCLOSURE MAY
5 NOT BE MADE ON THE BASIS OF A CONSENT WHICH:
6 (1) HAS EXPIRED;
7 (2) ON ITS FACE SUBSTANTIALLY FAILS TO CONFORM TO ANY OF
8 THE REQUIREMENTS SET FORTH IN SUBSECTION (C);
9 (3) IS KNOWN TO HAVE BEEN REVOKED; OR
10 (4) IS KNOWN BY THE PERSON HOLDING THE INFORMATION TO BE
11 MATERIALLY FALSE.
12 (E) NOTICE TO ACCOMPANY DISCLOSURE.--EACH DISCLOSURE MADE
13 WITH THE SUBJECT'S WRITTEN CONSENT MUST BE ACCOMPANIED BY THE
14 FOLLOWING WRITTEN STATEMENT:
15 THIS INFORMATION HAS BEEN DISCLOSED TO YOU FROM RECORDS
16 PROTECTED BY PENNSYLVANIA LAW. PENNSYLVANIA LAW PROHIBITS
17 YOU FROM MAKING ANY FURTHER DISCLOSURE OF THIS
18 INFORMATION UNLESS FURTHER DISCLOSURE IS EXPRESSLY
19 PERMITTED BY THE WRITTEN CONSENT OF THE PERSON TO WHOM IT
20 PERTAINS OR IS AUTHORIZED BY THE CONFIDENTIALITY OF HIV-
21 RELATED INFORMATION ACT. A GENERAL AUTHORIZATION FOR THE
22 RELEASE OF MEDICAL OR OTHER INFORMATION IS NOT SUFFICIENT
23 FOR THIS PURPOSE.
24 (F) DUTY TO ESTABLISH WRITTEN PROCEDURES.--AN INSTITUTIONAL
25 HEALTH CARE PROVIDER THAT HAS ACCESS TO OR MAINTAINS
26 INDIVIDUALLY IDENTIFYING CONFIDENTIAL HIV-RELATED INFORMATION
27 SHALL ESTABLISH WRITTEN PROCEDURES FOR CONFIDENTIALITY AND
28 DISCLOSURE OF THE RECORDS WHICH ARE IN ACCORDANCE WITH THE
29 PROVISIONS OF THIS ACT WITHIN 60 DAYS OF THE EFFECTIVE DATE OF
30 THIS ACT.
19890S1163B1803 - 19 -
1 SECTION 6. COURT ORDER.
2 (A) FINDINGS.--NO COURT MAY ISSUE AN ORDER TO ALLOW ACCESS
3 TO CONFIDENTIAL HIV-RELATED INFORMATION UNLESS THE COURT FINDS,
4 UPON APPLICATION, THAT ONE OF THE FOLLOWING CONDITIONS EXISTS:
5 (1) THE PERSON SEEKING THE INFORMATION HAS DEMONSTRATED
6 A COMPELLING NEED FOR THAT INFORMATION WHICH CANNOT BE
7 ACCOMMODATED BY OTHER MEANS.
8 (2) THE PERSON SEEKING TO DISCLOSE THE INFORMATION HAS A
9 COMPELLING NEED TO DO SO.
10 (B) COMPELLING NEED.--IN ASSESSING COMPELLING NEED, THE
11 COURT SHALL WEIGH THE NEED FOR DISCLOSURE AGAINST THE PRIVACY
12 INTEREST OF THE INDIVIDUAL AND THE PUBLIC INTERESTS WHICH MAY BE
13 HARMED BY DISCLOSURE.
14 (C) PLEADINGS.--PLEADINGS PERTAINING TO DISCLOSURE OF THE
15 INFORMATION SHALL SUBSTITUTE A PSEUDONYM FOR THE TRUE NAME OF
16 THE SUBJECT OF THE RECORD. DISCLOSURE TO THE PARTIES OF THE
17 SUBJECT'S TRUE NAME SHALL BE COMMUNICATED CONFIDENTIALLY IN
18 DOCUMENTS NOT FILED WITH THE COURT.
19 (D) NOTICE.--BEFORE GRANTING AN ORDER FOR DISCLOSURE, THE
20 COURT SHALL PROVIDE THE SUBJECT OF THE DISCLOSURE WITH NOTICE
21 AND A REASONABLE OPPORTUNITY TO PARTICIPATE IN THE PROCEEDING IF
22 THE SUBJECT IS NOT ALREADY A PARTY.
23 (E) IN CAMERA PROCEEDINGS.--COURT PROCEEDINGS AS TO THE
24 DISCLOSURE OF THE INFORMATION SHALL BE CONDUCTED IN CAMERA,
25 UNLESS THE SUBJECT AGREES TO A HEARING IN OPEN COURT OR UNLESS
26 THE COURT DETERMINES THAT A PUBLIC HEARING IS NECESSARY TO THE
27 PUBLIC INTEREST AND THE PROPER ADMINISTRATION OF JUSTICE.
28 (F) SAFEGUARDS AGAINST DISCLOSURE.--UPON THE ISSUANCE OF AN
29 ORDER TO DISCLOSE THE INFORMATION, THE COURT SHALL IMPOSE
30 APPROPRIATE SAFEGUARDS AGAINST UNAUTHORIZED DISCLOSURE WHICH
19890S1163B1803 - 20 -
1 SHALL SPECIFY THE FOLLOWING:
2 (1) THE PARTICULAR INFORMATION WHICH IS ESSENTIAL TO
3 ACCOMMODATE THE NEED OF THE PARTY SEEKING DISCLOSURE.
4 (2) THE PERSONS WHO MAY HAVE ACCESS TO THE INFORMATION.
5 (3) THE PURPOSES FOR WHICH THE INFORMATION WILL BE USED.
6 (4) THE APPROPRIATE PROHIBITIONS ON FUTURE DISCLOSURE AS
7 PROVIDED FOR IN SECTION 5.
8 SECTION 7. CIVIL IMMUNITY FOR CERTAIN PHYSICIANS.
9 (A) PERMISSIBLE DISCLOSURE.--NOTWITHSTANDING THE PROVISIONS
10 OF SECTION 5, A PHYSICIAN MAY DISCLOSE CONFIDENTIAL HIV-RELATED
11 INFORMATION IF ALL OF THE FOLLOWING CONDITIONS ARE MET:
12 (1) THE DISCLOSURE IS MADE TO A KNOWN CONTACT OF THE
13 SUBJECT.
14 (2) THE PHYSICIAN REASONABLY BELIEVES DISCLOSURE IS
15 MEDICALLY APPROPRIATE, AND THERE IS A SIGNIFICANT RISK OF
16 FUTURE INFECTION TO THE CONTACT.
17 (3) THE PHYSICIAN HAS COUNSELED THE SUBJECT REGARDING
18 THE NEED TO NOTIFY THE CONTACT, AND THE PHYSICIAN REASONABLY
19 BELIEVES THE SUBJECT WILL NOT INFORM THE CONTACT OR ABSTAIN
20 FROM SEXUAL OR NEEDLE-SHARING BEHAVIOR WHICH POSES A
21 SIGNIFICANT RISK OF INFECTION TO THE CONTACT.
22 (4) THE PHYSICIAN HAS INFORMED THE SUBJECT OF HIS INTENT
23 TO MAKE SUCH DISCLOSURE.
24 (B) SUBJECT NOT TO BE IDENTIFIED.--WHEN MAKING SUCH
25 DISCLOSURE TO A CONTACT, THE PHYSICIAN SHALL NOT DISCLOSE THE
26 IDENTITY OF THE SUBJECT OR ANY OTHER CONTACT. DISCLOSURE SHALL
27 BE MADE IN PERSON EXCEPT WHERE CIRCUMSTANCES REASONABLY PREVENT
28 DOING SO.
29 (C) DUTIES RELATING TO CONTACTS.--A PHYSICIAN SHALL HAVE NO
30 DUTY TO IDENTIFY, LOCATE OR NOTIFY ANY CONTACT, AND NO CAUSE OF
19890S1163B1803 - 21 -
1 ACTION SHALL ARISE FOR NONDISCLOSURE, OR FOR DISCLOSURE IN
2 CONFORMITY WITH THIS SECTION.
3 SECTION 8. CIVIL CAUSE OF ACTION.
4 ANY PERSON AGGRIEVED BY A VIOLATION OF THIS ACT SHALL HAVE A
5 CAUSE OF ACTION AGAINST THE PERSON WHO COMMITTED SUCH VIOLATION
6 AND MAY RECOVER COMPENSATORY DAMAGES.
7 SECTION 9. SEPARATE VIOLATIONS.
8 EACH DISCLOSURE OF CONFIDENTIAL HIV-RELATED INFORMATION IN
9 VIOLATION OF THIS ACT OR EACH HIV-RELATED TEST CONDUCTED IN
10 CONTRAVENTION OF THIS ACT IS SEPARATE FOR PURPOSES OF CIVIL
11 LIABILITY.
12 SECTION 10. DISEASE PREVENTION AND CONTROL LAW.
13 INSOFAR AS THE PROVISIONS OF THE ACT OF APRIL 23, 1956 (1955
14 P.L.1510, NO.500), KNOWN AS THE DISEASE PREVENTION AND CONTROL
15 LAW OF 1955, ARE INCONSISTENT WITH THIS ACT, THIS ACT SHALL
16 APPLY.
17 SECTION 11. EFFECTIVE DATE.
18 THIS ACT SHALL TAKE EFFECT IN 90 DAYS.
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