PRINTER'S NO. 4039
No. 2804 Session of 2000
INTRODUCED BY MICOZZIE, SATHER, WRIGHT, GANNON, BENNINGHOFF,
CAPPABIANCA, COLAFELLA, CORRIGAN, LEH, RAMOS, SOLOBAY,
STABACK, E. Z. TAYLOR, WASHINGTON, WILT AND WOJNAROSKI,
OCTOBER 3, 2000
REFERRED TO COMMITTEE ON HEALTH AND HUMAN SERVICES,
OCTOBER 3, 2000
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
1 in order to encourage those most in need to obtain testing and
2 appropriate counseling.] provide for the confidentiality of HIV-
3 related information in order to encourage those at risk to
4 obtain testing and treatment. In addition, it is the intent of
5 the General Assembly to allow physician testing for HIV under
6 the same circumstances physicians would test for other
7 communicable diseases in order to encourage early detection,
8 treatment and prevention.
9 * * *
10 Section 2. The definitions of "available blood," "first
11 responder," "significant exposure," "source patient" and
12 "substitute decisionmaker" in section 3 of the act are repealed.
13 Section 3. Sections 5, 6, 7(b) and 8(b) of the act are
14 amended to read:
15 Section 5. Consent to HIV-related test.
16 [(a) Consent.--Except as provided in section 6 with respect
17 to the involuntary testing of a source patient, no HIV-related
18 test shall be performed without first obtaining the informed
19 written consent of the subject. Any consent shall be preceded by
20 an explanation of the test, including its purpose, potential
21 uses, limitations and the meaning of its results.
22 (b) Pretest counseling.--No HIV-related test may be
23 performed without first making available to the subject
24 information regarding measures for the prevention of, exposure
25 to and transmission of HIV.
26 (c) Confirmatory test.--No test result shall be determined
27 as positive, and no positive test result shall be revealed,
28 without confirmatory testing if it is required by generally
29 accepted medical standards.
30 (d) Notice of test result.--The physician who ordered the
20000H2804B4039 - 2 -
1 test, the physician's designee or a successor in the same
2 relationship to the subject shall make a good faith effort to
3 inform the subject of the result regardless of whether the
4 result is positive or negative.
5 (e) Post-test counseling.--
6 (1) No positive or negative test result shall be
7 revealed to the subject without affording the subject the
8 immediate opportunity for individual, face-to-face counseling
9 about:
10 (i) The significance of the test results.
11 (ii) Measures for the prevention of the transmission
12 of HIV.
13 (iii) The benefits of locating and counseling any
14 individual by whom the subject may have been exposed to
15 HIV and the availability of any services with respect to
16 locating and counseling such individual.
17 (2) No positive test result shall be revealed to the
18 subject without, in addition to meeting the requirements of
19 paragraph (1), also affording the subject the immediate
20 opportunity for individual, face-to-face counseling about:
21 (i) The availability of any appropriate health care
22 services, including mental health care, and appropriate
23 social and support services.
24 (ii) The benefits of locating and counseling any
25 individual who the infected subject may have exposed to
26 HIV and the availability of any services with respect to
27 locating and counseling such individual.
28 (f) Blinded HIV-related testing.--Blinded HIV-related
29 testing for purposes of research performed in a manner by which
30 the identity of the test subject is not known and may not be
20000H2804B4039 - 3 -
1 retrieved by the researcher is prohibited, unless reviewed and
2 approved by the institutional review board established by the
3 department except for testing pursuant to research approved by
4 an institutional review board prior to the effective date of
5 this act. The department shall make a good faith effort to
6 maintain records of the results of blinded HIV tests performed
7 in this Commonwealth and shall, on a yearly basis, forward
8 information concerning the results to the appropriate committees
9 of the General Assembly.
10 (g) Exceptions.--
11 (1) The provisions of subsections (a), (b), (c), (d) and
12 (e) shall not apply to the following:
13 (i) The performance of an HIV-related test on a
14 cadaver by a health care provider which procures,
15 processes, distributes or uses a human body or a human
16 body part, tissue or semen for use in medical research,
17 therapy or transplantation.
18 (ii) The performance of an HIV-related test for the
19 purpose of medical research not prohibited by subsection
20 (f) if the testing is performed in a manner by which the
21 identity of the test subject is not known and may not be
22 retrieved by the researcher.
23 (iii) The performance of an HIV-related test when
24 the test result of a subject is required by an insurer
25 for underwriting purposes. However, the insurer shall
26 satisfy the requirements of subsection (h).
27 (2) The provisions of subsections (a), (b) and (c) shall
28 not apply to the performance of an HIV-related test in a
29 medical emergency when the subject of the test is unable to
30 grant or withhold consent and the test result is medically
20000H2804B4039 - 4 -
1 necessary for diagnostic purposes to provide appropriate
2 emergency care to the subject.
3 (3) The provisions of subsections (d) and (e) shall not
4 apply when a negative HIV-related test result is secured by a
5 subject who has taken the test solely to satisfy a
6 requirement for donating a human body or human body part,
7 tissue or semen for use in medical research, therapy,
8 transfusion or transplantation. However, if the subject
9 requests identification of a negative test result, the test
10 result shall be provided to the subject in accordance with
11 subsection (d).
12 (h) Requirements] (a) Consent requirements applicable to
13 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
20000H2804B4039 - 5 -
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 (b) Consent requirements applicable to physicians.--A
21 physician involved in the care of a patient who concludes in the
22 physician's reasonable medical judgment that a HIV-related test
23 is appropriate for the case of the patient, the protection of
24 the public or of health care providers may perform or order an
25 HIV-related test and the informed consent of the patient shall
26 be deemed given.
27 [Section 6. Certification of significant exposure and testing
28 procedures.
29 (a) Physician's evaluation of significant exposure.--
30 (1) Whenever an individual health care provider or first
20000H2804B4039 - 6 -
1 responder experiences an exposure to a patient's blood or
2 bodily fluids during the course of rendering health care or
3 occupational services, the individual may request an
4 evaluation of the exposure, by a physician, to determine if
5 it is a significant exposure as defined in this act. No
6 physician shall certify his own significant exposure or that
7 of any of his employees. Such requests shall be made within
8 72 hours of the exposure.
9 (2) Within 72 hours of the request, the physician shall
10 make written certification of the significance of the
11 exposure.
12 (3) If the physician determines that the individual
13 health care provider or first responder has experienced a
14 significant exposure, the physician shall offer the exposed
15 individual the opportunity to undergo testing, following the
16 procedure outlined in section 5.
17 (b) Opportunity for source patient to consent.--
18 (1) In the event that an exposed individual health care
19 provider or first responder is certified to have experienced
20 a significant exposure and has submitted to an HIV-related
21 test, no testing shall be performed on a source patient's
22 available blood unless the certifying physician provides a
23 copy of the written certification of significant exposure to
24 the source patient's physician or institutional health care
25 provider in possession of the available blood and the source
26 patient's physician or institutional health care provider has
27 made a good faith effort to:
28 (i) Notify the source patient or substitute
29 decisionmaker of the significant exposure.
30 (ii) Seek the source patient's voluntary informed
20000H2804B4039 - 7 -
1 consent to the HIV-related testing as specified in
2 section 5(a).
3 (iii) Provide counseling as required under section
4 5(b).
5 (2) The source patient's physician or institutional
6 health care provider that receives a certification of
7 significant exposure shall begin to comply with the request
8 within 24 hours. If the source patient's physician or
9 institutional health care provider is unable to secure the
10 source patient's consent because the source patient or the
11 source patient's substitute decisionmaker refuses to grant
12 informed consent or the source patient cannot be located, the
13 source patient's physician or institutional health care
14 provider shall arrange for an entry to be placed on the
15 source patient's medical record to that effect. If these
16 procedures are followed and the entry is made on the source
17 patient's medical record, then HIV-related tests shall be
18 performed on the source patient's available blood if
19 requested by the exposed individual health care provider or
20 first responder who has submitted to an HIV-related test.
21 (3) The physician ordering the HIV-related test on a
22 source patient's available blood on behalf of the source
23 patient's physician or institutional health care provider
24 shall comply with section 5(c) through (e).
25 (4) The health care provider or first responder shall be
26 notified of the results of the HIV-related test on the source
27 patient's blood if the health care provider or first
28 responder's baseline HIV-related test is negative. Further
29 disclosure of the test results is prohibited unless
30 authorized under section 7.]
20000H2804B4039 - 8 -
1 Section 6. Offer to counsel.
2 Any health care provider who orders an HIV-related test or
3 notifies the patient of the test results shall make an oral
4 offer to counsel the patient on at least the following:
5 (1) Measures for the prevention of the transmission of
6 HIV.
7 (2) The significance of test results.
8 (3) The availability of any appropriate health care
9 services, including mental health care and appropriate social
10 and support services.
11 Section 7. Confidentiality of records.
12 * * *
13 (b) Subsequent disclosure prohibited.--[Notwithstanding the
14 provisions of the Vital Statistics Law of 1953 or section 15 of
15 the Disease Prevention and Control Law of 1955, no] No person to
16 whom confidential HIV-related information has been disclosed
17 under this act may disclose that information to another person,
18 except as authorized by this act[.] or by the Disease Prevention
19 and Control Law of 1955. For the purposes of the Disease
20 Prevention and Control Law of 1955, HIV shall be a communicable
21 and reportable disease and shall be treated by the department as
22 any other communicable disease.
23 * * *
24 Section 8. Court order.
25 * * *
26 (b) Order to test and disclose.--No court may order the
27 performance of an HIV-related test and allow access to the test
28 result unless the court finds, upon application, that all of the
29 following conditions exist:
30 (1) The individual whose test is sought [was afforded
20000H2804B4039 - 9 -
1 informed consent and pretest counseling procedures required
2 by section 5(a) and (b) and the subject] refused to give
3 consent or was not capable of providing consent.
4 (2) The applicant was exposed to a body fluid of the
5 individual whose test is sought and that exposure presents a
6 significant risk of exposure to HIV infection. A
7 determination that the applicant has incurred a significant
8 risk of exposure to HIV infection must be supported by
9 medical and epidemiologic data regarding the transmission of
10 HIV, including, if available, information about the HIV risk
11 status of the source individual and the circumstances in
12 which the alleged exposure took place.
13 (3) The applicant has a compelling need to ascertain the
14 HIV test result of the source individual.
15 * * *
16 Section 4. Section 9(d) of the act is repealed.
17 Section 5. Section 10 of the act is amended to read:
18 Section 10. Civil cause of action.
19 Any person aggrieved by a violation of this act shall have a
20 cause of action against the person who committed such violation
21 and may recover compensatory damages. [In the event of a
22 violation of section 6 by a source patient's physician or an
23 employee thereof, an aggrieved person may recover reasonable
24 attorney fees and costs.]
25 Section 6. This act shall take effect in 60 days.
F5L35BIL/20000H2804B4039 - 10 -